Israel Matzav

Spain opens 'war crimes' investigation against US officials

In late January, I did a lengthy post in which I reported that seven IDF officers and Israeli generals were being 'investigated' by a Spanish court for 'war crimes' in the targeted assassination in 2002 of Salah Shehadeh (pictured), the head of Hamas' Izzadein el-Kassam military brigades. No Spaniard was injured or killed in that attack and the attack did not take place on Spanish soil. Spain invoked a section of its own law that allows 'universal jurisdiction' for 'war crimes.' I referred to this phenomenon in which a country with no nexus to a military operation indicts citizens of another country who undertook the operation in a third country as 'lawfare.' In a later post, I reported that Spain is considering amending the law to require a nexus to Spain in order to indict. In the first post, I warned that lawfare is a dangerous phenomenon that is being repeated time and again by European countries, and that the United States is as big a target for it as Israel.

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.

Spain has not amended its law yet, and now Americans are being targeted (Hat Tip: Memeorandum).

A Spanish court has taken the first steps toward opening a criminal investigation into allegations that six former high-level Bush administration officials violated international law by providing the legal framework to justify the torture of prisoners at Guantánamo Bay, Cuba, an official close to the case said.

The case, against former Attorney General Alberto R. Gonzales and others, was sent to the prosecutor’s office for review by Baltasar Garzón, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet. The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants.

The move represents a step toward ascertaining the legal accountability of top Bush administration officials for allegations of torture and mistreatment of prisoners in the campaign against terrorism. But some American experts said that even if warrants were issued their significance could be more symbolic than practical, and that it was a near certainty that the warrants would not lead to arrests if the officials did not leave the United States.

Sorry, but those 'American officials' must be members of the Obama administration. Does anyone really believe in the 21st century that people are going to be willing what needs to be done for their country if they risk not being able to travel internationally as a result?

The complaint under review also names John C. Yoo, the former Justice Department lawyer who wrote secret legal opinions saying the president had the authority to circumvent the Geneva Conventions, and Douglas J. Feith, the former under secretary of defense for policy.

Doug Feith happens to be a regular visitor to Israel. Do you really think he wants to start calculating through which country he can connect and through which not every time he comes here? The Times says that Spain has a basis for jurisdiction:

Spain can claim jurisdiction in the case because five citizens or residents of Spain who were prisoners at Guantánamo Bay have said they were tortured there. The five had been indicted in Spain, but their cases were dismissed after the Spanish Supreme Court ruled that evidence obtained under torture was not admissible.

Maybe. So now that the Obama administration has decided to close Gitmo, those terrorists who cannot be returned to their own countries will receive welfare payments in the United States, while those who are returned to their own countries will file lawsuits there, forcing former Bush administration officials to defend themselves in countries around the world or stay home for the rest of their lives?

Hey President Obama - what goes around comes around.

Read the whole thing.

By the way, this ought to make Israeli officials think twice about releasing 'Palestinian' terrorists in exchange for kidnapped IDF Corporal Gilad Shalit, even if they are deported as part of the deal. Imagine a 'Palestinian' terrorist released as part of an exchange for Gilad Shalit who is deported to Spain claiming that he was 'tortured' and having some moonbat lawyers' organization file a complaint on his behalf against half the IDF. It's possible, you know.

posted by Carl in Jerusalem @ 10:22 AM