Amending justice

Britain’s amendment of its universal jurisdiction law is a step in the right direction, but what’s needed is a more coherent policy.

September 20, 2011 23:49
3 minute read.
Tzipi Livni at a live Q&A session, Sunday.

tzipi livni_311. (photo credit: Idan Gross )

The recent amendment of Britain’s universal jurisdiction law was, unsurprisingly, particularly welcomed in Israeli legal and political circles. The law, allowing in its previous form the issuing of arrest warrants through a magistrate’s decree in cases of grave breaches of international humanitarian law, had for the past few years deterred senior members of the Israeli political and military echelon from traveling to Britain. Under its amendment, the final decision for the issuing of such warrants falls to the Director of Public Prosecutions.

There is no doubt the amendment should be hailed. First because it was long anticipated as a consistent British commitment to both the current and previous Israeli governments, and second because it heeds the call of the times. In the era heralded by the Arab Spring, there is greater awareness of the role of the people as agents of change, whether via parliamentary mechanisms or demonstrations.

Only recently, the US Congress openly cast doubts on the legality of America’s involvement in Libya, Israel’s Knesset Speaker asked for an advisory opinion on whether governmental permission for the deployment of Egyptian troops to Sinai violated the Camp David accords, and in Australia, the parliament emphatically requested that the government discuss its controversial asylum-seekers policy.

Now more than ever it is evident that courts serve ex post facto; when all other institutions fail to administer justice. Thus for example in Australia, the country’s High Court intervened to annul the refugee swap agreement with Malaysia only after the government did not heed opposing voices.

This ex post facto judicial function is also evident in the recent British amendment.

The Director of Public Prosecutions is meant to intervene only in cases that have passed the filter of international debate.

There is no doubt that the status quo ante allowed for an unjustified politicization of the British judicial system, an occurrence minimized if not rendered obsolete by the current amendment.

YET THE question is if such politicization will not now be transferred to the international field. While the amendment closes the door for Israeli officials’ indictment in Great Britain, the incumbent declaration of Palestinian statehood opens the door for their possible indictment by the International Criminal Court. A Palestinian request to the Court for investigation of possible Israeli crimes in Gaza has been halted the past few years due to the debate on whether the Palestinians fulfill the necessary state requirement in order to be able to accept the Court’s jurisdiction. A successful UN statehood bid would erase this hurdle.

The British government’s conduct in the international bodies where Israeli citizens’ International Criminal Court referral is going to be raised, will demonstrate whether the amendment stems from a firm conviction that Israeli officers are not war criminals, or merely constitutes a cynical attempt to shed responsibility for such indictments.

The latter is not at all improbable. Only recently, Turkey declared it would turn to an unspecified international court to dispute a UN panel’s findings on the legality of Israel’s Gaza closure. Ultimately, it seemed it did not matter, the important thing being just recourse to an international judicial body.

International justice cannot serve as the scapegoat of domestic judicial systems or of politically motivated motions. Of course the law had to be amended, but the British government has to follow up the initiative in the international sphere. What is needed is not a solitary initiative or voice, but a coherent policy line. By forming such a policy the United Kingdom will bolster its regional and international stance and thus international justice will preserve its profile, proving that after all, not all is either justiciable or justifiable.

The author has served in the past in the Knesset Legal Department in charge of international and constitutional issues, and is the author of The Justiciability of International Disputes: The Advisory Opinion on Israel’s Security Fence as a Case Study.

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