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Daniel Machover is a partner at the British legal firm Hickman & Rose Solicitors in London and is their Head of Civil Litigation. He was the Co-Founder of Lawyers for Palestinian Human Rights in 1988 and works with Israeli and Palestinian lawyers and NGOs on legal remedies for Palestinians. Working for mutual clients of the Gaza-based Palestinian Center for Human Rights, he and his colleagues, particularly Kate Maynard, have been involved in the efforts to arrest suspected Israeli war criminals in the UK and beyond, notably General Doron Almog in September 2005, but also (working with legal teams in several countries) Moshe Yaĺalon (New Zealand, December 2006), Ami Ayalon (Netherlands, May 2008) and Ehud Barak and others (Spain, June 2008 on-going).
This week, the European Union´┐Żs Parliament passed a resolution
endorsing the implementation of the
recommendations of the Goldstone Report, which investigated war crimes
in the attack on Gaza last
year. While the motion was received with support from many NGOs, such
as the Women's Peace
Coalition, it did not indicate specific actions the EU will actually take. The
same has been true for the
UN's process as members of the Security Council said they would veto
the report. Many are therefore
taking it in their own hands to hold Israeli leaders accountable for alleged
war crimes. The legal tool
they're using is called universal jurisdiction and refers to the Fourth
Geneva Convention of 1949 that
said countries must be able to prosecute anyone who commits grave
crimes. The Real News' Lia
Tarachansky investigates what universal jurisdiction is, how it is used,
and how Israel is fighting against
LIA TARACHANSKY, PRODUCER, TRNN: Every year in Israel, the Herzliya Conference on national security, which took place last month, sets Israel's security agenda for the coming year. This year the conference focused largely on international law and the Goldstone Report that investigated war crimes in last year's attack on Gaza.GEN. BENNY GANTZ, DEPUTY CHIEF, ISRAELI GENERAL STAFF (VOICEOVER TRANSLATION): The Goldstone Report is going to be discussed by people later, but let me say the following: I think that this is a Trojan horse that takes advantage of a legal perspective and defends terrorist activities that come out of populations. And these activities, at the end of the day, is detrimental not only to us, to the citizens themselves.TARACHANSKY: Many at the conference argued that the military investigation Israel launched is sufficient to satisfy the Goldstone Report. As evidence, two soldiers were charged this week for using a Palestinian boy during the invasion as a human shield. In fact, much of Israel's prosecution focused on individual soldiers. The Real News spoke to Mikhael Manekin, the codirector of Breaking the Silence, an Israeli organization of veterans who have blown the whistle on their experiences in the army, including during the attack on Gaza last winter.MIKHAEL MANEKIN, CODIRECTOR, BREAKING THE SILENCE: What's happening now, from what I understand, is Israel is saying├»┬┐┬Żit's not Israel; it's the military saying, "We'll conduct our internal investigation." It's unacceptable in a democratic society that an executive branch checks itself because they're fine at it, meaning even if the military wasn't already├»┬┐┬Żand you know, there are so many lies that the military has been already caught up with. But even if those didn't happen, I would expect an external investigation in a democratic society.TARACHANSKY: But Israeli Prime Minister Benjamin Netanyahu indicated that there will not be an investigation outside the military. This week, the European Union endorsed implementing the Goldstone's [Goldstone Report's] recommendations and again called for Israel and the Palestinians to conduct independent investigations. The resolution the EU adopted, however, didn't indicate any particular action the Union would actually take. The UN's process hasn't lead to concrete actions either, as members of the Security Council said that they will veto the report. Many are therefore saying these channels are exhausted, something that the Goldstone itself predicted. It said that "In the context of increasing unwillingness on the part of Israel to open criminal investigations that comply with international standards and establish judicial accountability over its military actions in the Occupied Palestinian Territory ... the Mission supports the reliance on universal jurisdiction. . . ." Universal jurisdiction is a concept that arose out of the Geneva Conventions of 1949. By signing the Conventions, countries agreed to make their legal systems capable of holding individuals accountable, from any country, who are suspected of committing grave crimes. These include crimes against humanity, genocide, and war crimes. Because it allows individual citizens to start the proceedings, universal jurisdiction is supposed to alleviate the political burden from governments. And as the Goldstone suggested, it has become a tool many are using to enforce its recommendations. The difference in prosecution lies in that while Israel's investigation targets individual soldiers, universal jurisdiction allows holding accountable the political and military leaders who gave the orders in the first place. At the beginning of March in Barcelona, Spain, the Russell Tribunal on Palestine gathered for two days of deliberations on the European Union's complicity in Israeli war crimes. It ruled the EU must sanction Israel as a way to pressure it to abide by international law. At the tribunal, the The Real News spoke to Daniel Machover, a partner with the British legal firm Hickman & Rose. He's been behind much of the European effort to put to trial Israeli officials who've been accused of war crimes, such as former foreign minister Tzipi Livni.DANIEL MACHOVER, LEGAL ADVISER, RUSSELL TRIBUNAL ON PALESTINE: I think in the Second World War we created, as the international community working through states, a whole series of international crimes which are so heinous that you don't need to have any connection to the crime for your state to have a duty to prosecute someone if they fall into your hands. And those├»┬┐┬Żif only the people who drafted all those provisions back in 1948 on genocide, '49 on [inaudible] crimes, and then subsequently on crimes against humanity and torture had really lived by those principles, we would be in a much better and safer world in terms of day-to-day human rights abuses. Unfortunately, in many countries the idea of impunity has taken root. And universal jurisdiction literally says, and the citizens who are trying to make it real say, we need to uproot impunity through universal jurisdiction.TARACHANSKY: Universal jurisdiction against such Israeli leaders as Shaul Mofaz, Doron Almog, and Ariel Sharon has been attempted in many countries, such as the Netherlands, Canada, Spain, and Belgium. Because of the warrants issued against them, the Israeli foreign ministry today advises Israeli officials where not to travel. Israel also pressures these countries to change their laws. Before the Russell Tribunal took place, I spoke to Daniel Machover via Skype from London.MACHOVER: The combination of Israeli and US pressure resulted in a change to Belgian law, which was applied immediately├»┬┐┬Żthat is, even to existing cases. A combination of American and Israeli pressure on the Spanish Foreign Ministry and on the ministries there produced a change in the law, which was introduced, through the Spanish Parliament, about nine months ago and which has become law. What they've removed in Spain is the ability of the person to start that process unless there is a Spanish connection in that case. What happened in the Netherlands in the specific case of Ami Ayalon, the former head of the GSS [General Security Service (Shin Bet)] who visited the Netherlands in May 2008, the College of Attorney Generals, which is an important body within the system in the Netherlands, gives advice to the prosecutor about immunity issues. The controversy in the Netherlands was that in fact the advice from the College arrived the day after Ami Ayalon left the Netherlands, and the advice was he did not have immunity, and therefore he could have been and should have been arrested.TARACHANSKY: Many Israeli officials and academics have tried to delegitimize universal jurisdiction. For example, Boaz of the Interdisciplinary Center that organized the Herzliya Conference argued it's a legal loophole and that its invoking is the result of terrorists hijacking European legal systems.BOAZ GANOR, INT'L POLICY INST. FOR COUNTER-TERRORISM (VOICEOVER TRANSLATION): A transformation in modern terrorist warfare, a transition from a war in which there is an attempt to win the war through the use of armies to a war├»┬┐┬Żand this is not new anymore├»┬┐┬Żwhere they are trying to defeat the desire to fight on the part of another war, a war made up of the media. And now we're getting to the further transformation: an attempt to win the war by creating legitimacy for the warfare. And here the arms are the international courts of law├»┬┐┬Żlawfare.MACHOVER: The description of universal jurisdiction as some kind of loophole, or its application in the way it's used in the United Kingdom, is extraordinary and a very strange description of a widely accepted use of international criminal law. Israel has used and invoked universal jurisdiction famously in the Eichmann case. What is being asked for by Israel, and under consideration at the moment, apparently, in the UK, is to give the attorney general who has these charging decisions a role in the arrest decisions. If there is an amendment to UK law involving the attorney general at the arrest age, that would be a retrograde step; that will be enough for the British authorities to satisfy the Israeli authorities that there won't be any future arrests of their nationals, because they will be assured, in effect, that the attorney general will veto the granting of arrest warrants against Israeli suspects in the future.MANEKIN: Well, look, a lot of important figures in government, not sort of├»┬┐┬Żyou know, not fringe NGOs like myself, also serious people, you know, have been calling for an external investigation. I mean, the chief justice of the [Israeli] Supreme Court said last week that she thinks that it should happen. Everybody, actually, who was not involved in the operation itself, from government or from the military, has been talking about external investigation. So you have a whole line from every level of leadership in this country, from the legal sphere to the military sphere to the human rights sphere. The only people who haven't been talking about external investigation, unsurprisingly, are the military that was involved in Gaza and those politicians who were in charge of the military that was involved in Gaza. I'd rather Israel conduct its own investigation internally, and that's because it doesn't only interest me, finding justice in what happened in Gaza, which already happened. I'm interested in living here. I'm interested in Cast Lead II. You know, I'm interested in what'll happen here a year from now, or five years from now, or ten years from now. And the only way of dealing with that seriously is trying to build a functioning civil society. I just think it's very sad, because it basically means that our courts aren't functioning. And I want to live here with a functioning court, you know?
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