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Al Mezan and Al-Haq Regret London Magistrates’ Court Decision Not to Issue Arrest Warrant against Israeli Defence Minister for Alleged War Crimes in Gaza
13، Oct 2010

1 OCTOBER 2009
REF.: 37.2009E.

Al Mezan and Al Haq regret the decision of the London judge not to issue an arrest warrant against Israel’s Defence Minister Ehud Barak during his visit to the UK yesterday. Al Mezan and Al Haq had instructed British lawyers to

act on behalf of dozens of families who were victims of the devastating military attacks which breached international law during Operation Cast Lead.

Al Mezan and Al Haq strongly believe that individuals who commit or order the perpetration of war crimes must be held accountable in accordance with international law, including through universal jurisdiction.

According to Al Mezan and Al Haq documentation, Israeli forces killed over 1,400 Palestinians during the Operation, including 1,172 unarmed civilians, 353 children, over 100 women and 136 members of the police. Israeli forces also destroyed over 11,000 shelters and hundreds of industrial facilities, used civilians as human shields and obstructed medical access to the wounded. Israel has refused to carry out an impartial and thorough investigation of the allegation of war crimes. These allegations have been made by a number of independent international bodies. Ehud Barak, Minister of Defence during this Operation stands behind the planning, execution and monitoring of the Operation, as he himself declared. Accordingly, it is our case that he has ‘a case to answer’.

Lawyers from two London law firms, Irvine Thanvi Natas and Imran Khan & Partners filed a petition at the City of Westminster magistrate's court to issue a warrant for Barak's arrest under the UK Geneva Conventions Act 1957 which gives courts in England and Wales universal jurisdiction in war crimes cases. Under the terms of the Act the UK is “under a positive duty” to bring to court those who it is alleged have committed war crimes. The petition argues that Barak committed and/or ordered, grave breaches of the Geneva Conventions. Senior barrister Queen’s Counsel Michel Abdel-Massih led a team of lawyers at the court hearing representing Al Mezan and Al-Haq.

The solicitors in the case arrived at the court at 9am yesterday, Tuesday 29 September 2009, lodged the papers with the court clerk and waited three hours, making repeated requests to make the application to the court. They were informed that the district judge would not list the case for hearing until receiving a Foreign and Commonwealth Office (FCO) letter specifying the ‘purpose’ of Barak’s visit to the UK. At around 5.05pm, the solicitors were informed a hearing would take place.

The judge indicated that she accepted the existence of war crimes evidence, noting it was ‘well documented’ and the argument on ‘command’ responsibility was served, but expressed that her principal concern was whether Barak enjoyed immunity. Detailed arguments on this issue, backed by expert opinion including from a prominent British law professor were presented. When the barrister asked for confirmation of the correspondence between the Court and the FCO, only part of the letter was read out which stated Barak was in the UK for a dual purpose both personal and official.

What is striking about the approach of the Court is that if Ehud Barak clearly enjoyed immunity, the court would have heard the application in the morning and dismissed it quickly. The court would not have needed a letter from the FCO to clarify the ‘purpose’ of Barak’s visit. The judge's insistence on finding out the ‘true purpose’ of the visit clearly indicates that the judge had considered the application for the warrant very carefully and realized it was not capable of being refused without the letter from the FCO It opens the possibility to say that if the purpose of the visit was of personal nature then she might have given a different judgment.

The barrister argued that on the basis of the published visit it appeared that the visit was personal.

Al Mezan and Al Haq regret the District Judge ruling despite the presentation of undisputed evidence of war crimes. Ehud Barak escaped arrest, not on the basis that he was not party to war crimes, but on the basis that he was entitled to a sort of immunity based on a letter from the FCO following heated consultation with the Israeli Embassy in London. Al Mezan and Al Haq will continue to seek to uphold the rule of law internationally as long as Israel continues to fail to investigate and prosecute hundreds of war crimes perpetrated in the occupied Palestinian territory.