46 No. 74 JUSTICE In 2009, a UK court issued an arrest warrant for former Israeli Foreign Minister Tzipi Livni over allegations of war crimes committed during “Operation Cast Lead” in Gaza. The warrant was withdrawn after the court learned that Ms. Livni was not in the country.8 Although the UK amended its law in 2011 to require government approval for such private arrest attempts, Livni was again targeted during a 2016 visit when she was summoned for police questioning over the same allegations. She declined the summons after receiving diplomatic immunity from UK authorities.9 These historical examples lead to a crucial question: What, if anything, is new about the current campaign? Before answering this, it is necessary to outline the relevant legal framework. The Legal Framework International law applies primarily to states. Under this framework, states, as legal entities under international law, are responsible for violations of their international obligations.10 However, certain serious violations are classified as international crimes, for which individuals bear personal criminal responsibility, even when acting on behalf of a state. The rationale for this was articulated by the Nuremberg Tribunal: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”11 States hold the primary responsibility for prosecuting their own citizens who commit international crimes.12 However, because these crimes are a concern of the entire international community, the principle of “universal jurisdiction” allows foreign states to prosecute suspected war criminals, even without a direct connection to the case.13 Furthermore, since its establishment by the Rome Statute in 2002, the International Criminal Court (ICC) may exercise jurisdiction over certain international crimes committed by nationals of state parties or on the territory of state parties.14 Investigating and trying war crimes far from the crime scene is a complex and expensive endeavor. Therefore, the ICC is a court of last resort, exercising jurisdiction only when the relevant state is “unwilling or unable” to enforce the law itself. This is known as the “principle of complementarity.”15 Due to the need for efficient resource allocation, international criminal tribunals typically focus on prosecuting senior political and military leaders. While the scope of universal jurisdiction varies by country, many states also apply the principle of complementarity in their national laws.16 States also differ in the degree of control public prosecutors have over the use of universal jurisdiction. Some states permit individuals and NGOs to petition lower courts directly for arrest warrants. To prevent political abuse, other states have amended their laws to strengthen prosecutorial oversight of such petitions.17 The New Front: Targeting Junior Soldiers and its Strategic Ramifications While previous attempts to arrest Israelis abroad for 8. Ian Black and Ian Cobain, “British court issued Gaza arrest warrant for former Israeli minister Tzipi Livni,” THE GUARDIAN (Dec. 14, 2009), available at https:// www.theguardian.com/world/2009/dec/14/tzipi-livniisrael-gaza-arrest 9. “Israeli politician Tzipi Livni ‘summonsed by UK police’,” BBC (July 4, 2016), available at https://www. bbc.com/news/world-middle-east-36697324 10. “Draft Articles on Responsibility of States for Internationally Wrongful Acts,” Int’l Law Comm’n, UN Doc. A/56/10 (Nov. 2001), available at https: //legal.un.org/ilc/texts/instruments/english/draft_ articles/9_6_2001.pdf 11. TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NÜRNBERG, 14 NOVEMBER 1945–1 OCTOBER 1946, vol. 1, 223 (Nürnberg, Germany 1947), available at https://biotech. law.lsu.edu/Books/blue/pdf/NT_Vol-I.pdf 12. “Israel's Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict,” THE PUBLIC COMMISSION TO EXAMINE THE MARITIME INCIDENT OF 31 MAY 2010, 85 (Feb. 2013), available at https://www.gov.il/BlobFoldhttps:// biotech.law.lsu.edu/Books/blue/pdf/NT_Vol-I.pdfer/ generalpage/downloads_eng1/en/ENG_turkel_eng_b1474.pdf (hereinafter: “The Turkel Report”). 13. “The Princeton Principles on Universal Jurisdiction,” UNIVERSITY OF MINNESOTA (2001), available at http:// hrlibrary.umn.edu/instree/princeton.html (hereinafter: “The Princeton Principles”). 14. Rome Statute of the International Criminal Court, art. 12(2), July 17, 1998, 2187 U.N.T.S. 90, available at https://www.icc-cpi.int/sites/default/files/2024-05/RomeStatute-eng.pdf (hereinafter: the “Rome Statute”). 15. Ibid., art. 1, 17. 16. The Turkel Report, supra note 12, at 88-89; The Princeton Principles, supra note 13, at Principle 8. 17. John Bellinger, “Britain Amends Universal Jurisdiction Law,” LAWFARE (Sept. 19, 2011), available at https:// www.lawfaremedia.org/article/britain-amends-universaljurisdiction-law
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