In
December 2009, a judge in London issued a warrant for the arrest of
former Israeli Foreign Minister Tzipi Livni. The judge received
significant evidence indicating her individual criminal responsibility
for war crimes committed during Israel’s December 27, 2008 to January
18, 2009 offensive on the Gaza Strip. The Court’s straightforward
application of the rule of law prompted a diplomatic offensive on the
part of Israel, which on September 15, 2011 resulted in procedural
changes to universal jurisdiction legislation in England and Wales.
These changes were intended to prevent the arrest of suspected war
criminals from “friendly” states.

On
October 6, 2011, Ms Livni returned to the United Kingdom. A stated
purpose of her visit was to celebrate this change in the law. In advance
of her visit, and acting on behalf of civilian victims of war crimes in
the Gaza Strip, the Palestinian Centre for Human Rights and Hickman
& Rose requested that the Director of Public Prosecutions (DPP)
authorise the arrest of Ms Livni or consent to the victims applying to
court for a second judicial arrest warrant. This application was made in
full conformity with the recent legislative changes.

Extensive
evidence indicating Ms Livni’s individual criminal responsibility was
presented to the DPP, and an effective dialogue was established with
senior crown prosecutors that enabled relevant, admissible additional
evidence to be supplied at their request. However, following the Foreign
and Commonwealth Office’s last-minute (apparently) retroactive
attribution of diplomatic immunity to Ms Livni, on the basis of her
visit constituting a “special mission”, the DPP issued a statement that
he had been blocked from making any decision as to her arrest.

Due for due process

Three principal issues arise from this case that must be highlighted.

First,
the fact that no decision was made to arrest Ms Livni was not due to
any lack of evidence. Indeed, in an unusual public statement, the DPP
acknowledged receipt of a significant body of evidence, which was
“carefully considered by senior and experienced lawyers in the Special
Crime and Counter Terrorism Division of the CPS” (Crown Prosecution
Service). As confirmed in the statement, these lawyers did not reach a
decision on the evidence, as their work was blocked by the attribution
of Special Mission immunity. If the evidence was insufficient to justify
an arrest, it is difficult to see what prompted the intervention of the
Foreign and Commonwealth Office (FCO).

Second,
recent changes to the United Kingdom’s universal jurisdiction law did
not preclude the potential arrest of Ms Livni. However, by preventing
direct access to the Court, these changes most definitely hampered
efforts by the victims to seek redress, slowing the process down
sufficiently to allow the FCO to produce a certificate of immunity and
for Ms Livni to leave the jurisdiction. The FCO decision was made behind
everyone’s backs, and meanwhile the DPP delayed his decision for a
crucial few hours, all of which effectively prevented the victims from
bringing a successful legal challenge to the FCO decision while Ms Livni
was in the country. Indeed, given the absence of the immunity
certificate, Ms Livni could – and should – have been arrested on
Wednesday night, prior to the FCO’s intervention.

The
key point is that the new law gave Ms Livni no protection against
arrest and prosecution: It was solely the (questionable) attribution of
diplomatic immunity that prevented due legal process.

Finally,
the FCO’s apparently retroactive attribution of Special Mission
immunity to Tzipi Livni must be highlighted. As far as we can see, there
are just two possibilities: Either there was a plan in advance to
classify the visit as a special mission, in which case Ms Livni and the
FCO set out deliberately at the beginning of the week to deceive
everyone that Ms Livni was genuinely testing the new legal procedure, or
the special mission was a rabbit that was pulled from the hat to
prevent the law taking its course. Both these alternatives are
discreditable and the latter, which currently seems more likely,
represents a complete abuse of process and of law based on the known
facts. In any event, the sole purpose behind the FCO actions has been to
shield Ms Livni from arrest.

Ms
Livni is not a member of the Israeli government, but rather is leader
of the opposition. She is not an official representative of the State of
Israel, and the FCO has been notably silent on whether there was prior
agreement between the two governments that Ms Livni’s visit would be a
special mission, without which immunity cannot lawfully arise. If the
law on special missions is being abused to subvert the rule of law, then
this indicates a worrying disregard for the international obligations
of the United Kingdom, which include the unqualified mandatory
requirement to “search for persons alleged to have committed, or to have
ordered to be committed … grave breaches, and … bring such persons,
regardless of their nationality, before its own courts” (as per article
146 of the Fourth Geneva Convention of 1949).

In
effect, whatever the true version of events, the British government
illegitimately agreed to give special temporary immunity to Ms Livni,
knowing an English judge had previously ordered her arrest on war crimes
charges, in order to allow her time to complete a visit to London, so
as to enable her to escape arrest for a second time.

These
events send the dangerous message that international law is subject to
political expediency, and that in the view of the UK government,
universal rights are not actually universal. Modern international law
was created in response to the horrors of World War II, in an attempt to
protect civilian populations and to give power to the phrase “never
again”. The Fourth Geneva Convention and the Universal Declaration of
Human Rights mark significant advances in the progress of humankind.
These fundamental rights must be preserved at all costs; any attempt to
dilute their practical impact in the name of political expediency must
be resisted and challenged. At issue is the very concept of universal
justice and the universality of human rights.

Hickman
& Rose and the Palestinian Centre for Human Rights will continue to
exert all possible efforts on behalf of the victims to ensure the equal
application of the rule of law, and to uphold individual victims’ right
to judicial redress.

Daniel Machover is the head of the Civil Litigation Department at London-based law firm Hickman & Rose.

Raji Sourani is the director of the Palestinian Centre for Human Rights, based in Gaza.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.