Judge rejects request to suspend Gaza inquiry, cites Israel's failure to probe 2002 assassination.
By HERB KEINON
Furious at a Spanish judge's decision Monday to continue investigating Industry, Trade and Labor Minister Binyamin Ben-Eliezer, Strategic Affairs Minister Moshe Ya'alon and five other former top security officials for a 2002 bombing in Gaza that killed top Hamas terrorist Salah Shehadeh and 14 others, Israeli officials said Monday that Spain's judicial system was being hijacked to attack Israel.
There is "no doubt that filing the lawsuit in Spain by a Palestinian human rights organization is a cynical move and another attempt to exploit the Spanish legal system to further political actions against Israel, said Yossi Levy, the Foreign Ministry's spokesman for the Hebrew press.
Levy said Israel was confident that the Spanish government and judicial system would take all measures necessary to ensure that this move would fail.
Foreign Ministry sources said that the judge's decision to continue with the war crimes investigation could be appealed, and Israel was confident that not only would this be done, but the judge's decision would be overturned.
Rafi Shotz, Israel's envoy to Madrid, said Spain needed to find a solution to this issue to keep it from clouding Israeli-Spanish relations.
Defense Minister Ehud Barak said he planned to ask the Spanish prime minister, defense minister and foreign minister to intervene and stop the investigation.
"There is no military as moral as the IDF," Barak said. "I have no doubt that the people who were involved in the Shehadeh assassination acted with one goal in mind - to protect Israeli civilians with the resources that were available to the State of Israel at the time."
Spanish prosecutors last month urged Judge Fernando Andreu of Spain's National Court to suspend the inquiry on the grounds that Israel was still investigating the attack. But Andreu rejected the request on Monday, saying he had found no evidence of such an investigation in Israel.
Andreu first agreed to open the case in January at the request of Palestinian relatives of victims of the attack. Andreu said he was acting under Spain's observance of the principle of universal jurisdiction, which holds that grave crimes such as genocide, terrorism or torture can be prosecuted there even if alleged to have been committed elsewhere.
Andreu said the 2002 bombing in the densely populated Gaza City might constitute a crime against humanity. That attack, with a one-ton bomb dropped from an Israeli F-16, targeted and killed Shehadeh, along with 14 other people.
On Monday, the Spanish judge wrote that Israel's military had conducted an internal investigation, but IDF and civilian prosecutors had declined to open proceedings of their own. He said that for this reason, Spain had jurisdiction to keep investigating.
"In Israel, there [have] not been, nor [are] there now under way, any legal proceedings aimed at investigating" the Gaza bombing, the judge wrote.
One Israeli source close to the issue said that while the High Court of Justice had not dealt directly with the Shehadeh case, it had dealt extensively with the issue of targeted assassinations, so that the argument that Israel was not dealing with the issue was not relevant.
Following the outcry in Israel that followed Andreu's initial decision to investigate the case, Spanish Foreign Minister Miguel Angel Moratinos said Spain needed to modify its law to narrow the scope of universal jurisdiction cases to those with a clear link to Spain.
But no reform to this effect has yet made it to the Spanish parliament for debate or a vote.
Last week another Spanish judge, Baltasar Garzon, announced an investigation into the alleged torture of terror suspects at the US prison in Guantanamo Bay, even though the Spanish attorney-general had said such a procedure was up to the United States, not Spain.
The chief justice of the Spanish Supreme Court, Carlos Divar, said Monday that an amendment to his country's universal justice law was necessary because "we cannot become the world's judicial gendarme." Divar is also the chairman of a watchdog body that oversees the Spanish court system.
One Israeli source said it was ironic that Spain was investigating alleged crimes committed by government officials abroad, while it had not yet prosecuted Spanish officials responsible for criminal acts under the regime of Francisco Franco.
In addition to Ben-Eliezer, who was defense minister in 2002, and Ya'alon, who was then the chief of General Staff, the other Israelis being investigated include Dan Halutz, who commanded the air force at the time of the attack; Doron Almog, who was head of the Southern Command; Giora Eiland, who was National Security Adviser; Michael Herzog, who was a top Defense Ministry official; and Avi Dichter, then director of the Shin Bet (Israel Security Agency).
The left-wing organization Yesh Gvul said in a statement that the High Court of Justice was solely to blame for the Spanish judge's decision.
"Yesh Gvul warned from the first week after the dropping of the one-ton bomb that if the Israeli judicial system does not deal courageously with this serious incident and convict the guilty parties, there will be some court in another country that will pick up the gauntlet and do what is necessary in its stead," the statement read.
After the incident on July 22, 2002, Yesh Gvul called on the military advocate-general and the attorney-general to launch a criminal investigation. When they refused, the organization petitioned the High Court.
The court ordered the state to appoint a committee to investigate the incident, which it did, in February 2008. The committee, headed by former IDF judge advocate-general Tzvi Inbar, has still not completed its work.
Dan Izenberg, Yaakov Katz and AP contributed to this report.
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