Last week, the Supreme Court of Spain upheld a decision by the Spanish Court of Appeals against conducting an official inquiry into the IDF’s targeted killing of Hamas military wing commander Salah Shehadeh in Gaza City in 2002.
The decision put an end to the efforts of pro-Palestinian organizations to prosecute in Spain Israeli political and military officials allegedly connected to the affair, under the principle of universal jurisdiction, and may have even lowered the curtain on all such efforts in that country in the future.
Irit Kahn, former head of the International Affairs Section at the Justice Ministry, told The Jerusalem Post
that Israel could definitely regard the outcome of this affair as a victory.
To clarify one point, on June 20, 2009, the Spanish Court of Appeals rejected a lower court decision ordering an inquiry into the Shehadeh killing. Many people who were unfamiliar with the Spanish legal system believed that the ruling put an end to the affair. In fact, however, the organizations demanding the inquiry were entitled to appeal the decision, and they did. It is only now, with the ruling of the Supreme Court, that the case is finally over.
In Spain, the complaints were lodged against former IDF chief of General Staff Lt.-Gen. (res.) Dan Halutz, Minister of Industry, Trade and Labor Minister Binyamin Ben-Eliezer, Strategic Affairs Minister Moshe Ya’alon, former National Security Council head Giora Eiland, former public security minister MK Avi Dichter, former OC Southern Command Maj.-Gen. (res.) Doron Almog and defense official Brig.-Gen. Michael Herzog.
Over the past few years, complaints have been lodged in other countries as well, including Belgium and Britain, which have aroused serious concern in government circles. Those who have been sought for investigation include former prime minister Ariel Sharon, Defense Minister Ehud Barak, Kadima Party leader Tzipi Livni and former Shin Bet (Israel Security Agency) head Ami Ayalon.
Over the years, beginning in 2001, when relatives of the victims of the Sabra massacre began proceedings in Belgium to have Sharon indicted on war crimes charges, the government has tried to cope with the threats to Israeli leaders emanating from universal jurisdiction primarily through back-door diplomacy.
In fact, the Foreign Ministry, which is responsible for information on Israel’s efforts, refuses to discuss the issue altogether.
Nevertheless, said Kahn, there is a great deal of government activity on this matter.
In October, the Ministerial Committee on National Security decided to establish a special unit “that would act as a task force to deal with all matters pertaining to legal procedures in the international sphere in which Israel is involved.”
Kahn said that the unit is busily at work and that it is manned by experts on international law.
One of the problems for Israel in “coping” with international jurisdiction is that it has an unquestionably positive side. There is almost universal consensus that the investigations of war criminals and alleged war criminals from Rwanda and former Yugoslavia are justified and essential.
That is one of the reasons why Israel finds it so hard to persuade countries to temper their laws so that the principle will not be exploited for political reasons.
Britain is a case in point. The principle of universal jurisdiction has almost led to the detention of Barak while he was visiting England, and Almog, who was just about to disembark from an airplane when he was warned to stay on board and return on the same flight to Israel. The latest case involved Livni, who was due to visit England in December 2009 and was forced to change her plans when a warrant was issued for her arrest.
The Livni incident deeply embarrassed the British government. On a visit to Israel, Attorney-General Patricia Scotland promised that the law would be changed. Two months later, the shadow attorney-general of the Conservative Party, Edward Garnier, made the same promise.
The way to do so, they said, was to change the law so that in universal jurisdiction cases, private individuals would not be able to bring their complaints directly to court. They would first have to be approved by the attorney-general or the director of public prosecution.
But Kahn said she doubted the law would be changed. “There is strong
opposition to such a move within Parliament and among British NGOs,”
she told The Post
If the law is not changed,
political elements will continue to be able to exploit universal
jurisdiction to embarrass Israelis and the Israeli government will not
be able to stop it, she continued.
Nevertheless, said Kahn, the
government is not sitting idly by in the wake of legal threats to
Israeli citizens and takes the issue very seriously.