Oliver Miles
The Guardian (Analysis)
November 22, 2010 - 1:00am

As a former professional diplomat, I regard international law, with all its shortcomings, as much better than the alternative, the law of the jungle. I have often argued this with Israeli officials in particular, but they tend to prefer the doctrine of the iron wall, which they hope their enemies are powerless to break down and behind which they may live in safety.

I have to admit that the law affects international relations unpredictably and sometimes perversely. Right now Lebanon seems to be approaching a crisis. The UN security council has sought to apply international law, but may only have made the crisis more dangerous. Sudan, too, is approaching a turning point: the referendum on the possible independence of the south. The international community's attempt to bring the Sudanese president to court has not made a peaceful resolution more likely.

In this article I'd like to consider some recent instances where the law may affect the Palestine-Israel "peace process", currently in a vegetative state.

First, "universal jurisdiction". Under UK law, people accused of certain crimes including some war crimes may be prosecuted in British courts even if they are not British and the alleged crimes did not take place in Britain. (The list does not include, it appears, the crime of starting an illegal war, so there is no prospect of prosecuting Tony Blair or George Bush.) Some Israelis involved in the Gaza war last year have cancelled visits for fear of arrest.

The Israelis raised this with William Hague in Israel this month, and he promised that the law will be changed. A Foreign Office spokesman is reported to have told the press that this "did not reflect a change in British law regarding universal jurisdiction, but sought to clarify that officials on state business are immune to arrest. He said the government intends to amend the law so interest groups cannot misuse it in ways that damage Britain's foreign relations".

The bit about officials is relatively straightforward. Diplomatic immunity from prosecution extends to visiting ministers and officials, and if there are any ambiguities about that they should be cleared up. But the bit about preventing "interest groups" from "misusing" the law is more problematic. The cancellation of a visit by Tzipi Livni, now out of office but foreign minister at the time of the Gaza war (and probable future foreign minister and perhaps prime minister), was a particularly sore point.

A second legal issue is the export of arms to Israel. In January 2009, during the Gaza war, activists broke into a factory in Hove and smashed up machinery which they believed was being used to manufacture bombing equipment for export to Israel against the law. They did not deny their actions, but used the defence of "lawful excuse", committing an offence to prevent a more serious crime. They were acquitted by a jury, and the judge is reported to have commended them for their action.

In a similar affair on two separate occasions in 2006 activists who broke into and damaged a plant in Derry alleged to be supplying missile software to Israel were acquitted. The Hove story was reported in the Guardian, but with this exception both stories were largely and unaccountably ignored by national and international media. In both cases repeat action seems likely.

The third issue, which has just been raised by the Israeli newspaper Haaretz, is the use of US government (USAID) funds to build roads in the occupied territories. The Israeli occupation is illegal under international law, according to the US government as well as the rest of the international community.

The newspaper asks how it is possible that the Obama administration continues to subsidise the roads. "If the state of Israel is insisting on continuing to hold on and de facto annex the West Bank, it should also be allocating the money needed to take care of the infrastructure."

Their reporter asked an American official why the administration isn't demanding of Israel that it pay the price of the occupation out of its own pocket. "Who told you we aren't demanding that?" replied the official. "We are also demanding a construction freeze in the settlements and you know at least as well as anyone else what is happening on the ground." The Quartet, or Condoleezza Rice acting on its behalf in 2007, has given responsibility for promoting the economic development of Palestine and relating it to the peace process to Tony Blair, of all people.

US aid to Israel runs at around $3bn a year, by far the most generous aid programme in the world in proportion to the population receiving it. The US government is reported to have offered another $3bn-worth of the most modern bombers if Israel will suspend its (illegal) settlement-building activities for three months to allow the peace process to be resuscitated. According to the Israeli press this would be over and above the regular payments, but this is not confirmed. The efforts of the state department spokesman to avoid answering that question are worth reading by connoisseurs of evasion.

Friends and enemies of Israel will react in very different ways to these stories. As one who tries to remain a friend, I regard the first as the most important. I argued when I was still a government official that we should talk to the PLO when they were still regarded simply as terrorists, and I have argued publicly that the British and other governments should now be ready to talk to Hamas and Hezbollah, and I would add the Taliban, because it is only by talking that differences can be identified and resolved. By the same argument, we must be able to talk freely to the Israelis, whether officials or not. Legal obstacles to their coming to Britain for such talks hurt the cause of peace.

But I am glad I do not have to draft the law that will preserve the principle of universal jurisdiction but ensure someone like Tzipi Livni can travel freely.


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