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.