In 2009, Israeli foreign minister Tzipi Livni cancelled an official visit to the UK after a magistrate issued an arrest warrant for war crimes committed during Operation Cast Lead in Gaza, at the request of a group of 16 Palestinian campaigners.
Since then, the law has been changed and this month, Livni – now Leader of the Israeli Opposition – finally made her trip, under the protective immunity of a Foreign Office certificate declaring her and her entourage to be on a diplomatic ‘special mission’.
In September, the Police Reform and Social Responsibility Act changed the law to require the head of the Crown Prosecution Service to agree to any prosecution initiated by a private person under the principle of ‘universal jurisdiction’ – the doctrine that certain crimes against humanity are so severe that the perpetrators should be brought to justice by any country that can, regardless of where the offence was committed.
The first major use of universal jurisdiction in Britain was the 1999 arrest of General Pinochet in London, in order for him to be extradited to Spain, where a senior judge had indicted him for human rights violations.
After 16 months of appeals and counter-appeals, the then House of Lords ruled that (a) Pinochet couldn’t be let off charges such as torture and ‘disappearing’ over 110,000 people simply because of the technicality of where those acts took place, and (b) although foreign leaders are supposedly immune from criminal prosecution, crimes against humanity are too serious and are not covered. However, there are four significant differences between Pinochet’s case and Livni’s.
Firstly, the Pinochet prosecution was handled by our police and our government, who are democratically representative of the UK and have the resources to properly and fairly investigate complex international crimes, as opposed to private individuals who have an agenda and, at the very least, are unlikely to have the money to organise a plausible war crimes prosecution.
Secondly, Pinochet’s deeds were infamous and more or less universally recognised as directly attributable to him.
There were clear and reliable accounts of torture. Hundreds of thousands of people had disappeared. And Pinochet was the leader of the regime carrying out those actions.
Livni, on the other hand, was one minister in a Cabinet of more than twenty members that collectively carried out a complex military campaign that has not produced such damning evidence directly implicating Livni as there was in the case of Pinochet.
Thirdly, all the judges involved in Pinochet’s extradition were senior, as opposed to the magistrate that issued a warrant for Livni. Most British magistrates sit on the bench part-time, as volunteers, and receive limited legal training mainly focussed on minor offences such as vandalism, underage drinking and assault.
Finally, Pinochet had resigned the Presidency of Chile nine months before being charged. Tzipi Livni was still a senior member of a foreign government in 2009, and attempting to arrest her could have – and indeed did – create a major diplomatic incident: the Israeli government instructed its ministers not to travel to the UK at all until the situation was resolved.
Parliament rightly questioned all of these differences. Is it right that a pressure group can have anyone they oppose arrested simply by accusing them of any crime, especially when there is no realistic chance of them ultimately being found guilty?
Is it right that a low-ranking judge is able to have foreign government ministers arrested and create serious diplomatic rows?
Is it right that magistrates, whose function is generally to deal with low-level crime and dispense prison sentences of up to six months, should be taking it upon themselves to enforce international law?
The conclusion that Parliament reached was ‘no’, and the safeguard of requiring the Director of Public Prosecutions’ consent was instituted.
Therefore, when Ms Livni announced an October visit to the UK, the Palestinian Centre for Human Rights immediately applied to the DPP to have her arrested for war crimes.
However, before he reached his decision, the Foreign Secretary William Hague issued a rarely-heard-of certificate declaring the Israeli delegation to be a diplomatic ‘special mission’, which granted them criminal immunity that couldn’t be challenged by the courts.
This has enraged various pro-Palestinian organisations, and generated headlines such as, “Sleep easy, war criminals,” and, “Who cooked up Livni’s keep-out-of-jail card?”
But these commentators are missing the very point of universal jurisdiction, which is to enable democracies such as our own to seize rare opportunities for despots to be brought to justice.
It was necessary to pounce on Pinochet while he was in London, because another such chance might not have presented itself for years. But Livni isn’t a General Pinochet rarely venturing out of Chile. She’s not a Saddam Hussein cowering in a hole in Iraq. Nor is she a Ratko Mladic living incognito in a remote Serbian farmhouse. Tzipi Livni is still active in Israeli politics and frequently makes trips abroad. She is highly unlikely to change her identity, undergo plastic surgery and escape to South America.
So if, one day, truly compelling evidence emerges that directly links her to crimes against humanity, then the Israeli, or another, judicial system will have no difficulty finding her.