Adri Nieuwhof, The Electronic Intifada, 8 February 2011
A leaked secret memorandum from the Dutch Ministry of Foreign Affairs suggests the government is seeking to ensure Israeli and other foreign officials who may be pursued for war crimes can visit the Netherlands without fear of arrest or legal accountability.
The memo, which was leaked to the Dutch television station KRO reveals that Foreign Minister Uri Rosenthal sought advice on possibilities for the state to prevent prosecution of foreign government officials who visit the Netherlands ("Minister Rosenthal wil vervolging buitenlandse politici in Nederland tegen gaan," 26 January 2011).
Rosenthal sought advice from the ministry's legal department after Indonesian President Susilo Bambang Yudhoyono canceled his state visit to the Netherlands last October following imminent legal action linked to his alleged role in crimes against humanity. However, it was clear that Yudhoyono could not be prosecuted because of his diplomatic immunity as president.
Rosenthal's request for advice on the matter may have been triggered by concerns about future visits by Israel officials. Several high-ranking Israeli officials have within the past year canceled planned visits to European countries fearing arrest in connection with allegations of war crimes and crimes against humanity in Gaza, documented in the UN-commissioned Goldstone report.
In its memo, the Department of Legal Affairs writes that diplomatic immunity is the only guarantee against criminal prosecution. In order to get around this limitation, the memo proposes the option of a new "generic" law to protect foreign politicians from prosecution in the Netherlands.
Another option would be a short-term agreement with a state to grant immunity to a specific person for a limited period. This would carry the publicity risk that "the Netherlands protects a war criminal," the officials who authored the memo wrote.
Yet another possibility the Dutch officials consider is that the state could take over an invitation to a foreign official issued by a private party, thus providing the foreign official with a form of state protection and indicating that such a visit is important to the foreign relations of the Netherlands. Previous court cases have shown, the memo notes, that "judges are sensitive to the argument that the judiciary should exercise restraint in cases that affect foreign relations."
This was "astonishing advice," Menno Kamminga, Professor of international law and director of the Maastricht Centre for Human Rights, told KRO television. "The Netherlands is bound by various treaties to prosecute violators of human rights; you cannot try to evade this unilaterally with a new law," Kamminga said.
A key case that shows the relevance of the potential effect of the foreign ministry memo if its recommendations are implemented, involved legal action by a Palestinian who alleged he was tortured by Danny Ayalon, a former head of the Israeli secret service, and now deputy Israeli foreign minister.
Liesbeth Zegveld, attorney and professor in international humanitarian law, lodged a complaint to the public prosecutor when Ayalon visited the Netherlands at the invitation of the Dutch Zionist group Centre for Documentation and Information on Israel (CIDI) in May 2008.
Zegveld told Radio 1 in the Netherlands: "It was clear that Ayalon had no diplomatic immunity. The public prosecutor was interested in the case but needed to formally ask advice of the Ministry of Foreign Affairs on the immunity of Ayalon. Although we reminded the ministry that the time was limited, they sent their advice one day after he left the country. Indeed, the advice was that Ayalon had no immunity. That is exactly the atmosphere that breathes from the memo. It all happens behind the scenes." The tactic of using such delays to buy time is described in the memo ("Rosenthal wil vervolging buitenlandse politici in Nederland tegengaan", 27 January 2011).
Zegveld pointed out that under the leaked memo's recommendations, the Ministry of Foreign Affairs could have given official cover to CIDI's invitation of Ayalon by inviting him for "a cup of tea at the ministry." Ayalon's visit would thus have become an official visit to the Netherlands, and judges would presumably have deferred to the government in the case of any legal proceeding against him. As Zegveld explained, "This has nothing to do with immunity. It is about influencing the judiciary with means that are not available to the other party. It is contrary to the interest of preventing impunity."
The foreign ministry memo was leaked about three months after a right-wing minority coalition government was installed with the support of the PVV (Party for Freedom) led by Islamophobic demagogue Geert Wilders. Wilders, a staunch supporter of Israel, visited the country in December and voiced support for the views of settler leaders who say Israel should should annex the occupied West Bank and that Jordan should be the Palestinian state.
The coalition negotiated an agreement with Wilders which commits the government to "invest in the relationship with the State of Israel." In this way, Israel received exclusive treatment: it is the only country that is mentioned.
The special relationship with Israel came under the spotlight after the Israeli organization NGO Monitor began a defamation campaign against The Electronic Intifada last November. Dutch Foreign Minister Rosenthal responded immediately with a fierce attack on the Dutch donor organization ICCO for its support to the publication and has since threatened to cut government funding to ICCO and other civil society organizations that deviate from his policies toward Israel.
Articles calling for boycott, divestment and sanctions have been a particular thorn in Rosenthal's side. He told the Dutch newspaper de Volkskrant on 11 December 2010 that "We [the government] want to resist Israel bashing, we want to invest in the relationship with Israel."
Moreover, Rosenthal's attack on ICCO is striking because the support of the Dutch government to donor organizations is outside his area of authority. Ben Knapen, Minister of Development Cooperation and a former chief editor of the Dutch daily NRC Handelsblad, is responsible for funding to organizations like ICCO and has remained silent on the matter.
The leaked foreign ministry legal memo also repeatedly points out the publicity risks of offering protection to suspects of international crimes by stretching possible immunity beyond presidents of states, prime ministers and ministers of foreign affairs.
This means that despite the attacks on their independence from the Dutch government, Dutch civil society and politicians can still send a clear signal to Rosenthal: the Netherlands has to comply with its international obligations to hold alleged suspects of war crimes to account, no matter their origin or the identity of their victims.
Adri Nieuwhof is a consultant and human rights advocate.
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