Israel has violated innumerable UN resolutions and international laws over the past 50 years without any sanction being incurred whether legal, economic, political or military. Most blatant is its disregard for the overwhelming opinion of the International Court of Justice (ICJ) in The Hague, which in 2004 declared the erection of a wall through the Occupied Territories to be unlawful. If you add the illegal occupation of Palestinian territory, continued extension of illegal colonies, forced evictions and house demolitions, requisition of water resources, the Gaza blockade and illicit use of cloned passports to facilitate an assassination outside Israel, anyone might think that this is a state that regards itself as above the law.
The creation of international crimes with universal jurisdiction was accomplished after years of negotiation and careful deliberation for one purpose: to ensure there could be no hiding place or safe haven for the perpetrators of the most heinous crimes against humanity. In practical terms, it means that no matter where the offence took place, nor who the victims were, nor who carried out the acts, a judicial process could be invoked to prosecute those responsible. Examples of such cases are genocide, war crimes and torture.
The ICJ itself made clear in the wall case that the obligation to prosecute is the concern of all states. The problem is that no state has been willing to take on this task vis-a-vis Israel other than on a very muted diplomatic level. Lawyers acting for individuals in Palestine have been forced to do so themselves.
In 2009, the Westminster magistrates court issued an arrest warrant for Tzipi Livni, the Israeli foreign minister at the time of Operation Cast Lead, which caused an estimated death toll of 1,400 in Gaza. Britain's Labour government hierarchy fell over itself rushing to the Israeli authorities, not about the deaths but to apologise for the warrant.
Revelation
A dramatic incident occurred as Livni was about to appear on Israeli television during the invasion. The interviewer, Shlomi Eldar, recognised a name that appeared on his mobile — Ezz Al Deen Abu Elaish, a Palestinian doctor who had courageously and steadfastly given services without fear or favour equally to Israelis and Palestinians. "They shelled my house. They killed my daughters. What have we done? Shlomi, I wanted to save them but there are dead. They were hit in the head. They died on the spot. Allah, what have we done to them?" Three of his daughters and his niece had just been killed by Israeli forces.
The call was broadcast and transmitted round the world. The whole story of the operation, as the doctor witnessed it, is told in his acclaimed book I Shall Not Hate.
There could be no question that this admired physician was associated with Hamas or terrorism or even a hostile thought. Only two possibilities make sense: a deliberate attack, or an indiscriminate one that did not afford proper protection for civilians. In these circumstances, it is hardly surprising that the UN fact-finding mission on the Gaza conflict found that the Israelis and Hamas had committed war crimes and possible crimes against humanity.
While the leader of the mission had second thoughts about part of the conclusions in April this year, the other three distinguished members of the panel did not, and the Foreign Office maintained its support for the report and did not wish to see it withdrawn. In any event, none of this relates to a failure to accord civilians proper protection.
In September, the British government changed the ground rules by providing the Director of Public Prosecutions (DPP) with the power of veto over private applications for arrest warrants (in the Police Reform and Social Responsibility Act). It is an insult to the courts to insinuate that they cannot be trusted to assess the requisite threshold for issuing a warrant. In 10 years, only two out of 10 such applications had been granted. We are dealing here with arrest, not charge.
Legal process
The DPP made clear in January that he would consult the attorney-general if approached for approval. The attorney would then decide whether it was in the public interest to prosecute. Such a decision would normally not arise until all relevant evidence had been assembled so that an overview could be made on the twofold test of evidential adequacy and public interest. To essentially assess that there is no reasonable prospect of a conviction at the start is to pre-empt the whole process and makes a mockery of the concept of universal jurisdiction.
It is therefore highly unlikely that any prosecutions of consequence will ensue either at the instigation of the government itself or of an individual. Given the British government's somewhat lacklustre performance in this field when it comes to nations or individuals who are seen to be unacceptable (e.g. Pinochet, where it took a Spanish magistrate to take action), those in positions of command and responsibility at times when war crimes are committed can now rest easily in their beds.
Michael Mansfield QC is an English barrister.
