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If Britain's foreign secretary has
faith in his country's standards of justice, this is the phonecall
he should make
Daniel Machover
guardian.co.uk,
Wednesday 16 December 2009 13.00 GMT
According to news
reports, David Miliband plans to call the leader of the Israeli
opposition, Tzipi Livni, to explain the British government's stance
on the grant of an arrest warrant against her when she had been due
to speak at a Jewish National Fund meeting in Hendon.
One reasonable version of this
call to Livni is as follows:
"I am calling to explain why it
would be wrong for me to apologise publicly or privately for the
apparent decision by one of this country's independent judiciary to
issue an arrest warrant against you.
"I should first explain that the
British legal system has a strong tradition of fairness. All people
under criminal investigation or criminal charge are entitled to the
presumption of innocence: that is, they are presumed innocent unless
and until convicted through a fair trial on the criminal standard of
proof (that is, beyond reasonable doubt). Therefore, nobody here is
saying you have been found guilty of any offence and any comments of
this kind would be unacceptable.
"It does seem, however, that a
judicial decision was taken that there exists a reasonable suspicion
that you committed a grave breach of the Fourth Geneva Convention,
which is a criminal offence under our Geneva
Conventions Act 1957. Of course, I have not seen any of the
evidence that a court would have seen when making that decision.
This is entirely right and proper: British ministers cannot
interfere in such individual judicial decisions, as we must respect
our ancient democratic tradition of non-interference with our
independent judiciary. I hold the utmost respect for our independent
judges.
"I am sorry, but I hope you
understand that it is not my job as foreign secretary or any part of
this government's job to second-guess a judge's decision or to
interfere with it. I can tell you, however, that no charges could be
brought against you without a decision by the attorney general. We
very carefully guard the legal role of the attorney general, as the
senior law officer, in making such decisions. The attorney general
would first need advice from the head of our independent prosecution
body, the director
of public prosecutions, that the evidential test of the code for
crown prosecutors was thought to be met (ie that there was more than
a 50% chance that a jury would convict a defendant, having found on
the evidence that it was beyond reasonable doubt that she had
committed the alleged offence). If this evidential test was met, the
independence of the UK legal system from the executive and the
rights of victims of alleged crimes to see a just outcome to their
complaints would be seriously undermined if the attorney general
made a decision that it was against the public interest to bring
charges of war crimes against a foreign national, who did not
otherwise enjoy immunity from prosecution.
"Moreover, the attorney general
would have to take into account this country's solemn treaty
obligations under Article
146 of the Fourth Geneva Convention which states that we are
'under the obligation to search for persons alleged to have
committed, or to have ordered to be committed … grave breaches, and
shall bring such persons, regardless of their nationality, before
[our] courts'. The mandatory wording (ie 'shall') creates a
presumption that it is in the public interest for criminal charges
to be brought under our Geneva Conventions Act 1957 if the
evidential test is met. I cannot say what the attorney general's
decision would be in your case, as it must be a matter for her, on
advice from the DPP.
"I understand that this may be a
difficult position for you to accept. However, it is only
appropriate that I also draw to your attention to some very
disturbing aspects of the report of the United
Nations Fact Finding Mission on the Gaza conflict, headed up by
the respected independent international judge Justice Richard
Goldstone. As you know, the Goldstone report was adopted by the UN
Human Rights Council in October and further endorsed at the general
assembly in November. While the British government did not
participate in the vote when the council adopted the report, we
cannot ignore its conclusions that, from the facts that it gathered,
grave breaches of the Fourth Geneva Convention do appear to have
been committed by Israeli armed forces in Gaza, including wilful
killing. Also, at paragraph 1975, the Goldstone report recommended
that 'state parties to the Geneva Convention … should start criminal
investigations in national courts, using universal jurisdiction,
where there is sufficient evidence of the commission of grave
breaches … where so warranted following investigation, alleged
perpetrators should be arrested and prosecuted in accordance with
internationally recognised standards of justice'.
"In the light of all this, Her
Majesty's government must therefore carefully weigh everything in
the balance when considering whether it would be appropriate to
prevent alleged victims applying for judicial arrest warrants. As I
have great faith in the standards of justice in this country and in
the quality of our judiciary, the political embarrassment that is
sometimes caused by standing by our legal traditions will have to be
endured. Changing these provisions would undermine our strong
democratic values and the rights of victims of alleged serious
crimes to access to justice. I hope that the assurance that I have
given you that criminal charges will only be brought for grave
breaches if the most senior prosecutor in this country thought there
was sufficient evidence to justify charges, will satisfy you that
only where there appears to be a case to answer will someone be
charged with such offences in this country.
"I implore you to join calls
within Israel for compliance with the rule of law and for the
establishment of an immediate and urgent independent and effective
judicial investigation, which can conclude whether or not any of the
Israeli leadership that made operational decisions during Operation
Cast Lead, including you, should face criminal charges under your
own laws. The same applies to the Gaza authorities. Alternatively,
if you are concerned that Israel cannot meet this challenge,
then Israel could refer itself to the only fully independent
international body that has the resources and the ability to resolve
such matters, namely the international criminal court.
"Only once the matters set out in
the Goldstone report are brought to a just and satisfactory
resolution, which may include the need for some individuals on both
sides of the conflict to be held accountable for their alleged
individual criminal responsibility, the whole region can perhaps
benefit from a durable and lasting peace. Without justice there
cannot be peace."
Unfortunately, it seems that
Miliband is unlikely to make the above phonecall to Tzipi Livni, but
instead will repeat his statements of recent days, which implicitly
criticise the role of our independent judiciary, and which fly
directly in the face of this country's international legal
obligations to "search out and prosecute" all those alleged to have
committed war crimes. This sends a message that Britain is in fact a
safe haven for suspected torturers and war criminals, especially if
they come from a country which is identified as an ally of the
United Kingdom. This is particularly alarming given that just one
week ago, with his fellow EU foreign ministers, David Miliband endorsed
a document promoting compliance with international human rights law which
concluded with the promise that "The European Union will continue to
do its utmost to promote an international order where no state or
individual is above the law and no person is outside the protection
of the law."
Daniel Machover is chair of
Lawyers for Palestinian Human Rights and a partner at London lawfirm
Hickman Rose
http://www.guardian.co.uk/commentisfree/2009/dec/16/david-miliband-tzipi-livni |
