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Spain, Israel, and War Crimes

What gives Spain the right to prosecute Israel for fighting Hamas?

by
Soeren Kern

Bio

March 31, 2009 - 12:00 am
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Spanish National Court Judge Fernando Andreu says he will redouble his probe of seven top Israeli military and government officials for suspected “crimes against humanity.” He made the decision after determining that documents forwarded by the Israeli Embassy in Madrid show that Israel has decided not to prosecute anyone for the targeted assassination of Salah Shehadeh, the commander of the military wing of Hamas, in Gaza City in 2002. Spanish law allows the prosecution of foreigners for such crimes as genocide, crimes against humanity, and torture committed anywhere in the world if the suspects will not be tried in their home country.

The case was brought to the Spanish court by the Palestinian Center for Human Rights, which is represented in Spain by Gonzalo Boyé, a Marxist revolutionary who was sentenced to 14 years in prison for collaborating with the Basque terrorist group ETA. A seven-page court document says the initial evidence suggests that the attack in the densely populated Gaza City, which killed 14 civilians, “should be considered a crime against humanity.” Supporters of the lawsuit say Spain should pursue the suit because it has “universal jurisdiction” in such cases.

Andreu will now probe former Israeli Defense Minister Binyamin Ben-Eliezer, former Air Force Commander Dan Halutz, former head of the National Security Council Giora Eiland, and four other senior officials. Andreu will also seek testimony from Palestinian witnesses. The court will ask Israel to formally notify those named in the complaint so that they can be called by the judge to testify. Should Andreu decide to issue an international arrest warrant for any of the seven Israelis, they could be detained upon arrival in any EU member state.

The lawsuit has sparked outrage in Israel, which is trying to fend off foreign censure over the civilian death toll during Operation Cast Lead in January 2009. Israeli Defense Minister Ehud Barak has rejected the complaint as “delirious” and pointed out that Shehadeh was a terrorist mastermind responsible for the deaths of many dozens of innocent people. “Whoever calls taking out a terrorist ‘a crime against humanity’ lives in an upside-down world,” he said. Barak vowed to do “everything possible to get the investigation dismissed.”

Incoming Prime Minister Binyamin Netanyahu called the Spanish probe outrageous. “It’s absurd: Israel is fighting against war criminals and they are charging us with crimes?” said Netanyahu. “There is nothing more ridiculous and absurd than them accusing us, a democracy legitimately protecting itself against terrorists and war criminals, of these crimes; it is absurd and makes a mockery out of international law,” he said.

Knesset Member Aryeh Eldad, pointing to what many see as rank hypocrisy by Spain, has called for Israel to put former Spanish officials on trial for their role in the NATO bombing of Serbia in 1999. His official petition, which was sent to Israeli Attorney General Menachem Mazuz, says: “In those bombings, hundreds, perhaps thousands, of innocent civilians were killed because NATO pilots dropped their bombs from extremely high altitudes in order not to endanger themselves. They thus caused mass civilian casualties. It is fitting that the state of Israel try the Spanish political and military leaders for war crimes if Spain does not immediately revoke the charges against the Israeli defense minister and chief of staff.”

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