Universal Jurisdiction: Learning the Costs of Political Manipulation the Hard Way

Palestinian Manipulation of the International Community
Contents
Overview: Palestinian Manipulation of the International Community
Amb. Alan Baker

Manipulating International Law as Part of Anti-Israel “Lawfare”
Prof. Robbie Sabel

Universal Jurisdiction: Learning the Costs of Political Manipulation the Hard Way
Dr. Rephael Ben-Ari

The Demonization of Israel at the United Nations in Europe
Mr. Hillel Neuer

The Role of NGOs in the Palestinian Political War Against Israel
Prof. Gerald M. Steinberg

Politicizing the International Criminal Court
Prof. Eugene Kontorovich

Degrading International Institutions: The United Nations Goldstone Report
Amb. Dore Gold

The Abuse of Islam as Part of the Demonization of Israel
Ms. Sinem Tezyapar

Palestinian Christian Abuse of Christian Organizations in the West
Dr. Dexter Van Zile

UNRWA: Blurring the Lines between Humanitarianism and Politics
Dr. Rephael Ben-Ari

Manufacturing and Exploiting Compassion: Abuse of the Media by Palestinian Propaganda
Mr. Philippe Assoulin, Esq

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Universal Jurisdiction: Learning the Costs of Political Manipulation the Hard Way

Dr. Rephael Ben-Ari

1. The Complex Vision of International Criminal Justice

The last two decades have witnessed an unprecedented and rapid development in the field of international criminal law.1 With the end of the stagnancy and pessimism that characterized the Cold War era, the way was opened for a new “post-modern” era, underlined by the notions of globalization, de-territorialization and interconnectedness, as well as the upholding of the human interest, which supposedly supersedes national interests.2 Against this background, the quest for the establishment of a global system of international justice was loudly and enthusiastically heard within diplomatic, academic, and civil-society circles.3 This intellectual and political atmosphere facilitated the establishment of several ad hoc international criminal tribunals, such as the ICTY and the ICTR,4 as well as the adoption of the Rome Statute and the formation of the International Criminal Court (ICC) – a long-awaited major achievement.5 It also encouraged renewed interest in the concept of universal jurisdiction, expected to become a cornerstone of a multilateral endeavor – indeed a vision – to create a comprehensive system to ensure that perpetrators of the “most serious crimes of international concern”6 would not find safe haven, and to deter potential perpetrators – mostly leaders, high-ranking officials and commanders – from materializing their atrocious schemes.7

Universal jurisdiction is by no means a new concept.8 Nevertheless, despite recurring attempts by various forums to outline the doctrine,9 it is still difficult to find a broadly accepted definition that describes the legal notion of the principle of universal jurisdiction.10 Clearly, this is one of the main reasons for the substantial confusion surrounding this usage.

The 2009 African Union-European Union (AU-EU) joint Expert Report on the Principle of Universal Jurisdiction suggests that:

universal criminal jurisdiction is the assertion by one state of its jurisdiction over crimes allegedly committed in the territory of another state, by nationals of another state, against nationals of another state, where the crime alleged poses no direct threat to the vital interests of the state asserting jurisdiction.11

In other words, universal jurisdiction amounts to an exceptional extraterritorial claim by a state to prosecute crimes in circumstances where none of the traditional criminal jurisdictional links that rely on a territorial or national nexus12 exist at the time of the commission of the alleged offence.13 It is the heinousness of the alleged offence – indeed an international crime14 – that theoretically justifies the assertion of jurisdiction by national judges, supposedly acting on behalf of the interests of the “international community as a whole.”15

Universal jurisdiction is not the only international legal doctrine that enables states to assert jurisdiction over foreign nationals with regard to crimes that have not been committed on their soil. Numerous international treaties oblige signatory states to exercise their criminal jurisdiction over the crimes defined in those treaties,16 or to extradite the alleged offender to states that will prosecute them;17 this obligation materializes only when the suspect is present in the territory of the forum state. Unlike this form of treaty-based extraterritorial jurisdiction, universal jurisdiction is regulated by customary international law. States thus largely accept that customary law permits18 them to exercise their criminal jurisdiction over certain categories of international crimes (such as genocide, crimes against humanity, certain war crimes, piracy, etc.).19 However, national legislation, jurisprudence, and practice are far from being conclusive regarding the definition of categories of international crimes justifying the assertion of universal jurisdiction.20 Furthermore, it is unclear whether a state can exercise universal jurisdiction in absentia, without the accused being in the custody of the forum state.21 Another controversial question, which remains open, is the scope of universal jurisdiction vis-à-vis the immunity recognized for certain high-ranking officials under international law.22

2. The Inherent Potential for Manipulation and Abuse

Unlike the general doctrine of universal jurisdiction, the ICC and the ad hoc criminal tribunals are international institutions that act on the basis of broad consensus reflected in constituent international treaties and binding resolutions of the UN Security Council. These documents outline a comprehensive scheme of jurisdictional checks and balances. Universal jurisdiction, on the other hand, is implemented by national authorities; its application and interpretation is therefore subjected to the discretion of national prosecution and judicial authorities, and the conceptions of politicians regarding the interests of the international community.23 In view of the above, although the modern idea of universal jurisdiction was much discussed after the Nuremberg and Tokyo trials and the judgment of the Israel Supreme Court in the Eichmann case,24 until two decades ago, states were reluctant to implement it. The high political costs and the risks of infringing upon the sovereignty of other states deterred national authorities from legislating this vague customary doctrine. Nevertheless, in the late 1990s, several countries, mostly Western-European – led by Belgium and Spain, which were probably motivated by the adoption of the Rome Statute of the ICC and the heated discussions on the future of the international rule of law in view of the dreadful events in Kosovo, Rwanda, Congo, and other places – started to adopt relevant laws that enabled their courts to hear claims based on the principle of universal jurisdiction.25 Such claims, submitted by foreign individuals, mostly victims of atrocities, and various international non-governmental organizations (INGOs), on the basis of national legislation that broadly interpreted the principle of universal jurisdiction, brought about a massive number of claims that practically turned certain European capitals into self-appointed international criminal courts.26 Eventually, only very few of these claims matured into convictions. This, however, has not prevented numerous claimants and interested parties to issue complaints against top foreign officials and political leaders, having discovered the possibility of abusing universal jurisdiction-based proceedings as a powerful tool for the promotion of political agendas.

The record of Palestinian and pro-Palestinian groups in this regard has been highly significant. Their intensive manipulation of universal jurisdiction in the last few years, within the framework of the so-called “lawfare” campaign against Israel,27 can take much credit for the fact that, within less than a decade, most of the leading countries that had recognized an unqualified national version of universal jurisdiction had to modify their legislation so as to limit the ability of foreign interest groups and individuals to initiate proceedings that abused their courts.

Clearly, the potential for abuse and politicization of the universality principle is great. It was mainly for this reason that universal jurisdiction was sharply described by one commentator as a “waking giant” that might brutally threaten to smash the already fragile web of interstate relations.28 As interest groups soon discovered, the costs of initiating a claim are relatively low, while the potential for political and media gains are enormous. Since universal jurisdiction-based proceedings are the exclusive domain of national, rather than international, judicial authorities, in most cases it is sufficient to find a low-level, like-minded judge who is willing to begin an investigation into a case, or worse, to issue an arrest warrant against some senior foreign official.29 Regardless of the fact that in most cases such a warrant would be revoked, the harassment caused to the official, the headlines that such an investigation would produce, and the political embarrassment that would follow, would have an immediate impact on international public opinion. It would also impact the bilateral relations between the forum state and that of the suspected official; if the latter retaliates, the two governments could very soon find themselves in the eye of an international political storm that could easily get out of hand. For these reasons, bringing suspected perpetrators of international crimes to justice has turned, at best, into a secondary goal; the golden opportunity to interfere in the normal course of interstate relations has become a prominent incentive to filing complaints against foreign officials in third states.

* * *

In the following sections, we will review the proceedings initiated against Israeli officials in Belgium, Spain, and the United Kingdom, within the last few years. Lawsuits against Israeli officials were also initiated in other countries.30 However, abuse of universal jurisdiction proceedings in these particular states was the most far-reaching and thus exemplified the high costs involved in “universal jurisdiction campaigns.”

3. The Proceedings in Belgium

The pilot case brought by Palestinian plaintiffs under national universal jurisdiction legislation was the so-called “Sharon Case.” Although this case did not result in a conviction, the public, political, and legal turmoil that it caused, and which lasted for several years, motivated Palestinians and pro-Palestinian groups to initiate many additional proceedings in various countries in Europe.

In June 2001, 24 individuals of Palestinian or Lebanese origin filed a complaint against the then-acting prime minister of Israel, Ariel Sharon, and Amos Yaron, the director-general of the Israeli Ministry of Defense, for genocide, crimes against humanity, and war crimes;31 the two top government officials were accused of being responsible for the Sabra and Shatila massacres.32 Clearly, the claimants were encouraged by the 2001 landmark ruling of the House of Lords in ex parte Pinochet33 that allowed, for the first time, the extradition of a former head of state, the Chilean dictator, Augusto Pinochet, from Britain to Spain, following a request made by a Spanish investigating judge on the basis of the Spanish universal jurisdiction law.34 The very supportive public and academic atmosphere that surrounded the Pinochet proceedings gave the impression that legal history was being made, and that victims would finally find redress under the doctrine of universal jurisdiction.35 It gave reason to believe that similar proceedings in other countries against acting top officials could be highly successful and attract excessive public attention. It was therefore decided to take advantage of the 1993 Belgian law (as amended in 1999) establishing the universal jurisdiction of the Belgian courts, which related to the prosecution of gross violations of international humanitarian law, genocide, and crimes against humanity.36

3.1 Malicious Forum Shopping

The Belgian forum was chosen after careful examination of the various possibilities in a number of Western systems.37 The law had already been applied once, which led to the conviction in June 2001 – just a few days before the Palestinian complaint was filed38 – of four Rwandan defendants who resided in Belgium, and who were found guilty of participating in the 1994 Rwandan genocide.39 The “Rwandan trial” led to a stream of complaints filed in Belgium40 against high-ranking foreign government officials.41 Some of these complaints, however, did not have any link whatsoever to Belgium.42 Eventually, this led Belgian politicians and jurists to call for amendments to the law that would limit its unqualified application.43 The Palestinian complaint that was filed in the midst of this domestic debate politicized the drafting efforts, by provoking politicians – who were intensively lobbied – as well as NGOs, to take a harsher public stance in favor of an extension of Belgian jurisdiction.44

The political nature of the complaint was obvious: none of the complainants was residing in Belgium. More significantly, none of the Lebanese citizens directly responsible for the massacres was mentioned in the complaint.45 The crime of genocide was highlighted, giving the impression that the defendants were involved in a comprehensive genocidal scheme, and bearing the potential for further allegations against other officials involved in the Lebanon War. The timing of the filing of the complaint was strategically chosen, tailored to fit the delicate political circumstances. It was only three months after Prime Minister Sharon was elected (March 2001) and just before Belgium was to assume the Presidency of the European Union (July-December 2001).

3.2 A Universal Jurisdiction Campaign

The complaint was accompanied by a well-orchestrated press campaign. On the eve of filing the complaint, the BBC aired its Panorama program The Accused, investigating the role of Sharon in the Sabra and Shatila massacres, of which counsels for the victims had been informed two weeks in advance through an Amnesty International friend.46 The lengthy text of the complaint was distributed at a press conference held immediately after it had been formally filed, and was later posted on the Internet and translated into six languages.47 A special website dedicated exclusively to the case launched the “International Campaign for the Victims of Sabra and Shatila,”48 while supportive “Sabra and Shatila committees” sprang up across the world.49 All this attracted massive media attention, as well as the active involvement of academics and human-rights activists.50 Massive financial support and the backing of leading INGOs, including Amnesty International, Human Rights Watch, and Avocats sans Frontières, were assured in advance,51 coloring the proceedings as a battle, pitting Israel against universal jurisdiction and the global “fight against impunity.”52 Family members of the victims were flown to Belgium; together with Palestinian students, they loudly protested against the Israeli officials in front of the press within the court corridors, both before and after the sessions. Belgian politicians were also motivated to get involved in the proceedings. A group of Belgian senators intervened several times before the Prosecution Chamber; a delegation of senators, headed by the head of the Justice Commission at the Belgian Senate, along with leading journalists, even flew to Lebanon to meet with Elias Hobeika, the leader of the Phalangist forces who had been accused of directing the massacre in the camps.53 A meeting with victims of the massacres was organized at the Belgian Senate following a hearing before the Prosecution Chamber. During the hearing,invitations to journalists were distributed to attend a press conference at the Senate.54

3.3 Legal Turmoil and Political Embarrassment

From the moment that the Belgian prosecution invited the investigating magistrate to begin the examining procedure, and the State of Israel got involved in the proceedings, challenging the legality of the unqualified Belgian law under international law, the “Sharon affair” evolved rapidly, encompassing many twists and turns. The critical issues about whether the presence of the accused was a precondition for the application of universal jurisdiction by national judges, and whether an incumbent prime minister was entitled to procedural immunity under international law,55 were reviewed by the full chain of Belgian courts, as well as the most senior prosecution officials, reaching the Supreme Court in 2003 (following an appeal by the plaintiffs).56 Much of the sting of the case was removed once the International Court of Justice (ICJ) ruled in the Arrest Warrant case57 in 2002 that a prime minister, while in office, was entitled to procedural-personal (ratione personae) immunity from any criminal proceedings under customary international law.58 Later, although the Appeals Court ruled that the presence of the accused in Belgium was required in order to allow the proceedings, the Cour de Cassation overruled the decision, allowing the proceedings against Amos Yaron to proceed, rejecting the position of Israel and upholding the position that the application of the Belgian universal jurisdiction law was indeed unlimited. In light of this development, and after intensive legal and diplomatic efforts, Israel recalled its ambassador from Brussels.59

It was only the complaint that was filed against former president of the United States, George H.W. Bush, and other high-ranking American officials, by several Iraqi families, preceding the second war against Iraq,60 and the threats by the American administration to take far-reaching political steps in response,including, in particular, the closure of the NATO headquarters in Brussels, that almost immediately “convinced” the Belgian authorities to introduce significant amendments to their law on universal jurisdiction, so as to limit its scope and proceedings.61 The amended law essentially required a link between the victim or the accused to Belgium, and invested the Federal Prosecutor with wide authority to oversee the proceedings, thus effectively barring foreign individuals and interest groups from filing abusive complaints.62 Israel’s main argument before the Belgian courts – that the initial unqualified version of the law was designed to grant Belgium “virtual and surrealistic jurisdiction over all offences against international humanitarian law in the world,”63 thus diverting from the scope of universal jurisdiction under customary law, and allowing manifestly political claims to proceed – became obvious. Eventually, the “Sharon saga” showed the international community that,

[U]niversal jurisdiction does not operate in a vacuum. The process raises interstate tensions in ways that even the most vociferous criticism by one state of another’s human rights practices does not…[W]hen justice becomes personal, so does foreign policy. And when private prosecutors are part of the mix, the match can get very ugly.64

Unfortunately, although the Sharon case could serve as a laboratory for the future of universal jurisdiction by highlighting the myriad of international actors who had a direct interest in these laws and the steps they would take to advance their claims,65 some states had yet to learn the lesson.

4. The Proceedings in Spain

The Belgian experience, while failing to reach the stage of a court trial, proved to be very fruitful in terms of its political and propaganda impact. Once the Belgian door was closed, it was therefore only a matter of time before further proceedings were initiated in countries that still allowed their legislation to be manipulated by foreign complainants. As was revealed by a report issued by the UK-based Friends of Al-Aqsa, filing lawsuits against Israeli officials was very high on the priorities of Palestinian activists:

The momentum is growing and resistance is mounting. Each of us who participates in the Palestinian cause is part of that resistance. Thus far, thousands of us have risen up and taken action. We are working to file arrest warrants for war crimes and crimes against humanity against Israeli military personnel in every jurisdiction around the world that allows it.66

Spain, the leading country at the time in terms of promoting the notion of an unlimited universal jurisdiction,67 was an obvious option.68

4.1 The Tyranny of Interested Judges and Activists’ Groups

Although the Spanish law on universal jurisdiction, first enacted in 1985, was not as broad as the initial Belgian law,69 it was still interpreted as allowing investigations against foreign defendants to be held in absentia,70 without any link to Spain. This gave the investigating judges of the Audiencia Nacional (National Audience)71 expansive jurisdictional power to hear complaints brought by various human rights organizations and private litigants against foreign officials, and to open criminal investigations accordingly. Such was the case with the Pinochet affair, which brought world fame to the Spanish investigating judge Baltasar Garzón, who, in 1998, demanded the extradition from Britain of the former dictator within his investigations into the mass atrocities that had taken place in Chile.72 Clearly, Garzón set an example for other judges of the Audiencia, who were encouraged by various INGOs and human rights purists to continue their “crusade to vindicate gross human rights violations” in Spanish courts.73 Nevertheless, much like the case in Belgium, and despite the success of the Pinochet case, the zealous atmosphere and the fact that several states whose citizens were being prosecuted protested vehemently against the violation of their sovereignty,74 provoked a public debate in Spain. Pragmatists warned against the adoption of a “radical form of universal jurisdiction devoid of strong procedural footing that could violate international customary law and harm diplomatic relations.”75 This debate was followed by a clash between Spain’s two high courts – the Supreme Court and the Constitutional Tribunal – over the correct interpretation of the Spanish law regarding universal jurisdiction.76 In 2005, the Constitutional Court eventually overruled the decision of the Supreme Court, thus upholding the unqualified version of the Spanish law. This effectively provided the judges of the Audiencia a carte blanche to initiate unrestrained investigations in absentia, without having to wait for an alleged culprit to enter Spain’s territory.77

As in Belgium, the Palestinian and pro-Palestinian lawyers took advantage of the loud public debate over the scope of universal jurisdiction that was ongoing in Spain, to bring in a controversial complaint against former Israeli officials. In June 2008, the Palestinian Center for Human Rights (PCHR)78 filed a complaint before Audiencia Judge Fernando Andreu Merelles against seven high-ranking officials for suspected “crimes against humanity” for their involvement in the targeted killing of Salah Shehadeh, the commander of the military wing of Hamas in Gaza, in July 2002.79 The PCHR, acting on behalf of some of the families of civilian casualties, hoped that “universal jurisdiction would become a real avenue for Palestinians to seek redress for Israeli crimes” following this case.80 To this end, the PCHR hired the services of the notorious Spanish “human rights lawyer” Gonzalo Boyé – a Marxist revolutionary who had served a 10-year sentence in a Spanish prison for collaborating with the Basque terrorist group ETA, and was involved in most of the universal jurisdiction lawsuits that were filed in Spain,including those against American officials.81 By the end of January 2009, following Boyé’s petition, the Spanish magistrate, Merelles, who probably identified an opportunity to follow his colleague Garzón82 and gain international publicity,issued a decision to open a criminal investigation against Binyamin Ben-Eliezer, former Minister of Defense; Dan Halutz, former Commander of the Israeli Air Force; Moshe Ya’alon, former Chief of Staff of the IDF; Avraham Dichter, former Director of the General Security Service; Doron Almog, former General of the Southern Command of the IDF; Giora Eiland, former Chairman of the National Security Council and National Security Advisor; and Michael Herzog, former Military Secretary of the Israel Minister of Defense. Merelles determined that “the events may and must be investigated by the Spanish courts” as the evidence suggested that Israel had engaged in a “disproportionate attack,” based on the Spanish law on universal jurisdiction as interpreted by the Constitutional Tribunal to provide an absolute jurisdiction.83

4.2 A War on the “War on Terror”

As in Belgium, the timing of the filing of this particular lawsuit was carefully calculated, leaving no doubt as to its political nature: Operation Cast Lead, the IDF’s ground invasion of the Gaza Strip (December 2008 – January 2009) had ended a few days before Judge Merelles released his decision to open an investigation into the case. World attention was focused on the Gaza Strip.84 Israel was desperately “trying to fend off foreign censure over the civilian death toll” during that operation.85 Heated discussions regarding the IDF’s operation were held at the UN Human Rights Council, calling for an international fact-finding mission to investigate the conduct of Israel,86 while a network of European lawyers and pro-Palestinian activists were preparing a list with the names and personal data of some 200 Israeli soldiers, which was made available on a special website called “Israeli war criminals.”87 Clearly, a complaint dealing with an alleged war crime, amounting to a “crime against humanity,” that would lead to a foreign criminal investigation into the conduct of the IDF in the Gaza Strip in the past, was a perfect legal ambush that could set a significant precedent and focus maximum international attention that would put Israel under heavy public and diplomatic pressure at home and abroad.88 Furthermore, unlike the complaint against Sharon and Yaron in Belgium, the specific context of the current complaint was meant to showcase the role of international criminal law in reviewing the legality of counter-terrorism measures employed by states involved in the “War on Terror” led by the United States and Israel.89 The application of universal jurisdiction as a “weapon” to review counter-terrorism strategies90 was meant to attract the sympathy and support of human-rights activists and INGOs as part of an “anti-Western globalism” movement that used international law to eat away at national sovereignty.91 In this respect, an unfolding investigation would send a clear message that a state’s response to terrorist attacks represented a more serious violation of international law than the original act of terrorism.92

4.3 Delegitimizing Israeli Proceedings

Most importantly, the complaint filed in Spain was filed while proceedings in Israel regarding the Shehadeh affair were still pending. The Israeli High Court of Justice (HCJ), which determined that targeted killing operations were not forbidden as such,93 nevertheless recommended the establishment of a special,independent examination committee, with a mandate to examine the collateral damage caused by the killing of Shehadeh, and its possible implications. The committee that was authorized to recommend disciplinary or criminal proceedings had yet to conclude its investigation when the complaint in Spain was filed. In fact, just a few days before the submission of the lawsuit by the PCHR in Madrid, the HCJ rejected a petition calling for a criminal investigation of the Shehadeh affair, due to the fact that the examination committee was still investigating the matter.94 Obviously, the PCHR was trying to bypass the Israeli legal system by inviting an unprecedented foreign scrutiny of, and possible intervention in, its proceedings. Aside from establishing a dangerous precedent, a court trial in Spain would have implied that Israeli authorities were “unable or unwilling genuinely”95 to handle the matter, while at the same time focusing public attention on the examination committee and exerting considerable pressure on its members.

As was expected, once Judge Merelles decided to take on the investigation, matters unfolded rapidly, attracting a great deal of international attention and causing political turbulence in and outside of Spain. The day after Merelles’s preliminary decision, Spanish Foreign Minister Miguel Angel Moratinos, being aware of the far-reaching implications of the decision against American officials also, was quick to declare that the Spanish government would consider a proposal to amend the law on universal jurisdiction.96 Merelles, backed by other prominent politicians who upheld Spanish judiciary’s absolute independence,97 was determined, however, to continue the official investigation into the case.98 Israeli politicians protested in strong language, against what they considered a conspicuous intervention by the Spanish court in the ongoing legal proceedings in Israel. They were further outraged by the “ridicule and absurdity” of “accusing a democracy legitimately protecting itself against terrorists and war criminals,” instead of going after the terrorists themselves;99 in addition, they were outraged by the possibility that Merelles could decide to issue international arrest warrants for any of the senior officials and military officers, who could then be detained upon arrival in any EU member state.100

In April 2009, the Spanish prosecution requested that the Madrid court dismiss the investigation due to the ongoing, parallel investigation in Israel. Judge Merelles refused, declaring that Israel was not conducting a criminal investigation, and that Spanish law provided for simultaneous jurisdiction to investigate “war crimes.”101 The prosecution immediately appealed the decision to the Spanish Court of Appeals, which, in June, decided to revoke the investigation due to lack of universal jurisdiction over the matter.102 Backing the position of the prosecution, the court determined that a substantial, minimal link or national interest was required in order to implement universal jurisdiction that was otherwise incompatible with the fundamental principle of non-intervention in other states’ affairs. The court further concluded that Israel had jurisdictional priority in this case, and that a genuine investigation that was subject to a judicial review was already underway.103

4.4 Déjà Vu

During this time, in March 2009, just before the request was made by the Spanish prosecution that Judge Merelles halt his investigation, a lawsuit was filed by a group of human rights lawyers with Judge Garzón of the Audiencia, against six senior US Bush-administration officials, including the former US Attorney General, Alberto Gonzales. The so-called “Bush Six” were charged with giving legal cover for the torture of terror suspects at Guantanamo Bay.104 The case, which was one of several legal actions taken against US administration officials overseas, but the first to go to court thus far, exerted tremendous pressure on the Spanish political and legal systems.105 In conjunction with the lawsuit against the Israeli officials, it threatened to turn Spain’s national court into a “global court,”106 serving as a plaything for competing political interests.107 Finding itself in the very awkward position of the Belgian authorities just a few years earlier, and risking its role as a player on the international stage,108 the Spanish government proposed new legislation in May 2009, intended to limit the law on universal jurisdiction.109

Despite all of the above, the PCHR was yet to give in, zealously deciding to appeal the decision of the Court of Appeals to the Spanish Supreme Court. Backed by INGOs, such as Human Rights Watch, which were witnessing the beginning of the fall of Madrid as the capital of global justice,110 it published, in the beginning of 2010, a report entitled “The Principle and Practice of Universal Jurisdiction.” This report outlined the “inadequacies of the Israeli judicial system” that “did not meet necessary international standards with respect to the effective administration of justice.” It concluded that,

[U]niversal jurisdiction constitutes an essential, long established component of international law.…[It] does not represent an attempt to interfere with the legitimate affairs of the State; it is enacted as a last resort.…[It] is the only available legal mechanism capable of ensuring Palestinian victims right to an effective judicial remedy. In the broader context, universal jurisdiction is also an essential tool in the fight against impunity.…[It] is a stepping stone on the road to universal justice.111

The Spanish Supreme Court, however, was not convinced by the arguments of the PCHR, and in April 2010, affirmed the decision of the Court of Appeals to dismiss Judge Merelles’s investigation.112 A further appeal to the Constitutional Court, although possible, was useless particularly in view of the passage, by the Spanish parliament, of a bill presenting far-reaching amendments to Spain’s law, in November 2009, which practically barred private litigants wishing to file politically sensitive lawsuits.113

The Spanish saga – evidently more than the Belgian one – was instrumental in demonstrating the high risks and costs involved in allowing individual magistrates to selectively decide on the application of universal jurisdiction proceedings,114 particularly in complex contexts such as the global fight against terrorism and ongoing political and military conflicts.115 The combination of activist judges, hungry for publicity, with the lack of legal safety valves, proved to offer a very fertile soil for the breeding of manipulative lawsuits by politically motivated interest groups and individuals. The powerlessness of the executive to review, and to prevent, malicious forum-shopping by alleged victims further emphasized the responsibility of states to exercise procedural rigor in enforcing their laws and the need to create appropriate mechanisms to resolve competing jurisdictional claims.116 The next state to learn these lessons the hard way – that is, through manipulation of its legal system and ensuing diplomatic pressures – was the United Kingdom.

5. The Proceedings in the United Kingdom

The law allowing universal jurisdiction proceedings to be initiated in the UK was considerably narrower than the Belgian or the Spanish laws, requiring the presence of the accused on British soil, before proceedings could effectively commence.117 In any case, under the system of “private prosecution,” the law allowed any individual to initiate a criminal proceeding, even without having any connection to the alleged offence, before a magistrate who could then issue a summons or an arrest warrant to a visiting foreign official; all that was required was mere prima facie evidence.118 Practically, such arrangements could hardly lead to actual court trials against Israeli officials within the UK.119 Nevertheless, pro-Palestinian groups realized the great potential of manipulating the British legislation in an endeavor to disrupt diplomatic relations with Israel, and to single out its leaders. Harassing Israeli officials and top generals thus became part of the “well organized, well resourced, and concerted attempt” that was taking place in Britain “to demonize, criminalize, and delegitimize Israel in every area of public life,”120 and it was publicly supported by British politicians,121 as well as by judges.122

5.1 Challenging Customary International Law

In early 2004, an application for an arrest warrant against then-acting Israeli Defense Minister Shaul Mofaz was submitted to the Bow Street Magistrates’ Court.123 The application was based on a complaint initiated by the PCHR, on behalf of families who had been affected by what was described as “the assassination policy of Israel,” or the “policy of shooting with impunity,” accusing Mofaz of committing “grave breaches” of the Fourth Geneva Convention. Mofaz was believed to be visiting the UK at the time.124 Clearly, the complaint was meant to challenge the decision of the ICJ in the Arrest Warrant case, which did not explicitly mention an incumbent Minister of Defense among the high-ranking officials enjoying absolute state immunity under customary international law.125 Eventually, the magistrate had to conclude that Mofaz, as a Defense Minister, was also entitled to immunity, based on an analogy to the position of Minister of Foreign Affairs and the logic of the ICJ’s decision.126 Nevertheless, despite the fact that he was therefore barred from reviewing the application, the District Judge,

C.L. Pratt, did not hesitate to indicate that “the extensive evidence” supplied to him “could certainly amount to ‘grave breaches.’”127 This was a clear signal that applications against former officials would be welcomed by the British judiciary, which led pro-Palestinian groups to compile extensive evidence files against top Israeli generals and former leaders.

5.2 International Legal Ambush

In August 2005, the PCHR128 handed over evidence files to the Metropolitan Police, relating to alleged “grave breaches” of the Fourth Geneva Convention, supposedly committed by Major General Doron Almog, former General of the Southern Command of the IDF. Following an application to the Bow Magistrates’ Court, an arrest warrant against Almog was issued in September by the Senior District Judge in relation to “59 house demolitions in Rafah, Gaza Strip, in 2002.”129 Due to leaked information, Almog, who was scheduled to speak at a synagogue in Birmingham on the day after the arrest warrant was issued, did not disembark from the plane, and flew straight back to Israel, escaping the police awaiting him at Heathrow airport.130 Israeli generals, as well as top officials and politicians, were subsequently advised to refrain from visiting the UK.131

In December 2009, a British magistrate issued another arrest warrant against former Foreign Minister Tzipi Livni, upon pro-Palestinian activist groups’ allegations that she had commissioned “war crimes” in Gaza.132 Livni, then leader of Israel’s opposition, cancelled her planned visit to the UK. The diplomatic rift between Israel and the UK was mounting, as Israel retaliated by halting its routine, high-level “Strategic Dialogue” with the British government133 and cancelling Deputy Prime Minister Dan Meridor’s visit to Britain.134

5.3 Déjà Déjà Vu

Livni’s near-arrest thus marked a turning-point in dealing with the abuse of British proceedings,135 leading to intense political and academic debate. Both Labour and Conservative leaders, having realized the high costs of maintaining the system of “private prosecution” in universal jurisdiction proceedings, and fearing their further implementation by low-level judges against American and other foreign officials, vowed to change the law.136 UK officials admitted that exploitation of the criminal procedure could “bring [the UK] legal system into disrepute,”137 The Legal Task Force of the Scholars for Peace in the Middle East also released a statement, condemning, in strong words, the misuse of universal jurisdiction in the UK and elsewhere “in light of recent harassment of Israeli officials” and insisted upon reform.138 On the other hand, extensive lobbying by pro-Palestinian advocacy groups and politicians,139 backed by various INGOs and human rights groups, such as the London-based Amnesty International, Human Rights Watch and the International Federation for Human Rights,140 prolonged the political debates surrounding the passage of amendments to the law. Nevertheless, in September 2011, the UK’s Police Reform and Social Responsibility Act was accepted, requiring the approval by the UK Director of Public Prosecutions – the head of the UK’s Crown Prosecution Service – before a British court could issue a privately-sought arrest warrant for universal jurisdiction offences.141 This practically meant that the issuance of a warrant required consultation with the Attorney General – the chief legal advisor to the Crown – as well as the Cabinet Ministers, for their views on “such an arrest and the impact that that might have on the UK’s national interest.”142 With this reform, the UK joined Belgium and Spain, both which, within less than a decade, had drastically changed the scope of their laws on universal jurisdiction. Evidently, even the UK – a country that did not enact too permissive a law in the first place – still could not resist the abuse of its legal system by politically interested groups, as well as the selectivity of interested judges.

6. The Unbearable Lightness of Manipulation – Lessons and Conclusions

6.1 Universal Jurisdiction – A Simple Concept?

“Universal jurisdiction is a simple concept”;143 it “constitutes an essential, long established component of international law”144 – so goes the message delivered by Palestinian propaganda, echoing some prominent INGOs.145 Nothing is more remote from the truth,146 as a quick look into the discussions on universal jurisdiction, which were held at the UN Sixth Committee (Legal) within the last few years, demonstrates. Across the board, state delegates to the Committee note “the divergent views and differing practices,” the “evolving scope and nature of the principle and new substance given to it,” and the need for a “cautious approach to be taken” in dealing with the complex issues involved.147 They warn that the “limitless application” of universal jurisdiction might lead to “conflicts of jurisdiction between States, to subjecting individuals to procedural abuses,or to politically motivated judicial prosecutions.”148 They call for an “unbiased application” of the principle, in order to “prevent its selective application or exploitation for settling political scores”149 and note the need for “further clarification and consensus-building” to “strengthen the application of universal jurisdiction” and “give legitimacy and credibility to its usage.”150 Paradoxically, it has been the particularly extensive activity of pro-Palestinian interest groups that has exposed just how complex and unsettled the principle of universal jurisdiction is; this activity has been highly instrumental in demonstrating to all and sundry within the international community – legislators, politicians, judges and the general public – the dangers of its unrestrained application, as well as the lack of consensus surrounding its implementation.

6.2 The High Price of Manipulation

Within a very short period of time, the three leading states that had adopted different modules of laws which allowed their courts to establish universal jurisdiction proceedings had to amend their legislation. Due to political manipulation, mostly against Israel, and later against the United States, all three came to realize that such proceedings could be a double-edged sword; the “lush feeling of moral superiority” could, at most, be afforded in the case of weaker states.151 They consequently limited the scope of their laws in a way that altogether either barred foreign individuals and groups from bringing lawsuits which bore no link to the forum state, or provided for substantial executive scrutiny of judicial decision-making. Unfortunately, principally due to the Palestinian abuse of universal jurisdiction-based proceedings and the bona fides of those states that had introduced them into their legal systems, some of these far-reaching amendments might eventually undermine the original notion of universal jurisdiction, and thereby defy the interests of international justice, by preventing the application of the principle, even in appropriate cases of exceptional character, where the prosecution of international crimes and mass atrocities is truly warranted and justified.152

Manipulation of universal jurisdiction has thus had a backlash against human-rights organizations and activists, which provided broad, unqualified support to Palestinian groups’ abuse of proceedings in their “lawfare” campaigns against Israel.153 Such activity thus showed that,

universal jurisdiction was anything but universal in practice. As an almost exclusively European affair [it] represented a curious mixture of mission civilisatrice and resistance against United States Hegemony and Israeli exceptionalism.154

Supporting – or downright manufacturing – headline-making “virtual cases”155 against former senior officials, rather than strengthening international criminal law, made a mockery of it;156 instead of promoting a transnational worldview and upholding global victimhood principles, it facilitated the introduction of state-centric mechanisms and domestically centered valuation of international claims.157 Much like the case of the adoption of the ICC Statute in Rome in 1998, therefore, West-European “universal jurisdiction campaigns” should serve as a resounding lesson for groups seeking either to promote one-sided political agendas and gain publicity under the guise of promotion of human rights and a global rule of law, or to push too hard towards the “end of nationhood” by undermining the sovereignty of certain states.158

6.3 Asymmetric Application and Political Agendas

Most of the complaints brought against Israeli (and American) senior officials were intentionally framed in the context of, and as a means for undermining, the fight against terrorism. They consequently exposed the normative complexities involved in the asymmetric application of international criminal arrangements. The fact that universal jurisdiction typically deals with so-called “crimes of state” and the liability of state officials,159 and not with offences typically committed by non-state actors and terrorists, still presents a significant challenge that shadows the lofty goals underlying the doctrine. This is all the more true in a world where the fight against the malignant phenomenon of global terrorism is not shared evenly by states, and where there is still no broadly accepted definition – let alone political consensus – regarding terrorist activity. It also raises deep concerns regarding the future application of universal jurisdiction in the context of other controversial “state crimes,” such as that of aggression.160

Furthermore, in this regard, some commentators wanted to use universal jurisdiction-based petitions against Israeli officials abroad as an incentive for the conduct of “genuine and effective” domestic legal proceedings that would allegedly defend officials from foreign claims.161 There is surely no doubt that prompt, objective, and effective domestic proceedings and investigations into alleged violations of human rights and humanitarian law are of crucial importance, a national interest indeed. Nevertheless, if anything, the short, but highly dense, history of proceedings against Israelis abroad suggests that domestic proceedings are not an effective barrier against the abuse of foreign proceedings.162 Once lawsuits abroad are motivated, first and foremost, by political and propaganda considerations, anything less than maximal prosecution will always leave room for the argument that domestic proceedings are conducted “unwillingly” and “ineffectively,” or designed to get the defendant “off.” In this way, while a prosecution by the home state cannot be undone by others, decisions to not prosecute can be nullified by other states’ decisions to prosecute, and extra-judicial settlements can easily be ignored.163 Consequently, a state showing the slightest sign of being inclined to conduct domestic proceedings due to fear of foreign lawsuits will most probably be inviting even more complaints from abroad, risking foreign scrutiny of, and even possible intervention in the conduct of domestic proceedings.164 Such a development is particularly dangerous in the context of the fight against terrorism, due to the limited appreciation of the unique dilemmas posed by terrorism and counter-terrorism.165

6.4 Controversial Involvement of INGOs and Interest Groups

The conduct of “universal jurisdiction campaigns” against Israelis abroad also demonstrates the potential risks involved in the participation of certain INGOs and interest groups in the conduct of future domestic proceedings and investigations. Today, when most of the relevant countries have effectively closed their doors before foreign private litigants,166 the motivation of interest groups to find and apply alternative channels of prosecution, such as the ICC and Israeli domestic legislation, is probably high. This means that any consideration of new domestic investigation and prosecution proceedings will certainly require serious evaluation of the proper procedural mechanisms and legal safety valves required to ensure that such proceedings are not easily abused and manipulated. Such an endeavor will probably require consideration of complementary legislation regarding, inter alia, interest groups’ sources of funding and support for terrorism. At the same time, international judicial institutions, such as the ICC, should be aware of not letting themselves be manipulated by parties to political conflicts and by their proponents, thus undermining their legitimacy and credibility.

* * *

Universal jurisdiction is an important concept, and is here to stay. It could – and should – evolve into a cornerstone of the multilateral endeavor to end impunity and to bring justice to victims of the most atrocious of crimes. It is therefore all the more unfortunate that “lawfare” against Israel in the form of universal jurisdiction campaigns has set back the cause of international global justice in this regard. Indeed, some commentators argue that universal jurisdiction had become a mere “self-feeding hype generated by NGOs, activist lawyers and judges, academic conferences and papers, and mass-media.”167 This probably goes too far.

Nevertheless, it is a powerful reaction in the face of the unbearable lightness of political manipulation. If universal jurisdiction is to be meaningful in the future, the lessons on how easily international law can be exploited and diverted from its true objectives,168 turning it into an “international lynch-law,”169 must resound.

Dr. Rephael Ben-Ari, PhD (Bar-Ilan University); LL.M (Pubic International Law) (cum laude) (Leiden University, The Netherlands); LL.B (cum laude) (Tel Aviv University); 2011-2012 Global Research Fellow and Neil MacCormick Fellow in Legal Theory, Hauser Global Law School Program, New York University School of Law;author of the books: The Normative Position of International Non-Governmental Organizations under International Law: An Analytical Framework (Martinus Nijhoff/Brill, 2012); The Legal Status of International Non-Governmental Organizations: Analysis of Past and Present Initiatives (1912-2012) (Martinus Nijhoff/Brill, 2013); former Legal Adviser to the Israel Mission in The Netherlands;teaches public and criminal international law.

Notes

1      See A. Cassese, International Criminal Law (2nd Ed.), (2008), p. 4; M.N. Shaw, International Law (7th Ed.), (2008), pp. 398, 402-403.

2     See, for example, R. Cooper, The Breaking of Nations: Order and Chaos in the Twenty-First Century (2003), explaining that in the so-called postmodern international order, as the state itself becomes less dominating, ‘state interest becomes less of a determining factor in foreign policy: the media, popular emotion, the interests of particular groups or regions (including transnational groups) all come into play’

– see p. 50. Consequently, the ‘postmodern state’ values above all the individual, and society, as a whole, becomes more skeptical of state power, less nationalistic. For the ‘postmodern state’ success therefore supposedly means openness and transnational cooperation – see p. 51, 76. For further discussion of the notions of globalization and de-territorialization in the context of a postmodern normative discourse – see R.H. Ben-Ari, The Normative Position of International Non-Governmental Organizations under International Law – An Analytical Framework, (2012), pp. 181-221.

3    Cooper regards the ICC a striking example of the ‘postmodern breakdown of the distinction between domestic and foreign affairs,’ reflecting the vision of a world that is governed by law rather than by force, in which those who break the law will be treated as criminals. In this postmodern world, raison d’état is replaced by a moral consciousness that applies to international relations as well as to domestic affairs. The quest for the establishment of international judicial institutions therefore, although being established by conventional treaties between sovereign states, results in ‘a growing web of institutions that go beyond the traditional norms of international diplomacy’ – see ibid, p. 31. See also L. Reydams, The Rise and Fall of Universal Jurisdiction, Leuven Centre for Global Governance Studies, Working Paper No. 37 (Jan. 2010), pp. 4-6, available at: https://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp31-40/wp37.pdf.

4    International Criminal Tribunal for the Former Yugoslavia – see Security Council Res. 827(1993); International Criminal Tribunal for Rwanda – see Security Council Res. 995(1994); as well as mixed/hybrid tribunals such as the Special Court for Sierra Leone and the Special Tribunal for Lebanon – see generally Shaw, op. cit. note 1, p. 417-418.

5     Considered by some authors to be the most important institutional innovation since the founding of the United Nations – see W.A. Schabas, An Introduction to the International Criminal Court, (4th Ed.), (2011), p. X.

6 See Rome Statute of the International Criminal Court, UN Doc. A/CONF.183, Preamble & Art. 1. 7 For a discussion of the objectives of international criminal law, see R. Cryer, H. Friman, D. Robinson, E. Wilmshurst, An Introduction to International Criminal Law and Procedure, (2010), pp. 22-39.

8    See L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives, (2003), pp. 28­42; A.J. Colangelo, Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law, Harvard International Law Journal, Vol. 48, (2007), p. 130; M. Jouet, Spain’s Expanded Universal Jurisdiction to Prosecute Human Rights Abuses in Latin America, China, and Beyond, Georgia Journal of International and Comparative Law, Vol. 35 (2007), p. 499.

9     See, for example, Draft Code of Crimes against the Peace and Security of Mankind, Report of the 48th Sess., International Law Commission (1996); Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences, Committee on International Human Rights Law and Practice, International Law Association, Report of the 69th Conference (2000); Princeton Principles on Universal Jurisdiction, Princeton Project on Universal Jurisdiction, Program in Law and Public Affairs, Princeton University (Princeton 2001); see also Hard Cases: Bringing Human Rights Violations to Justice Abroad –

A Guide to Universal Jurisdiction, Report by the International Council on Human Rights Policy, (1999),

available at: http://www.ichrp.org/files/reports/5/201_report_en.pdf.

10 See Jouet, op. cit. note 8, pp. 498-499. See, for example, Statement on Universal Jurisdiction by Mr. Vieria (Brazil), Principle of ‘Universal Jurisdiction’ Again Divides Assembly’s Legal Committee, Sixth Committee, 66th General Assembly, UN Doc. GA/L/3415 (12 Oct. 2011), calling to ‘find an acceptable definition of universal jurisdiction.’

11   See AU-EU Expert Report on the Principle of Universal Jurisdiction, Council of the European Union, 8672/1/09 Rev1, (Apr. 2009), para. 8, available at: http://www.africa-eu-partnership.org/pdf/rapport_expert_ua_ue_competence_universelle_en.pdf.

12   That is the principles of territoriality, nationality, passive personality, or the protective principle, ordinarily necessary under international law in order to assert jurisdiction by national authorities.

13 See AU-EU Expert Report, op. cit. note 11, para. 8.

14   See Rome Statute of the International Criminal Court, op. cit. note 6, Arts. 5-8bis; Draft Code of Crimes against the Peace and Security of Mankind, op. cit. note 9, Arts. 1-2, 16-20.

15   See Rome Statute of the International Criminal Court, ibid, Preamble; see also London Agreement of August 8th 1945 for the Prosecution and Punishment of the Major War Criminals of the European Axis, Preamble (‘acting in the interests of all the United Nations’), available at: http://avalon.law.yale.edu/imt/ imtchart.asp.

16 Such treaty crimes include grave breaches of the 1949 Geneva Conventions, the crime of torture as defined in the Convention against Torture 1984, the crime of enforced disappearance as defined in the Convention against Enforced Disappearance 2006, as well as certain crimes defined in the so-called set of anti-terrorism conventions.

17 The so-called principle of Aut Dedere Aut Judicare (‘extradite or sentence’), which is frequently confused with the principle of universal jurisdiction.

18   There is no duty under customary international law to prosecute all serious human rights abuses under universal jurisdiction – see, for example, S.R. Ratner, Belgium’s War Crimes Statute: A Postmortem, American Journal of International Law, Vol. 97, (2003), p. 895; Colangelo, op. cit note 7, p. 130.

19  See, for example, discussion in Colangelo, ibid, p. 130.

20   See in this regard discussions within the Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, and Separate Opinion of President Guillaume, in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Rep. 2002, p. 3; see also R. O’Keefe, Universal Jurisdiction: Clarifying the Basic Concept, Journal of International Criminal Justice, Vol. 2, (2004), pp. 735-760.

21 An echo to this controversy can be found in the Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, and Separate Opinion of President Guillaume, in Case Concerning the Arrest Warrant, ibid. See also Jouet, op. cit. note 8, pp. 498-499, who distinguishes between countries (such as Austria, France, and Switzerland) that uphold a doctrine of conditional universal jurisdiction, that requires custody of the accused in order to initiate proceedings (including investigation), and countries (such as Belgium and Spain, prior to the passage of amendments to their universal jurisdiction laws) that support the absolute universal jurisdiction doctrine, allowing to prosecute a defendant regardless of whether he or she is in custody; see also discussion in O’Keefe, ibid, p. 747.

22    In the Case Concerning the Arrest Warrant, ibid, the ICJ determined that, under customary international law, certain holders of high-ranking office in a state, such as the Head-of-State, Head-of-Government, and Minister of Foreign Affairs (as well as diplomatic and consular agents) are entitled, while in office, to an absolute (procedural) personal state immunity from jurisdiction in other states – para. 51. The list of high-ranking government officials entitled to such immunity is not exclusive, and depends on the function of the state official concerned. See also Application for Arrest Warrant against General Shaul Mofaz, First instance, unreported (Bow Street Magistrates’ Court), (12 Feb. 2004), paras. 10-15.

23 Kontorovich notes that while all nations are in effect joint owners of a right to prosecute under universal jurisdiction, and may share a common interest in universal jurisdiction offences, they manifestly differ in the valuations they assign to this interest – see E. Kontorovich, The Inefficiency of Universal Jurisdiction, University of St. Gallen Law School, Law and Economics Research Paper Series, Working Paper No. 2007-13, (Jul. 2007), pp. 14-15, available at: http://ssrn.com/abstract=1000179.

24 Israel was one of the very first states to enact legislation based on the doctrine of universal jurisdiction through the Nazis and Nazi Collaborators Punishment Law 5710-1950, for war crimes, crimes against the Jewish people and crimes against humanity – see http://mfa.gov.il/MFA/MFA-Archive/1950-1959/Pages/Nazis%20and%20Nazi%20Collaborators%20-Punishment-%20Law-%20571.aspx. The law was the legal basis for the Eichmann case, decided by the District Court of Jerusalem and the Supreme Court of Israel in 1961/2 – see Attorney General of Israel v. Eichmann (1961); Eichmann v. Attorney-General, Supreme Court, Judgment of 29 May 1962, 36 ILR, p. 5 & 277. As such, the case is considered the starting point insofar as universal jurisdiction as manifested in domestic courts is concerned – see Shaw, op. cit. note 1,

p. 671, although, as the judges in the Eichmann case made clear, in view of the unique circumstances, the jurisdiction of Israel was also based on the principle of passive personality, due to the fact that the victims were Jewish and were therefore represented by the State of Israel, which was the Jewish state – see paras. 9, 6, 10-12 of the Supreme Court’s judgment.

25 See Jouet, op. cit. note 8, p. 501; D. F. Orentlicher, Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles, Georgetown Law Journal, Vol. 92 (2004), pp. 1057, 1059-1060. 26 In fact, the jurisdiction of the ICC is considerably narrower than that which was claimed by some states under the doctrine of universal jurisdiction – see Schabas, op. cit. note 5, pp. xi-xii, 63-67; Rome Statute

of the International Criminal Court, op. cit. note 6, Art. 12.

27   See The Use and Abuse of Universal Jurisdiction, Jerusalem Post – Blogs (Point/Counterpoint), available at: http://blogs.jpost.com.

28 See Y. Zilbershatz, Universal Jurisdiction: The Waking Giant, Justice, Vol. 35 (2003), p. 15.

29 See, for example, The Use and Abuse of Universal Jurisdiction, op. cit. note 27.

30 In Switzerland (against Binyamin Ben-Eliezer, former Minister of Defense, and others); in New Zealand, 2005 (against Moshe Ya’alon, former Chief-of-Staff of the IDF); in the USA, 2005 (against Moshe Ya’alon); in the USA, 2005 (against Avi Dichter, former Director of the General Security Service); in Holland, 2008 (against Ami Ayalon, former Director of the General Security Service); in Norway, 2009 (against Ehud Olmert, former Prime Minister, Ehud Barak, former Minister of Defense, Tzipi Livni, former Minister of Foreign Affairs, and others); in Turkey, 2009 (against Shimon Peres, former Prime Minister and Minister of Defense, Ehud Olmert, Tzipi Livni, Ehud Barak, and Gabi Ashkenazi, former Chief-of-Staff); the list is not conclusive. See also Overview of Lawfare Cases Involving Israel, NGO Monitor, (visited 30/08/2013), available at: http://www.ngo-monitor.org/article/ngo_lawfare.

31 The complaint was the initiative of Chibli Mallat, Professor in European Law in St. Joseph’s University in Beirut, together with two Belgian lawyers, Michael Verhaeghe and Luc Walleyn. It was the outcome of months of intensive research in the Palestinian refugee camps in Lebanon aimed at identifying the immediate relatives of victims of the massacres, held by Sana Hussein and Dr. Rosemary Sayegh, ‘friend of the Palestinian cause,’ dealing with Palestinians in Lebanon – see C. Mallat, Special Dossier on the “Sabra and Shatila” Case in Belgium: Introduction: New Lights on the Sharon Case, The Palestine Yearbook of International Law, Vol. XII (2002-2003), p. 183, 185. The criminal procedure under the Belgian law was based on the system of constitution de partie civile (‘plaintiff-prosecutors’ system), by which the victims initiate cases before an investigating judge – see Ratner, op. cit note 18, p. 890.

32 The massacres of 700-800 Palestinians occurred in the Sabra and Shatila refugee camps between 16-18 Sep. 1982, during the Lebanon War, by Christian Phalanges in revenge for previous massacres and the assassination of their leader Bashir Jumayil. Following the massacres, the Israeli government appointed an inquiry commission chaired by Justice Kahan to investigate the events and Israel’s role in them. The commission did not find any of the relevant Israeli office holders directly responsible, although it criticized several of them for not being sufficiently aware of the possible implications of the Phalanges’ advance into the camps; Sharon was required to resign from his post – for a historical account of the events in Lebanon, see Y. Gelber, The Lawsuit Submitted against Ariel Sharon in Belgium: Historical Background, Justice, Vol. 35, (2003), pp. 25-28. Sharon was the Israeli Defense Minister in 1982, and Yaron was the general in charge of the Beirut sector. For a detailed chronology of the proceedings in Belgium, see M. Hirsch, N. Kumps, The Belgian Law of Universal Jurisdiction Put to the Test, Justice, Vol. 35, (2003), pp. 20-24; Ratner, ibid, pp. 889-892.

33 R. v. Bow Street Metropolitan Stipendiary Magistrate Ex. p. Pinochet Ugarte (No. 3), House of Lords, [2001] 1 A.C. 147; [1999] 2 W.L.R. 827.

34 See Mallat, op. cit. note 31, p. 183.

35 See Jouet, op. cit. note 8, p. 502; see generally M. Byers, The Law and Politics of the Pinochet Case, Duke Journal of Comparative and International Law, Vol. 10 (2000), p. 415.

36 See Hirsch, op. cit. note 32, p. 20.

37 See Mallat, op. cit. note 31, p. 186.

38 The filing of the complaint on behalf of the Sabra and Shatila victims immediately after the conviction in the ‘Rwandan trial’ was carefully calculated – see Mallat, ibid, p. 184.

39 On the significance of the ‘Rwandan trial’ and its possible consequences as a leading universal jurisdiction precedent – see Ratner, op. cit. note 18, p. 892; Jouet, op. cit. note 8, p. 528-529.

40 Which turned Belgium into the uncrowned ‘world capital of universal jurisdiction’ – see Jouet, ibid, p. 501, quoting Orentlicher, op. cit. note 25.

41 See Hirsch, op. cit. note 32, p. 21.

42 In the beginning, either the suspect or the victims were living in Belgium. In a later stage, complaints did not even possess such links – see Hirsch, ibid, p. 21.

43 Although Belgium’s law was not the world’s first domestic statute on universal jurisdiction, it was certainly the broadest in terms of the crimes it covered and the lack of any required link to Belgium – see Ratner, op. cit. note 18, p. 889. Evidently, the original law was passed without taking into account the various serious issues entailed by the enactment of such law and its application – see Hirsch, ibid, p.

20. See generally A. Masset, The Supreme Court of Belgium Puts an End to the Prosecution of Sharon, Justice, Vol. 35, (2003), pp. 29-30.

44 See Hirsch, ibid, p. 21, 23. A group of six NGOs was established to participate in the drafting process, in an effort to ensure the adoption of an interpretative legislation that extended the scope of the universal jurisdiction law.

45 See ibid, p. 21.

46 Mallat, op. cit. note 31, p. 185-186.

47 See ibid, p. 185.

48   The International Campaign was coordinated by the leading pro-Palestinian activist, Dr. Laurie King-Irani, who later co-founded the ‘Electronic Intifada’ – see http://cosmos.ucc.ie/cs1064/jabowen/IPSC/php/authors.php?auid=842; Mallat, ibid, p. 184.

49    See Mallat, ibid, ibid.

50    Mallat acknowledges in particular the active support of Yale Law School Human Rights Clinic, under the direction of Deena Hurwitz and Jim Silk, as well as of Leah Tsemel and Raef Verstraeten – see ibid.

51    See Mallat, ibid; Hirsch, op. cit. note 32, p. 22.

52    Mallat, ibid, p. 186.

53    See Hirsch, op. cit. note 32, p. 23; Mallat, ibid, pp. 186-188; Hubeika, former Lebanese MP, was assassinated the morning after his meeting with the Belgian delegation, near his home in a Beirut suburb. Clearly, Hubeika, who was encouraged by the counsels for the victims to take part in the proceedings, saw a golden opportunity to clear his name as the perpetrator of the massacres – see Mallat, p. 186.

54    Hirsch, ibid.

55     Another question was the application of the non bis in idem principle, regarding the absence of criminal proceedings in Israel following the publication of the Kahan Commission report and the amnesty granted by the Lebanese authorities to the perpetrators of the massacres in Sabra and Shatila – see Masset, op. cit. note 43, p. 35.

56    A full review of the legal proceedings in Belgium, and the arguments of the State of Israel, is beyond the scope of this paper – see generally Hirsch, op. cit. note 32, pp. 22-24; Masset, ibid, pp. 29-30.

57     In 2000, the Democratic Republic of Congo contested before the ICJ the legality of an arrest warrant issued by a Belgian judge against Yerodia Ndombasi, the Foreign Minister at the time of the warrant. In 2002 the ICJ found the warrant to be inconsistent with the procedural immunity to which an acting minister of foreign affairs was entitled under customary international law – see Case of Arrest Warrant, op. cit. note 20.

58    See fn. 22, supra.

59    Ratner, op. cit. note 18, p. 890.

60    Vice President D. Cheney, Secretary of State C. Powell, and former general N. Schwarzkopf.

61    See Orentlicher, op. cit. note 25, p. 1062. In view of the American warnings that Belgium was risking its status as a diplomatic capital, G. Verhofstadt, the Belgian Prime Minister, who during the Sharon trial expressed support for the unqualified application of the law, immediately proposed the amendments to limit its application in order to prevent ‘manifestly abusive political use of this law’ – see Ratner, op. cit. note 18, pp. 890-891.

62      The law also acknowledged the immunities of senior officials recognized under customary law; for a review and analysis of the amendments to the Belgian law – see ibid, pp. 890-892; Hirsch, op. cit. note 32, p. 24.

63    Hirsch, ibid, p. 24

64    Ratner, op. cit. note 18, pp. 893-894.

65    Ratner, ibid, p. 889; see also Jouet, op. cit. note 8, p. 528.

66    I. Patel, Forward, in War Crimes in Gaza, Report by ‘Friends of Al-Aqsa’, (Sep., 2009), p. 9, available at: http://issuu.com/friendsofalaqsa/docs/gaza_report_web?viewMode=magazine.

67    Jouet, op. cit. note 8, p. 501.

68    As was predicted by some commentators – see ibid, p. 531.

69    See ibid, p. 499, 522.

70    The Belgian law originally allowed trials in absentia, not only investigations.

71     The Spanish trial court responsible for matters of international and national interest, including international crimes and terrorism – see Jouet, op. cit note 8, p. 504.

72    The same set of investigations, dealing with the junta reign in Argentina, led in 2004 to the arrest in Spain of Adolfo Schilingo, an Argentine navy officer charged with mass-murder during Argentina’s Dirty War. This was one of the very few and probably the most famous case brought under a universal jurisdiction law that ended in a conviction after passing a complete series of appeals – see generally Jouet, ibid, p. 505, 522.

73    See ibid, p. 501; S. Kern, Spain, Israel and War Crimes, Gatestone Institute (Apr. 2009), available at: http://www.gatestoneinstitute.org/455/spain-isreal-and-war-crimes.

74    Jouet, op. cit. note 8, p. 502-503.

75    See ibid, p. 502.

76    The Supreme Court in 2004 interpreted the law as requiring a link to national interests, clarifying that the Spanish courts could only exert a narrow form of universal jurisdiction. The court explained that a broader form of universal jurisdiction would be unreasonable and would violate the principle of non­intervention in another state’s affairs as enshrined in Art. 2(7) of the UN Charter – for a discussion of the court’s ruling see ibid, pp. 505-507.

77    The Constitutional Tribunal essentially held that a procedural link to national interests was not required since universal jurisdiction was exclusively based on the substantive nature of grave crimes affecting the entire international community – see ibid, pp. 508-510, 512.

78 The PCHR was founded in 1995 by a group of Palestinian human rights lawyers. It mainly operates from Gaza. According to the center’s definition, its work includes the documentation and investigation of human rights violations. The center was behind most of the lawsuits against senior Israeli officials abroad: Shaul Mofaz (UK, 2002); Doron Almog (UK, 2005), Avi Dichter (USA, 2005); Moshe Ya’alon (New Zealand, 2005), Binyamin Ben-Eliezer and others (Spain, 2008); Ami Ayalon (Holland, 2008). According to the center’s 2008 report, and the reports of the organizations that support it, the main donors to the PCHR are: the Welfare Association (financed by the World Bank, among others); the NGO Development Center (financed by the World Bank, among others); the Open Society Institute (USA); Grassroots International (USA); the Ford Foundation (USA); as well as the EU and several European governments – see The Financing of Welfare Association (WA) and NGO Development Center (NDC) by the US Government via the World Bank, Report by KELA Research and Strategy (on file with the author); see also: The Palestinian Center for Human Rights Plays a Leading Role in Anti-Israeli Warfare, Report by the Meir Amit Intelligence and Terrorism Information Center, (Apr. 29, 2013), available at: http://www.terrorism-info.org.il/Data/articles/Art_20506/E_059_13_437439896.pdf; Palestinian Center for Human Rights (Information Page), NGO Monitor (Jul. 02, 2012), available at: http://www.ngo­monitor.org/article/palestinian_center_for_human_rights_pchr_.

79    See War Crimes in Gaza, op. cit. note 66, p. 50. For a brief history of the proceedings in Israel – see I. Rosenzweig, Y. Shany, Universal Jurisdiction: Spanish Court Initiates an Inquiry of the Targeted Killing of Salah Shehadeh in Gaza, Terrorism and Democracy Newsletter, Issue No. 3, (Mar. 2009), Israel Democracy Institute, available at: http://en.idi.org.il/analysis/terrorism-and-democracy/issue-no-3/. Shehadeh masterminded numerous terror attacks against Israeli civilians and soldiers in the Gaza strip and within Israel; he was involved in the production of Qassam rockets fired against Israeli civilian targets, and in the smuggling of arms into the Gaza Strip. As the leader of the Izz ad-Din al-Qassam Brigades, he was responsible for suicide attacks that caused the death of hundreds of Israeli civilians. For the conclusions of the special investigation committee on the targeted killing of Shehadeh, see: http://www.pm.gov.il/PMO/Archive/Spokesman/2011/02/spokeshchade270211.htm.

80    See War Crimes in Gaza, ibid.

81    See G. Gordon, Spanish UJ – From Pinochet to Purgatory?, Opinio Juris Blog (24/7/2009), available at: http://opiniojuris.org/2009/07/24/spanish-uj-from-pinochet-to-purgatory/.; Kern, op. cit. note 73.

82    See Kern, ibid.

83    See Rosenzweig, op. cit. note 79 (italics added).

84   See, for example, The Principle and Practice of Universal Jurisdiction: PCHR’s Work in the Occupied Palestinian Territory, Report of the Palestinian Center for Human Rights, (Jan. 2010), Executive Summary, available at: http://www.pchrgaza.org.

85    Kern, op. cit. note 73.

86    The ensuing Report of the United Nations Fact Finding Mission on the Gaza Conflict (the so-called ‘Goldstone Report’) indeed recommended states parties to the Geneva Conventions to ‘start criminal investigations in national courts, using universal jurisdiction’ – see Conclusions and Recommendations, Human Rights Council, UN Doc. A/HRC/12/48 (ADVANCE 2), (24 Sep. 2009), para. 1975 (italics added), available at: http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48_ADVANCE2.pdf; see fn. 95, infra.

87    See A. Pfeffer, Lawyers in EU Draw up List of Alleged IDF War Criminals, Haaretz, (27 Oct. 2009), available at: http://www.haaretz.com/print-edition/news/lawyers-in-eu-draw-up-list-of-alleged-idf-war­criminals-1.5386.

88    Kern, op. cit. note 73.

89    See Rosenzweig, op. cit. note 79.

90    For a discussion of the risks of such strategy and its legal implications – see ibid, under ‘Conclusions.’

91    See Kern, op. cit. note 73.

92    Rosenzweig, op. cit. note 79.

93    See HCJ 769/2 Public Committee against Torture v. State of Israel (the so-called ‘Targeted Killing Case’). The HCJ further determined that every case that involved civilian casualties had to be examined by a special committee.

94    See HCJ 8794/03 Yoav Hess et al. v. Judge Advocate General et al.

95     Following the wording of Art. 17(1)(a) & (b) of the Rome Statute of the International Criminal Court, op. cit. note 6. Recall in this regard that, although the ‘Goldstone Report’ initially raised ‘serious doubts about the willingness of Israel to carry out genuine investigations’ as required by international law

– see op. cit note 86, para. 1961, in an April 2011 Washington Post Op-Ed, Goldstone admitted that, ‘if I had known then what I know now, the Goldstone Report would have been a different document.’ Furthermore, Goldstone determined that Israel had fulfilled ‘to a significant degree’ its responsibility to investigate ‘transparently and in good faith’ the incidents referred to in the report, while the ‘Hamas ha[d] done nothing’ – see R. Goldstone, Reconsidering the Goldstone Report on Israel and War Crimes, Washington Post – Opinions, (Apr. 1, 2011), available at: http://articles.washingtonpost.com/2011-04­01/opinions/35207016_1_drone-image-goldstone-report-israeli-evidence.

96     See Kern, op. cit. note 73; I. Rosenzweig, Y. Shany, Update – Universal Jurisdiction: Spanish Court’s Inquiry of the Targeted Killing of Salah Shehadeh, Terrorism and Democracy Newsletter, Issue No. 5, (May 2009), Israel Democracy Institute, available at: http://en.idi.org.il/analysis/terrorism-and­democracy/issue-no-5/.

97    Such as Deputy Prime Minister Maria-Teresa Fernandez de la Vega – see Kern, ibid.

98    See Rosenzweig, op. cit. note 96.

99    See Kern, op. cit. note 73, quoting incoming Prime Minister Netanyahu.

100 See ibid.

101 See Rosenzweig, op. cit. note 96.

102    See I. Rosenzweig, Y. Shany, Update on Universal Jurisdiction: Spanish Court of Appeals Decides to Close the Inquiry into the Targeted Killing of Salah Shehadeh, Terrorism and Democracy Newsletter, Issue No. 8, (Aug. 2009), Israel Democracy Institute, available at: http://en.idi.org.il/analysis/terrorism­and-democracy/issue-no-8/.

103 For a review of the minority opinion – see ibid.

104    See P. Haven, Spain: No Torture Probe of US Officials, The Associated Press (Madrid), available at: http://www.google.com/hostednews/ap/. Another judge of the Audiencia was already investigating whether secret CIA flights to or from Guantanamo entered Spanish airspace or landed at Spanish airports.

105    See Gordon, op. cit note 81.

106    Ibid.

107    In the words of Candido Conde-Pumpido, Spain’s top law-enforcement official – see Haven, op. cit. note 104.

108    See Gordon, op. cit. note 81.

109    See Rosenzweig, op. cit. note 96; War Crimes in Gaza, op. cit. note 66, p. 50.

110    See Gordon, op. cit. note 81.

111    See PCHR Report, op. cit. note 84.

112    See I. Rosenzweig, Y. Shany, Update on Universal Jurisdiction: Spanish Supreme Court Affirms Decision to Close Inquiry into Targeted Killing of Salah Shehadeh in Gaza, Terrorism and Democracy Newsletter, Issue No. 17, (May 2010), Israel Democracy Institute, available at: http://en.idi.org.il/analysis/terrorism-and-democracy/issue-no-17/. The Court pointed out, inter alia, that the fact the appellants had initially filed their complaint before the Israeli courts inferred that they accepted the genuineness of the Israeli proceedings.

113    The reform to the Spanish law included three non-cumulative requirements for the application of universal jurisdiction: presence of the accused on Spanish territory; Spanish nationality of the victims; or other relevant connection to Spain – for analysis and review of the new requirements, see C. Espósito, Shrinking Universal Jurisdiction, ESIL Newsletter (Feb. 2010).

114    Some commentators pointed out that the Audiencia judges had never sought to prosecute any Hamas or Fatah terrorists, nor crimes against humanity committed in Chechnya or Darfur, for example, nor any suspected Nazi war criminals who had sought refuge in Spain after WWII – see Kern, op. cit. note 73.

115    See, for example, Jouet, op. cit. note 8, p. 528, 531.

116    See ibid, pp. 513-514, 526, 531, 535.

117    See Recent Legislation: International Law – Universal Jurisdiction – United Kingdom Adds Barrier to Private Prosecution of Universal Jurisdiction Crimes – Police Reform and Social Responsibility Act, 2011, c. 13 (U.K.), Harvard Law Review, Vol. 125 (2012), p, 1554, 1555.

118    See ibid, p. 1555.

119 See War Crimes in Gaza, op. cit. note 66, p. 50; R. Prosor, Universal Jurisdiction: A Loophole that Must Be Repaired, Justice, Vol. 48, (2011), p. 36.

120    See Prosor, ibid, p. 36, 46.

121    See, for example, War Crimes in Gaza, op. cit. note 66, pp. 5-8.

122    See Prosor, op. cit. note 119, p. 36.

123    See Application for Arrest Warrant against General Shaul Mofaz, op. cit. note 22, paras. 1-2.

124    See ibid, para. 1.

125     See Case Concerning the Arrest Warrant, op. cit. note 20, para. 51; fn. 22, supra.

126     See Application for Arrest Warrant against General Shaul Mofaz, op. cit. note 22, paras. 10-15.

127    See ibid, para. 3.

128    In collaboration with Daniel Machover and Kate Maynard from Hickman and Rose Solicitors (UK)

– see S. Nicolaou-Garcia, European Efforts to Apply the Principle of Universal Jurisdiction against Israeli Officials, Middle East Monitor (MEMO, London), (Jul. 2009), available at: http://www.middleeastmonitor.com/reports/by-silvia-nicolaou-garcia/; Recent Legislation, op. cit. note 105, fn. 117,

p. 1555. 129 Nicolaou-Garcia, op. cit. note 128. 130 See ibid. It was reported that Almog had decided to cancel another visit to the UK in June 2013, despite

an assurance of immunity by British authorities, following an action by PCHR lawyers challenging the decision of the UK government to grant Almog’s visit the status of ‘special mission’ that ‘in effect put Almog beyond the reach of the law’ – see A. Abunimah, Israeli War Crimes Suspect Cancels London Visit, The Electronic Intifada (ei), (Jul. 2013), available at: http://electronicintifada.net/blogs/ali­abunimah/isreali-war-crimes-suspect-cancels-london-visit/. The PCHR challenged the decision ‘given the fact that it was made by the UK government despite the existence of a warrant for Almog’s arrest on

war crimes charges.’

131 In September 2005, a complaint against Moshe Ya’alon and Dan Halutz was filed in the UK by the human rights group ‘Yesh Gvul’ for their involvement in the Shehadeh targeted killing operation. Ya’alon, who was invited to London in 2009, was advised to cancel his trip. Such was the case with Minister of Defense Ehud Barak, and Minister of Public Security Avi Dichter. Maj. Gen. Aviv Kochavi, Military Intelligence Director, and Maj. Gen. Yohanan Locker, Military Secretary to the Prime Minister, also canceled their visits to the UK.

132    See Recent Legislation, op. cit. note 117, fn. 15, p. 1555.

133    See ibid, p. 1555-1556.

134    See The Use and Abuse of Universal Jurisdiction, op. cit. note 27.

135    See Reydams, op. cit. note 3, p. 26; Recent Legislation, op. cit. note 117, p. 1555.

136 See J. Bellinger, Britain Amends Universal Jurisdiction Law, LAWFARE Blog (Sep. 2011), available at: http://www.lawfareblog.com/2011/09/britain-amends-universal-jurisdiction-law/. In March 2010, the British government declared that ‘the Crown Prosecution Service will take over responsibility for prosecuting war crimes and other violations of international law, ending the current system in which magistrates are obliged to consider a case for an arrest warrant presented by any individual’ – see

J. Chapin, Universal Jurisdiction is Abused and Leads to International Friction, say Legal Scholars, The Cutting Edge News, (Apr. 2010), available at: http://www.thecuttingedgenews.com/index.php?article=12101.

137   See House of Commons Fourth Sitting, 20 Jan. 2011, Parl. Deb., H.C. (2011) 126 (UK), as quoted in Recent Legislation, op. cit. note 117, p. 1555.

138 See Chapin, op. cit. note 136.

139 See The Use and Abuse of Universal Jurisdiction, op. cit. note 27.

140 As well as Liberty, Redress, Global Witness, and Justice (the British section of the International Commission of Jurists) – see R. Irvine, UK Rewrites War Crimes Law at Israel’s Request, The Electronic Intifada (ei), (Oct. 2011), available at: http://electronicintifada.net/content/uk-rewrites-war­crimes-law-israels-request/10446; these organizations issued a joint brief on Universal Jurisdiction in the UK, expressing their ‘grave concern’ that ‘any changes to the existing law will undermine the capacity of victims of serious international crimes to hold accountable alleged perpetrators by making all arrest decisions in such cases subject to political considerations rather than being based on the legal merits’ – see Liberal Democrat Friends of Palestine, Universal Jurisdiction – Update (Feb. 2011), available at: http://ldfp.eu/universal-jurisdiction/.

141 Thus separating universal jurisdiction proceedings from the arrest warrant procedures for domestic crime – see Recent Legislation, op. cit. note 117, p. 1554.

142   See ibid, p. 1557. See also Statement on Universal Jurisdiction by D. Wilson (UK), Principle of ‘Universal Jurisdiction’ Again Divides Assembly’s Legal Committee, Sixth Committee, 66th General Assembly, UN Doc. GA/L/3415 (12 Oct. 2011).

143 See Irvine, op. cit. note 140.

144 See PCHR Report, op. cit note 84.

145 See, for example, International Federation of Human Rights, Position Paper to the United Nations General Assembly at its 64th Session (Oct. 2009), claiming that universal jurisdiction is ‘firmly enshrined in international treaty and customary law’ –  available at: http://www.fidh.org/IMG/pdf/FIDH_Position_Paper_to_the_GA_-_64.pdf, as quoted in Reydams, op. cit note 3, p. 28 (italics added). Human Rights Watch report also states that ‘the vast majority of states recognize the validity of the concept of universal jurisdiction, as they are parties to conventions that provide for it’ – see Basic Facts on Universal Jurisdiction, Prepared for the Sixth Committee of the United Nations General Assembly (Oct. 2009), Human Rights Watch, available at: http://www.hrw.org/print/news/2009/10/19/basic­facts-universal-jurisdiction (italics added). Also Amnesty International calls upon states ‘to uphold their commitment to universal jurisdiction, a long-established rule of international law, and reaffirm the duty of every state to exercise its jurisdiction over crimes under international law regardless where they have been committed and the nationality of the suspects and victims’ – see Universal Jurisdiction – Strengthening this Essential Tool of International Justice, (Oct. 2012), Amnesty International, IOR 53/020/2012, p. 8 (italics added).

146 See also discussion by Reydams, ibid, pp. 10-24.

147 See Statement on Universal Jurisdiction by A. Enersen (Norway), Delegations Urge Clear Rules to avoid Abuse of Universal Jurisdiction Principle, Sixth Committee, 67th General Assembly, UN Doc. GA/L/3441 (17 Oct. 2012). See also Statements on Universal Jurisdiction by Brazil, the United States, and Tunisia, Principle of ‘Universal Jurisdiction’ Again Divides Assembly’s Legal Committee, Sixth Committee, 66th General Assembly, UN Doc. GA/L/3415 (12 Oct. 2011), noting the ‘ambiguity surrounding the principle’, as well as Statement on Universal Jurisdiction by Iran, Legal Committee is Told ‘Principle of Universal Jurisdiction’ Needs to be Refined, to Avoid Possible Abuses, Politicization , Sixth Committee, 64th General Assembly, UN Doc. GA/L/3372 (21 Oct. 2009).

148 See Statements on Universal Jurisdiction by Argentina (2012), ibid.

149 See Statements on Universal Jurisdiction by Nigeria (2012), ibid.

150 See ibid.

151  See The Use and Abuse of Universal Jurisdiction, op. cit. note 27.

152 See, for example, Esposito, op. cit. note 113.

153   Some leading INGOs still insist that there is no abuse and manipulation of the doctrine in the case of Israel – see Human Rights Watch report on Basic Facts on Universal Jurisdiction, op. cit. note 145.

154 Reydams, op. cit. note 3, p. 27 (italics in original text).

155 A term coined by Reydams to describe headline-making NGO-driven cases against a host of (former) senior officials, that, with the exception of Pinochet, ‘produced little more than headlines and diplomatic headaches (and fame for a Spanish judge)’ – see ibid, p. 24.

156 Ibid, p. 28.

157 Recent Legislation, op. cit. note 117, p. 1557.

158   See, for example, Kern, op. cit. note 73; see also Mallat, who framed his petition in Belgium in the context of the fight for a so-called Kantian ‘cosmopolitan justice’ in the face of economic forces that ‘wreak havoc with peoples’ lives’ – see op. cit. note 31.

159 Much like the ICC in this regard.

160    See generally M.P. Scharf, Universal Jurisdiction and the Crime of Aggression, Harvard International Law Journal, Vol. 53, (2012), p. 358.

161 See Rosenzweig, op. cit note 112.

162 See, for example, G.P. Fletcher, Against Universal Jurisdiction, Journal of International Criminal

Justice, Vol. 1 (2003), p. 580, 582. 163 On the problematic application of the principle of non bis in idem (‘double jeopardy’) in the context of universal jurisdiction see, for example, Kontorovich, op. cit. note 23, pp. 13-14. 164 This is all the more so today, once there is no international agreement on the complex issue of competing proceedings, and probably until a comprehensive multilateral treaty on universal jurisdiction

is concluded – see, for example, Esposito, op. cit. note 113; Reydams (2003), op. cit. note 8, p. 16.

165    See Rosenzweig, op. cit. note 79.

166    Still, the amended Belgian law, for example, can be easily abused by litigants who are Belgian nationals or residents, although this is not considered anymore a universal jurisdiction case due to the link of the alleged victims to Belgium. Such was the case with the two Belgian activists who were reported to file a war crimes complaint over the ‘flytilla’ incident against Prime Minister Binyamin Netanyahu, former Minister of Interior, Eli Yishai, former Minister of Defense, Ehud Barak, and former Chief-of-Staff, Gabi Ashkenazi, in January 2012 – see A. Abunimah, Two Belgians File War Crimes Complaint against Israeli Leaders over ‘Flytilla’ Abuse, The Electronic Intifada (ei), (Jan. 2012), available at: http://electronicintifada.net/blogs/ali-abunimah/two-belgians-file-war-crimes-complaint-against-israeli­leaders-over-flytilla-abuse/.

167    Reydams, op. cit. note 3, p. 27.

168    See Hirsch, op. cit. note 32, p. 24.

169    In the words of the former British Prime Minister, Margaret Thatcher, as quoted by Jouet, op. cit. note 8, p. 536. See also H. Kissinger, The Pitfalls of Universal Jurisdiction, Foreign Affairs, (Jul.-Aug. 2001).

 
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