The unending problem of universal jurisdiction

Will Israeli soldiers visiting England be arrested for war crimes?

By TREVOR ASSERSON
Almog 370 (photo credit: Ariel Jerozolimski)
Almog 370
(photo credit: Ariel Jerozolimski)
On September 15, 2005, Doron Almog, an IDF general with an illustrious military career, landed in London on an El Al flight. He was in London fundraising for Aleh, a charity which provides residential facilities for disabled children. Gen. Almog did not expect to have any difficulties passing through airport control in London. In fact, the British police were waiting for him. A lawyer in London had asked a local court to issue an arrest warrant for Gen. Almog, and the policemen were waiting at passport control to take the general into custody.
Gen. Almog had a lucky escape. Someone had warned him before he landed that the police were waiting for him and he stayed on the plane. El Al did not permit the policemen to board the plane, and Gen. Almog flew back to Israel without stepping on British soil. How did Gen.
Almog come so close to being arrested, and should other Israeli soldiers be worried about this possibility, too? The law in England has changed since 2005, though, and this article looks at the position then and now.
Under international law, some crimes are considered so serious that a person who has committed them may be arrested and tried in any country, not just the place where the crime was committed or where the person lives, which is normally the rule. Such crimes include piracy, torture and war crimes. The principle is called “universal jurisdiction” because a court in any country will consider itself to have jurisdiction over the whole world when it comes to these crimes.
Pursuant to that universal jurisdiction, a dictator from South America accused of torturing people in his own country can be arrested in Britain on a warrant issued by a Spanish judge, as happened in 1998 to General Pinochet, the former president of Chile.
Until 2011, England and Wales had permissive rules about who could ask the courts for an arrest warrant in relation to a crime subject to universal jurisdiction.
Any person could put information before a magistrate that a crime had been committed, even one committed outside the court’s jurisdiction, and the magistrate could issue an arrest warrant. In the case of Gen. Almog a pro-Palestinian group was responsible for obtaining the warrant.
There were exceptions for foreign politicians in the country on a “special mission,” but not for ordinary soldiers.
This situation resulted in Israeli politicians including the former opposition leader, Tzipi Livni, canceling planned trips to the UK for fear of being arrested.
In 2011 Parliament passed the Police Reform and Social Responsibility Act to deal with this problem. Under the new law the prior permission of the Director of Public Prosecutions (DPP) is required before a warrant can be issued against foreigners suspected of war crimes committed outside of the UK. The DPP is a lawyer employed by the government to decide, according to strict criteria, which suspected criminals should be prosecuted. In particular, only cases which have a realistic prospect of conviction and where prosecution is in the public interest should be pursued.
Even with this new law, Doron Almog cancelled a planned trip to England in June this year because he was advised by Israeli government lawyers that the DPP might decide that the he should be arrested.
The Israeli government would prefer the decision of whether to arrest to be made by a politician, who would take into account diplomatic considerations, not by a civil servant who has no such constraints.
In October 2011, when Tzipi Livni visited the UK and an arrest warrant was applied for under the new law, the DPP stated that it had not concluded whether to prosecute her or not, because she was in England on a “special mission” with diplomatic immunity from prosecution. For someone like Gen. Almog without such protection, even the new law seems not to offer sufficient comfort.
Because of the law change there is certainly a smaller risk now that an Israeli soldier visiting England might be arrested for alleged war crimes in, for example, Gaza.
Even if someone placed evidence before a magistrate that the soldier had committed a war crime, the DPP would have to agree before the soldier could be arrested, let alone put on trial. The DPP could only agree if there was good evidence that the soldier had committed the crime, and that prosecution was in the public interest.
Although the meaning of “public interest” has not been tested in relation to Israeli soldiers’ alleged war crimes, it is likely that causing a diplomatic embarrassment to a close ally such as Israel would not be in the English public’s interest in most cases. Accordingly, a soldier who simply served in the IDF, even in a controversial job like manning a checkpoint in the West Bank, but did nothing more unusual than that, would have little to fear in visiting England or Wales.
The writer is senior partner at Asserson Law Offices, an English law firm which operates from offices in London, Jerusalem and Tel Aviv.