Last month, on the day that changes in universal jurisdiction law went into effect, Israel’s former Foreign Minister Tzipi Livni said she “received a phone call” from UK Ambassador to Israel Matthew Gould telling her “there is no longer a warrant for my arrest”.
Yet when Livni arrived in Britain on Thursday, something went wrong. In what was billed as a “test case” for a law designed to remove the threat of arrest for visiting Israeli officials, Livni only avoided a warrant due to a legal assessment by the Foreign and Commonwealth Office (FCO) that she was on a “Special Mission”.
In a statement released Thursday lunchtime, the Crown Prosecution Service (CPS) revealed that it was the Special Mission status of Livni’s visit that led the Director of Public Prosecutions (DPP) to refuse to “give his consent to the private prosecutor to make an application to the court for an arrest warrant”.
Some incorrectly interpreted this as the DPP blocking an attempt to arrest Livni; in fact, as a spokesperson for the CPS had confirmed to me, what prevented an arrest warrant being issued was the Special Mission status – there was no decision regarding the prospect of conviction.
According to the CPS’s statement, the DPP took into account a case earlier this year when the High Court considered, among other things, the “legal effect” of the Special Mission certificate. But by citing this ruling, more questions are raised about what happened Thursday.
Evidence submitted to the High Court included a letter written by the FCO itself in January 2011, which described a Special Mission as “a means to conduct ad hoc diplomacy in relation to specific international business”, whose “fundamental aspect” is “the mutuality of consent of both the sending and the receiving States to the Special Mission”. In his ruling, Lord Justice Moses said that “the Special Mission represents the sending State in the same way as a permanent Diplomatic Mission represents the State who sends it”, and called it “vital” that “the consent which must be previously obtained is consent to a Special Mission” (my emphasis). Moses added: “Not every official visit is a Special Mission”.
Yet Livni, a foreign opposition politician who was not part of a wider government delegation, was afforded Special Mission status. How were FCO legal advisers able to make this analysis, if, as appears to be the case, there was no prior agreement between the British and Israeli governments that Livni’s visit would be a Special Mission?
While Foreign Secretary William Hague had publicly extended an invitation to Livni to visit the UK, the exact nature of her visit is unclear. According to pro-Israel advocacy group BICOM, it is they who “facilitated” Livni’s visit.
Questions remain to be answered. The FCO only stated that Livni’s visit had Special Mission status after a request for an opinion by the Attorney General Dominic Grieve. As the Jewish Chronicle reported, when Grieve was in the opposition he promised to “fix the situation if the Tories win power”. In February 2010, Ken Clarke and Edward Garnier met with Livni in Israel and pledged to change the law once in government; they are now the Secretary of State for Justice and Solicitor-General respectively.
There are concerns about the timing of the Special Mission announcement. According to Daniel Machover of Hickman and Rose Solicitors, once the original application for an arrest warrant was made on Tuesday 4 October, there was constant contact with the prosecutor until all went silent for a few critical hours on the morning of Thursday 6 October. What happened to those assurances that the change in legislation would not affect the ability for cases to be dealt with in an appropriately timely manner? In addition, the CPS said that the FCO certificate of Special Mission status was received – and dated – Thursday morning. Yet by 7.30am, Livni was already in London and being interviewed on the Today programme. If the certificate’s dating is irrelevant, when had the Special Mission status been agreed?
If the British and Israeli governments had secretly agreed that Livni’s visit would be a Special Mission beforehand – though there is no indication this is the case – then the idea that this was a “test case” for the new universal jurisdiction legislation is a sham. If, on the other hand, the declaration of Special Mission status was a contingency option adopted as events unfolded, then it suggests that the new legislation does not protect those who actually have a case to answer.
During her visit, Livni told Hague she hopes his “hospitality for me today will herald the arrival of IDF officials” in Britain. Former Israeli general Doron Almog, who previously escaped arrest by staying on his plane at Heathrow, has announced his intention to visit the UK “early next year”. The questions raised by this week’s visit need answers, and soon.
Ben White is a freelance journalist and writer, specialising in Israel/Palestine