"War crimes" prosecution
How a legal quirk gets used to harass and defame Israelis
British Prime Minister Gordon Brown is promising Israel that a wacky British law that’s been used by pro-Palestinian activists to harass Israeli officials is on its way out the door. Whether or not Britain cancels its law, the issue is one that some say imperils the concept of national sovereignty but, more immediately, has become a cudgel to threaten Israel and its leaders.
This week, Israeli Foreign Minister Tzipi Livni became the latest in a line of elected officials and IDF officers who had to cancel plans to visit Great Britain when they learned that warrants for their arrest for “war crimes” had been sworn out in British courts. (It’s also happened in Belgium and Spain.) These warrants are based on a strange legal concept called “universal jurisdiction,” which up-ends the traditional concept of “jurisdiction” — meaning that courts in one locality or country have oversight only over that area or country.
This means that courts in Detroit don’t try cases that happened in Miami, nor can a judge in Miami tell the populace of Detroit what their laws ought to be there. Internationally, courts in Singapore rule over cases that happen in Singapore and don’t have the right or power to make rulings about cases or laws in Holland. Each country or locality has sovereignty–control over itself; it’s the responsibility of each area to set laws and try cases for their own jurisdiction. (This is why criminals are extradited — they have to be tried in the areas in which they’re accused of committing crimes.).
Universal jurisdiction, however, allows courts in one locality to extend their jurisdiction into other areas: So that one area’s courts can claim the right to prosecute offenses that happened well outside its area of jurisdiction. Once this crosses international borders, extending jurisdiction can be said to compromise national sovereignty. (Jurist Robert Bork is one of the legal scholars who’ve explored this issue in detail.)
(Ironically, one of the first cases in which a country tried someone for offenses that occurred outside its border was Israel’s prosecution of Gestapo Chief Adolf Eichmann in 1962. Tried for crimes against humanity and war crimes–he has often been called the “architect of the Holocaust”–he is the only personto receive the death penalty in the Jewish State.)
In the last few decades, universal jurisdiction received major boosts when it was adopted by a number of major Western countries and, especially, when the UN established the International Criminal Court (ICC) in 1998, which would have the power to investigate and charge any individual anywhere for “genocide, crimes against humanity, war crimes, [and] the crime of aggression.” The ICC has yet to get fully off the ground since U.S. under the Bush administration refused to join it; President Obama has said that the U.S. will cooperate with the Court but has not yet ratified the treaty to make this official.
Beyond questions of compromising national sovereignty (which are more relevant than ever as some nations pursue a war against terror, while others seek to pacify or placate terrorists and their sponsors), the growth of “universal jusrisdiction” poses a particular threat to Israel, whether in the cases of countries like Britain or Belgium, or in the case of the ICC. As the Israeli journal Azure explained regarding the ICC, such courts are “almost certain to become just as politicized as the many other international bodies created in a similar spirit over the past half century.”
And so, accusations against Israel are pursued zealously in foreign courts, while they ignore the misdeeds of Hamas and other terrorist groups, as well as take Israeli actions out of context. (For instance, the near-impossibility of waging war against a terrorist group without impacting civilians if the terrorist group uses those civilians as human shields.)
Plus, these show trials ignore the fact that Israel’s own judiciary may have already explored and dismissed accusations of malfeasance, misbehavior, or gross violations of law. Israel’s judiciary and IDF oversight may be imperfect, but they do work — and they give truth a much better chance than do the kangaroo courts of public opinion, which, sadly, are only too eager to convict the Jewish state and its citizens of all manner of crimes — when the real crime they’ve committed is daring to defend themselves.
UK officials are discussing the possibility of changing the universal jurisdiction law by requiring that the Attorney General approve any warrants (Canada took this route); legal experts tell SFI that they can’t do away with the law all together since it’s required by the country’s ratification of the ICC.