Analysis: This stuff really matters to the Labour government

If Tzipi Livni is a war criminal then she should stand trial at the International Criminal Court. Israel is not beyond judgment for its actions. If crimes against humanity were committed in Gaza by Israeli troops, then the war cabinet in which Ms Livni served as Foreign Minister should be held to account. The British government understands that and — although this may come as a surprise to some people — so does the Israeli government.

Ms Livni suggested as much herself in a speech on Tuesday following the news that she cancelled a trip to Britain for fear of arrest.

“I have no problem with the fact that the world wants to judge Israel,” she said. “The problem is the minute they equate terrorists and Israeli soldiers.”

Although Ms Livni is right that terrorists and soldiers are not the same thing, under international law they are both deemed capable of committing war crimes. But the point here is not whether bringing war criminals to justice is a good thing. This principle was established at Nuremberg in 1945 and reinforced by the arrest of Slobodan Milosevic and Radovan Karadzic for war crimes committed by Serbian troops in the Balkans.

Philosophically, this stuff really matters to the Labour government. From the short-lived “ethical foreign policy” to the principle of “humanitarian intervention” that inspired several of Tony Blair’s wars, the idea of enforcing universal values of conduct in international affairs was at the heart of the New Labour project.

The establishment of an International Criminal Court was enthusiastically backed by the UK government and enshrined in legislation in this country for that reason.

This is why Foreign Secretary David Miliband and Justice Secretary Jack Straw both know that the real issue in the Livni case is whether an anomaly in the British judicial system is bringing the whole principle of “universal jurisdiction” into disrepute.

Generally speaking, a respect for natural justice means that we do not deprive people of their freedom before the case against them has been established. Livni’s own comparison with terrorism is an interesting one. There has quite rightly been concern in this country about the arbitrary arrest of those suspected of terrorism. The same courtesy should surely apply to Tzipi Livni.

As Lord Pannick suggests in the legal opinion he has prepared for the Jewish Leadership Council, it is an anomaly that a local magistrate can authorise an arrest warrant in the case of foreign politicians. His view is that such a decision should be left to the Attorney General, who would be able to factor in questions of national and diplomatic interest.

David Miliband has now made it clear that his opinion is that the law must now be changed. The Foreign Secretary should not have feigned surprise that it has come to this. It has been a longstanding position of the British government that Israeli politicians should be free to come and go. They have also been well aware of the problems caused by the threat of arrest. The Israeli embassy and senior politicians from Israel have been lobbying for at least four years to close the legal loophole. In September 2005, the JC reported that the Foreign Office had pledged to review the legislation after retired Israeli general Doron Almog returned to Israel from Heathrow to avoid arrest.

The issue was taken so seriously in Israel at the time that then Justice Minister Tzipi Livni set up a £500,000 fighting fund to defend future cases. Jack Straw can not claim ignorance as he was Foreign Secretary at the time.

The truth is that the UK government has had four years to prepare for the eventuality now highlighted by the Livni case.

It has chosen not to risk pushing through new legislation, because it did not wish to expend political capital on Israel. Now Mr Milliband and Mr Straw will justifiably be accused of writing new law on the hoof. They have only themselves to blame.

Last updated: 2:26pm, November 8 2010