Wednesday, December 16, 2009

The Latest Lawfare: Attempt to Arrest Livni in the UK

There is a great deal of uncertainty surrounding recent reports that Israeli opposition leader Livni cancelled a trip to the UK because, supposedly, a British court had been petitioned to issue an arrest warrant for Ms. Livni for alleged war crimes committed by the IDF in Gaza. The arrest warrant, had it been issued, would have been allowed under British universal jurisdiction laws which allow the prosecution of individuals who are not British citizens. As a result of the confusion surrounding this incident the UK ambassador to Israel was called out onto the carpet in Israel and the British foreign minister admitted his embarrassment and apologized to the Israeli government for this episode pledging to examine British Universal jurisdiction to prevent any repeats.

A few points are worth making here. First, it is unclear who was seeking to press charges and what these charges were. The UK does have universal jurisdiction, as summarized here by Human Rights Watch, but the charges in this case are unknown. The mystery surrounding this whole episode is itself disturbing. Generally, Western legal systems seek to afford the most transparent process and procedures possible. Certainly, procedural battles are a key component of most legal disputes and lawyers do play underhanded tricks on one another, but the rule tends to be that it is unacceptable to take any of the parties by surprise. In this case, the procedures were obscured and were cloaked in secrecy so as to catch Livni and the Israeli government off-guard. Indeed, given all the secrecy surrounding the legal proceedings, it is unclear how Livni was tipped off about the potential warrant in the first place.

The British government has, in the wake of this affair, suggested that they will review how their system of universal jurisdiction is applied. Currently, if there were to be charges under the UK Geneva Conventions Act, for example, charges could be brought by anybody against anybody for alleged breaches that took place anywhere. The decision to proceed with these charges, would ultimately rest with the UK Attorney General. The Attorney General's decision to prosecute or not would seem to be a safeguard against frivolous cases, but the reality is, anyone can still present a case to the court and it seems that an arrest warrant may still be issued before the Attorney General makes the decision to proceed or not. It is hard to imagine how a law can be crafted so as to maintain the Independence of the judicial branch while allowing for legitimate charges to be brought against actual war criminals, for example the president of the Sudan, while politically motivated cases like this attempt against Livni would not be allowed.

The UK Foreign Minister called this incident "insufferable" and made remarks about the importance of Israeli leaders being able to travel freely to build relations and work towards peace. Importantly, the statement speaks only of Israeli leaders, not, ordinary citizens. If British laws are reviewed to avoid situations like this one, given the Minister's statement, would Livni be any more of a legitimate candidate for arrest? It would seem so given the careful wording used by the Minister. It is Israeli leaders who are to be protected. This raises the question of how do the citizens, politicians and soldiers, who have served their country in a war, fighting in asymmetrical conflicts where civilians have been killed receive protection from frivolous lawsuits aimed at delegitimizing them and punishing them for justifiable actions? Perhaps the best, and simplest solution would be to limit the application of universal jurisdiction only to those cases where the International Criminal Court has issued an arrest warrant. This way, only when a citizen of a country that recognizes the jurisdiction of the ICC arrives in a foreign country can they be arrested. If the ICC had no jurisdiction, then no other country would be allowed to make arrests. This solution is not perfect, but is better that massive lawfare--asymmetrical warfare waged in the courts--which seeks to tie Israel's hands and prevent it from doing what force of arms cannot.

This attempt at arresting Livni is lawfare for several reasons. It is aimed at painting her, Israel and the war against Hamas as a war crime. It ignores Israel's investigations into its own conduct in the war against Hamas. It is meant to have the effect of limiting Israelis' ability to travel, to conduct diplomatic relations and is meant to make Israeli leaders hesitate before using military force in self defense. Without delving into a discussion of the events in Gaza during the war, it is difficult to imagine an Israeli response that would not have provoked these types of arrest attempts. Even if no civilians had been killed, even if no civilian infrastructure had been damaged, even if there was no controversy over the types of armaments used, it is difficult to imagine that there would now be no legal attempts of this type.

This timely article in the Jerusalem Post refers to these legal swipes at Israel as "Judicial-Jihad" because of the "Islamist" bent of their authors. This is not a fair term. Such cases are not religiously motivated, they are not "Islamist," they are political. So while the terminology the author uses is incorrect, the foundation of his argument is. There is an ideology behind these cases of lawfare that will not easily yield. The courts are merely the newest battlefield for this ideology and the vanguard of lawfare guerrillas is learning that where Hamas may have a hard time physically preventing the IDF from striking a Kassam rocket launcher, they can pin down the decision makers behind that strike in a sea of doubt and hesitation about authorizing what may be a perfectly legitimate action.

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