Prosecuting realpolitik

The attempt to have Tzipi Livni, Israel’s former foreign minister, arrested in London has prompted the British government to rage against the laws that allow prosecution for war crimes in the UK – and the efforts by private groups to use those laws to arrest Israelis, in particular.

David Miliband, Britain’s foreign secretary, said the system allowing courts to issue war crimes arrest warrants was being “urgently” looked at, while Livni told the BBC the British justice system was on trial. “This is a lawsuit against any democracy that fights terror,” she said.

The media seem to agree. The BBC’s Today programme gave the Israeli ambassador an easy time this morning, while the Times leader calls it an “abuse of process” – on the grounds that “Israel’s Gaza offensive was not the genocide at Srebrenica”.

In the Wall Street Journal, John Bolton, briefly the US’s ambassador to the UN, goes further. He argues that the principle of universal jurisdiction – that some crimes are so bad that they can be tried anywhere – is itself at fault:

Today’s version of universal jurisdiction masquerades as a legal concept, but is in fact a form of political morality. It empowers prosecutions in states with little or even no connection to alleged offenses such as war crimes and gross abuses of human rights. And in many countries, as in Britain, the ability of private citizens to trigger the criminal process only adds to the danger of politicized prosecutions.

He is right. The ability of individuals under the 1957 Geneva Conventions Act – and similar laws in other states – to prosecute military leaders and politicians is political. But it is far less political than leaving decisions on such prosecutions to politicians.

The thrust of Bolton’s argument is that we don’t see Kim Jong-il and other brutal dictators hauled before the courts, and the law should not be used against democracies, such as the US or Israel.

But he is wrong. Brutal dictators are sometimes hauled before the courts. Chile’s General Pinochet, wanted by prosecutors in Spain and arrested in the UK, was (wrongly) released on health grounds on the orders of Britain’s foreign secretary.

Serving dictators – and, indeed, serving democratically elected politicians, such as Ehud Barak, Israel’s defence minister – are protected by diplomatic conventions; this is a practical and sensible measure to ensure diplomacy is possible. It is also, sometimes, highly offensive, when nasty dictators can travel with impunity (as Peter Tatchell has discovered, with his multiple attempts to have Zimbabwe’s President Mugabe arrested). This doesn’t apply to the International Criminal Court, but of course its efforts to have Sudan’s president Omar al-Bashir prosecuted rather undermines Bolton’s case by showing that the nasty guys he doesn’t like also get prosecuted under universal jurisdiction.)

The real problem is the double-standards of pretty much everyone involved in international relations. We don’t want to upset democratic governments, particularly if they are a key ally in an unstable region, even if they do violate the principles of international law (yes, Israel – and before I get a zillion emails from lobby groups, it appears to be in breach of the fourth Geneva convention for the way the residents of the occupied territories are treated). This is not just about democracies, though; we have had plenty of allies over the past few decades who did nasty things to their own people, and at the time we didn’t want to upset them either (think Saddam Hussein, although there are plenty of others).

Even now, it is unimaginable that former American leaders could be prosecuted outside the US for breaches of the Geneva conventions at Guantanamo, or indeed for straightforward murder (cross-border raids with drones are, after all, not part of a war, and so are in a legally tricky spot).

Yet, this was the whole point of the modern concept of universal jurisdiction: to stop governments breaching what were, after the second world war, regarded as universal moral truths, encoded in the Geneva convention. We can like Israel, accept it is a proper democracy and has far better government of its people than any other in the Middle East – and still need to take action over its breaking of international law.

We face a choice. We can apply international law as we apply domestic law, taking the politicians out of it (mostly) and being left with situations such as the Livni prosecution. Or we can accept international law for the jurisprudential farce it has been since it was invented and stop pretending it has any special moral force. We can’t claim it has moral force and then decline to prosecute people just because they are our friends.

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Christopher Cook is an FT editorial writer. Before joining the FT in 2008 as a Peter Martin Fellow, he worked for three years for the Conservative party.

Lorien Kite is deputy comment editor, a post he took up in 2009 after four years as a commissioning editor on the analysis page. He joined the FT in 2000.

Ian Holdsworth became assistant features editor in 2009 and was previously chief production journalist for the features pages.