American Journal of International Law, July 1990 

EDITORIAL COMMENT(scanned text)

by Anthony D’Amato

THE IMPOSITION OF ATTORNEY SANCTIONS FOR CLAIMS ARISING FROM THE U.S. AIR RAID ON LIBYA

As three-month-old Khloud al-Oraiba slept in her home in a residential area of Benghazi, Libya, she was killed by shrapnel penetrating her chest. Her father, Hasan, 38, was killed by shrapnel to his skull. Many other bombs fell that night of April 15, 1986, on residential areas of Benghazi and Trip­oli, and over two hundred civilians were killed or wounded. They were the victims of a clandestine attack by United States Navy and Air Force aircraft on a mission to assassinate Muammar el-Qaddafi, the head of state of Libya, and to encourage the civilian population to overthrow Qaddafi.

Spokespersons for the United States told the media that the attack was ordered by President Reagan to protect U.S. lives and property against terrorism. Allegations were made that Libya was responsible for the bomb­ing of a West Berlin disco on April 5, 1986, in which two American soldiers were killed, among many other casualties.¹ However, West Berlin police officials and the Federal Republic of Germany publicly disputed the U.S. allegation that Libya was responsible for the bombing, and undertook prose­cutions of persons with Syrian connections.² In May the Pentagon an­nounced that the American bombers had erroneously and inadvertently hit civilian areas in the raid on Libya.

Forty of the wounded victims and the estates of fifteen deceased victims brought a complaint in federal district court in Washington, D.C. against the United States and other defendants. On the theory of negligence contained in the Pentagon’s announcement, the plaintiffs asked for damages against the United States under the Federal Tort Claims Act.³ On the contrary theory that the bombardment of civilian areas was deliberate, the plaintiffs named numerous additional defendants, including Ronald Reagan, Margaret Thatcher, Secretary of Defense Caspar Weinberger, various generals and admirals, and the United Kingdom and the United States of America. They alleged that the defendants were involved in the commission of war crimes resulting in the deaths and injuries to the plaintiffs.⁴ Compensatory and punitive damages were demanded against them.

A federal district court dismissed the Saltany complaint on the ground that all the defendants had sovereign immunity.⁵ On appeal, the Court of Appeals for the District of Columbia Circuit summarily upheld the dismissal and also imposed sanctions on counsel for the plaintiffs under Rule 11 for bringing a frivolous lawsuit.⁶ The imposition of sanctions casts a serious chilling effect upon all attorneys who engage in international human rights litigation.

The circuit court gave two general reasons for imposing sanctions. First, it regarded the action as an attempt to use the federal courts to serve as a forum for public statements of protest – to the detriment of parties with serious disputes waiting to be heard. I would agree that courts do not exist as public forums, but the question is whether Ramsey Clark and Lawrence W. Schilling, counsel for the plaintiffs in this case, in fact attempted to use the court as a forum. There is no evidence in the record that they did so. The court of appeals, consisting of Judges James Buckley, Douglas Ginsburg and David Sentelle, apparently felt that the attorneys for the plaintiffs could not possibly have been motivated by any genuine concern for vindicating the human rights of the Libyan civilians wounded and killed by the U.S. bom­bardment of their homes. If this is indeed the attitude of the judges, it signifies the vast distance yet to be traversed between the routine conception of international human rights lawyers who regard every human being no matter where situated as entitled to fundamental rights, and the routine attitudes of federal judges whose preoccupation with domestic litigation per­haps insulates them psychologically against extraterritorial claims upon their attention.

The second reason for imposing sanctions was the finding by the district court, Judge Jackson presiding, that “[t]he case offered no hope whatsoever of success, and plaintiffs’ attorneys surely knew it.“⁷ Although Judge Jackson did not impose sanctions, the court of appeals held that Judge Jackson’s finding evidenced a Rule 11 violation and therefore sanctions were imposed at the appellate level.

It may very well be true that there was no hope of success in a case brought before these particular judges. The three-judge pand on appeal consisted of judges who had all been a appointed by President Reagan. The complaint accuse President Reagan of being a war criminal. It is not unreasonable to suppose that such judges would view the complaint with abhorrence and disgust.

Rule 11 sanctions, however, are supposed to be invoked not when a particular case offends a particular judge, but only when a complaint is not “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.“⁸ It appears that the claim for damages under the Federal Tort Claims Act was well pleaded and reason­ably sustainable under existing law. The court of appeals did not discuss the merits of this claim in its summary affirmance of the dismissal of the com­plaint and in its imposition of sanctions.

Apart from the Federal Tort Claims Act, were the allegations of war crimes in the complaint so unwarranted by existing law that they would justify the invocation of Rule 11 sanctions? This question raises two subsid­iary ones: (1) whether the acts of the defendants constituted war crimes, and (2) whether the defendants were nevertheless clearly immune from liability.

(1) Article 25 of the Hague Regulations of 1907 provides: “The attack or bombardment, by whatever means, of towns, villages, dwellings, or build­ings which are undefended, is prohibited.”⁹ The United States is a party to the Hague Convention of 1907, and in any event the rules therein were found by the Nuremberg Tribunal to have entered into customary interna­tional law by 1939.¹⁰ Although the Hague prohibition is unqualified, any defendant who is alleged to have committed such a war crime would be entitled to raise various defenses, some of which might be allowed by customary law, including superior orders, retaliation (for the West Berlin disco bombing), forcible countermeasures, tu quoque, self-defense, counterterrorism and military necessity. However, in the Saltany case, the district court, for the purpose of dismissing the complaint, assumed its allegations to be true. Hence, the availability vel non of customary law defenses is not relevant to the question of the sufficiency of the complaint. It appears that on the facts of Saltany as I recounted them at the beginning of this Editorial, the plaintiffs made out a solid prima facie case of war crime.¹¹

(2) Is the defense of sovereign immunity available against a war crime allegation? Under international law, there would be no such thing as a war crime if that defense were available. The entire proceedings of the Military Tribunal at Nuremberg, the roughly three thousand trials of war criminals in various European courts at the time of Nuremberg, and the extensive decisions of the Military Tribunal of the Far East would all have been aborted if the defendants had been given immunity.¹²

The Saltany decision rests on the sole ground that the allegations of war crimes, although assumed to be well pleaded, must be dismissed on the basis of sovereign immunity. Is this a flat repudiation of the Nuremberg prece­dent? The answer depends on whether a connection exists between the international law of war and the domestic law of the United States.

Such a connection was established in the case of In re Yamashita.¹³ General Tomoyuki Yamashita had been convicted by a U.S. military commission for failing to prevent war crimes by soldiers under his command in the Philip­pines.¹⁴ He petitioned the U.S. Supreme Court for habeas review. The United States Government urged in the Supreme Court that military trials of war criminals are political matters completely outside the arena of judicial review.¹⁵ The Court rejected this argument. It considered whether the Charge preferred against General Yamashita was a violation of the law of war. The Court consulted for this purpose the Hague Regulations annexed to the fourth Hague Convention of 1907. It found that violations of those Regulations, amounting to war crimes, had been committed by the soldiers under Yamashita’s cornmand.¹⁶ The Court said, “We do not make the laws of war but we respect them so far as they do not conflict with the commands of Congress or the Constitution.¹⁷ The Court further found that the de­fendant was entitled to Fifth Amendment protection, and that the eviden­tiary standards applied in his trial – while looser than those in civil trials in the United States – were within the purview of the Fifth Amendment.¹⁸

Over a century earlier, the Supreme Court had held, in Little v. Barreme, that a captain of a U.S. warship acting directly under the President’s orders could be held personally liable in trespass for seizing a neutral vessel on the high seas.¹⁹ Chief Justice Marshall, for a unanimous Court, held that the commander of a ship of war, in obeying instructions from the President of the United States, acts at his peril.²⁰ If those instructions are not warranted by law, he is answerable in damages to any person injured by their execution. Damages were assessed in favor of the Danish owner of the seized vessel.²¹ Since the seizure of a neutral vessel falls short of being a “war crime” even though it is a violation of the international law of war, the complaint in the Saltany case on this point makes out an a fortiori claim for tort liability.

The district court in Saltany did not say that the defendants had commit­ted no war crime; rather, the court, in dismissing the complaint on sovereign immunity grounds, assumed that all the well-pleaded factual allegations of the complaint were true and that the plaintiffs were entitled to draw all favorable inferences from them. The decision therefore amounts to holding that the President, acting as commander in chief, may order and execute the commission of war crimes an where in the world, in war or inp eace, and without congressional authorization, and that neither he nor his subordi­nates who carry out his orders can be held civilly accountable in an United States court. It is a bold decision, effectively reversing the combined effect of In re Yamashita and Little v. Barreme, and a host of related Supreme Court cases. If the court itself departed from these precedents, how could it legitimately impose sanctions on the plaintiffs’ counsel for relying upon them?

The court of appeals focused upon defendants United Kingdom and its head of government, Margaret Thatcher, in levying sanctions under Rule 11. These defendants acted independently of the authority of President Reagan, and chose to allow British airspace to be used for the Libyan bombing mission.²² At first glance, their immunity appears to be secured by the language of the Supreme Court in Argentine Republic v. Amerada Hess Ship-

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…governmental and military leaders for the commission of international war crimes after World War II might today feel that American governmental and military leaders and their allies abroad are unaccountable under the same international law . There may be a double standard, but probably most judges in most courts in any country in the world today would do the same thing if their governmental and military leaders were sued on a war crimes charge. American judges neither lead nor lag behind the rest of the world in this respect. Although I have no admiration for the “political question” doctrine, it would have been understandable if the Saltany complaint had been dismissed on that vague ground. At least the invocation of political questions would have candidly indicated the court’s sense of powerlessness over the adjudication of such issues, no matter how legally meritorious they   might have been.  

 

But by imposing sanctions on the attorneys who dared to represent the plaintiffs in the Saltany case, the court of appeals gave a retrogressive exam­ple for courts elsewhere in the world. It acted zealously and excessively to shield political interests and political sensibilities. Its decision imperils all lawyers who, in a shrinking and interdependent world, wish to bring any claim in our courts on behalf of aliens. What international attorney would not now feel constrained when asked to file an unusual or innovative case on behalf of foreign persons in a United States court? When the court of appeals refused to address the Saltany claim for administrative relief, and brushed aside without reflective consideration the well-pleaded war crimes allega­tions, it served notice on all attorneys that, irrespective of the language of Rule 11, whoever files a case that offends a judge risks severe professional sanction. In my opinion, this ruling deals a significant blow to the cause of freedom an the adversary system of a great nation.

ANTHONY D’AMATO

1 In an article published in 1987, Vice President George Bush said that the action upon “selected targets in Libya” was “taken in retaliation against Libyan-sponsored attacks on Ameri­cans, particularly the Libyan-organized bombing of a Berlin nightclub several days earlier.” Bush, Prelude to Retaliation: Building a Governmental Consensus Against Terrorism, SAIS Rev.,Winter-Spring 1987, at 1.

2 As of this writing, the United States has not released any evidence challenging the position of West Berlin and the Federal Republic.

3 28 U.S.C. §1346(b) (1982). The Act contains sovereign immunity exceptions for acts of United States officials that involve the exercise of discretion, that arise from combatant activi­ties in time of war, and that arise in a foreign country. 28 U.S.C. §2680(a), (j) and (k). Arguably, the claimed negligence negates the discretion exception, the fact that die United States was not at war with Libya negates the wartime exception, and the fact that the decisions were made in the United States and that only their operative effect occurred abroad negates the foreign-country exception. The latter argument has been characterized as “headquarters claim.” See Beattie v. United States, 617 F.2d 91, 96-97 (D.C. Cir. 1979); Vogelaar v. United States, 665 F.Supp. 1295, 1300-02 (E.D. Mich. 1987).

In addition, the plaintiffs invoked the Foreign Claims Act, 10 U.S.C. §2734. The Act’s regulations require the Air Force to “[p]ay claims arising from accident or malfunction of aircraft operations, including airborne ordnance, occurring while preparing for, going to, or returning from a combat mission.” 32 C.F.R. §842.64(m).

4 The United Kingdom and its head of government, Margaret Thatcher, were named as co-conspirators in planning and carrying out the attack upon Libya for allowing U.S. planes headed for Libya to take off from u.s. bases in the United Kingdom and to fly over the airspace

5 Saltany v. Reagan, 702 F.Supp. 319 (D.D.C. 1988)

6 Saltany v. Reagan, 886 F.2d 438 (D.C. Cir. 1989). Only defendant United Kingdom cross­appealed from the denial of sanctions by the district court. The court of appeals reversed, and imposed sanctions on counsel for the plaintiffs consisting of the costs and attorneys’ fees of the United Kingdom.

7. F.Supp. at 322. The district court did not impose sanctions; it said that the case is not so much frivolous as it is audacious. The court of appeals, however, cited the finding below that the case offered no hope whatsoever of success, and held that such a finding necessitated a Rule 11 violation.

8. FED. R. CIV. P. II.

9. Annex to the Convention, Regulations respecting the Laws and Customs of War on Land, Art. 25, Convention (No. IV) respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, TS No. 539, 205 Parry’s TS 277.

10. The Nurnberg Trial, 6 F.R.D. 69, 130 (1946). Under Article 6(a) of the Charter of the International Military Tribunal at Nuremberg, Agreement for the Prosecution and Punish­ment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 3 Bevans 1238, 82 UNTS 279, the term “war crime” is defined to include “murder”; Article 6(c) defines the term “crime against humanity” to include “murder, extermination, enslavement, deporta­tion, and other inhumane acts committed against any civilian population.”

It is hardly a defense to argue that war crimes can only be committed during wartime, and that the United States and Libya were not at war in 1986. Since Nuremberg, and especially since the Far East trials where the memory of the “sneak attack” by Japan on Pearl Harbor colored the entire proceedings, it has been clear that war crimes are acts of war irrespective of whether there has been a formal declaration of war. Indeed, the failure of the United States to announce that a state of war existed between it and Libya-as well as the failure to give notice to the inhabitants of Tripoli and Benghazi that they were about to be bombed-could itself be a violation of the Hague Convention relative to the Opening of Hostilities (No. III), Oct. 18, 1907, 36 Stat. 2259, TS No. 538, 205 Parry’s TS 263.

11. To be sure, the complaint is in tort; the Saltany case is no criminal or military proceeding. Yet traditional tort doctrine allows for the recovery of damages for harm inflicted in violation of criminal law.

12. Article 7 of the Charter of the International Military Tribunal at Nuremberg, supra note 10, is typical: “The official position of defendants, whether as heads of state, or responsible officials in government departments, shall not be considered as freeing them from responsibil­ity, or mitigating punishment.” See 6 F.R.D. at 110. Although many of the defendants explicitly claimed sovereign immunity at their trials, these claims were rejected by the tribunals in every case.

13. 327 U.S. 1 (1946). The Yamashita trial before the U.S. military commission is reported in 4 UNITED NATIONS WAR CRIMES COMMISSION, LAW REPORTS OF TRIALS OF WAR CRIMINALS 1 (1948).

14. UNITED NATIONS WAR CRIMES COMMISSION, supra note 13. For a conceptual analysis, see D’Amato, Superior Orders vs. Command Responsibility, 80 AJIL 604 (1986); Levie, Some Com­ments on Professor D’Amato’s “Paradox,” 80 AJIL 608 (1986).

15. See 327 U.S. at 30 (Murphy, J., dissenting, calling this a “noxious doctrine”).

16. U.S. at 14-16.

17. Id. at 16.

18. Id. at 23. For elaboration and analysis of this point, see D’Amato, Gould & Woods, War Crimes and Vietnam: The “Nuremberg Defense” and the Military Service Resister, 57 CALIF. L. REV. 1055,1072-73 (1969), reprinted in 3 THE VIETNAM WAR AND INTERNATIONAL LAW 407 (R. Falk ed. 1972). Cf Switkes V. Laird, 316 F.Supp. 358 (S.D.N.y. 1970).

19. 6 U.S. (2 Cranch) 170 (1804).

20. In Little V. Barreme, the President acted without congressional authority. Similarly, the raid on Libya was ordered by President Reagan in his capacity as commander in chief, without leave of Congress.

21. Little V. Barreme remains unimpeached in its authority. See Youngstown Steel & Tube CO. V. Sawyer, 343 U.S. 579,661 (1951); Butz V. Economou, 438 U.S. 478, 490 (1978).

22. Other nations refused requests from the United States to participate in the attack or permit aircraft to fly over their territory for that purpose.

http://www.haaretz.com/news/diplomacy-defense/icc-rejects-palestinian-bid-to-investigate-israeli-war-crimes-during-cast-lead-gaza-operation-1.422397

Published 18:20 03.04.12    Latest update 18:20 03.04.12

ICC rejects Palestinian bid to investigate Israeli war crimes during ‘Cast Lead’ Gaza operation

[see comments at end]

International Criminal Court in The Hague says reason for decision is that Palestine is currently recognized by the United Nations as an ‘observer,’ not a ‘Non-member State’.
By Barak RavidTags: Palestinians Palestinian Authority UN Israel war crimes Gaza war

The International Criminal Court prosecutor announced Tuesday that he has rejected a bid by the Palestinian Authority to have the war crimes tribunal investigate Israeli conduct during ‘Operation Cast Lead’ in Gaza. The reason for his decision was that under the ICC’s founding treaty, the Rome Statute, only internationally recognized states can join the court.

In an official statement released Tuesday afternoon, the ICC said that “the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non-member State”,” and that only “relevant bodies at the United Nations” or the group of states that make up the court could determine whether Palestinians can sign up to the Rome Statute.
“[T]he Office has assessed that it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court,” the statement said. “The Rome Statute provides no authority for the Office of the Prosecutor to adopt a method to define the term “State””.

The ICC explained that “Palestine has been recognized as a State in bilateral relations by more than 130 governments and by certain international organisations, including United Nation bodies. However, the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non-member State”.”
In the future, the statement continued, the ICC could “consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue” regarding Palestine’s membership status.

The bid was made in 2009, when Palestinian Justice Minister Ali Khashan sent a letter to the ICC saying the PA recognizes the court’s authority to deliberate “the actions taken in the Palestinian territories from July 1.”

Following the PA’s request, the ICC’s prosecutor began looking into the possibility of an investigation. During the discussions, Arab League representatives submitted a report to the ICC alleging war crimes committed by Israel during Cast Lead. In July 2011, the PA submitted its appeal in writing to the ICC.

Comment by Elias Davidsson

The legalistic attitude displayed by the ICC means that if states agree not to have war crimes, crimes against humanity or genocide prosecuted, they are allowed by the ICC to do so.  Thus the ICC demonstrates that it defers to the balance of forces in the international system of states and is not a true international criminal court but a tool of oppression in the hands of the powerful.  It will not prosecute crimes committed by some states. It is apparently sufficient for states not to become member of the ICC in order for its citizens to enjoy impunity. 

http://english.aljazeera.net/indepth/opinion/2011/10/201110912402659549.html

Changes to UK law didn’t protect Tzipi Livni
A London judge ordered a former Israeli foreign minister’s arrest, but the UK is preventing this.

Daniel Machover and Raji Sourani Last Modified: 10 Oct 2011 09:15

The British government illegitimately agreed to give special temporary immunity to Tzipi Livni, argue writers [EPA]

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

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

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

Due for due process

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

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

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

The key point is that the new law gave Ms Livni no protection against arrest and prosecution: It was solely the (questionable) attribution of diplomatic immunity that prevented due legal process.
Finally, the FCO’s apparently retroactive attribution of Special Mission immunity to Tzipi Livni must be highlighted. As far as we can see, there are just two possibilities: Either there was a plan in advance to classify the visit as a special mission, in which case Ms Livni and the FCO set out deliberately at the beginning of the week to deceive everyone that Ms Livni was genuinely testing the new legal procedure, or the special mission was a rabbit that was pulled from the hat to prevent the law taking its course. Both these alternatives are discreditable and the latter, which currently seems more likely, represents a complete abuse of process and of law based on the known facts. In any event, the sole purpose behind the FCO actions has been to shield Ms Livni from arrest.

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

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

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

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

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

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

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

Netherlands could be safe haven for war criminals: leaked memo

Adri Nieuwhof, The Electronic Intifada, 8 February 2011

A leaked secret memorandum from the Dutch Ministry of Foreign Affairs suggests the government is seeking to ensure Israeli and other foreign officials who may be pursued for war crimes can visit the Netherlands without fear of arrest or legal accountability.

The memo, which was leaked to the Dutch television station KRO reveals that Foreign Minister Uri Rosenthal sought advice on possibilities for the state to prevent prosecution of foreign government officials who visit the Netherlands (“Minister Rosenthal wil vervolging buitenlandse politici in Nederland tegen gaan,” 26 January 2011).

Rosenthal sought advice from the ministry’s legal department after Indonesian President Susilo Bambang Yudhoyono canceled his state visit to the Netherlands last October following imminent legal action linked to his alleged role in crimes against humanity. However, it was clear that Yudhoyono could not be prosecuted because of his diplomatic immunity as president. 

Rosenthal’s request for advice on the matter may have been triggered by concerns about future visits by Israel officials. Several high-ranking Israeli officials have within the past year canceled planned visits to European countries fearing arrest in connection with allegations of war crimes and crimes against humanity in Gaza, documented in the UN-commissioned Goldstone report.

In its memo, the Department of Legal Affairs writes that diplomatic immunity is the only guarantee against criminal prosecution. In order to get around this limitation, the memo proposes the option of a new “generic” law to protect foreign politicians from prosecution in the Netherlands.

Another option would be a short-term agreement with a state to grant immunity to a specific person for a limited period. This would carry the publicity risk that “the Netherlands protects a war criminal,” the officials who authored the memo wrote. 

Yet another possibility the Dutch officials consider is that the state could take over an invitation to a foreign official issued by a private party, thus providing the foreign official with a form of state protection and indicating that such a visit is important to the foreign relations of the Netherlands. Previous court cases have shown, the memo notes, that “judges are sensitive to the argument that the judiciary should exercise restraint in cases that affect foreign relations.” 

This was “astonishing advice,” Menno Kamminga, Professor of international law and director of the Maastricht Centre for Human Rights, told KRO television. “The Netherlands is bound by various treaties to prosecute violators of human rights; you cannot try to evade this unilaterally with a new law,” Kamminga said.

A key case that shows the relevance of the potential effect of the foreign ministry memo if its recommendations are implemented, involved legal action by a Palestinian who alleged he was tortured by Danny Ayalon, a former head of the Israeli secret service, and now deputy Israeli foreign minister.

Liesbeth Zegveld, attorney and professor in international humanitarian law, lodged a complaint to the public prosecutor when Ayalon visited the Netherlands at the invitation of the Dutch Zionist group Centre for Documentation and Information on Israel (CIDI) in May 2008.

Zegveld told Radio 1 in the Netherlands: “It was clear that Ayalon had no diplomatic immunity. The public prosecutor was interested in the case but needed to formally ask advice of the Ministry of Foreign Affairs on the immunity of Ayalon. Although we reminded the ministry that the time was limited, they sent their advice one day after he left the country. Indeed, the advice was that Ayalon had no immunity. That is exactly the atmosphere that breathes from the memo. It all happens behind the scenes.” The tactic of using such delays to buy time is described in the memo (“Rosenthal wil vervolging buitenlandse politici in Nederland tegengaan“, 27 January 2011).

Zegveld pointed out that under the leaked memo’s recommendations, the Ministry of Foreign Affairs could have given official cover to CIDI’s invitation of Ayalon by inviting him for “a cup of tea at the ministry.” Ayalon’s visit would thus have become an official visit to the Netherlands, and judges would presumably have deferred to the government in the case of any legal proceeding against him. As Zegveld explained, “This has nothing to do with immunity. It is about influencing the judiciary with means that are not available to the other party. It is contrary to the interest of preventing impunity.”

The foreign ministry memo was leaked about three months after a right-wing minority coalition government was installed with the support of the PVV (Party for Freedom) led by Islamophobic demagogue Geert Wilders. Wilders, a staunch supporter of Israel, visited the country in December and voiced support for the views of settler leaders who say Israel should should annex the occupied West Bank and that Jordan should be the Palestinian state.

The coalition negotiated an agreement with Wilders which commits the government to “invest in the relationship with the State of Israel.” In this way, Israel received exclusive treatment: it is the only country that is mentioned.

The special relationship with Israel came under the spotlight after the Israeli organization NGO Monitor began a defamation campaign against The Electronic Intifada last November. Dutch Foreign Minister Rosenthal responded immediately with a fierce attack on the Dutch donor organization ICCO for its support to the publication and has since threatened to cut government funding to ICCO and other civil society organizations that deviate from his policies toward Israel. 

Articles calling for boycott, divestment and sanctions have been a particular thorn in Rosenthal’s side. He told the Dutch newspaper de Volkskrant on 11 December 2010 that “We [the government] want to resist Israel bashing, we want to invest in the relationship with Israel.”

Moreover, Rosenthal’s attack on ICCO is striking because the support of the Dutch government to donor organizations is outside his area of authority. Ben Knapen, Minister of Development Cooperation and a former chief editor of the Dutch daily NRC Handelsblad, is responsible for funding to organizations like ICCO and has remained silent on the matter.

The leaked foreign ministry legal memo also repeatedly points out the publicity risks of offering protection to suspects of international crimes by stretching possible immunity beyond presidents of states, prime ministers and ministers of foreign affairs. 

This means that despite the attacks on their independence from the Dutch government, Dutch civil society and politicians can still send a clear signal to Rosenthal: the Netherlands has to comply with its international obligations to hold alleged suspects of war crimes to account, no matter their origin or the identity of their victims.

Adri Nieuwhof is a consultant and human rights advocate.

http://www.gilad.co.uk/writings/bowing-to-jewish-pressure-by-gilad-atzmon.html?printerFriendly=true 


Bowing to Jewish Pressure by Gilad Atzmon  


Thursday, March 4, 2010 at 9:11AM


Prime Minister Gordon Brown has announced plans today to stop the issue of arrest warrants for foreign officials such as Tzipi Livni, Ehud Barak and other Israeli war criminals who were forced to cancel planned trips to London after arrest warrants were issued against them. Under Brown’s proposals, the Crown Prosecution Service will take over responsibility for prosecuting war crimes and other violations of international law. Currently magistrates have to consider the case for an arrest warrant to be issued.

A warrant for the arrest of Ms Livni was issued by a UK court in December last year following Israel’s massacre in Gaza over a year ago.  She consequently cancelled a planned visit.

Mr Brown wrote in the Daily Telegraph: ‘As we have seen, there is now significant danger of such a provision being exploited by politically-motivated organisations or individuals who set out only to grab headlines knowing their case has no realistic chance of a successful prosecution’.

PM Brown better explain to the nation why arresting a genocidal war criminal like Livni, Olmert or Barak is a ‘politically motivated’ act. He should also explain to us all why is he convinced that a case against Livni wouldn’t stand a chance in court. As far as Justice Goldstone is concerned, the case against Israel and its leadership is actually watertight. 

According to the Daily Mail, Colin Powell, the former US secretary of state and a leading player in the Iraq War, has also reportedly expressed alarm about the prospect of arrest in Britain. Yet, no one in Britain politics rushed to appease the American politician or to amend British universal jurisdiction laws just for him. Clearly, Israeli lobby has much more influence within the British cabinet than the USA. This shouldn’t take us by a big surprise considering our Foreign Secretary David Miliband is a listed ‘Israeli Hasbara (Propaganda) Author’.

Brown admitted that ‘There is already growing reason to believe that some people are not prepared to travel to this country for fear that such a private arrest warrant – motivated purely by political gesture – might be sought against them.’ Surely this is good news. Criminals such as Livni or Barak should never dare to step on a plane. Instead they should stay in their Jewish Ghetto and stare at the separation walls they erected around themselves. 

The PM said he wanted legislation putting jurisdiction for war crimes and similar offences under the CPS to be brought in ‘as soon as possible’. This is indeed what you would expect from a government that is so heavily funded by the Jewish Lobby. Such a move would allow attorneys such as  Lord ‘green light’ Goldsmith to open Britain’s gate to Israeli genocidal murderers. Yet Brown failed to tell the Brits what it is that stops magistrates from taking the right decisions regarding war criminals. Let us face it. If Brown doesn’t trust Britain’s magistrates he better let them go. He can always hire some Rabbis to look after Britain legal system. If Britain is about  to give up on its universal jurisdiction laws, it better be  prepared to let some tribal experts to look after its ethical stand.   

Brown also said, “I am confident that an amendment on better enforcement of existing legislation will serve to enhance Britain’s status in the eyes of international law, world opinion and history”.

I do not know much about the ‘eyes’ of the international law’ or ‘world opinion’, but I can assure Brown that his move is more than welcome by the Jewish Chronicle and his Jewish fundraisers.  Don’t you forget, it is election time after all.

French prosecutor grants immunity from prosecution to 'former' public official

Novel method of naming and shaming

The idea has been promoted by various human rights activists that those who act against society, particularly public officials and others who wield considerable power and abuse their power, be prevented from enjoying nice private life, at least while no legal action is taken to bring them to justice.

New Zealand Attorney General stays prosecution of Israeli war crimes suspect, enabling him to evade international justice

A prosecution of an Israeli war crimes suspect was stayed as part of a legal manoeuvre by the Attorney General of New Zealand to prevent the arrest or charge of the suspect while on a visit to New Zealand

Date: 30 November 2006

Moshe Ya'alon was spared arrest or any proper prosecution process in New Zealand on 28 November, despite a decision on 27 November 2006 by His Honour Judge Avinash Deobhakta in the District Court at Auckland to issue warrants for his arrest on suspicion of committing a grave breach of the Fourth Geneva Convention 1949, which is a criminal offence in New Zealand under the Geneva Conventions Act 1958 and International Crimes and International Criminal Court Act 2000.

Moshe Ya'alon is a 56 year old Israeli national who was Chief of Staff of the Israeli military from 9 July 2002 to 1 June 2005, answerable directly to the Prime Minister. Under his command the Israeli military were responsible for a countless variety of extensive human rights violations and war crimes inside the Occupied Palestinian Territory during its belligerent occupation.

The Court's decision came after years of failed efforts to pursue the suspect through the Israeli judicial system.

Trial of Saddam Used as Cover-Up of US-UK War Crimes

Elias Davidsson / Global Research

The BBC website summarized on 10 January 2004, the “likely charges against Saddam Hussein”. http://news.bbc.co.uk/1/hi/world/middle_east/3320293.stm

According to the BBC report these are:

 (a) The Iran-Iraq war

 (b) Attacks against Iraqi Kurds

 (c) Invasion and occupation of Kuwait

 (d) Scud attacks against Israel

 (e) Killings, persecution and torture (of own citizens)

The Missing Crime

Between 1990 and 2002 over half a million Iraqi children have died as a result of UN-imposed economic sanctions (source: UNICEF). The Security Council and individual members of the Council, particularly the US and the UK, have repeatedly charged Saddam Hussein for these deaths (for having obstructed relief, diverted humanitarian goods, etc.). However the Council, in a document from 1995 recognized that economic sanctions have adverse humanitarian consequences, particularly on vulnerable segments of the population, such a children. It is therefore highly significant that neither the US nor Iraqis have indicated their intent to charge Saddam Hussein for the deaths of these children.

If Saddam Hussein will NOT be CHARGED for the deaths of half a million children in Iraq, the question remains unanswered: Who was responsible for these deaths? Perhaps those who maintained the most stringent economic sanctions since World War II?

The international community, human rights organisations, and all those who care for justice, should demand that an independent international commission be established to determine the responsibilities for these deaths. It is unacceptable that 500.000 children would die in one country without anybody examining legal and criminal responsibilities for such carnage. Should the United Nations Organisation refuse to endorse the investigation of one of the major crimes of the 20th Century, it would be best to close down that organisation.

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The Deaths of Half-a-million Iraqi Children Resulting from the Sanctions Regime Is Amply Acknowledged:

(1) In a Press Release of 12 August 1999, UNICEF’s Director, Ms. Bellamy, noted that “if the substantial reduction in child mortality throughout Iraq during the 1980s had continued through the 1990s, there would have been half a million fewer deaths of children under five in the country as a whole during the eight-year period 1991 to 1998.” (Iraq surveys show ‘humanitarian emergency, http://www.unicef.org/newsline/99pr29.htm ).

While the figure “half a million” may be subject to debate, because it is statistically derived, the substantial nature of increased child mortality is not generally disputed and was even admitted by former U.S. Secretary of State, Madeleine Albright in the CBS program 60 minutes of 12 May 1996.

(2) In its Daily Press Briefing of 12 August 12, 1999, James P. Rubin of the US Department of State said: The “US continues to hold Saddam Hussein responsible for the suffering of the Iraqi people.” ( http://www.fas.org/news/iraq/1999/08/990812db.htm ). Similar charges have been voiced from time to time by US and British leaders–without however explicitly claiming that Saddam Hussein is responsible for the deaths of half a million children.

(3) On 13 April 1995, the five permanent members of the UN Security Council (hereafter P5) sent to the President of the Council a non-paper entitled “Humanitarian impact of sanctions.”

In this non-paper, the P5 suggest that “future sanctions regime (sic) should be directed to minimize unintended adverse side-effects of sanctions on the most vulnerable segments of targeted countries (sic).” No specific reason was given for the drafting of this unusual and sloppily worded document. No reference was made to the Iraq sanctions nor to the awareness of Council members of increased child mortality in Iraq as a result of sanctions. What is interesting is that by declaring that sanctions could have “adverse side effects” which the Council should “minimize”, the P5 effectively recognized:

(a) a causal link between economic sanctions and “adverse side-effects” in sanctioned countries,

(b) the duty of the Council to “minimize” such adverse side-effects, and by implication

(c) the past failure of the Council to adequately minimize “adverse side-effects”. The Council thus admitted, implicitly, its responsibility for the adverse consequences of the sanctions on Iraq.

It must be added that the expression “unintended side-effects” is disingenuous because economic sanctions’ proximate aim is to cripple the economy of the targeted country as a means of coercion, and that consequently the massive shortages which cause a humanitarian crisis, are deliberately caused. There is nothing unintended in such consequences.

(Source: UN Document No. S/1995/300 of 13 April 1995 http://www.un.org/sc/committees/sanctions/s95300.pdf ).