Update on Universal Jurisdiction: Spanish Supreme Court Affirms Decision to Close Inquiry into Targeted Killing of Salah Shehadeh [5.4.2010]

In a recent decision issued by the Criminal Division of the Spanish Supreme Court,[1]  the Court affirmed the decision of the Spanish Court of Appeals to dismiss the criminal inquiry into the targeted killing of Salah Shehadeh, the head of the Hamas military wing, on 23 July 2002.

In this article, we discuss the decision of the Spanish Supreme Court as part of the IDI's Terrorism and Democracy Newsletter coverage of attempts to exercise universal jurisdiction over Israeli counter-terrorism operations.

On 23 July 2002, Israel executed a targeted killing operation against the head of the Hamas military wing in Gaza, Salah Shehadeh. This operation resulted in the death of Shehadeh and 14 other people, and the injury of 150 persons. Pursuant to that attack and the Israeli High Court's recommendation, Israel established a special committee 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.

On 29 January 2009, the Central Magistrates Court Number Four of the High Court in Madrid issued a decision in the preliminary proceedings regarding a criminal case against several high-ranking Israeli officials.[2]  Judge Fernando Andreu determined that the events may and must be investigated by the Spanish courts, and ordered the initiation of an official inquiry.

On 6 May 2009, Spanish prosecutors appealed Judge Andreu's decision,[3]  and requested the termination of the investigation, emphasizing the fact that Israel has the closest jurisdictional link to the events in question and, therefore, has preference and priority over the jurisdiction of Spain, which lacks any reasonable connection to the events or to the affected parties. Moreover, the prosecutors stated that an investigation had already been initiated in Israel as a result of a judicial order issued by the Israeli Supreme Court, and since the investigating body is authorized to publish operative conclusions and determine whether there are grounds to establish whether a crime has been committed, it is clearly a judicial investigation.

On 20 June 2009, the National Court of Appeals accepted the prosecutors’ request and voted 14-4 in favor of the dismissal of the inquiry due to the Spanish courts’ lack of jurisdiction over the matter and since an Israeli investigation is still pending, which the Court considers genuine and legitimate.[4]

On 5 April 2010, the Spanish Supreme Court published its decision to reject an appeal against the National Court of Appeals’ decision.

The appellants, families of some of the civilian casualties of an IDF targeted killing operation that was directed against Salah Shehadeh, and the Comité de Solidaridad con la Causa Árabe (CSCA), based their appeal on two legal grounds – a breach of the right to due process and a breach of the right to effective protection of the court.

The claim of due process was based on the notion that the original appeal against the decision to issue an inquiry before the Court of Appeals should not have been allowed since an appeal cannot be filed against a decision regarding questions of jurisdiction at such an early stage in the proceedings. The preliminary appeal denied both the plaintiffs’ right to due process and the defendants’ right to appear before the court. The Supreme Court rejected this part of the claim and held that the entire process was legitimate and consistent with the procedural guarantees owed to the appellants.

The second claim of appearing before the court was based on the appellants’ assertion that the Court of Appeals erred in determining that criminal proceedings were still pending in Israel.

The Supreme Court relied on a previous decision by the Spanish Constitutional Court, which held that a lower court decision can only be challenged when it is unreasonable and manifestly arbitrary.[5]  According to the Supreme Court, the Court of Appeals’ response was based on a detailed and reasoned discussion of relevant international and national law, as well as on relevant Spanish case law. The Court of Appeals also referred to the investigations by the Israeli Defense Forces  and to relevant legal proceedings, such as a targeted killing[6]  case and the Shehadeh case,[7]  and held that genuine steps have actually been taken to determine if any crimes were committed.

This decision by the Supreme Court does not examine the Shehadeh case on its own merits, but rather reaffirms that the decision by the Court of Appeals is legitimate and that there are no grounds to reverse it on the basis of the claims raised by the appellants. However, it acknowledged that it was reasonable for the Court of Appeals to hold that the judicial system in Israel is capable of investigating the events in question. The Supreme Court also stated that since the appellants had initially filed their criminal and civil complaints before the Israeli courts, it may infer that they too probably accept the genuineness of the local process.

It should be noted that the appellants have the option of appealing the decision of the Supreme Court before the Spanish Constitutional Court. However, the decisions of the Court of Appeals and of the Supreme Court, as well as the recent amendment that limits the scope of Spain’s Universal Jurisdiction Law,[8]  suggest that Spain is not eager to extend its jurisdiction to politically sensitive cases that have few, if any, connections to Spain.

The broader lesson from the Spanish proceedings may be the crucial importance of the genuine and effective legal proceedings in Israel in defending Israelis against universal jurisdiction claims in Europe. Ironically, the insistence of the NGOs that Israel establish an effective investigation committee to address allegations directed against the legality of the Shehadeh targeted killing operation served to facilitate the rejection of the case in Spain. It is unfortunate that the Israeli authorities themselves did not identify such a course of action – in the Shehadeh case and in other cases – as compatible with Israel’s national interests.

1. http://estaticos.elmundo.es/documentos/2010/04/13/auto_gaza.pdf <Spanish>.
   
   
2. For further discussion, see the third issue of the IDI's Terrorism and Democracy Newsletter – "Universal Jurisdiction: Spanish Court Initiates an Inquiry of the Targeted Killing of Salah Shehadeh in Gaza."
   
   
3. See the fifth issue of the IDI's Terrorism and Democracy Newsletter – "Update – Universal Jurisdiction: Spanish Court's Inquiry of the Targeted Killing of Salah Shehadeh."
   
   
4. For further discussion, see the eighth issue of the IDI's Terrorism and Democracy Newsletter – "Update on Universal Jurisdiction: Spanish Court of Appeals Decides to Close the Inquiry into the Targeted Killing of Salah Shehadeh."
   
   
5. STC 82/2001,26/3/2001
   
   
6. HCJ 769/02 The Public Committee against Torture in Israel v. The State of Israel
   
   
7. HCJ 8794/03 Yoav Hess et al. v. Judge Advocate General et. al <Hebrew>.
   
   
8. See the fifth issue of the IDI's Terrorism and Democracy Newsletter.