Israel Matzav

Spanish judge opens 'war crimes' 'investigation' against 7 Israelis

A Spanish judge has opened an 'investigation' into possible 'war crimes' committed by seven senior IDF officers arising out of the targeted assassination of Salah Shehadeh - the head of Hamas' Izzadein el-Kassam military brigades - in 2002 (pictured at top left). Israeli is 'furious.'

The investigation has been ordered against National Infrastructures Minister Binyamin Ben-Eliezer, who was defense minister at the time; Likud Knesset candidate Moshe Ya'alon, who was chief of General Staff; Dan Halutz, then commander of the air force; Doron Almog, who was OC Southern Command; then-National Security Council head Giora Eiland; the defense minister's military secretary, Mike Herzog; and Public Security Minister Avi Dichter, who was head of the Shin Bet (Israel Security Agency).

The Justice Ministry rejected allegations that it had failed to take seriously a request from Spanish authorities to turn over key documents connected to the targeted killing of Shehadeh.

It issued a statement on Thursday night saying that "the Spanish authorities asked to receive materials in the course of January, and because of the large quantity of the material in question, the preparation of the documents has continued until now."

According to Justice Ministry spokesman Moshe Cohen, "In consultation with all of the relevant people in different government ministries, it was decided - in an exceptional decision - to comply with the Spanish judge's request to acquire documents concerning legal proceedings in Israel regarding the Shehadeh affair.

"To our regret, the Spanish authorities did not wait to receive the materials from Israel, and have already published their decision," he wrote. "There is no doubt that the very issuance of this suit constitutes a cynical and political attempt by private anti-Israel interests to take advantage of the Spanish judicial system to butt heads with Israel."

Should the Spanish judge, Fernando Andreu, choose to issue an international arrest warrant for any of the Israelis in question, they could be arrested upon arrival in any European Union member state.

It should be added that arrest warrants for the seven have already been issued in Spain.

Legally, Israel could take the position that the Spanish court has no jurisdiction over the seven and tell them to stay out of Spain, but that is problematic for three reasons. First, the issuance of a warrant that would allow them to be arrested in the European Union would add considerably to the number of countries in which they could be arrested. Second, as you can probably tell from the names, at least six of the seven hold high positions in the Israeli government (I'm not sure about Mike Herzog). The Israeli government cannot afford for these people not to be able to travel. And third, if these seven are successfully prosecuted, other IDF officers will also likely be prosecuted, and the terrorists will try to deter the IDF from carrying out its missions by using human shields, knowing that if they are killed they will take the entire IDF chain of command with them. In that regard, recall the case of Nizar Riyyan in Operation Cast Lead, who invited his wives and children to die with him.

For those who have forgotten the Shehadeh story, I posted it all here.

Writing in Friday's Jerusalem Post, Bar Ilan University Professor Gerald Steinberg explains who is behind this 'investigation.'

While designed to bring heinous dictators to justice, "lawfare" - as this tactic has been dubbed - is exploited by non-governmental organizations that use the façade of universal human rights to promote their political goals.

The pattern emerged in 2001 when Human Rights Watch, Amnesty International, Badil (which focuses on refugee claims) and other NGOs used Belgium as the venue for allegations of war crimes against then-prime minister Ariel Sharon. The case was eventually dismissed and the law changed after Belgian officials linked to African dictators realized that they, too, were vulnerable to prosecution.

In 2005, Maj.-Gen. (res.) Doron Almog, who had retired from the IDF and was traveling to London to raise funds for the treatment of autism, stayed on an El Al plane at Heathrow Airport after NGOs targeted him with legal proceedings. This case, too, was later dropped, but the damage had been done.

The Spanish example of "lawfare" was initiated by the Palestinian Center for Human Rights (PCHR). With a large budget provided by the European Commission, Norway, Ireland, Sweden, Switzerland and other European governments, PCHR is among the leaders of the anti-Israel demonization strategy.

The strategy was developed in the NGO Forum of the 2001 Durban Conference, the goal being to use boycotts and legal processes to brand Israel an "apartheid" state, while legitimizing terrorism. During the recent Gaza operation, PCHR issued over 50 statements, most of which included allegations of "war crimes."

Steinberg suggests that Israel has been slow to recognize the threat posed by 'lawfare' and has some cogent suggestions for actions that might be taken in response.

Somewhat more concretely, the Foreign Ministry has pressed European governments to amend their legal codes to prevent NGOs from bringing such cases to court, but scant attention has been paid in Israel to EU and government funding for PCHR. There has been no cost to European officials, such as the Spanish prime minister, who are still welcomed by Israel as peace mediators.

Unfortunately, it's not just European NGO's that have been funding and bringing these kinds of cases. Israeli groups have also been actively involved. In fact, it was an Israeli group that brought about the attempt to arrest Maj-Gen (Res.) Doron Almog that is referred to above.

The leftist group Yesh Gvul has been pursuing IDF officers who were in the chain of command of the Shehadeh assassination since 2002, mainly in Europe. For example, in September 2005 (a month after the Gaza expulsion), retired general Doron Almog did not disembark from an El Al flight at London's Heathrow Airport to avoid arrest for the 'war crime' of being involved in Shehadeh's assassination. That same month, a lawsuit was filed in a British court against then IDF Chief of Staff Dan Halutz and former IDF Chief of Staff Moshe ("Boogie") Yaalon for involvement in the Shehadeh bombing. And in 2007, Israel's state attorney, in a proceeding in Israel's own 'Supreme Court,' agreed to 'investigate' whether any 'crime' was committed in ordering Shehadeh's liquidation:

Today, Israel's state prosecution threw much of the IDF's senior brass to the wolves. It agreed to a 'committee' that will determine who was 'guilty' of the Shehadeh assassination. No, it wasn't ordered to set up a 'committee' - it agreed to set one up:

The government agreed Monday to establish a committee to study the 2002 assassination of senior Hamas terrorist Sheikh Salah Shahadah in Gaza. The committee will determine whether or not IDF officials are guilty of criminal behavior in the case.

The announcement was made in response to a plea filed by the leftist group “Yesh Gvul” and several leftist authors and poets, represented by attorneys Avigdor Feldman and Michael Sefard. In the past, the government has opposed efforts to establish an investigative committee, saying “There’s no need to conduct a criminal investigation every time innocent civilians are hurt during fighting.”

The 'lawfare' suits have already had an effect on the way war is fought. During Operation Cast Lead, the IDF had several soldiers filming events, often at risk to their own safety, so that Israel will be prepared to answer the - inevitable - 'war crimes' charges. That's why you saw all those videos of booby-trapped houses and zoos. Those films were not made for your entertainment, and using them as part of a public relations effort was far less important to the IDF than protecting soldiers from future prosecutions. In fact, Haaretz reports on Friday that Israeli leftists are already making up 'blacklists' of IDF officers who fought in Gaza.

So far, the local blacklist contains the names of nine battalion commanders from the Golani and Paratroops brigades and the armored corps. However, defense officials fear that overseas leftist organizations will use the same technique to compile far more comprehensive lists, including junior officers and pilots.

As far as is known, there has been no cooperation in this effort between local and international activists.

And you thought armies kept their movements secret as a military tactic....

In law, you generally need jurisdiction over a person's body or property in order to bring him into court. One way to get jurisdiction over someone is to arrest him. But you would need a basis to arrest someone in another country. Haaretz's Ze'ev Segal explains the basis on which the Spanish court is asserting jurisdiction:

Several countries (Britain is another) have assumed the right of universal jurisdiction. The general rule is that a country's laws apply only to that country, but international law does not forbid a country to assert its authority over acts committed outside its borders. And this includes cases of people who, in the view of the country doing the judging, have committed serious crimes, albeit with no connection to that country.

Dr. Robbie Sabel, a former legal adviser to the Foreign Ministry, published a book in which he wrote that "there is apparently an obligation" to first give the countries involved a chance to try the suspects. Hence the argument is now being made that the Spanish writ was issued because the suspects were not tried in Israel, and the High Court of Justice declined to order a criminal investigation into the incident. Nevertheless, it is hard to believe that any investigative committee, and perhaps even not an indictment, would have prevented the writ from being issued.

Incidentally, Israel's penal code also permits it to try people for crimes committed outside its borders, but only in the case of crimes "against the state" or "against the Jewish people."

And once your domestic laws permit 'universal jurisdiction,' you issue a warrant under your domestic law and ask other countries to enforce it. European Union countries are required to enforce each other's warrants.

For those of you sitting in the US wondering how this could affect you, I thought you would never ask. In early 2001, the Clinton administration signed something called the Rome Protocol, which set up an 'International Criminal Court' with universal jurisdiction to investigate 'war crimes.' At the time, Clinton tried to convince Israel's then-Prime Minister Ehud Barak to sign the treaty. Barak, in the middle of an election campaign, postponed a decision, and fortunately his successor, Ariel Sharon (who was nearly arrested in Belgium himself) refused to sign the treaty. In 2002, the Bush administration withdrew from the Rome Protocol shortly before it went into effect and shortly before the International Criminal Court opened. In April 2008, the Bush administration reconsidered that decision but did not sign the Rome Protocol. Here's betting that the Hopenchange administration will join the court.

As of January 2009, 108 states are members of the Court; A further 40 countries have signed but not ratified the Rome Statute. However, a number of states, including China, Russia, India and the United States, are critical of the Court and have not joined.

The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.

So Americans and Israelis can be 'investigated' by the court if their cases are referred by the United Nations Security Council. This presumably means that Americans are safe so long as the US has a Security Council veto, but Israelis may be a different story.

UPDATE 10:52 AM

For those of you who are having trouble rationalizing what you read, here's a question from this post's 'spinoff link' at Little Green Footballs and my response:

re: #1 Outrider

Looking at it from another perspective, does this mean any organization in any country is now free to file "war crimes" charges in their country against another country they have no involvement with? This impacts everyone to a larger scale. Can Spain or Norway file "war crime" charges against American military performing their duties in Iraq or Afghanistan? Or file them against American political figures whose presence would frequently be required in Europe, thus denying them the ability to perform their duties.

This at the moment is warfare on another front against Israel in an attempt to paralyze their operations not only on a military front, but on the political and personal fronts also.

It has potentially serious repercussions for everyone to INCLUDE Europeans. Will Spain in the near future decide to indite some British politicians for actions British soldiers performed in Iraq? German politicians for actions their soldiers performed in Afghanistan?

And just how does Spain get involved in this to start with? I understand why Israel is cooperating with this court case, I just can't see Spains justification for involvement.

Outrider,

I'm not sure about Norway, but Spain can do all of the above. Spain has what's called a 'universal jurisdiction' statute, which allows them to prosecute anyone for a 'war crime' regardless of the lack of any nexus to Spain. Yes, that would include US troops in Iraq and Afghanistan. Britain has a similar statute. Belgium had one, and actually tried arresting Ariel Sharon while he was Prime Minister under that statute, but then they realized that it could be used against their own troops in the Congo, so they amended it.

Were the statute the only issue, we could just tell senior IDF officers to stay out of Spain (and to avoid being kidnapped to Spain). But Spain is a member of the EU and under the EU treaties, each country is required to enforce the other member states' arrest warrants. If the Spanish court issues an 'international warrant,' any country in the EU would be required to arrest any of these seven officers if it were able to do so.

Thus far, these kinds of statutes have only been used against IDF officers. But Israel is the canary in the coal mine and you know that if it's being used against us, the US and others will follow. And that makes the Obama administration's line of 'cooperating' with international agencies even more troublesome than it was already.

posted by Carl in Jerusalem @ 7:55 AM