Diplomacy is best hope in Spain investigation, legal experts say

Spanish investigation against Israel's leadership for crimes allegedly committed during the 2002 assassination of Hamas strongman Salah Shehadeh to continue.

By REBECCA ANNA STOIL
shehadeh rubble iaf strike hamas 248.88 (photo credit: AP [file])
shehadeh rubble iaf strike hamas 248.88
(photo credit: AP [file])
Israel must hope for a diplomatic breakthrough in order to avoid a potentially embarrassing and precedent-setting court brawl in Spain, legal experts warned Monday after Spanish Judge Fernando Andreu decided over the weekend to continue investigating seven members of Israel's civilian and military leadership. After reviewing hundreds of pages of documents sent from the Justice Ministry to the Spanish court, Andreu determined that he should continue with his probe of National Infrastructures Minister Binyamin Ben-Eliezer, Likud MK Moshe Ya'alon, former air force commander Dan Halutz, former OC Southern Command Doron Almog, former National Security Council head Giora Eiland, Public Security Minister and former Shin Bet (Israel Security Agency) head Avi Dichter and the defense minister's military secretary, Mike Herzog; for possible crimes against humanity allegedly committed during the 2002 assassination of Hamas strongman Salah Shehadeh. Andreu argued that the state had not launched any investigation into the incident, thus granting him jurisdiction under the principle of universal jurisdiction, which enables courts in a given country to try foreign citizens for war crimes if satisfied that the suspected criminals will not be tried for their acts in their home country. "All Israel can do now is to remonstrate with the Spanish government," said Robbie Sabel, an international law lecturer at Hebrew University. "Theoretically judges from throughout the world can demand documents from Israel. Are we now going to provide documents to every judge who decides to investigate? And if we don't provide them, then Israel will be accused of not helping." He added that "Israel must try now [to] convince other states that this would open a Pandora's box for them." Alan Baker, former ambassador to Canada and legal adviser to the Foreign Ministry, said that such trials, initiated frequently by "anti-Israel groups who are utilizing the legal system to fight their war against Israel," are sometimes "quite embarrassing" for the countries in which they take place. "They also have an interest to prevent this, and so it's important for Israeli officials to be in contact with their counterparts," he said. But, Baker added, the immediate diplomatic solution was merely one part of a larger strategy in fighting such cases. "At the same time, Israel as a state should push like-minded countries that are fighting terror - like Russia, Canada, the United States and Great Britain - to push through some type of new development in international law that deals with how you fight terrorists," he said. "All of the current laws are based on rules made for warfare between countries, but nobody knows how to work with a country fighting a terror organization that deliberately flouts all the rules of law." NGO Monitor's law expert Anne Herzberg, meanwhile, warned that if diplomatic channels failed, "Israel could get enmeshed now in a messy trial." Thus far, she said, none of the international lawsuits filed against Israel have ever reached the stage of a court trial where the country's defenders would have to argue before a foreign judge. Herzberg also expressed her belief that "the best thing is to keep hammering away on the diplomatic channels to get the government to act. It sounds like this could be a rogue judge. The timing with the Gaza war was very convenient, and this could be a way of expressing his opinion." She dismissed the judge's conclusion that the case had never been probed in Israel, arguing that both Israeli and American courts had examined suits regarding the same incident. "The right to have an investigation isn't the right to win, and these groups lose sight of that. Just because you lose didn't mean you didn't get a fair hearing," Herzberg argued, noting that the Palestinian Committee for Human Rights has filed the same case in many countries, including England and the United States.