Israel received an uncomfortable reminder of international anger over the Gaza war today when lawyers representing 16 Palestinians asked a London court to issue an arrest warrant for its defence minister, Ehud Barak, who is visiting Britain.After a day of delays and legal wrangling the bid failed on the grounds that Barak enjoyed diplomatic immunity from prosecution. But the episode triggered a brief storm that is likely to give Israeli officials second thoughts about the risk of prosecution in foreign courts.
Barak was last night addressing a fringe meeting at the Labour party conference in Brighton, and is due to meet Gordon Brown and David Miliband, the foreign secretary‑— triggering new protests.
Furious Israeli officials insisted all day that he was protected by diplomatic immunity and could not be legally detained.
The action related to alleged war crimes and breaches of the Geneva conventions during the Gaza offensive, launched by Israel last December in response to Palestinian rocket attacks and widely criticised. The death toll is disputed, but the Israeli human rights group B'Tselem says 1,387 Palestinians died, including 773 people not taking part in hostilities.
Solicitors asked a district judge at the City of Westminster magistrates court to issue a warrant for the minister's arrest under the 1988 Criminal Justice Act, which gives courts in England and Wales universal jurisdiction in war crimes cases.
The hearing was postponed while the court asked the Foreign Office to clarify Barak's status in the UK. The lawyers making the application said they believed a warrant could be issued even if he was in Britain in an official capacity.
Intensive contacts were understood to have taken place throughout the day between London and Jerusalem. Barak is also deputy prime minister of Israel and leader of the country's Labour party.
Lawyers from Irvine Thanvi Natas and Imran Khan & Partners said they believed the warrant that the international criminal court issued in May last year for the arrest of Omar al-Bashir, the president of Sudan, offered a precedent. Bashir is accused of committing war crimes in Darfur.
The issue is politically explosive. Israel's ambassador to Britain, Ron Prosor, lambasted the move as the "continuation of the process of demonisation and the de-legitimisation of Israel," and called the action "spiteful".
Deputy district judge Daphne Wickham said allegations of war crimes had been well documented, but added: "I am satisfied that under customary international law Mr Barak has immunity from prosecution as he would not be able to perform his functions efficiently if he were the subject of criminal proceedings in this jurisdiction."
The accusations were based, in part, on a UN investigation conducted by the former South African judge Richard Goldstone. It concluded this month that Israel had committed war crimes by deliberately attacking civilians and firing white phosphorus shells. Israel rejected its findings as irredeemably biased. The 575-page report also found that Hamas, the group controlling Gaza, may be guilty of committing war crimes by firing rockets at Israeli civilian targets.
Goldstone warned that unless Israel conducted investigations conforming to international standards, its officials could face action by the international criminal court or national prosecutions of the kind attempted in London.
Michel Massih QC, for the applicants, argued that the court needed to be satisfied only that Barak faced war crimes allegations, and that the question of immunity should be considered only after his arrest. Massih added that international law "places a direct responsibility not only on those who pull the trigger, but on those higher up the chain of command".
Israeli media reported that Barak had been warned about the impending legal action and urged to leave the UK for France. But he had decided to carry on with his schedule as there was no doubt he enjoyed diplomatic immunity.
In 2005, human rights groups criticised British authorities for failing to arrest Doron Almog, an Israeli general for whom an arrest warrant for alleged war crimes had been issued, when his aircraft landed at Heathrow. Almog stayed on the plane and was allowed to return to Israel.
In June a Spanish court shelved an investigation launched into a July 2002 air strike by Israel on a Hamas target in the Gaza Strip. The suspects named included the former Israeli defence minister Benjamin Ben-Eliezer and six current or former officers or security officials.
Massih said: "If the Israeli courts were themselves to investigate, there would be no need to have recourse to international tribunals."
The Council for Arab-British Understanding condemned Brown for agreeing to meet Barak. "It is a disgrace to fete a man who is imposing one of the harshest sieges ever imposed on a civilian population, one that has deprived them even of the most basic necessities of life," said the council's director, Chris Doyle. "It is vital that British ministers send out a strong signal that Britain will stand up for international law and justice and refuse to meet Ehud Barak."
Precendents
Omar al-Bashir, president of Sudan
Charged in March with seven counts of war crimes and crimes against humanity in the Darfur conflict by the international criminal court (ICC).
Augusto Pinochet, former Chilean dictator
Arrested in 1998 while in UK for medical treatment. Charged with torture, murder, illegal detention and forced disappearances. Released on health grounds in March 2000.
Henry Kissinger, former US secretary of state
Accused of war crimes over the bombing of Cambodia and US backing for Pinochet coup. Threats of private prosecutions in US courts came to nothing.
Tony Blair, former prime minister
Has faced calls to be charged with war crimes over Iraq invasion. Greek lawyers threatened a case, and a British group, Legal Action Against War, called for an ICC investigation.
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