Universal Jurisdiction Once Again Under Threat

Preface: This article appeared days ago at The Electronic Intifada a highly respected site pro-Palestinian to its roots. The authors are legal experts in international law and human rights sympathetic to the legal plight of the people in Gaza. They report on the efforts to prosecute Israeli officials in Spain on war crimes. When the plaintiffs attempted to expand the original complaint into the crimes against humanity area, the defendants countered with the jurisdiction issue. The Salah Shehadeh bombing occurred in Gaza, not Spain. The affair did not involve Spanish nationals in any way. The Spanish Courts have ruled the Salah suit has no basis in Spain. If this ruling holds, the other human rights pending against Israelis will also fail.
This statement reflects pre-trial maneuvers and is not a judgment of guilt or innocence. There wasn't a trial or a discussion on the merits of the case.
In the months following the Gaza hostilities, various leftist pundits, media personalities and propagandistic jingoists have rushed to judgment. They used unsubstantiated charges, gossip and hearsay to vilify Israelis worldwide. This smear campaign continues daily everywhere.
It will not stop.
Actions such as these harm ordinary Jews and Muslims in all places. They smash the peace initiatives. They lessen the chances for legitimate human rights suits to reach a sympathetic venue.

Universal jurisdiction once again under threat
Sharon Weill and Valentina Azarov, The Electronic Intifada, 10 June 2009

Currently, the fate of one of the only remaining venues that offers a redress mechanism for Palestinians is at stake. It is one that can bring accountability of Israeli officials and decision-makers who committed war crimes and crimes against humanity. The amendment of universal jurisdiction laws, often incommensurably restricting access to these mechanisms, is at variance with the effect of certain crimes on humanity as a whole, on which the notion of universal jurisdiction is premised. The pressure exerted on the Spanish government to amend its law is an example of the regrettable phenomenon of the weakening of international law at the price of the individual.
[[SALAH]]
On 22 July 2002, around midnight, an Israeli Air Force plane dropped a one-ton bomb on Gaza City's al-Daraj neighborhood, one of the most densely-populated residential areas in the world. The military objective of this operation was to target and kill Hamas' former military leader in the Gaza Strip, Salah Shehadeh, who at that time was in his house with his family. As a result of the operation, Shehadeh and 14 civilians were killed, most of them children and infants, and 150 persons were injured, about half of them severely. Houses in the vicinity were either destroyed or damaged. Seven members of the Matar family, whose neighboring house was totally destroyed, were among the casualties.

More than six years later, in Madrid, just a few days after Israel's most recent invasion of Gaza ended, Judge Fernando Andreu Merelles decided to open a criminal investigation on the basis of universal jurisdiction against seven Israeli political and military officials who were alleged to have committed a war crime -- and possibly a crime against humanity -- in the course of that operation. The officials included Dan Halutz, then Commander of the Israeli Air Forces; Benjamin Ben-Eliezer, then Israeli Defense Minister; Moshe Yaalon, then Israeli army Chief of Staff; Doron Almog, then Southern Commander of the Israeli army; Giora Eiland, then Head of the Israeli National Security Council; Michael Herzog, then Military Secretary to the Israeli Defense Ministry; and Abraham Dichter, then Director of the General Security Services.

Although the allegations in the action referred only to war crimes, the court stated that the facts could amount to more serious crimes than what was initially claimed -- namely, crimes against humanity. This preliminary legal assessment motivated the legal team to work toward basing a new charge. The lawyers announced that they would redouble their efforts to demonstrate that the al-Daraj bombing was part of a policy of "widespread and systematic" attacks directed against a civilian population, fitting the definition of a crime against humanity.

As the request for Israel to provide information on the existence of any judicial proceedings concerning the military operation was not answered and the state expressed its unwillingness to cooperate with the legal team, the Spanish court thereby ruled that the investigation be conducted by the Spanish jurisdiction. On the same day the decision concerning the commencement of the investigation was rendered, Israeli officials sent a 400-page document to the Spanish legal team, stating that the facts of the complaint regarding the operation were subject to proceedings in Israel, and therefore the Spanish court should have declined to exercise jurisdiction.

The proceedings in Israel

The army's internal investigation found that the collateral damage was caused because of an intelligence failure, and therefore was not anticipated by military decision-makers. Yesh Gvul, an Israeli pacifist movement, asked the military advocate general, and later the state advocate general, to open a criminal investigation against those who planned and executed the operation. After their request was denied by the prosecution authorities, Yesh Gvul and five other well-known Israeli actors filed a petition to the Israeli high court in September 2003. The high court finally held a hearing in the Shehadeh case nearly four years later on 17 June 2007.

The court was due to examine whether the bombing of the Shehadeh house from the air could constitute a war crime, which therefore required a criminal investigation to be opened. However, the high court did not make a decision and instead shifted the responsibility by recommending that an "objective and independent body" examine the incident.

On 23 January 2008, an "objective and independent" commission of inquiry into the killing of Salah Shehadeh was appointed by then Israeli Prime Minister Ehud Olmert. It was composed of three members, two of then former Israeli generals and a former official from the General Security Services. The structure, nature and mandate of this commission were to be entirely determined by the state -- the very body whose actions were to be investigated. Moreover, it was mandated to function as a military inquiry, while the procedure, testimonies and even the final report were to remain confidential and thereby inadmissible before a court of law. The commission could only provide non-binding recommendations directly to the military. As of today, the commission has yet to complete its mandate.

Back to Spain

On 2 April 2009, following the delivery of the document by Israel to the Spanish court, the Spanish public prosecutor submitted a request for the court to decline competence over the case, since parallel proceedings were taking place in Israel.

Despite the political inconvenience in upholding its previous stand, on 4 May 2009, the court forcefully rejected the prosecutor's request to decline competence. The court found that the procedure, and decisions made by the Israeli military advocate attorney general, the high court and the Committee of Inquiry, did not satisfy the constitutional right to effective protection by an independent and impartial court. It upheld that the decisions of the prosecution authorities, which endorsed an internal military probe, could not be perceived as independent and impartial, nor could the commission of inquiry that was appointed by the prime minister and functioned under the discretion of the executive branch. The Spanish court equally noted that an overarching deficiency of Israel's decisions was that none of them provided a detailed legal assessment of the facts. This ruling was immediately appealed, and the case is still pending.

The Israeli media portrayed the Spanish procedure as a "cynical attempt by the Palestinian plaintiffs to exploit the Spanish judicial system in order to advance a political agenda against Israel;" an issue, as the press appreciated, that should have been resolved through diplomatic channels. The Israeli daily Haaretz quoted Israeli Defense Minister Ehud Barak on 4 May 2009: "I intend to appeal to the Spanish foreign minister, the Spanish minister of defense and, if need be, the Spanish prime minister, who is a colleague of mine, in the Socialist International, to override the decision."

Spain and universal jurisdiction

Spain is one of the most important contributing actors to the securing of accountability of international crimes, principally due to its state-of-the-art universal jurisdiction legislation. The Spanish judiciary was the one that initiated the procedure against Augusto Pinochet, the former Chilean dictator, in 1998, and it is currently investigating dozens of other cases. One of the specific features of the procedure in Spain is that the victims themselves can initiate the investigation, and directly submit their complaint to the court, thus avoiding political obstacles that usually exist if it is the national prosecutor or the police who determine what cases are to be investigated. Further, Spanish law does not require the presence of the foreign suspects for the commencement of the judicial investigation. However, trials in the absence of the accused are prohibited in Spain.

Following political pressure from the governments of Israel, China (regarding an ongoing investigation accusing its former foreign minister of committing genocide in Tibet) and the US (for two cases against US officials alleging torture), on 19 May 2009 the Spanish parliament passed a resolution backing a proposed amendment to the Spanish universal jurisdiction legislation. The amendment limits the legislation's exercise to cases with a Spanish victim, or some other connection such as when the suspect is present on Spanish soil. It is not clear if the proposed amendments would apply to ongoing cases once in force. It is hoped that if the law is modified, victims can still initiate judicial investigations.

In 2003, Belgium faced a similar situation. It was bullied into changing its law and procedure, following Israeli and US pressure concerning the complaints brought against then Israeli Prime Minister Ariel Sharon and former US Secretary of Defense Donald Rumsfeld. In response, Washington threatened to move NATO headquarters from Brussels. In contrast, when a judicial arrest warrant was issued against Israeli Major General Doron Almog in 2005, then British Prime Minister Tony Blair declared his intention to modify the United Kingdom's laws on universal jurisdiction. Four years later, no such amendment has even been proposed to the UK Parliament.

Amendments to universal jurisdiction laws, as well as the actual initiation of investigations by the state prosecutors, have historically been markedly affected by public opinion and action. Pressure of such kind stands to be the most effective means of ensuring that justice is achieved for the victims, and the law is upheld against those who have violated it. This is particularly important when international war crimes and crimes against humanity are at issue. Governments and the international community should be mindful of this reality, in which the law is politicized in order to be evaded, and act upon it (a sample letter to government officials and contact information is provided by the Palestinian Centre for Human Rights). We must, in any way possible, ensure that all necessary measures are taken to guarantee respect of the most fundamental pillars of international law.

Sharon Weill is a PhD candidate in International Humanitarian Law (IHL), University of Geneva, and lecturer in IHL. Valentina Azarov is a Legal Researcher with HaMoked - Center for the Defence of the individual and author with the International Law Observer.

Live and Let Live, I Say

Live and Let Live, I Say

In my democratic fashion, I'm for giving the other guy an even break. Jews and Arabs have a right to live. When a Jew killed my cat and two weeks later murdered my friend with 41 stab wounds, I came down on the killer with both feet. He got 7 years in the slammer [juvenile offender].
When the Palestinians fired 15 rockets on my town, I was glad to see my two sons doing a job on the offenders. The rocketeers deserved punishment just as my friend's killer.
The government doesn't have to pay me to protect my family from murderers.
I have the DNA Y-chromosome common to Syrians, Palestinians and Jews who live here. Jews built my house in 1948 on what was a Turkish factory parking lot.
There have been many Bible-burners who wanted us 'to fade into the past.' Ironically, we survived and they faded into the past. It's unwise to box with God.

Your Pitch is too Pat Like It Has Been Boilerplated

You might try to lighten up your approach a bit. Too well-written for a casual comment, there is too much hyperbole to be believed. For example, Jews built my house in 1948 on top of the parking lot for a long gone Turkish factory. I visited Gaza City in 1983. It was a pile of rubble then and hasn't changed since. Haifa Arabs have been squatting in unimproved Crusader forts for the past 500 years. I would have thought they would have added plumbing by now.

Hamas refuses to negotiate with Israel. Instead, they offer the one soldier they kidnapped in 2006 Gilad Shalit in exchange for many convicted felons. The last two soldiers we negotiated with Hezbollah came home in coffins.

Hamas broke into Palestinian homes to use the women as human shields and the children as suicide bombers. Such methods won the 'democratic' election for Hamas.

You see; a real democracy Israeli style involves free speech and secret ballots. There are many parties covering a full range of views. There are seven Arab/Israeli Parliamentarians who would probably agree with most items in your comment. If they walked around any Arab World country mouthing your words in English or [gasp] Hebrew, they would be beheaded for knowing too much history.

While you were blaming the Jews for your troubles, the world is passing you by. After alternate energy is adopted, fossil fuels and the economic benefits they bring will vanish. The next time the Iranians smuggle into Gaza 67 tons of weapons, they will demand payment in hard currency.

You Are Confused

You write there are no doves in Israel and then you state that Yigal Emir assassinated Prime Minister Yitzhak Rabin because he had become a dove. This is a serious deviation from the Arab propaganda line. Syed will be displeased.

You are also confused. The Palestinians began hostilities in 2006 and 2008 and Hezbollah joined them. George Bush, Dick Cheney and many other war criminals say with you they follow Jesus. How does the Jewish Jesus deal with the evil-doers in his flock? Are the Born Again torturers forgiven by Jesus?

Why Does a Christian Denounce Peacemakers?

You write there are no doves in Israel and then you state that Yigal Emir assassinated Prime Minister Yitzhak Rabin because he had become a dove. This is a serious deviation from the Arab propaganda line. Syed will be displeased.
You are also confused. The Palestinians began hostilities in 2006 and 2008 and Hezbollah joined them. George Bush, Dick Cheney and many other war criminals say with you they follow Jesus. How does the Jewish Jesus deal with the evil-doers in his flock? Are the Born Again torturers forgiven by Jesus?
The peace loving Israelis signed Peace Treaties with Jordan and Egypt. They now negotiate with the Syrians for peace. The extremists condemn all three neighbors for making peace with Israel. Why would a Christian denounce peacemakers?

When Your Confusion Ends Write Me a Postcard

Theologically, you are confused. The Christian Rapture is only for Evangelicals. Those 59 millions who voted for the Bush/Cheney won't see heaven.
Since the Cast Lead so-called cease fire, the Hamas has smuggled in 67 tons of missiles, guns and explosives.
Militarily, you are confused. The Palestinians crave attention and foreign aid. They think starting WWIII would achieve their aims, so they continue hostilities.

As Long as We Are Being Biblical

Have you ever been shot, knifed or bombed? That is reality. My mother cradled me in her arms an unconditional love. Twice more I experienced this. I saw my second son being born. They were miracles enough for a lifetime.
The rest of it is BS a few entertainments to pass the dull years between birth and death. How another man chooses to pass his time is his business, unless he tries to barge into my life. History is replete with one world idealists. Their insights spread to the masses, they melted into tyrannies, empires and worse. In one way or another they sought to make human beings grist for their mills.
They all fail some falling more interestingly than others. The Jews played this game once and almost took over the Roman Empire. Our loss taught us to handle our own lives and to stay out of harm's way.
There will always be a version of the Georgia Guidestones. That's reality the way of the world. Many times those in charge of the planet have tried to crush humanity not to allow the Jews to enjoy the future. When all the false idols of empire have crumbled into dust, the Jews will continue with the Bible.

Allegations Versus IDF Based on Hearsay

Military Police investigation on Rabin Center statements: Based on hearsay
(Communicated by the IDF Spokesperson)
The Military Advocate General, Brig. Gen. Avichai Mendelblit, decided to close the Criminal Investigation Department of the Military Police case of the statements made by soldiers at the Rabin Military Preparation Center about Operation Cast Lead. This decision was made after the Military Police investigation found that the crucial components of their descriptions were based on hearsay and not supported by specific personal knowledge. In particular, this includes the two alleged stories that raised suspicion of acts in which uninvolved non-combatants were fired upon.
Additionally, it was found that once the claims were checked, they were not supported by the facts as determined by the investigation.
The investigation was initiated by the Military Advocate General after reviewing claims made during a conference at the Rabin Military Preparation Center in which soldiers who participated in Operation Cast Lead were present. The Criminal Investigation Department of the Military Police was ordered to investigate the claims made, with an emphasis on the alleged firing at uninvolved non-combatants.
The investigation concluded from the soldiers who participated in the conference that the stories told were purposely exaggerated and made extreme, in order to make a point with the participants of the conference.
For example, the story in which a soldier was claimed to have been given orders to fire at an elderly woman was clarified during the investigation. In fact, the soldier witnessed no such thing, and was only repeating a rumor he had heard. In an unrelated investigation, it was found that in a similar incident, a woman, suspected as being a suicide bomber, approached an IDF force, which opened fired towards her after repeatedly trying to stop her from advancing.
This same soldier admitted that he had not witnessed the additional disrespectful and immoral incidents he had described during the conference.
A claim made by a different soldier who had supposedly been ordered to open fire at a woman and two children was also clarified as an incident that he had not witnessed. After checking the claim, it was found that during this incident a force had opened fire in a different direction, towards two suspicious men who were unrelated to the civilians in question.
During the Military Police investigation, two additional claims arose regarding improper conduct. These claims were separate from those made at the Rabin Military Preparation Center. It was found that these incidents do not raise suspicion of unjustified opening of fire. This finding is based on a debriefing which had occurred close to the time of one of the incidents and upon further investigation conducted by the Military Police.
It must be stated that during these investigations, the participants at the Rabin Center said that they had based their claims relating to the use of phosphorous munitions on what they had heard in the media and not on their personal knowledge.
The Military Advocate General, Brig. Gen. Avichai Mendelblit, concluded the findings of the Military Police investigation:
"It is unfortunate that none of the speakers at the conference was careful to be accurate in the depiction of his claims, and even more so that they chose to present various incidents of a severe nature, despite not personally witnessing and knowing much about them. It seems that it will be difficult to evaluate the damage done to the image and morals of the IDF and its soldiers, who had participated in Operation Cast Lead, in Israel and the world."
The IDF Spokesperson Unit wishes to stress that the Military Advocate General's conclusions refer solely to the investigations that focused on the transcripts of the Rabin Military Preparation Center conference, in addition to the two separate aforementioned claims. This investigation is additional and not a substitute for the investigations conducted on all levels of the IDF, following Operation Cast Lead.

Pat Oliphant: Republicans Respond

Palestinians Have Ceased to Exist for Jews

Palestinians Have Ceased to Exist for Jews

There is nothing interesting or new in the depiction of Palestinians -- they have no names, they don't speak, they are anonymous. But they are not simply faceless victims. Instead, the victims in the story that Waltz with Bashir tells are Israeli soldiers. Their anguish, their questioning, their confusion, their pain

Few Israelis talk to Palestinians. They rarely visit a Palestinian home except in uniform with a flack jacket and an assault rifle. With the wall we announced we didn't want visitors from the territories. Day laborers, ambulance drivers and freedom fighters were forbidden. If the wall ran in the middle of the street separating an Arab family, they had to walk a kilometer to a check point. After they passed security, they had to hike another kilometer to reach the relative's home just across the barrier.

Then, there was always the danger of losing your papers or answering the security guard's questions in an evasive or contradicting way. This could earn a night's stay in the lock-up adjacent to the check point. If the Police had a file on you, it could lead to an indefinite prison stay sometimes including investigation under torture.

This is an insult and a gross violation of human rights.

Moreover, the wall is 25 feet high reaching 40 in places. The Jew can pass a lifetime never seeing a Palestinian home or garden. If he avoids the center of the radio dial, he will never hear a word of Arabic. He thinks that humus, falafel and egg plant salad are Jewish dishes.

Ralph Ellison author of "The Invisible Man" could have written the following movie review.

"To say that Palestinians are absent in Waltz with Bashir, to say that it is a film that deals not with Palestinians but with Israelis who served in Lebanon, only barely begins to describe the violence that this film commits against Palestinians. There is nothing interesting or new in the depiction of Palestinians -- they have no names, they don't speak, they are anonymous. But they are not simply faceless victims. Instead, the victims in the story that Waltz with Bashir tells are Israeli soldiers. Their anguish, their questioning, their confusion, their pain -- it is this that is intended to pull us. The rotoscope animation is beautifully done, the facial expressions so engaging, subtle and torn, we find ourselves grimacing and gasping at the trials and tribulations of the young Israeli soldiers and their older agonizing selves. We don't see Palestinian facial expressions; only a lingering on dead, anonymous faces. So while Palestinians are never fully human, Israelis are, and indeed are humanized through the course of the film."

Naira Antoun, The Electronic Intifada, 19 February 2009

Psychic Pain Is a Symptom of Evil and not Evil Itself

Currently, the Arab World ignores the Palestinians fit only for lip service. Blockaded, they are cut off from the world. Israelis and Hamas won't sit at the same table.

The sides have endured 61 years of acrimony and strife. Do they have anything left to say?

Sanity Through Indifference

A graduate student 1967 through 1969, I saw my country go mad. Yet, I was the only one in my graduate school seminars who had shot a rifle in anger and who had made out an Income Tax Form.

Years later I met a former professor who looked back on those years as the best of his life. After Vietnam, he felt the loss of excitement, riots and burning buildings. My parents recalled the glories of summer, 1941. Rather than dread of the coming war, they danced to Artie Shaw's "Summit Ridge Drive" and Benny Goodman's 'Memories of You." People gathered to hear lectures and to listen to favorite radio shows. They spoke with interest and passion. They lived!

After I made Aliyah in 1983, I wondered how people could keep their sanity after 35 years of continuous war. Five months later I had enough Hebrew to understand Yom Shoah [Holocaust Day] 24 hours of movies, dramas and pictorials relating to that terrible era. The mental torment became physical pain, but I remained glued to the TV. I came to realize that many of us had gone at least a little bit mad. It's like being a doctor who has become de-sensitized to patient suffering and death. At some point every combat soldier thinks he will come home in a box. He accepts death and that is the moment he begins to live.

A human being only begins to live when he comes to grips with the inevitability of death. Then, he is free to go forward in life.

We don't hate the Palestinians. Essentially, we are indifferent to them. Our way of dealing with 61 years of war is to ignore the experience and the people who fought us.

Anymore, Israel doesn't stop dead for Holocaust Day. We are moving on to a new phase.

If the Palestinians insist on reliving the perpetual war years mired in blood and hatred, let them. We are neither our brother's keeper nor his slave. We have more important things to do.

I published an Electronic Intifada review of "Waltz with Bashir" that criticizes the director's ignoring the Palestinian characters. Naira Antoun is upset that he has nothing to do with them.

She will get used to it.

FILM REVIEW: "WALTZ WITH BASHIR"
By Naira Antoun, The Electronic Intifada, 19 February 2009

To say that Palestinians are absent in Waltz with Bashir,
to say that it is a film that deals not with Palestinians
but with Israelis who served in Lebanon, only barely
begins to describe the violence that this film commits
against Palestinians. There is nothing interesting or new
in the depiction of Palestinians -- they have no names,
they don't speak, they are anonymous. But they are not
simply faceless victims. Instead, the victims in the story
that Waltz with Bashir tells are Israeli soldiers. Naira
Antoun reviews the film for The Electronic Intifada.

http://electronicintifada.net/v2/article10322.shtml

Palestinians Have Ceased to Exist for Israelis

Ms Naira Antoun has a right to be outraged. The Jews are not fit to be occupiers. Ehud Barak has often said, if he were a Palestinian he would have become a terrorist. Indeed, in the 1940's many Jews not serving in the British Eighth Army were terrorists.

The 1967 War marked a big change. The Israelis should have dropped the newly conquered territories like a hot rock. Those who did want to dump the territories needed at least a recognition of Israeli's right to exist. When this was not forthcoming

East Congo Genocide

The Democratic Republic of the Congo (DRC) has been on the Museum's Warning list since 2003. The Museum's concern about DRC stems from the:
Relationship of the crisis to the 1994 Rwandan genocide
Scale and effects of violence against civilians
Mass sexual violence against women
Continued fighting in the East
Role of ethnicity in the perpetration of violenceThe Democratic Republic of the Congo (known as Zaire until 1997) has suffered two wars since 1996. The first war (1996), began as a direct result of the 1994 Rwandan genocide. The second began in 1998 and involved the armed forces of at least seven countries and multiple militias. According to the International Rescue Committee, since 1998, an estimated 5.4 million people have died, most from preventable diseases as a result of the collapse of infrastructure, lack of food security, displacement, and destroyed health-care systems.In 2006, DRC held the first multi-party elections in over 40 years, and over 25 million citizens participated. The elections signified the end of a three-year transition period during which time the country moved from intense war to a system of power sharing between the former government, former armed forces, opposition parties, and civil society. However, national and provincial structures remain incapable of ensuring basic security for communities, providing transparent management of resources and wealth, and addressing entrenched problems of corruption, poverty, lack of development and heightened ethnic and regional tensions.In the East, the war never conclusively ended. A range of armed forces continue to perpetrate violence against the civilian population, including forced displacement, abductions, looting, forceful recruitment and use of child soldiers, and massive sexual violence. According to the United Nations, 27,000 sexual assaults were reported in 2006 in South Kivu Province alone, a figure that represents only those assaults that were officially reported. Ethnic hostility, fed by inter-group violence in Congo over the past ten years in addition to the impact of genocide and violence in Rwanda and Burundi, has produced an environment where groups fear their entire existence is under threat and engage in pre-emptive attacks. Multiple armed forces, including the national armed forces and various militias engage in armed conflict and prey on the civilian population. Among the most brutal of the armed forces are the FDLR, a group whose leadership is associated with the perpetrators of the 1994 Rwandan genocide.

Two Days Before the Israeli Attack

Hamas on Wednesday remained as defiant as ever and said it would continue to fire rockets at Israel as an act of "self-defense."

Islamic Jihad terrorists place rockets before firing them towards Israel on the outskirts of Gaza City, Saturday.Photo: AP
Slideshow: Pictures of the week
Hamas also mocked what it described as the "state of confusion" in Israel over how to react to the latest spree of rocket and mortar attacks.
The movement also claimed that the Egyptians had given Israel a "green light" to launch a limited military operation in the Gaza Strip to overthrow the Hamas government.

JPost.com