Letter From London

The Tzipi Livni Affair

Hamas is allowed to make a mockery of British and international law.

By 12.30.09

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The City of Westminster Magistrate's Court, located in a nondescript brick building on Horseferry Road, between Vincent Square and the River Thames in central London, has long been proud of its central role in British jurisprudence. Given its geographical proximity to New Scotland Yard, the presence of the Chief Magistrate of England and Wales within its utterly characterless walls, and its jurisdiction over matters of terrorism and extradition, the Magistrate's Court seems to relish high-profile cases and their attendant publicity. It was unsurprising, then, to learn that it was this court that on December 12 issued the now-infamous arrest warrant for Israel's opposition leader Tzipi Livni, based on war crimes allegations stemming from the Israeli Defense Force's 2008-9 "Operation Cast Lead" in Gaza.

Such an arrest warrant was far from unprecedented. As recently as September, pro-Palestinian lawyers sought to have Israel's Defense Minister Ehud Barak arrested, while military and security officials like Doron Almog, Moshe Yaalon, and Avi Dichter have likewise been forced to contend with similar warrants. To date, these warrants have either been quashed due to grants of diplomatic immunity to serving cabinet ministers (as was the case with the Barak warrant), or are revoked when former officials catch wind of the legal gambit and call off their planned visit. The "Livni Affair" falls into the latter camp; the Kadima party leader was obliged to cancel her appearance at the Jewish National Fund's Vision 2010 conference in Hendon, and two days later the warrant was abrogated. The diplomatic fallout was inevitable, with Israeli Prime Minister Benjamin Netanyahu "completely reject[ing] this absurdity taking place in Britain," while Livni herself insisted that "what needs to be put on trial here is the abuse of the British legal system." British Prime Minister Gordon Brown and Foreign Secretary David Miliband were quick to apologize to their Israeli counterparts (the judges having acted without the involvement of the attorney general), while certain British human rights groups and leftist newspapers could only lament that they had been denied the long-sought spectacle of a war crimes trial with an Israeli official in the defendant's chair.

Though the affair amounted to something of a damp squib, with Livni avoiding what some would call justice but what most would call a serious diplomatic affront, the political and legal ramifications will be longer lasting. Seen in purely bilateral terms, the Livni arrest warrant issuance is yet another in a series of events that has served to inflame British-Israeli relations, including a December British Government advisory suggesting that supermarkets could provide labels distinguishing Palestinian and Israeli goods produced in the West Bank, last year's release of a 2002 dossier that, according to Neil Wigan, head of the Foreign and Commonwealth Office's Arab, Israel and North Africa Group, appears to confirm the "pre-existing suspicion" that "parts of the FCO are prejudiced against" Israel, all in addition to more substantive geopolitical disagreements over Israeli actions during the 2006 Lebanon and 2008 Gaza campaigns. At least policy disagreements can be attributed to diverging interests, but the attempted service of an arrest warrant on a prominent Israeli politician, indeed the leader of the largest parliamentary faction in the country, creates particular diplomatic obstacles. Even the editorialists at the left-wing British daily newspaper the Guardian have admitted that the most recent dispute is particularly problematic, since, as should be obvious enough, "Britain can not engage with Israeli leaders if they are arrested when they step off the plane." One imagines it will take some time to repair the bilateral damage resulting from the "Livni affair."

Yet this storm could easily have been weathered, and the matter of the arrest warrant forgotten (just as the Barak and Almog warrants seem to have been), but for the revelation that the Islamist group Hamas had played a key role in the events that transpired in mid-December. On December 21, the Times of London reported that Diya al-Din Madhoun, a Hamas official, had been tasked with coordinating a legal campaign against Israeli ministers, with "all the political and military leaders of the occupation in our [Hamas'] sights." "We have provided a group of independent lawyers in Britain with documents, information and evidence concerning war crimes committed by Israeli political and military leaders, including Ms Livni," Madhoun helpfully elaborated. That "lawfare" is being waged on British soil came, we are told, entirely as a shock to the Foreign and Commonwealth Office, which immediately issued a statement that the British policymakers were "looking urgently at ways in which the UK system might be changed in order to avoid this sort of situation arising again."

Britain, it must be noted, is hardly alone in finding its court system instrumentalized as part of this global legal campaign. Notorious controversies involving universal jurisdiction laws, which allow national prosecution of those alleged to have committed grave breaches of human rights law regardless of the existence of a jurisdictional connection to the prosecuting country, have embroiled diplomats, legislators, judges, and prosecutors all over the world, though particularly in Western Europe. Over the course of the last decade, global powers like the United States, China, and Israel have found their own officials, past and present, subjected to criminal investigations by courts in Brussels or Madrid; Israeli legal advisors have even cautioned leaders against traveling to Britain, Belgium, Norway, Spain, the better to avoid possible arrest and prosecution. Although the threat of diplomatic repercussions, usually by the United States, has heretofore prompted legislators in Belgium and Spain to scale back their legal efforts, it now appears that Hamas, along with sympathetic human rights lawyers, prosecutors, and judges, is escalating its own campaign.

The danger here is readily apparent. The last thing the civilized world needs as it contends with a myriad of thorny diplomatic and international security issues, is, as Evelyn Waugh put it in 1939, the "drying up of civilization" wherein "cracks appear and widen" and "the parched nations shrink away from one another." Politicized arrest warrants aimed at foreign officials are one type of desiccant that can accomplish precisely that, as even the Guardian was forced to admit. Yet "lawfare" under the guise of international criminal justice is not merely counterproductive; it eats away at the framework of the entire international system. "The respect which is due to sovereigns," the Swiss 18th-century jurist Emmerich de Vattel argued, "should redound to their representatives," for without immunity "it would be impossible for nations to cultivate the society that nature has established among them, to keep up a mutual correspondence, to treat of their affairs, or to adjust their differences." For Vattel, as for every other classical theorist of international law and diplomacy, there was something "sacred and inviolable" about "the persons of ministers."

Though elite infatuation with the transnationalist Weltanschauung has admittedly eaten away at traditional norms of sovereignty, Vattel's postulate has not been wholly abandoned. The International Court of Justice, for instance, checked the spread of the application of universal jurisdiction in the 2002 Belgian Arrest Warrant Case, the majority opinion of which emphasized the importance of sovereign immunity for those representatives of the state who "must be in a position freely to [travel]…whenever the need should arise" (in that case one Yerodia Ndombasi, a Congolese official alleged by Belgian prosecutors to have committed "serious violations of international law" and then threatened with a trial in absentia). This of little consolation to those former officials who, lacking such immunity, find themselves "in their own legal black holes," as the British activist barrister Philippe Sands put it earlier this year when crowing -- prematurely as it turned happened -- about subsequently abandoned Spanish investigations into American officials accused of complicity in torture. It is in these situations that diplomatic resolution is all the more important, given the natural pliability of legislatures in this respect.

The doctrine of universal jurisdiction has proven relatively uncontroversial when applied to true hostis human generis, the category of "enemies of all humanity" typified by Adolf Eichmann, whose 1961 trial in Israeli was rooted in the principle that a jurisdictional hook should not be required, nor sovereign immunity granted, when the alleged crime transcends all borders and all moral bounds. Indeed the aut dedere aut judicare (extradite or prosecute) provisions of international instruments like the Geneva Conventions appear to require such prosecutions, so as to prevent wrongdoers from falling into jurisdictional cracks. Yet for every seemingly altruistic trial of, say, an alleged Rwandan war criminal in Montreal or Helsinki, conducted with the cooperation of interested nations, victims, and international bodies, there is an equal number of controversial counterparts, like the various Belgian or Spanish investigations into individuals ranging from Norman Schwarzkopf to Augusto Pinochet, or the French proceedings against Rwandan officials that can only be seen as intended to deflect attention away from French complicity in the 1994 Rwandan genocide. The December 12 Tzipi Livni arrest warrant, issued by the City of Westminster Magistrate's Court, is only the most recent in a long line of such maneuvers, and traditional, as opposed to soft, powers must remain vigilant in this regard.

The open and notorious involvement of Hamas in the British proceedings, however, could prove crucial. Diya al-Din Madhoun was hardly coy about his organization's involvement in a global legal campaign against Israeli officials, and it is astounding that the Islamic Resistance Movement, a "proscribed terrorist group" in the United Kingdom, should be able to instrumentalize British courts so brazenly and, all things considered, effectively. That this has come to pass should prompt some to question the talismanic properties ascribed by many to international human rights law. As early as 1764 the legal reformer Cesare Beccaria was already chiding those who believed that judges "were the vindicators of mankind [quasi che i giudici vindici fossero della sensibilità degli uomini] and not the guardians of pacts that bind men to one another," yet recent events show that such criticism, long directed at proponents of a wider application of universal jurisdiction, did not go far enough. The role of that eminence grise, Diya al-Din Madhoun, credited in no small part for the "Livni affair," clearly demonstrates the glaring flaws present in national applications of human rights law, just as the role of the Organization of the Islamic Conference as "the initiator of this process" (according to OIC Secretary-General Ekmeleddin Ihsanoglu) that produced the arguably deeply flawed, and inarguably one-sided, Report of the United Nations Fact-Finding Mission on the Gaza Conflict (the "Goldstone Report"), demonstrates similar flaws at an international level, flaws that go well beyond quixotism.

The doctrine of universal jurisdiction is not going anywhere, firmly ensconced as it is in international instruments and numerous nations' domestic law. Yet the "Livni affair" and the various other similar legal-diplomatic controversies of the last decade underscore both the need to understand what motivates the initiation of such proceedings, and the need to limit the damage they can do. It is no secret that international law is often invoked opportunistically, as well as genuinely or naively, but the basic principles of human rights law are too important for related instruments to be twisted so as to make it "impossible for nations to cultivate the society that nature has established among them," and even in some cases twisted by those who would destroy that very international society in toto if given half the chance.

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About the Author

Matthew Omolesky specialized in European affairs at the Whitehead School of Diplomacy's graduate program, and received his juris doctor from The Ohio State University's Moritz College of Law. Formerly a researcher-in-residence at the Institut za Civilizacijo in Kulturo (Ljubljana), he is presently a researcher for the Laboratoire Europeen d'Anticipation Politique (Paris) and a specialist in international human rights law.