Last month, Professor John Dugard, former UN Special Rapporteur on Human Rights in the Occupied Palestinian Territories, chaired a meeting on universal Jurisdiction in the Hague. The Electronic Intifada contributor Adri Nieuwhof interviewed Dugard about means of bringing Israel to account for its human rights violations, particularly the legal mechanism of universal jurisdiction.
Adri Nieuwhof: Can you explain the principle of universal jurisdiction?
John Dugard: Essentially, universal jurisdiction means that a state has the power to exercise jurisdiction over serious crimes under international law that were committed outside the boundaries of the state by non-nationals. Normally states have only jurisdiction over crimes in their territory by their nationals.
AN: Do states have responsibility towards exercising universal jurisdiction?
JD: Yes, if states are serious about suppressing international crime and preventing impunity, then there is an obligation to exercise universal jurisdiction. It is important to realize that the International Criminal Court in The Hague has limited universal jurisdiction. If impunity is to be avoided, states will have the obligation to prosecute international crimes themselves.
AN: Can you specify what this obligation of states implies?
JD: They have to institute criminal procedures against persons suspected of international crimes, to investigate and to bring the suspects before their court.
AN: You spoke at the meeting about selectivity in implementing universal jurisdiction. Can you clarify this?
JD: Universal jurisdiction is not very effective at present. There are practical difficulties involved, in particular, the collection of evidence. For example, if the Netherlands prosecuted serious crimes committed in Rwanda, it will have to collect evidence in Rwanda. There is no political will on the part of states to exercise universal jurisdiction, particularly where it concerns Israeli officials. When attempts are made to exercise universal jurisdiction over Israeli officials obstacles are raised by governments or courts find some technical reasons for not exercising universal jurisdiction.
AN: Is there a reason behind this selectivity in universal jurisdiction?
JD: European and American states are reluctant to undermine their relations with Israel.
AN: What needs to be done to reverse this selectivity? Is there a role for civil society?
JD: Civil society can always bring pressure on governments to exercise criminal jurisdiction. It has a role to play in changing public opinion. It will mean that courts will start to exercise universal jurisdiction.
AN: Israel increasingly oppresses human rights defenders and activists campaigning for boycott, divestment and sanctions (BDS). Can you comment on this development?
JD: It is unfortunate. Israel has been relatively tolerant of dissent in its society. It indicates a new repressive tendency of Israeli society. The effect will be stifled dissent in Israeli society.
AN: Can you comment on the imprisonment of civil society leader and Palestinian citizen of Israel Ameer Makhoul and the reports that he was tortured during the interrogations?
JD: My difficulty is that I have not been in Israel since 2007. I cannot comment on Israel. In the past there were frequent allegations of torture by Israeli human rights activists. That is serious. I am out of touch with recent developments.
AN: Israeli accuses the BDS movement of delegitimizing Israel. What is your reaction to this accusation?
JD: The BDS actions are delegitimizing Israel. There is no question about that. Obviously Israel is unwilling to accept that, similar to apartheid South Africa, which did want to suppress international sanctions. BDS was at that time effective, largely as a result of international advocacy for [boycott, divestment and] sanctions. It delegitimized the state and ultimately led to change in South Africa.
The comparison between Israel and South Africa is important. The situation is very similar at present. The international community is increasingly critical of Israel, advocating for international [boycott, divestment and] sanctions. It is not surprising that Israel is taking steps to prevent them in the same way the South African government did.
Adri Nieuwhof is a consultant and human rights advocate based in Switzerland.