A swift change to the law promised by ministers to prevent Israeli politicians and generals being arrested when they visit Britain is in doubt.
A Cabinet split over timing threatens to postpone any alteration of the rules until after the election, The Times has learnt, even though ministers assured Israel that it was a priority. Such a delay would leave visiting Israelis at risk and could worsen an already sour dispute with Jerusalem.
Tzipi Livni, the Israeli opposition leader whose threatened arrest sparked the dispute, indicated last night that she was prepared to travel to Britain and “take the bullet” if that was the only way to shame the Government into action. “Britain has obligated itself to me personally that this subject will be taken care of and fixed,” she said. “Now is the time.”Read more here
Ministers promised to act after a magistrate in London issued a warrant for the arrest of Ms Livni last year, for alleged war crimes in Gaza when she was Foreign Minister. The warrant was withdrawn after she cancelled her planned trip.
See also Daniel Machover's brilliant article in the Guardian, 16th December 2009.
What David Miliband should say to Tzipi Livni
According to news reports, David Miliband plans to call the leader of the Israeli opposition, Tzipi Livni, to explain the British government's stance on the grant of an arrest warrant against her when she had been due to speak at a Jewish National Fund meeting in Hendon.
One reasonable version of this call to Livni is as follows:
"I am calling to explain why it would be wrong for me to apologise publicly or privately for the apparent decision by one of this country's independent judiciary to issue an arrest warrant against you.Read more here.
"I should first explain that the British legal system has a strong tradition of fairness. All people under criminal investigation or criminal charge are entitled to the presumption of innocence: that is, they are presumed innocent unless and until convicted through a fair trial on the criminal standard of proof (that is, beyond reasonable doubt). Therefore, nobody here is saying you have been found guilty of any offence and any comments of this kind would be unacceptable.
"It does seem, however, that a judicial decision was taken that there exists a reasonable suspicion that you committed a grave breach of the Fourth Geneva Convention, which is a criminal offence under our Geneva Conventions Act 1957. Of course, I have not seen any of the evidence that a court would have seen when making that decision. This is entirely right and proper: British ministers cannot interfere in such individual judicial decisions, as we must respect our ancient democratic tradition of non-interference with our independent judiciary. I hold the utmost respect for our independent judges.
"I am sorry, but I hope you understand that it is not my job as foreign secretary or any part of this government's job to second-guess a judge's decision or to interfere with it. I can tell you, however, that no charges could be brought against you without a decision by the attorney general. We very carefully guard the legal role of the attorney general, as the senior law officer, in making such decisions. The attorney general would first need advice from the head of our independent prosecution body, the director of public prosecutions, that the evidential test of the code for crown prosecutors was thought to be met (ie that there was more than a 50% chance that a jury would convict a defendant, having found on the evidence that it was beyond reasonable doubt that she had committed the alleged offence). If this evidential test was met, the independence of the UK legal system from the executive and the rights of victims of alleged crimes to see a just outcome to their complaints would be seriously undermined if the attorney general made a decision that it was against the public interest to bring charges of war crimes against a foreign national, who did not otherwise enjoy immunity from prosecution.