If Britain's foreign secretary has faith in his country's standards of justice, this is the phonecall he should make

·                                 DM


·                                                         Daniel Machover

·                                                         guardian.co.uk, Wednesday 16 December 2009 13.00 GMT

Daniel Machover is chair of Lawyers for Palestinian Human Rights and a partner at London lawfirm Hickman Rose

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.

"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.

"Moreover, the attorney general would have to take into account this country's solemn treaty obligations under Article 146 of the Fourth Geneva Convention which states that we are 'under the obligation to search for persons alleged to have committed, or to have ordered to be committed … grave breaches, and shall bring such persons, regardless of their nationality, before [our] courts'. The mandatory wording (ie 'shall') creates a presumption that it is in the public interest for criminal charges to be brought under our Geneva Conventions Act 1957 if the evidential test is met. I cannot say what the attorney general's decision would be in your case, as it must be a matter for her, on advice from the DPP.

"I understand that this may be a difficult position for you to accept. However, it is only appropriate that I also draw to your attention to some very disturbing aspects of the report of the United Nations Fact Finding Mission on the Gaza conflict, headed up by the respected independent international judge Justice Richard Goldstone. As you know, the Goldstone report was adopted by the UN Human Rights Council in October and further endorsed at the general assembly in November. While the British government did not participate in the vote when the council adopted the report, we cannot ignore its conclusions that, from the facts that it gathered, grave breaches of the Fourth Geneva Convention do appear to have been committed by Israeli armed forces in Gaza, including wilful killing. Also, at paragraph 1975, the Goldstone report recommended that 'state parties to the Geneva Convention … should start criminal investigations in national courts, using universal jurisdiction, where there is sufficient evidence of the commission of grave breaches … where so warranted following investigation, alleged perpetrators should be arrested and prosecuted in accordance with internationally recognised standards of justice'.

"In the light of all this, Her Majesty's government must therefore carefully weigh everything in the balance when considering whether it would be appropriate to prevent alleged victims applying for judicial arrest warrants. As I have great faith in the standards of justice in this country and in the quality of our judiciary, the political embarrassment that is sometimes caused by standing by our legal traditions will have to be endured. Changing these provisions would undermine our strong democratic values and the rights of victims of alleged serious crimes to access to justice. I hope that the assurance that I have given you that criminal charges will only be brought for grave breaches if the most senior prosecutor in this country thought there was sufficient evidence to justify charges, will satisfy you that only where there appears to be a case to answer will someone be charged with such offences in this country.

"I implore you to join calls within Israel for compliance with the rule of law and for the establishment of an immediate and urgent independent and effective judicial investigation, which can conclude whether or not any of the Israeli leadership that made operational decisions during Operation Cast Lead, including you, should face criminal charges under your own lawsThe same applies to the Gaza authorities. Alternatively, if you are concerned that Israel cannot meet this challenge, then Israel could refer itself to the only fully independent international body that has the resources and the ability to resolve such matters, namely the international criminal court.

"Only once the matters set out in the Goldstone report are brought to a just and satisfactory resolution, which may include the need for some individuals on both sides of the conflict to be held accountable for their alleged individual criminal responsibility, the whole region can perhaps benefit from a durable and lasting peace. Without justice there cannot be peace."

Unfortunately, it seems that Miliband is unlikely to make the above phonecall to Tzipi Livni, but instead will repeat his statements of recent days, which implicitly criticise the role of our independent judiciary, and which fly directly in the face of this country's international legal obligations to "search out and prosecute" all those alleged to have committed war crimes. This sends a message that Britain is in fact a safe haven for suspected torturers and war criminals, especially if they come from a country which is identified as an ally of the United Kingdom. This is particularly alarming given that just one week ago, with his fellow EU foreign ministers, David Miliband endorsed a document promoting compliance with international human rights law which concluded with the promise that "The European Union will continue to do its utmost to promote an international order where no state or individual is above the law and no person is outside the protection of the law."