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by Ido Rosenzweig and Yuval Shany
Introduction
On January 29, 2009, the Central Magistrates' Court Number Four of the High Court in Madrid, issued a decision in the preliminary proceedings [1] regarding a criminal case against Dan Halutz, Commander of the Israeli Air Force [2], Benjamin Ben Eliezer, Israeli Minister of Defense [3], Moshe Ya'alon, Chief of Staff of the Israeli Defense Forces (IDF) [4], Avraham Dichter, Director of the Israeli General Security Service [5], Doron Almog, General of the Southern Command of the IDF [6], Giora Eiland, Chairman of the National Security Council and National Security Advisor [7], and Michael Herzog, Military Secretary of the Israeli Ministry of Defense [8]. The Spanish court reached its decision following a complaint lodged by the families of some of the civilian casualties of an IDF targeted killing operation that was directed against Salah Shehadeh, the commander of the Hamas military wing, on July 23, 2002. After previous unsuccessful attempts to initiate criminal proceedings against Israeli officials allegedly involved in the Shehadeh killing before British [9] and New Zealand [10] courts on the basis of universal jurisdiction laws, Judge Merelles of the Spanish court determined that "the events may and must be investigated by the Spanish courts" and ordered the initiation of an official inquiry. This decision raises questions regarding the application of international criminal law to counter-terrorism operations.
Background
On July 23, 2002, Israel executed a targeted killing operation directed at the commander of the Hamas military wing in Gaza, Salah Shehadeh. An Israeli Air Force aircraft dropped a one-ton bomb on Shehadeh's house, killing him and 14 other people, including Shehadeh's assistant, wife and nine children, and injuring 150 people.[11]
The killing of Shehadeh has been discussed directly or indirectly in several cases that have been submitted to the Israeli High Court of Justice (hereinafter: "HCJ"). One of these cases was the Targeted Killing case [12] in which the HCJ decided that targeted killing operations are not forbidden per se, and that every case that involves civilian casualties must be examined by a special committee.
In response to a direct challenge to the legality of the Shehadeh operation, [13] Israel claimed that Shehadeh was responsible for the planning and execution of many terrorist attacks on Israel and, therefore, constituted a lawful military target. Furthermore, the claim was made that the decision to assassinate Shehadeh was taken only after it became clear that the arrest of Shehadeh was not a viable military option and following a complete assessment of the anticipated collateral damage. According to the State, the intelligence that was available at the time suggested that besides Shehadeh, only two people would be in the house (his wife and another member of the Hamas), and that the house next door would be empty; therefore, extensive collateral damage was not foreseen.
On January 23, 2008, pursuant to the Court's recommendation, the Israeli Prime Minister established a special examination committee composed of the following members: Zvi Inbar, the former Judge Advocate General and the Knesset Legal Adviser, Major General Yitzhak Eitan, former Commander of the IDF Central Command and Yitzhak Dar, who has served in various positions in the Israel Security Agency. The committee, whose mandate is to examine the killing of Shehadeh and the collateral damage that it caused, the justification for the operation, and the possibility of recourse to alternative measures at the time, is authorized to recommend the initiation of disciplinary or criminal proceedings.
On December 24, 2008, the HCJ rejected the petition that called for a criminal investigation of the Shehadeh targeted killing operation and the collateral civilian casualties. [14] In its decision, the HCJ announced that until the independent examination committee [15] concluded its investigation of the matter, there was no reason for the judicial branch to intervene.
The Decision
In his decision of January 29, 2009, Judge Fernando Andreu Merelles focused first on the question of Spain's jurisdiction over the case and determined that Spain has universal jurisdiction over crimes of genocide, terrorism and offenses against persons who are protected under international humanitarian laws. This ruling is based on Article 23 of the Spanish Organic Judiciary Act, Article 8 of the ICC Statute, and on Article 611 of the Spanish Criminal Code, which imposes a penalty of 10-15 years imprisonment to anyone who commits the following offenses during an armed conflict: "the perpetration or ordering of indiscriminate or excessive attacks or targeting of the civilian population in attacks, reprisals or acts or threats of violence where the main aim of such actions is to terrorize the civilian population."
Judge Merelles also based his decision on two previous High Court [16] and Constitutional Court [17] decisions, which established that Spanish universal jurisdiction under the Spanish Organic Judiciary Act is absolute and can only be restricted by the principle of ne bis in idem. This means that as long as the authorities of the state that has original jurisdiction have conducted an investigation and legal proceedings on a certain matter, the Spanish court will not exercise jurisdiction over the case.
After establishing jurisdiction, Judge Merelles went on to declare that the facts of this case set a "notitia criminis", which required investigation. In other words, the available evidence suggests that Israel engaged in a disproportionate attack, killing 14 people (other than the actual target) and injuring 150, which constitutes sufficient reason to initiate a criminal inquiry. Judge Merelles emphasized that the events related to this case must be investigated by the Spanish court since Israel has yet to reply to its request for information and since there is no evidence that Israel has conducted any proceedings in order to investigate the incident.
Therefore, Judge Merelles concluded that according to the 1959 European Convention on Mutual Assistance in Criminal Matters, Israel should allow a Spanish judicial commission to visit the Gaza Strip in order to investigate the alleged crimes.
Follow-up
On January 30, 2009, the Spanish Foreign Minister announced the Spanish government's plans to amend Spanish law in order to limit the court's jurisdiction in the future over cases such as the Shehadeh case. [18] However, this amendment is unlikely to affect the ongoing Shehadeh case, and other measures are required to terminate this investigation. Meanwhile, Israel has sent relevant documents related to the killing of Shehadeh to Spain [19]. [20]
On February 27, 2009, the Spanish court announced a decision to proceed with the investigation of this case. [21]
Conclusions
Originally used as an anti-pirate tool, universal jurisdiction was applied to address an increasingly diverse body of international crimes – war crimes, genocide, crimes against humanity, torture, terror etc... However, the current application of universal jurisdiction in the global fight against terrorism is unique and complex.
Initially, the universal jurisdiction was meant to create a way to prosecute international criminals, such as pirates and terrorists, who do not fall within the clear jurisdiction of any state, and to be employed in cases in which the country of origin is unwilling to prosecute alleged war criminals. However, this tool is increasingly being used today as a "weapon" to review the counter-terrorism strategies employed by states. While no state should be above the law, an unprincipled employment of universal jurisdiction by foreign judges with a limited appreciation of the unique dilemmas posed by terrorism and counter-terrorism could produce a "chilling effect" that could further complicate the fight against terrorism.
The case before us illustrates some of these problems. Whether the collateral damage caused by the Shehadah targeted killing operation was criminal, negligent or unforeseeable is a question that certainly merits investigation. Still, it is unclear whether Spain is particularly well situated to address this question – especially given the fact that proceedings in Israel are still pending (although, admittedly, at a very slow pace). The exclusive focus on Israeli violations of the law, without investigating the Hamas terrorist attacks, which prompted Israel's response, is also problematic as it suggests that the response represents a more serious violation of international law than the original act of terrorism. Such an approach invites the misuse of universal jurisdiction proceedings by those who sympathize with terrorist groups, which target Israel and other states that are involved in counter-terrorism operations. This state of affairs justifies a very cautious and selective application of universal jurisdiction, and it is questionable that the exercise of universal jurisdiction can be appropriately exercised in the case of the Shehadah targeted killing operation, which involves difficult issues of law, fact and procedures.
Still, it is important to note that Judge Merelles decision merely calls for the initiation of an investigation, and that the findings of the Israeli investigation may affect the ultimate outcome of the case in Spain.
* The views expressed in this article are not necessarily those of the Israel Democracy Institute.
References
[1] Preliminary proceedings 157/2008 Central Magistrates Court Number Four of the High Court. Non-official translation available at http://www.pchrgaza.org/files/PressR/English/2008/admission_order_propery.pdf
[2] At the time of the occurrences
[3] At the time of the occurrences
[4] At the time of the occurrences
[5] At the time of the occurrences
[6] At the time of the occurrences
[7] At the time of the occurrences
[8] At the time of the occurrences
[9] http://www.haaretz.com/hasen/spages/955883.html
[10] http://www.ynetnews.com/articles/0,7340,L-3334597,00.html
[11] On an unforgettable occasion when Dan Halutz, IDF Chief of Staff and the Air Force Commander at the time, was asked how he feels when he releases a bomb from his plane, his reply stirred up a great deal of controversy: "I feel a slight vibration to the wing as a result of the release of the bomb."
[12] HCJ 769/02 Public Committee Against Torture v. State of Israel
[13] HCJ 8794/03 Yoav Hess et al. v. Judge Advocate General et. al
[14] HCJ 8794/03 Yoav Hess et al. v. Judge Advocate General et. al
[15] This committee was established after the HCJ decision in the targeted killing case - HCJ 769/02 Public Committee Against Torture v. State of Israel
[16] The Couso case, Spanish High Court, December 11, 2006.
[17] Guatemala Genocide case, STC 237/2005, Constitutional Tribunal (Second Chamber), September 26, 2005
[18] http://www.ynetnews.com/articles/0,7340,L-3664375,00.html
[19] http://www.israelnationalnews.com/News/Flash.aspx/160088
[20] Israel has done so despite the fact that, according to the European Convention on Mutual Assistance in Criminal Matters, the Spanish request for legal assistance may be refused as long as Israel considers that compliance with the request is likely to prejudice its sovereignty, security, ordre public, or other essential interests. Article 2(b) of the European Convention on Mutual Assistance in Criminal Matters
[21] https://www.haaretz.co.il/hasen/spages/1067502.html
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