For the Sake of Dignity

For the Sake of Dignity

Seeking Justice for International Crimes: Emerging Universal Jurisdiction Practice in Spain

"The fundamental idea behind justice is to dignify the memory of our deceased. It is to dignify the children, the women, the elders who were annihilated through genocide, those who were kidnapped, those who were disappeared, those who were tortured."
- Rigoberta Menchú, 1992 Nobel Peace Prize Laureate (1)

Introduction

In theory, victims of human rights violations are entitled to effective remedies under international law. (2) This implies remedies which are capable of redressing the harm which victims have suffered by providing them with access to justice and, ultimately, with adequate, effective and prompt reparation for harm suffered. (3) These principles have recently been restated by the United Nations General Assembly while recommending “that States take the Basic Principles and Guidelines into account, promote respect thereof and bring them to the attention of members of the executive bodies of government, in particular law enforcement officials and military and security forces…”.(4)

   The failure of some countries to implement these norms has lead victims of serious crimes to seek remedies elsewhere and to bring their claims to courts in countries which have adopted universal jurisdiction laws. Some of these courts have been willing to hear their cases, but as the law stands today, there are still only a few cases which have actually ended with a trial and a conviction of the accused. (5)

The further development and success of universal jurisdiction will depend on various factors, including, of course, the position of national judges, but also the adoption of a clear domestic legal framework without which judges would be reluctant to admit such cases .(6)

This short article will focus on the promising position taken by some national judges and the possibilities this might provide Palestinians when seeking judicial remedies outside Israeli courts. The position of Spanish judges will first be discussed, as they have taken the lead in admitting cases and investigating crimes committed elsewhere, at least in respect of cases initiated by the victims themselves. Since Judge Garzon’s admission of the case against former Chilean dictator Augusto Pinochet in 1998(7), several important cases have been investigated and the judges of the Spanish Constitutional Court have clearly spoken out in favour of universal jurisdiction as a means of fighting impunity and as a means of providing effective judicial protection to victims who have been denied remedies in national courts.(8) That happened in the landmark decision from September 2005 related to the civil war in Guatemala, which since then has been supported by a decision by the Spanish Audiencia Nacional in a case related to Tibet. Finally, I will briefly discuss the position taken by national judges in three universal jurisdiction cases initiated by Palestinians.

The article can be seen as a contribution to the ongoing debate in Al-Majdal and elsewhere regarding the increasing importance of taking legal action to fight the Israeli occupation.(9) In addition, an argument is made for treating individual legal actions as ends in themselves whereby redress is sought for Palestinians whose fundamental rights have been violated by Israeli authorities who might, in turn, be held individually accountable.


Universal Jurisdiction Cases from Spain

It is important to stress that in Spain, there is a clear legal basis providing courts with the competence to try serious crimes committed abroad (i.e., Article 23 (4) of the Organic Law 6/1985 of the Judiciary(10), and for crimes against humanity, the Spanish Criminal Code(11)). Further, procedural rules are in favour of the victims: Under the action popularis procedure (Article 125 of the Constitution(12)), victims and NGOs are entitled to bring private prosecutions. Hence, they are entitled to initiate a criminal investigation if they can convince the investigating judge that they have a prima facie case.(13) In other words, such initiative does not depend on the position of the public prosecutor, which obviously might be a serious obstacle for successful litigation.(14)

Guatemala

The highest Spanish court, the Constitutional Court, has had the chance to interpret this legal framework and address the key issue whether a criminal investigation could be opened when the accused was not present in Spain. This happened in its landmark decision of 26 September 2005(15) related to crimes committed during the civil war in Guatemala against the Mayan ethnic group. The case in Spain had been initiated by Nobel Prize winner Rigoberta Menchu(16), supported by some NGOs, and followed a recognition of the lack of remedies within the Guatemalan judicial system. The victims sought justice against General Rios Montt who was the head of the military government in the early 1980s and other Guatemalan military officials.(17)

The investigating judge’s decision to admit the case was set aside by the Audiencia Nacional and the Tribuanal Supremo which required, for the case to proceed, a link between Spain and the accused or victims, or the presence of the accused.

The Constitutional Court in reversing these decisions concluded that in light of the aim of universal jurisdiction as a means to fight impunity and the specific nature of the crimes prosecuted under the universal jurisdiction law, “by legislative mandate, the scope of the Organic Law is so broad that it establishes unconditional universal jurisdiction.”(18) Presence of the accused in Spain would therefore not be required for the purpose of opening a criminal investigation, although s/he would need to be in Spain for the trial to begin (trials in absentia are generally not permitted). Hence, “the only condition to which the exercise of universal jurisdiction is subject is that the state of the locus commissi delicti is not already investigating and prosecuting the case effectively”.(19)

As a consequence of this decision, the Audiencia Nacional began investigations and carried out a fact-findingmissiontoGuatemalainJune2006.However,JudgeSantiagoPedraz“wasforcedto return empty-handed due to “obstructionism” and lack of cooperation of those accused of atrocities and of the Guatemalan judicial system”.(20) On 7 July 2006, General Montt and others were charged with genocide, torture and crimes against humanity, and the Spanish court issued an international warrant for the arrest of General Montt. Guatemala’s Constitutional Court is currently considering this extradition order.(21) However, as General Montt in September this year won a seat in the parliament and as he is expected to take up his position in January next year,(22) it is now unclear how the case will proceed in the future.

Genocide in Tibet

The Audiencia Nacional in Madrid has also admitted a case related to crimes committed by Chinese authorities in Tibet. In 2005, the Comite de Apoyo al Tibet in Madrid (CAT) and other Tibet support groups and a Tibetan with Spanish nationality(23) brought a case against the former president of China, Jiang Zemin, former Prime Minister Li Peng and other former top Chinese officials. The Tibetan victims have not had access to justice in Chinese courts, and the case in Spain was in fact “the first judicial complaint ever filed against (former) Chinese leaders for the acts committed in Tibet”.(24)

The case primarily relates to allegations of genocide, but it also includes charges of terrorism and crimes against humanity, including the acts of religious persecution, forced disappearances, arbitrary execution, apartheid, racial discrimination and forced sterilization.

In January 2005, the Spanish court, at appeal level, accepted the case relying on the principles set out by the Constitutional Court. The Court then noted that there was overwhelming evidence in favour of the plaintiffs:

“It is sufficient to read the various sections that describe systematically the various acts that occurred in Tibet and to the Tibetan people to deduce that without a trace of doubt the acts described therein, some of which are supported by documentary evidence, possess prima facie the characteristics and descriptions listed in the abovementioned Article II [of the Genocide Convention].” (25)

The Court then discussed whether the victims would have access to justice elsewhere and noted that the International Criminal Court would not have jurisdiction over the crimes, nor would the victims be able to seek redress in Chinese courts.(26) The Court then concluded that:

“in view of the facts described in detail in the lawsuit together with the important documents that accompany them, it is clear not only that the acts denounced possess the attributes of a crime of genocide that should be investigated by Spanish jurisdiction as argued above, but also that this legal body has competence to accept and process the lawsuit that was originally rejected, bearing in mind the assumptions and principles established in the ruling of the Constitutional Court on 26 September 2005.” (27)

While the Chinese Ministry of Foreign Affairs dismissed the decision and asked the Spanish government to stop the case, the plaintiffs celebrated their victory(28) and Alan Cantos, the president and coordinator of CAT concluded: “It’s an important first step to bring justice to one of the biggest injustices committed on this planet…in 50 years nobody has talked about these crimes. It is also a relief and consolation for the victims and their relatives”.(29)

The National Court began its first hearing in June 2006 when plaintiff Thubten Wangchen testified. Written testimonies have been submitted, and the Court has requested documentary evidence from the US, UK and the United Nations. The lawsuit is still in its preliminary investigation stage with victims and witnesses being interviewed.(30)

There are other similar cases pending in Spanish courts, including several complaints submitted by the Falun Gong group against Chinese authorities.(31)

Palestinian Universal Jurisdiction Cases (outside the US context) (32)

Palestinians (33) have recently sought justice by submitting criminal complaints to courts in Belgium (in the case against Ariel Sharon, Amos Yaron and others charged with war crimes, crimes against humanity and genocide in relation to the Sabra and Shatila Massacre (34)); in the United Kingdom (in the case against Major General Doron Almog charged with war crimes in relation to, inter alia, serious house demolitions which the IDF carried out in Rafah in January 2002(35)); and in New Zealand (in the case against Lieutenant General Mosche Ya’alon charged with war crimes for his role in the dropping of a 1-ton bomb in Gaza in July 2002 which lead to significant loss of civilian life).(36)

Although none of these cases proceeded to the trial phase, let alone to an arrest of any of the accused, there is at least one positive aspect to be highlighted from these cases which lawyers might explore further when seeking remedies for Palestinians. In the preliminary proceedings of all three cases, the national judges were, to some extent, favourable towards the claims made by the Palestinians: in the Sabra and Shatila case, the Brussels Court of Cassation did admit the case in relation to Amos Yaron and others and concluded that prosecution against these should proceed(37); in the Almog case, the Bow Street Magistrates’ court did issue a warrant for the arrest of Almog; and, finally, in the case from New Zealand, the Court in Auckland did issue an arrest warrant against Ya’alon noting that:

“I [Judge A. Deobhakta] have carefully perused all the material placed before me and I am satisfied that it disclosed that there are “good and sufficient reasons" to b38elieve that he [MoscheYa’alon] was together with others responsible for the bombing at Al Daraj that resulted in the deaths of several persons and destruction of civilian property”.(38)

Put differently, a prima facie case existed.

These decisions did not stand for various reasons, and, in that respect, they reflect some of themany obvious obstacles which have to be overcome in order to succeed in litigating on the basis of universal jurisdiction and, hence, ultimately, obtain redress and justice for the victims.(39)

Conclusion

As discussed, Spanish judges are increasingly willing to adjudicate cases on the basis of universal jurisdiction and are thereby opening up their courtrooms for victims who have been unable to obtain justice in national courts. This new Spanish practice and the growing support for universal jurisdiction seen in other European countries are of immense importance when deciding on future strategies for litigating Palestinian claims.

We should also remember that at least in three key cases involving Palestinian victims, national judges have been cognizant of the realities of the Palestinians and have been convinced, based on the evidence collected by the lawyers on the Palestinian side, that the allegations were credible, and therefore willing to hear the cases.

In light of these new developments and the general recognition of victims’ right to remedies, legal action appears, more than ever, a feasible way of responding to the current crisis in the Occupied Palestinian Territory, as well as to the 60 years of ongoing impunity for crimes committed in 1948. (40)

For the victims, seeking redress abroad might by itself restore some sense of dignity. For states, allowing such cases to be heard in their courts would be a way of fulfilling at least some of their obligations under international law(41) and implementing one of the most fundamental human principles, agreed upon 60 years ago, “that human beings are born free and equal in dignity and rights.”(42)

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Elna Sondergaard is teaching ‘Litigating Palestinian Rights’ at the American University in Cairo (AUC). She is also the lead author of Badil’s Handbook on Protection of Palestinian Refugees in States Signatories to the 1951 Refugee Convention, 2005.

Endnotes

(1) Citation taken from Amnesty US website.

(2) See article 8 of the United Nations Declaration of Human Rights: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”; article 2 of the International Covenant on Civil and Political Rights; article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination; article 14 of the Convention against Torture and other Cruel, Inhuman and Degrading Treatment; and article 39 of the Convention on the Rights of the Child.

(

3) For a discussion of the distinction between the procedural aspect of remedies (access to justice) and substantive redress, see Dinah Shelton “Remedies in International Human Rights Law”, second edition, Oxford University Press, 2005, 7: “The word “remedies” contains two separate concepts, the first being procedural and the second substantive. In the first sense, remedies are the processes by which arguable claims of human rights violations are heard and decided, whether by courts, administrative agencies, or other competent bodies. The second notion of remedies refers to the outcome of the proceedings, the relief afforded to the successful claimant.”

(4) See “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law” U.N. G.A. Res. 60/147 of 16 December 2005. The General Assembly emphasized that “the Basic Principles and Guidelines contained herein do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary thought different to their norms”. Article VII sets out the different forms of remedies: “Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim’s right to the following as provided for under international law: (a) Equal and effective access to justice; (b) Adequate, effective and prompt reparation for harm suffered; (c) Access to relevant information concerning violations and reparation mechanisms.” See also “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power” U.N. G.A. Res. 40/34 of 29 November 1985, and Draft UN Convention on Justice and Support for Victims of Crime and Abuse of Power, 14 November 2006.

(5) Successful cases from Europe: In Belgium, there have been some cases related to crimes committed in Rwanda, including the case involving four Rwandans who were tried and convicted for war crimes in June 2001. In Germany, in the 1990s, the authorities investigated and prosecuted several serious crimes committed in the former Yugoslavia, but these cases were based on the German Criminal Code. I am not aware of successful cases based on the Code of Crimes against International Law which entered into force 30 June 2002 which provide for universal jurisdiction in cases of alleged genocide, crimes against humanity or war crimes. In the United Kingdom, the first successful prosecution under universal jurisdiction case came in July 2005 when an Afghan militia leader (Zardad) was convicted of acts of torture and hostage-taking that had taken place in Afghanistan in the 1990s. In Denmark, there have been a few cases, including the firstinAugust1995whenSaric(BosnianMuslim)wassentencedtoeightyearsin prison for war crimes committed in Bosnia in 1993. In Spain, in April 2005, Adolfo Scilingo (former navy commander from Argentina) was sentenced to 640 years in prison for crimes against humanity. There have also been a few cases in the Netherlands, including in April 2004 when the Rotterdam District Court convicted a Congolese national of complicity in acts of torture.

(6) For further discussion, see M. Cherif Bassiouni “The History of Universal Jurisdiction and Its Place in International Law”, 46, in “Universal Jurisdiction – National Courts and the Prosecution of Serious Crimes under International Law”, edited by Stephen Macedo, University of Pennsylvania 2004: “To the knowledge of this writer, no state practice presently exists whereby states have resorted to universal jurisdiction without the existence of national legislation, even when international treaties provide for such jurisdictional basis”. See also Anne-Marie Slaughter “DefiningtheLimits:UniversalJurisdictionand National Courts” published in the same book.

(7) For information on the case, see Amnesty International’s website www.amnesty.org/ailib/intcom/pinochet, and Human Rights Watch’s report “Universal Jurisdiction in Europe: The State of the Art”, June 2006, section on Spain.

(8) The Spanish Constitution stipulates the right to “effective judicial protection” (Article 24(1)) which includes the right to access to courts.

(9) See Al-Majdal no 33. The United Nations High Commissioner for Human Rights, Louise Arbor, stressed during her last visit to Jerusalem the need for accountability (see United Nations Press Release of 23 November 2006): “Ultimately, of course, what is required, preferably sooner rather than later, is for their to be a lasting political solution to this conflict: for Palestinians to be able to realize their right to self-determination; and for both Israelis and Palestinians to live in safety within negotiated, internationally recognized, secure borders. What can be done immediately, however, is for discussion of this crisis, and more importantly action to address it, to be re-positioned within a framework of international human rights law”; and “Evidence shows that an effective system of accountability, including personal criminal accountability, will lead to a change in approach in the use of force – ensuring compliance with international law and appropriate punitive or remedial action where negligence, recklessness or intent is established.” See also John Dugard, Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, report A/HRC/4/17 March 2007: “Palestinians who launch Qassam rockets into Israel, killing and injuring civilians and damaging property, should be held individually accountable – that is prosecuted. But so should Israelis who have committed violations of international humanitarian law on a much greater scale. Despite the fact that Israel – unlike Palestine – has a sophisticated and advanced criminal justice system, prosecutions are very rare”.

(10) As amended by Organic Law 11/1999 and 3/2005: “Likewise, Spanish jurisdiction will be competent to try acts committed by Spanish or other nationals outside Spanish territory that can be classified under Spanish criminal law as falling under one of the following crimes: a) genocide; b) terrorism; c) piracy and the illicit high jacking of aeroplanes; d) falsification of foreign currency; e) crimes involving prostitution and the corruption of minors or the mentally disadvantaged; f) illegal traffic king of toxic drugs and narcotics; g) crimes involving female genital mutilation, when the persons responsible are on Spanish soil; h) any other crime that according to international treaties and conventions should be pursued in Spain.”. Translated by Jose Esteve, the Spanish lawyer who prepared the Tibet case.

(11) Spanish Penal Code 1995, as amended in 2004. This legal basis was used in the case against Adolfo Scilingo when the Audencia Nacional court held that crimes against humanity may be prosecuted even if they were committed before the amendment of the Criminal Code. See further Human Rights Watch’s report “Universal Jurisdiction in Europe: The State of the Art”, June 2006, section on Spain.

(12) “Citizens may engage in popular action and participate in the administration of justice through the institution of the jury in the manner and with respect to those criminal trials as may be determined by law, as well as in customary and traditional courts”. Translated by Jose Esteve.

(13) The role of the investigating judge is crucial from the victims’ perspective. “The investigating judge is in charge of the investigation and is assisted, where necessary, by the “judicial police”. Once the complaint is filed, the investigating judge takes the necessary steps to process the complaint, including giving specific orders to the police, hearing witnesses, requesting documents or sending rogatory letters, the latter being particularly important in cases concerning crimes committed in Chile and Argentina”, see Human Rights Watch’s report “Universal Jurisdiction in Europe: The State of the Art”, June 2006, section on Spain.

(14) See recent cases from Germany, including the complaint against Donald Rumsfeld; see decision by the Prosecutor General at the Federal Supreme Court, Karlsruhe, April 5, 2007, 3 ARP 156/06-02 not to initiate proceedings.

(15) Available in Spanish at http://www.tribunalconstitucional.es/JC.htm

(16) Ms. Menchú’s brother, father and mother all died during the Guatemalan internal armed conflict.

(17) Herve Ascensio “The Spanish Constitutional Tribunal’s Decision in Guatemalan Generals: Unconditional Universality is Back”, Journal of International Criminal Justice 4 (2006), 586-594.

(18) Decision FJ no. 3. Translated by Herve Ascensio.

(19) Herve Ascensio “The Spanish Constitutional Tribunal’s Decision in Guatemalan Generals: Unconditional Universality is Back”, Journal of International Criminal Justice 4 (2006), 586-594.

(20) Amnesty International USA: “Guatemala Appeal Case: Crimes Against Humanity Remain Unpunished in Guatemala”, 17 November 2006, available at www.amnesty.org/library.

(21) Amnesty International USA, Press Release, 18 January 2007: “Amnesty International Again Calls for Rios Montt to Either be Tried in Guatemala or Extradited to Spain to Face the Charges Against Him”.

(22) Diario El Pais 14 September 2007, translated by Serene Assir.

(23) Thubten Wangchen who was four years old when his mother died in a Chinese work camp. He has lived in Spain for 24 years. See “Spanish Court Looks at Tibetan Genocide”, Lisa Abend and Geoff Pingree, at Global Policy Forum, 2 March 2006, www.globalpolicy.org.

(24) Christine A.E. Bakker “Universal Jurisdiction of Spanish Courts over Genocide in Tibet: Can it Work?”, Journal of International Criminal Justice 4 (2006): 595-601.

(25) Writ of Acceptance, 10 January 2006, National Court, Madrid, appeal no 196/05, Preliminary proceedings 237/05, no 2 Central Investigative Court, section 8 of the decision, translated by CAT.

(26) The Court also discussed Article VI of the Genocide Convention. The European Court of Human Rights has recently interpreted the same provision and concluded that Germany had the right under the European Convention of Human Rights to sentence someone for genocide based on universal jurisdiction (see case of Jorgic v. Germany, application no. 74613/01, judgment of 12 July 2007. In paragraph 54, the court referred to the Spanish National Court’s decision on 5 November 1998 related to Pinochet where the National Court held that Spanish courts had jurisdiction: “Neither do the terms of Article 6 of the Convention of 1948 constitute an authorization to exclude jurisdiction for the punishment of genocide in a State Party such as Spain, whose law establishes extraterritoriality with regard to prosecution for such crimes”.

(27) Writ of Acceptance, 10 January 2006, National Court, Madrid, appeal no 196/05, Preliminary proceedings 237/05, no 2 Central Investigative Court, section 10 of the decision, translated by CAT.

(28) Thubten Wangchen said: “[J]ust the fact that the National Court has agreed to take the case is a great success…Spain may not have the sufficient power to force China to justice, but at least the Spanish people will know what Tibetans are suffering”, see “Spanish Court Looks at Tibetan Genocide”, Lisa Abend and Geoff Pingree, Global Policy Forum, 2 March 2006, www.globalpolicy.org.

(29) “Spanish Court Agrees to Consider Genocide Complaint Filed Against China by pro-Tibet Group”, Mar Roman, Global Policy Forum, 11 January 2006, http://www.globalpolicy.org. Alan Cantos also noted: “[W]e have been working for almost nine years to do this well to present all the evidence properly and in line with the law and we are…very happy and excited that this first path towards justice in Tibet is opening up”, see ”http://tibetwillbefree.blogspot.com

(30) Information obtained from the Spanish lawyer Jose Elias Esteve.

(31) See http://flgjustice.org: under legal documents “Spain: On April 17th, 2007, Falun Gong practitioners filed a lawsuit against Wu Guanzheng for the crimes of genocide and torture of Falun Gong practitioners in China.”

(32) For Palestinian cases in the US see Maria Lahood “The Role of Universal Jurisdiction in the Fight Against Impunity”, Al-Majdal no. 33.

(33) This section is based on some preliminary research. The cases mentioned are, to my current knowledge, the only three cases, outside the US context, in which Palestinians have succeeded in persuading judges to issue arrest warrants, or to admit their case. In the UK, there have been other attempts to have an arrest warrant issued: On 12 February 2004, the Bow Street Magistrates’ Court rejected, based on immunity reasons, to issue an arrest warrant against Israeli Defence Minster Shaul Mofaz (Application for Arrest Warrant Against General Shaul Mofaz (Bow St. Mag. Ct. Feb. 12, 2004) (per Pratt, Dist J), referred to in Human Rights Watch Report “Universal Jurisdiction in Europe: The State of the Art”, under section on the United Kingdom; in 2002, solicitor Imran Khan submitted a dossier to the British Police again related to Shaul Mofaz, but he left the UK before an arrest warrant was issued. Attempts to have Israeli authorities arrested in other European countries have also failed, for example in Denmark in August 2006 when a Danish MP requested the Danish police to arrest Israeli foreign minister Tzipi Livni.

(34) Complaint lodged by Survivors Against Israeli Prime Minister Ariel Sharon, Director General of the Defence Ministry Amos Yaron and other Israelis and Lebanese Responsible for the Sabra and Shatila Massacre, 18 June 2001, published in the Palestine Yearbook of International Law, Vol. XII. 2002/2003, pp. 219-258, together with other documents on the case.

(35) Press Release by Palestinian Center for Human Rights of 12 September 2005 “Anyone Responsible for Perverting the Court of Justice Must also Face Prosecution.”

(36) District Court at Auckland, decisions of 27 and 29 November 2006 in the case between Janfrie Julia Wakim and Lieutenant General Mosche Ya’alon.

(37) Brussels Court of Cassation Decision on Appeals From 26 June 2002 Ruling by the Brussels Court of Appeals (Chambre des Mises en Accusation) of 12 February 2003, published in English translation in the Palestine Yearbook of International Law, Vol. XII. 2002/2003, pp. 279-284: See Section IV of the decision. Part A “regarding appeals to the decision related to the criminal action against defendant A. Y. and others unknown” concluding that “having held the opposite, the contested ruling is not legally supported”. Subsequently, on 10 June 2003, the Brussels Appeals Court confirmed that “in the present state of the proceedings, there is no cause for nullity, inadmissibility or extinguishment of the case brought against Amos Yaron and other parties unknown”. See also Luc Walleyn “The Sabra and Shatila Massacre and Belgian Universal Jurisdiction” in “The Case of Ariel Sharon and the Fate of Universal Jurisdiction”, edited by John Borneman, Princeton Institute for International and Regional Studies, Princeton University, 2004. There are key similarities between the current legal framework in place in Spain, and that which was applicable in Belgium when the Sabra and Shatila case was lodged, but subsequently changed.

(38) District Court at Auckland decision of 27 November 2006 in the case between Janfrie Julia Wakim and Lieutenant General Mosche Ya’alon.

(39) Immunity issues is one limitation and the reason why the case against Sharon was not admitted by the Brussels Court of Cassation, see section IV of the decision, part B: “Whereas the ruling holds that these proceedings are not admissible; that, based on the grounds given by the Court – which replace the ones the applicants contest – the criminal action for the counts of genocide, crimes against humanity and war crimes is indeed inadmissible with regards to the defendant”. Other obstacles include, for example, national procedural limitations; failure of the police to arrest the accused (Almog and Ya’alon cases); intervention by the Attorney General (Ya’alon case: the Attorney General noted that “on advice from Crown law I was assured the material supplied to support the warrant did not meet the evidentiary standards required for a court in New Zealand to be able to convict this man of the crimes that were alleged against him”, press release of 1 December 2006); and lack of a clear legislative basis for universal jurisdiction.

(40) See for example the ongoing case in the UK where the High Court of Justice in London will hear the case of R (Saleh Hasan) v. Secretary of State for Trade and Industry regarding UK sale of arms-related equipment to Israel (see Al-Haq Press Release of 19 September 2007), and the ongoing case in France where an NGO (Association France Palestine Solidarité) has filled a complaint in “le Tribunal de Grande Instance de Nanterre” against Alstrom and Veolia in relation to their involvement in the construction of a tramway in Jerusalem. Recently PLO has decided to intervene in the case, see Press Release by AFPS 22 October 2007: “L’organisation de Libération de la Palestine… vient de decider d’intervenir au process engage contre les socités Alstrom et Véolia Transport…”. Lawyers and scholars have referred to universal jurisdiction as an important mechanism for litigating Palestinian rights, see for example Monique Chemillier-Gendreau “Israel’s Violent Attacks on Palestinian Arabs in 1948-49: Qualifying Crimes in Light of International Law and Consequences”, the Palestine Yearbook of International Law, vol. XII, 2002/2003, pp. 117-144: “Domestic legal systems with universal jurisdiction provisions present the fewest restrictions in this regard”. Marwan Dalal “Choices of Law, Fragments of History: On Litigating in the Israeli Legal System”, Journal of Palestine Studies, issue 139, Spring 2005: “There is no doubt that with developments in international law in recent years, particularly though the jurisprudence of universal jurisdiction, Israel will have to take law and rights more seriously than it has in the past”.

(41) See for example their obligations under Chapter III “Serious Breaches of Obligations under Peremptory Norms of General International Law” in the Articles on Responsibility of States for Internationally Wrongful Acts: “States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40” (Article 41(1)) and “No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation”. States also have specific obligations to prosecute (or extradite) war criminals who are alleged to have committed serious crimes under the Geneva Conventions (see for example article 146 of the Fourth Geneva Convention). A similar obligation is set out in article 5 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment.

(42) Article 1 of the Universal Declaration on Human Rights (10 December 1948) stipulates that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”