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THE warrant recently granted by Bow Street Magistrates' Court
to a Palestinian for the arrest of an Israeli officer, Major-General
(reserve) oron Almog, has demonstrated the potency of universal
jurisdiction over alleged war criminals but some critics have
said that UK courts should not be able to exercise universal
jurisdiction at all.
For many years, most cases of killings, punitive house demolitions
and torture in the occupied Palestinian territories have not
been the subject of criminal investigations, let alone prosecutions,
in Israel. Therefore, lawyers from the Palestinian Centre for
Human Rights looked abroad for remedies to these alleged international
crimes.
Taking cases such as these prompts strong reactions. Our law
firm received dozens of angry responses from diehard supporters
of Israeli policies, from British and American Jews as well as
non-Jews telephone calls, e-mails, faxes and letters in response
to publicity that we were acting for the Palestinian Centre for
Human Rights. We also received abusive, threatening and informed
personal attacks all of which miss the point. By contrast, there
has also been genuine debate in the Hebrew press.
The case effectively began when, in August, we presented evidence
to the British police of alleged crimes committed by Almog (four
cases while he was commander of the Gaza Strip from 2000 to 2003)
and others. Under the Geneva Conventions Act 1957, the UK has
universal jurisdiction to arrest and try suspected perpetrators
of grave breaches of the Fourth Geneva Convention 1949 (IVGC).
In the time available before Almog's visit to the UK, the police
were unable to decide whether to arrest him using their normal
powers. Therefore, an application was made to the magistrates'
court for an arrest warrant. This was granted on September 10.
On September 11, Almog arrived at Heathrow airport, where
police were waiting for him. He was tipped off about the planned
arrest and remained on the aircraft. As the police failed to
board the aircraft to arrest him, he returned to Israel on the
same plane. The attempt to bring Almog to justice in the UK has
therefore been frustrated. The Israeli Government is now seeking
urgent changes in UK law to prevent any chances of future arrests
or prosecutions in the UK. It is troubling that any country should
seek immunity from universal jurisdiction.
When IVGC was negotiated, the actions of Germany and Japan
as military occupiers were fresh in the minds of the diplomats
(as well as in the minds of their political masters). Third parties
(that is, including those not involved in a particular conflict)
were given legal obligations so that they might effectively hold
the ring between the military occupier and the (otherwise unrepresented)
civilians under occupation.
It is always to be hoped that a country engaged in a military
occupation will uphold civilised standards and avoid the temptation
to take advantage of the overpowering strength it wields over
the civilians under its control. Occupying armies and the military
and civilian legal systems of the occupying power should be able
to bring to account its own war criminals. This does happen in
Israel in a few cases, but most alleged crimes are not even investigated
as such. They are either ignored or officially sanctioned as
legal in the teeth of international legal opinion to the contrary.
In these circumstances, a climate of impunity can take hold
in an occupying army. One of the few ways to combat impunity
is the practical application of universal jurisdiction. Criminal
trials in the domestic courts of third-party states (those remote
from the conflicts in question) since 1949 might have deterred
many war crimes. However, many alleged crimes in, for example,
the occupied territories, Kuwait and East Timor have gone unchallenged
across the world. Israelis, Iraqis and Indonesians should have
been arrested and tried in other countries, to ensure legal accountability
but also to deter criminality.
Sadly, individual states have lacked the political will to
prosecute foreign war criminals. Countries have resisted getting
involved, even though they have a legal duty to seek out and
prosecute alleged war criminals (Article 146 IVGC). Instead of
individual countries doing their duty, in the few cases where
international consensus has been possible, a pooling of resources
has been achieved through the creation of ad hoc international
criminal tribunals set up under resolutions of the UN Security
Council.
There is no chance of such an ad hoc tribunal being established
in the foreseeable future in the case of Israel, as the US would
veto such a proposal at the UN Security Council. Furthermore,
the International Criminal Court cannot deal with alleged Israeli
war crimes as Israel has refused to sign up to it.
Where can alleged victims of Israeli war crimes receive justice
if their route to justice is blocked off in Israel and at the
International Criminal Court? Only the under-used principle of
universal jurisdiction can deliver justice to such alleged victims
and potentially save future victims. If countries such as the
United Kingdom fail to do their duty, as seems to have been the
case here, impunity will continue to prevail.
Daniel Machover is a partner and Kate Maynard a solicitor
with Hickman and Rose Solicitors.
Daniel Machover, who has joint British and Israeli citizenship,
founded Lawyers for Palestinian Human Rights in 1988
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