Will the Animosity against Israelis ever End?

On October 6, 2011 Tzipi Livni, former Israeli foreign minister and leader of the Kadima party, met in London with British foreign secretary William Hague. Her previous attempt to attend a conference in Britain in December 2009 was prevented because an intended arrest warrant was issued by the Westminster magistrates' court.  She was to be arrested for her alleged involvement as Israel's foreign minister in Operation Cast Lead, the Israeli response to the incessant shelling from Gaza, between December 27, 2008 and January 18, 2009. The issuing of the warrant was based on the principle of universal jurisdiction which allows the prosecution of war criminals in any country even if the criminal act took place elsewhere.

Although she finally did visit London in October 2011, Livni was almost prevented from entering the UK for a second time.  She should have been allowed to enter the UK last October on the basis of a change in British universal jurisdiction law a month earlier. The change requires submission of the warrant to the Director of Public Prosecutions for approval.  The Director can deny any request that seems to be political rather than substantive.  But even with the alteration in law, a number of lawyers hostile to Israel tried to prevent Livni from making her October visit 2011 visit to the UK. Despite the new law, they still attempted to issue an arrest warrant, arguing that the change in law did not provide protection against arrest and prosecution of an Israeli official.  British foreign minister, William Hague, was forced to issue a certificate declaring that she was on a "special mission."  The designation of "special mission meant that the visit included diplomatic functions, thus providing immunity from legal action since the courts cannot challenge a diplomatic classification.  Hague's action is commendable and Livni attended the conference but the as can be seen from her experience the problem of harassment of Israeli officials and animosity against Israel remains despite the change in the law.

 Just to spell out the principle of universal jurisdiction in more detail, it provides for national courts to adjudicate cases against foreigners alleged to have committed crimes against humanity, war crimes, genocide, and torture, irrespective of where the alleged crimes were committed or the nationality of the accused, or whether the actions had done damage to the citizens or interests in the country of the court.  Under the Geneva Conventions Act of 1957, war crimes and other grave offences are subject to universal jurisdiction. Some form of universal jurisdiction is now present in the legal systems of most countries in the world.

The principle seems eminently reasonable on the premise that such crimes are so serious that they should be prosecuted everywhere. It provided the rationale for the trial of Adolf Eichmann in Jerusalem in 1962. The Israeli court held that the crimes committed by Eichmann, one of the major Nazi figures responsible for the Holocaust, not only bore an international character but also that their widespread harmful effects shook the international community to its very foundation.  It held that the state of Israel was therefore entitled to try and to punish him.

The principle seems equally reasonable as embodying the rule of law that perpetrators of serious violations of human rights should not use foreign countries as a haven to escape punishment. Thus, international tribunals, since the Nuremberg trials, have examined actions by individuals in the former Yugoslavia in 1993 and Rwanda in 1994. The Rome Statute of the International Criminal Court, 1999, declared that the most serious crimes of concern to the international community as a whole must not go unpunished. Effective prosecution would be ensured by action at the national level and by enhancing international cooperation.

Desirable though the use of the principle has been on some occasions, the essential problem is that it has also been abused for political purposes. The chief targets have been Israelis. In 2003, Ariel Sharon, Israeli minister of defense during the civil war in Lebanon when Christian Maronites killed 800 Palestinians in a camp in Beirut, was accused of war crimes in a court in Brussels. Two Israeli military figures, Doron Almog in September 2005 and Moshe Ya'alon in October 2009, could not visit Britain for fear of being charged with war crimes.  In September 2009, an arrest of Ehud Barak, then defense minister, was only prevented in Britain because the British Foreign Office said he had diplomatic immunity. Several other Israeli generals or former generals have decided not to visit European countries because of the fear of being arrested for war crimes. Among them were General Yohannan Locker, military secretary to prime minister Netanyahu, and General Aviv Kochavi, head of Israel's Intelligence Corps.  While some attempts have also been made to issue warrants against other individuals such as Henry Kissinger and Bo Xilai, Chinese trade minister, most warrants have been against Israelis.

To remedy this abuse of its justice system Britain on September 15, 2011 passed the Police Reform and Social Responsibility Act.  By British law, in cases of universal jurisdiction, anyone may apply to a magistrate or to the courts for a summons or an arrest warrant of those alleged to have committed war crimes anywhere. The essence of the reform was to establish a procedure under which   the Director of Public Prosecutions would be required to consent when an individual or group called for an arrest warrant.  He can decline issues of warrants made for political purposes, to cause embarrassment, or when there is such scant evidence that there is no realistic chance of prosecution.  The change in British law is intended to ensure that visitors to the country will be protected from malicious and politically motivated arrests, but the legal dilemma is that even with the revision in the law, arrest warrants need less evidence than a case for prosecution. Thus they are being increasingly used for harassment. 

Though the intention of the legal change is well meaning, the problem of harassment of Israelis and the depths of animosity towards Israel remains. Two incidents are particularly revealing.  The first  was the behavior of Baroness (Jenny) Tonge, Liberal Democrat, during the debate on the Police Reform Bill in the House of Lords, in which the Bill passed by only a single vote majority.  The second was the publication of a letter in the newspaper, The Guardian, on December 12, 2010.

Lady Tonge, is well known for her anti- Israeli position.  In February 2010 she argued that Israel should set up an inquiry to disprove that its medical team sent to help in the disaster in Haiti was trafficking in the organs of earthquake victims. In the 2011 House of Lords debate she argued that the real reason for the change in law was the incident relating to allegations of war crimes against Tzipi Livni  in 2009. She attacked the foreign secretary for not having thoroughly examined the evidence against Livni. After being called to order for her remarks she ran out of the chamber. She was officially chastised for disobeying the normal rules of the House of Lords and acting in an inappropriate manner.

The letter in The Guardian, signed by more than 50 people including familiar critics of Israel such as the filmmaker Ken Loach, the playwright Caryl Churchill, and Labour Party members of Parliament, Martin Linton and Jeremy Corbyn, opposed the changes in the Police Reform Bill. The changes, they wrote, would "risk creating a culture of impunity in the minds of those politicians and military leaders who already treat international law with cavalier disregard," and would allow people suspected of war crimes to escape justice. It is not irrelevant that Mr. Linton had warned on March 23, 2010 of the "long tentacles of Israel" interfering in the forthcoming British election, and that Mr. Corbyn was reprimanded for breaching standards of impartiality by his charges against Israel in a television program. Corbyn had always made the absurd allegation that Israel in 2008-9 had used phosphorous bombs against an unarmed and defenseless Palestinian civilian population.

Equally critical of the reform of the law was a conference, entitled "Universal Jurisdiction against Israeli War Criminals" hosted by the Middle East Monitor in London on December 7, 2009. The keynote address was given by John Duggard, former Special Rapporteur to the UN Commission on Human Rights (now the UN Human Rights Council) in the Occupied Palestinian Territories. On this occasion he repeated the title of the conference emphasizing the importance of implementing universal jurisdiction against Israeli war criminals. Earlier, as reported by Al Jazeera, Duggard had compared Israel to Apartheid South Africa, stating that "Both regimes were/are characterized by discrimin

These incidents reveal that animosity towards Israel will, for various reasons, probably be manifested for some time, and the reform in British law has not eliminated that animosity. The anti-Israeli lobby is still engaged in the abuse of international law, under the guise of universal jurisdiction, for political expediency and for harassing Israelis.  It is making a mockery of the Fourth Geneva Convention and the Universal Declaration of Human Rights.

Michael Curtis is Distinguished Professor Emeritus of Political Science at Rutgers University