Universal Jurisdiction to Hold Israel Accountable

The well-established universal jurisdiction principle (UJ) holds that certain crimes are too grave to ignore, including genocide, crimes of war and against humanity.

Thus, under UJ, nations may investigate and prosecute foreign nationals when their country of residence or origin won’t, can’t, or hasn’t for any reason. Israel used it to convict and execute Adolph Eichmann. A US court sentenced Chuckie Taylor, son of the former Liberian president, to 97 years in prison for torture.

In March 2003, the Special Court for Sierre Leone (SCSL) indicted his father, Charles Taylor, for crimes of war and against humanity. His trial at The Hague’s International Court of Justice (ICC) remains ongoing.

Though never held accountable for murdering Chileans and committing other human rights abuses, Britain used a Spanish court provisional warrant to apprehend Augusto Pinochet, hold him under house arrest for 18 months, and set a precedent, making other heads of state and top officials vulnerable. Pinochet’s bogus ill health claim sent him home, irreparably damaged and disgraced.

Under Article 7 of the Charter of the International Military Tribunal at Nuremberg:

The official position of defendants, whether as Head of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment.

No one deserves immunity for high crimes demanding accountability. It’s time that applied to America and Israel, the two worst offenders.

In June 2009 at a Madrid, Spain conference, Raji Sourani, Palestinian Centre for Human Rights (PCHR) Director made the case, saying:

“Today, the Gaza Strip lies in ruins” months after Israel’s offensive, killing about 1,500, injuring over 5,000, and causing vast destruction – “an illegal form of collective punishment” ongoing for over three years under siege. “For too long now, Israel has been allowed to violate international law with impunity….This situation cannot be allowed to prevail….It is for this very reason that universal jurisdiction is so important….(It) offers hope to victims throughout the entire world, in many cases, it is their only hope.” It’s long past time to hold Israel accountable.

The Compelling Case for UC

A recent PCHR publication is titled, “The Principle and Practice of Universal Jurisdiction,” explaining it in detail with examples, its highlights discussed below.

Though horrific, Cast Lead was just the latest example of decades of Israeli lawlessness – little discussed, unaddressed and unresolved. “Regrettably, this lack of accountability, and the resultant climate of impunity, has been a longstanding feature of Israel’s” illegal occupation. “Israel has been allowed to act as a State above the law.”

Yet it exists to be enforced. Otherwise, it’s irrelevant. However, Palestinians have “limited judicial mechanisms available.” According to the 1995 Israel-Palestine Interim Agreement on the West Bank and Gaza Strip, the Palestinian Authority (PA) has no jurisdiction over Israel, including its officials, armed forces members, or other citizens.

Nonetheless, Israel is required to investigate and prosecute its citizens accused of international crimes, a responsibility it’s ducked with impunity, a glaring deficiency in its judicial system, exempting war criminals from accountability, in violation of inviolable international standards and principles.

“Justice for Palestinians is not attainable within this system.” UJ is the remedy, a “stepping stone (to) universal justice,” to protect everyone without discrimination, to address crimes too grave to ignore, to set a precedent for future prosecutions, and warn offenders they’re vulnerable.

No accountability encourages criminality, offenders knowing they’re safe and can act lawlessly with impunity, especially Israel, shielded by America, the West, and regional indifference or complicity. As a result, Palestinians have suffered grievously for decades, world leaders not giving a damn about their rights or the rule of law, breaking it themselves for not caring.

It’s high time UJ principles enforce accountability, using Israel as a test case, including its top government and military officials, guilty of high crimes too grave to be ignored, raising hope for all victims of injustice globally.

Above all, “The pursuit of universal jurisdiction is (the) pursuit of justice. It seeks to ensure an effective remedy for victims – combined with the goal of deterrence – and accountability for those responsible for crimes which ‘shock the conscience of humanity.'”

The Applicable Legal Framework

Palestine is belligerently occupied. As a result, international law applies, including the four Geneva Conventions, Hague Regulations, other international humanitarian law (IHL), and Additional Protocols to the Geneva Conventions. As a signatory, Israel is legally bound, including under International Covenant on Economic, Social and Cultural Rights (ICEPR) provisions such as:

— Article 2, concerning the right to an effective remedy;

— Article 14, regarding the right to a fair trial; and

— Article 26, affirming the right of everyone to protection under the law.

Traditional v. Universal Jurisdiction

Legally, jurisdiction is “the authority of states to prescribe their law, to subject persons and things to adjudication in their courts and other tribunals, and to enforce their law, both judicially and non-judicially,” by civil or criminal means.

Five “prescriptive jurisdiction” bases include nationality, territoriality, the protective principle, the passive personality principle, and universal jurisdiction, this discussion focusing on UJ.

It requires “no link of territoriality or nationality between the State and conduct of the offender, nor is the State seeking to protect its security or credit.” Only the crime matters, UJ reserved for the worst, ones too serious to go unpunished, their gravity justifying UJ’s existence.

Initially for piracy, they were considered outlaws, operating extraterritorially in international waters. Today, international crimes are considered so “threatening to the international community or so heinous in scope and degree that they offend the interest of humanity,” all states needing to address them.

However, until post-WW II, UJ applied only to piracy and slave trading, thereafter to genocide, crimes of war and against humanity, as established by the Nuremberg Charter and Judgment, now defined by the ICC to include systematic attacks against civilians, including murder, enslavement, deportation or forcible transfer, false imprisonment, torture, rape, sexual slavery, collective punishment, enforced disappearance, and apartheid.

Guilty parties are considered hostis humani generis – enemies of mankind. War crimes are against the jus gentium – the law of nations, international law established to address them.

The International Law Commission’s (ILC) principle VI of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, determined that crimes of war and against humanity “rise to the level of international crime,” now recognized under customary international law.

A national court exercising UJ acts not in its name, but for the international community – only when responsible countries won’t, can’t or haven’t. In other words, as a last resort.

In addition, various post-WW II Conventions, including the four Geneva ones and their Common Article 1 obligates all High Contracting Parties to “respect and ensure respect for the present Convention in all circumstances;” namely, to apply its principles universally, requiring High Contracting Parties “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.”

At Nuremberg, the concepts of individual and command criminal responsibility were addressed, the Tribunal Principles holding that “(a)ny person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment….(c)rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit (them) can the provisions of international law be enforced.”

The Rome Statute’s Article 25 of the ICC codified this principle, affirming the culpability of persons committing crimes of war and against humanity. In addition, commanders and their superiors are specifically culpable if they “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes, (and) failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecutions.”

Nuremberg established that immunity is null and void, including for heads of state, other top officials, and top commanders. In addition, genocide, crimes of war and against humanity are so grave that statute of limitation provisions don’t apply.

Final Comments

UJ is to ensure that individuals committing high crimes are held accountable, essential under the rule of law. Otherwise, it’s meaningless. All too often, however, populations, like the Palestinians, are abused for many decades, Israel getting away with mass murder and other grave breaches of law.

As a result, UJ is the only alternative, national courts willing to use it an essential judicial remedy. It’s high time they take the first step to universal justice, sending a powerful message that crimes this egregious won’t stand, no matter who commits them or shares responsibility.

Stephen Lendman wrote How Wall Street Fleeces America: Privatized Banking, Government Collusion and Class War. Contact him at: lendmanstephen@sbcglobal.net. Also visit his blog site and listen to The Global Research News Hour on RepublicBroadcasting.org Mondays from 11AM-1PM US Central time for cutting-edge discussions with distinguished guests. All programs are archived for easy listening. Read other articles by Stephen.

7 comments on this article so far ...

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  1. hayate said on August 15th, 2010 at 5:16pm #

    I think UJ is a good way to put these war criminals on trial – once they can be arrested. It’s arresting them in the first place that may prove the most difficult, as one has to wait till they visit a country willing to risk american military wrath (and to a lesser extent, that of israel). For low level criminals like cia/mossad operatives, low level military, corporate foreman, etc., it wont be too dangerous for the arresting country since israeloamerica wont start an unplanned war over these individuals. But a major player arrested may see the usa starting a war to recover them. Once the UJ process gets going, and becomes more commonplace, it wont be as dangerous for the prosecuting country, though.

  2. Rehmat said on August 15th, 2010 at 6:32pm #

    The UJ doesn’t apply to countries which consider themselves above law. The US and Israel are among those countries. They were in the front line to get Sudan’s President got convicted on cooked-up proofs like Iraq had WMDs and Iran is about to make one of WMD.


  3. mary said on August 16th, 2010 at 12:06am #

    The BBC resembles Fox News more and more. Until the appearance of the supermodel, and then the actress and the agent, which were all carried live on their 24 hour news channel, little mention was ever made of the ICC trial of Charles Taylor which is now in its third year.

    Separately, here is a thread on medialens about a BBC (ZBC) programme being broadcast tonight in the UK.

    Panorama does the Mavi Marmara. Lets see what Mark Thompson can do for Israel.
    Posted by Ken Waldron on August 16, 2010, 2:16 am

    Reading the BBC page, this one look like burying the idea of Investigative journalism. All the exiting swish and swash buckle of being an embedded BBC guest of the murderous Commando units too…

    Panorama: Death on the Med, BBC One, Monday 16 August at 2030 BST and then available in the UK on BBC iplayer.

    Inside Israel’s commando unit which raided Gaza flotilla.

    Naval Commando 13 are training in anticipation of more flotillas heading to Gaza
    By Jane Corbin
    BBC Panorama

    Israel’s elite commando unit which raided a Turkish aid flotilla sailing to Gaza in May has given Panorama exclusive access to its top secret operatives.

    Some of the Israeli special forces took off their balaclavas to talk to me and show me the wounds they received the night nine people were killed and 50 were wounded on board the Turkish ship the MV Mavi Marmara.

    “I saw a knife in my abdomen and pulled it out,” Captain R said.

    “The beating was continuous – and the cries of Allah Akbar.”

    Israeli footage shows Captain R, a member of Naval Commando 13 being beaten with bars by activists, stabbed and then thrown to the deck below.

    Who started the violence that ended in death on the boat, has been fiercely contested.

    The Mavi Marmara was one of six ships crewed by activists from a coalition of pro-Palestinian groups in international waters about 80 miles (130km) from the Israeli coast on 31 May.

    There were two opposing forces, one that wanted to kill us and the other more moderate trying to pull away those trying to escalate the situation and finish us off .

    Captain R, Israeli commando

    I was given exclusive access to Naval Commando 13 as they trained on a boat similar in size and layout to the Mavi Marmara…


    Re: Panorama does the Mavi Marmara. Lets see what Mark Thompson can do for Israel.
    Posted by Peter Charles on August 16, 2010, 7:30 am

    The question for the bbc is, how will they tackle the story? Will they tell it like it was or will they water the attack down for Israel while portraying the self-defense as violence for the other in an effort to make it sound 50-50.

    This programme will be an exercise in defending Israel’s actions. It will ask questions and then pretend not to know the answers. It will give the viewer the idea that the situation is too complex to form a full understanding of what happened but making it clear that “Elite”, “Special Forces” had no choice to do what they did.

    Some of the Israeli special forces took off their balaclavas to talk to me and show me the wounds they received the night…

    a) the night they attacked the Turkish ship in international waters killing nine people and wounding 50.

    b) the night nine people were killed and 50 were wounded on board the Turkish ship the MV Mavi Marmara.

    “Who started the violence that ended in death on the boat, has been fiercely contested.”

    but we know the answer!


    The two gentlemen are correct. Jane Corbin has form as as Israeli shill when reporting on the Middle East. Her last programme on the aftermath of Cast Lead was a shocker.

  4. joelsk44039 said on August 16th, 2010 at 7:58am #

    If you saw the videos, you wouldn’t be asking the question, “..who started the violence that ended in death…” The blockade is entirely legal under international law. Israel has followed international law to the letter. Those attempting to violate the blockade do so at their own risk.

    Gaza isn’t a huge open air jail. Food, clothing and other basic necessities come in legally and through smuggling tunnels.

    Hamas is a terrorist organization. I repeat, Hamas is a TERRORIST organization that launches rockets and rocket propelled grenades indiscriminately towards civilian population centers of Israel.

    There is absolutely no excuse for Hamas and the other Palestinian factions’ behavior. Where is the Universal Jurisdiction when it comes to what these evil people are doing?

  5. hayate said on August 16th, 2010 at 8:17am #

    joelsk44039 said on August 16th, 2010 at 7:58am

    Came up with that israeli hasbara all by yourself, did you, joey?

  6. MichaelKenny said on August 16th, 2010 at 8:47am #

    The fly in the universal jurisdiction ointment is that once it is extended beyond economic crimes like piracy, it rapidly degenerates into “victor’s justice”. People have a nasty habit of wanting to see those they disagree with put on trial and are indignant when the same thing happens to those they approve of. Logically, if you follow Mr Lendman’s argument regarding Eichmann, then the US is entitled to kidnap the Castro brothers, put them on trial for things that are not contrary to the laws of Cuba and even execute them. Equally, one of the most recent examples of universal jurisdiction is the International Tribunal for Yugoslavia, whose best known defendant was Slobodan Milosevic, who argued victor’s justice in his own defence. His trial has been frequently criticised by authors on this website. In practice, therefore, universal jurisdiction is unworkable as a legal concept and is merely a legalistic cloak for the revenge of the strong on the weak.

  7. mary said on August 16th, 2010 at 9:17am #

    My correspondence with my MP. The proforma reply was straight out of the Zionist Foreign Office, with its legal advisor Sir David Bethlehem QC once advisor to Sharon! I have omitted the identities for obvious reasons.

    Thursday, 22 July, 2010 22:35:10Messing with Universal Jurisdiction

    Dear …….,

    In his report to the UN, Judge Richard Goldstone, after finding ample evidence of war crimes by Israel in Gaza, calls for individual states in the international community to “start criminal investigations in national courts, using universal jurisdiction, where there is sufficient evidence of the commission of grave breaches of the Geneva Conventions of 1949”.

    Britain and the other High Contracting Parties undertook a solemn duty to use these means to bring war criminals to book. Yet Mr Hague, from his statements, seems determined to make an ass of Britain by providing a safe haven for the bloodsoaked likes of Livni and Barak and their murderous military henchmen. Hague said: “We cannot have a position where Israeli politicians feel they cannot visit this country. The situation is unsatisfactory [and] indefensible. It is absolutely my intention to act speedily.”

    He just doesn’t get it, does he? There is already a mountain of evidence against Livni and others. How can the public have confidence in Justice Secretary Kenneth Clarke’s assurance that there will be no hiding place for those suspected of war crimes if universal jurisdiction cases in future are handled solely by the Director of Public Prosecutions? Will that officer be under strict instructions to respond to applications before the bird has flown? I somehow doubt it.

    It is shameful that your party chooses to meddle with our laws like this. I don’t imagine you’ll agree to sign Early Day Motion 108, as you have said before that you do not sign them. It opposes any attempt to change the law of universal jurisdiction, but I do hope you will help make sure that the DPP is not used to obstruct the speedy arrest of suspected war criminals, even if our Foreign Secretary wishes to make them a protected species.

    Yours sincerely
    Reply dated 12th August 2010

    Dear …….

    ……. has asked me to pass on the following message:

    “Thank you for contacting me about universal jurisdiction.

    As you know, the United Kingdom has asserted universal jurisdiction over war crimes under the Geneva Conventions Act. We have also asserted jurisdiction over a few other offences of exceptional gravity, because of our international obligations and our commitment to ensuring that there is no impunity for those accused of such crimes.

    It is important, however, that universal jurisdiction cases should be proceed only on the basis of solid evidence that is likely to lead to a successful prosecution. There is otherwise there is a risk of damaging our ability to help in conflict resolution or to pursue a coherent foreign policy. It is unsatisfactory that, as things stand, an arrest warrant for these grave offences can be issued on the application of a private prosecutor on the basis of evidence that would be insufficient to sustain a prosecution.

    Currently, anyone can apply to the courts for an arrest warrant and the Government wants to protect this right. However, because the evidence necessary to issue an arrest warrant may be far less than would be needed for a prosecution, the system is open to possible abuse by people trying to obtain arrest warrants for grave crimes on the basis of flimsy evidence to make a political statement or to cause embarrassment.

    As such, the Government’s has, after careful consideration, decided that it would be appropriate to require the consent of the Director of Public Prosecutions before a universal jurisdiction arrest warrant can be issued to a private prosecutor. A suitable legislative amendment will be brought before Parliament at the first opportunity. We do not believe that this will interfere significantly with the existing rights of private prosecutors, and will not prevent them from initiating prosecutions for these offences where the evidence justified that course of action.

    Thank you again for taking the time to write to me about this important issue and please don’t hesitate to contact me at anytime. “

    Best wishes,


    Just weasel words.