More recently, Israel pounded the Gaza Strip for twenty-three days in what it called Operation Cast Lead, starting on 27 December 2009, killing 1,417 Palestinians including at least 900 civilians, injuring over 5,300, and displacing over 100,000 at the peak of the assault. The question is not whether Israel will commit such crimes again, rather whether it will be held accountable for them, and if so, when and where?
Israel’s Courts
Based on the findings of a secret internal military investigation, Israel decided that no legal actions are to be taken against any military officials regarding the 2006 Beit Hanoun shelling.2 Nevertheless, the high-level UN fact-finding mission investigating that incident, found evidence of “disproportionate and reckless disregard for Palestinian civilian life, contrary to international humanitarian law and raising legitimate concerns about the possibility of a war crime having been committed”.3 Israel has adopted responses similar to its conclusion about Beit Hanoun in cases of other serious and gross violations international human rights and humanitarian law by its military, with similar results. For instance, despite concerns raised by UN officials over the commission of war crimes and crimes against humanity regarding Israel’s actions during Operation Cast Lead, Israel’s military investigations concluded that the military operated in accordance with international law throughout the fighting in Gaza.
Many UN human rights mechanisms have called upon Israel to establish mechanisms providing for law-based, independent, transparent and accessible investigations of alleged breaches of international human rights and humanitarian law. Such accountability mechanisms are urged on Israel in order to bring about a change in its use of force, and to ensure compliance with international law.4 However, Israel’s position remains that it has no obligation to open criminal investigations for actions taken against the Palestinians during armed conflict. Israeli investigations are the rare exception, not the rule: between October 2000 and December 2007, Israeli security forces killed at least 2000 Palestinians who did not participate in hostilities, while only 270 criminal investigations were carried out, leading to a mere 31 indictments.5 Israel applies the same policy when the violations amount to war crimes and crimes against humanity. Thus, holding individuals and other political actors criminally responsible at the Israeli national level appears unlikely.
The Universal Jurisdiction Avenue: Other National Courts
One avenue with some prospect of developing towards imposing accountability on Israeli perpetrators is the exercise of universal jurisdiction. Through universal jurisdiction, national courts, as opposed to an international judicial body, can exercise the jurisdiction to prosecute and punish a person suspected of a serious international crime – such as genocide, war crimes and crimes against humanity – even if neither the perpetrator nor the victim is a nati6onal of the country where the court is based, and the crime took place outside the country.6 The goal of universal jurisdiction is to “prevent impunity whereby human rights violators may evade accountability for their conduct.”7 Universal jurisdiction is usually authorized, or even required, by an international convention to which the state is party, such as the grave breaches provisions the Geneva Conventions of 1949.
Many countries recognize that they can and should exercise universal jurisdiction over international crimes by authorizing the prosecution of such crimes in their legislation.8 But does this mean that as a practical matter, universal jurisdiction is implemented? To answer, we examine and assess the performance of courts in which prosecutions of alleged Israeli war criminals have been attempted. One such attempt has been to bring those individuals who were the decision-makers behind the Shehadeh assassination to trial in Spanish courts.
Spain’s Universal Jurisdiction Laws
Until recently, Spain was one of the most important actors in the efforts to secure accountability for international crimes due to its universal jurisdiction legislation. A specific feature of criminal procedure in Spain is that “victims themselves can initiate an investigation and directly submit their complaints to the court – thus avoiding the political obstacles that usually exist when the national prosecutor or police determine what cases are to be investigated.”9 Furthermore, Spanish law does not require the presence of the foreign defendants for the commencement of the judicial investigation. A few days after the assassination of Salah Shehadeh in 2002, Spanish Judge Fernando Andreu Merelles decided to open a criminal investigation against seven Israelis who held high military and political ranks at the time.10
Immediately after the initiation of the investigation in Spain, Israeli officials tried to prove that they were in the process of investigating the incident themselves in order to nullify the Spanish court’s ability to exercise jurisdiction. After five years of stalling, the Israeli high court finally examined the case, and instead of deciding on whether or not it constituted a war crime, the court recommended that an independent body examine the incident. On 23 January 2008, following the request of the court, then Israeli Prime Minister Ehud Olmert appointed two former generals and one former head of the Israeli secret service (GSS), tasking them with providing non-binding recommendations directly to the military, a task it has yet to complete. In an effort to completely close the case once and for all, the Israeli court decision was delivered to the Spanish court. Palestinian civil society advocates submitted evidence that the Israeli proceedings were a smokescreen, proving conclusively that no real criminal investigation had been undertaken.11 On 4 May 2009, the Spanish court forcefully rejected the request to decline competence over the case, accepting most of the Palestinian claimants’ arguments. The decision was immediately appealed, and the case continues.
One of the most interesting aspects of this case is what has happened outside of the courtroom. The same day as Judge Merelles issued his decision rejecting the Israeli proceedings as a legitimate reason to dismiss the case, Israeli Minister of Defense Ehud Barak was quoted stating his intention to “appeal to the Spanish Foreign Minister, the Spanish Defense Minister and, if need be, the Spanish Prime Minister, who is a colleague of mine, in the Socialist International, to override the decision.”12 The Spanish Foreign Minister followed through on his promise to “amend the authority of the Spanish courts to prevent such probes from being launched in the future.”13 On 19 May 2009, the majority parties in the Spanish Chamber of Deputies used the cover of an otherwise inconsequential debate on the “Process of amendment to the Law of Reform to the Legislative Process for the Implantation of Judicial Office” to modify Article 23.4 of the Organic Law of Judicial Power, thereby changing the applicability of universal jurisdiction in Spanish law to potentially shield war crimes suspects from prosecution.14
As with the attempted prosecution of then-Prime Minister Ariel Sharon for his responsibility in the Sabra and Shatila massacres, political pressure by Israel and its allies had succeeded in preventing Palestinian access to a legal remedy.15
International Accountability Mechanisms
Another avenue, and perhaps the most efficient for enforcing accountability of Israeli perpetrators, would be UN Security Council (UNSC) action to establish an ad hoc criminal tribunal for the Occupied Palestinian Territory, as it did in the 1990s in the Former Yugoslavia and Rwanda. Less clear is whether the UN General Assembly could establish such a tribunal by invoking its authority to establish such subsidiary organs as it deems necessary for the performance of its functions. Whether such an initiative is within the authority of the UNGA is as yet unresolved.16
Israel has refused to sign the Rome Statute, and thus the International Criminal Court (ICC) does not have jurisdiction on its territory. The UN Security Council, acting under Chapter VII of the Charter of the UN, can refer any situation in theIsraeli-Palestinian conflict to the Court for further action, as it has done in the case of Sudan. Yet, such a move is unlikely to take place because it will be vetoed by the USA. Following the recent attacks on Gaza, a Palestinian request was brought before the prosecutor of the ICC for an investigation into whether international crimes have been committed on Palestinian territory. Although it also presents barriers, this might be the only avenue to offer any prospects for prosecution of Israeli perpetrators.
One of the obstacles to this approach is whether Palestine is a “state.” The Rome Statute, under which the ICC was established, allows a state not party to the statute to declare that it accepts the ICC’s jurisdiction for international crimes committed within its territory. Palestine made such a declaration which should allow the ICC to exercise jurisdiction over crimes committed on its territory. The Rome Statute, however, does not define a state, leaving it to the ICC itself to make such a determination. It has been well-argued by former UN Special Rapporteur Professor John Dugard that Palestine should be considered a state for the purpose of the Rome Statute, especially since the Palestinian entity has been recognized by over 100 states. It is a member of the Arab League, and the Palestinian National Authority has diplomatic relations with many states and observer status at the UN. As confirmed by Dugard, Palestine possesses sufficient state-like characteristics for the purpose of the exercise of the ICC’s jurisdiction. Such an expansive legal approach is consistent with the purpose of the Rome Statute: to punish those who commit international crimes and to prevent impunity.17 This is not to say that the ghettos and reserves that make up the Palestinian Authority areas of the West Bank and Gaza Strip should be politically equated with a sovereign state,
Looking Ahead
In comparing its policies and practices with its obligations under international law, it is clear that Israel has much to answer for. While evidence and legal argumentation abound, victims of Israel’s crimes over the past 61 years have been consistently unable to find courts willing to hear their cases, let alone issue verdicts effectively restoring their rights.
A recurring theme in this issue of al-Majdal is the consistent interference of executive and legislative branches of government to shield Israel and its agents from prosecution, a story in which the alteration of Spanish legislation is but the latest chapter.
Susan Akram and Yasmine Gado’s article on civil tort claims in US courts shows how the US government has consistently interfered to ensure that courts dismiss Palestinian cases on procedural and jurisdictional grounds, a history that has led them to the conclusion that victims of Israeli actions should avoid US courts, and “leave such claims to countries with stronger universal jurisdiction laws and more independent judicial systems than the US” (page 21). Bill Bowring’s article on European courts makes clear that Palestinians “do not have the possibility of addressing complaints” to the European Court of Human Rights and the European Court of Justice (page 11). Contributions in this issue also explore possibilities for legal action that can potentially overcome – or at least bypass – some of these limitations by targeting third parties. Bowring discusses such possibilities in the context of the aforementioned European courts, while John Reynolds discusses the ongoing casetargeting the government of the UK. Deborah Guterman examines the case against Canadian corporations involved in theconstruction of Israeli colonies in the West Bank, and the Quebec court is scheduled to issue its decision on whether or not it has the jurisdiction to adjudicate the case in the coming months. Karen Pennington and Joseph Schechla revisit US courts in an examination of whether recent precedents targeting Islamic charities may reopen the door to challenging the Jewish National Fund and other Zionist para-state organizations status as charitable organizations in that country.
Given the prominent role of political branches of government in blocking legal action aiming to hold Israel accountable for its violations, there is a clear need for political action. Civil society activists, voters and taxpayers must ensure that all necessary measures are taken by governments to guarantee respect of the most fundamental pillars of international law.
Unless civil society, national authorities, and international bodies such as the ICC work together to ensure that all appropriate means for bringing perpetrators to justice are used, Israel will continue to enjoy the impunity that allows it to continually and systematically violate the most basic human rights guaranteed by international law.18 Only by ending this impunity will justice be brought to the victims of al-Daraj, Beit Hanoun, Tal el-Hawa, Jenin, Shatila, Kufr Qasim, Deir Yasin and the millions of others still suffering as part of Palestine’s ongoing Nakba.
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