An Israeli Air Force plane dropped a one-tonne bomb on the al-Daraj district of Gaza City, one of the most densely populated areas in the world, around midnight on 22 July 2002. It was meant to kill Salah Shehadeh, the former military leader of Hamas in the Gaza Strip, who was at home with his family. It succeeded; Shehadeh and 14 civilians, most of them children, were killed, 150 people were injured, many severely. Nearby houses were damaged or destroyed.

In Madrid on 29 January this year, Judge Fernando Andreu Merelles decided, on the basis of universal jurisdiction (1), to open a criminal investigation against seven Israeli political and military officials for allegedly committing a war crime (2). The court claimed that the facts pointed even to crimes against humanity, and so lawyers said they would do their utmost to demonstrate that the bombing was part of a policy of systematic attacks against a civilian population.

The Spanish proceedings had been initiated by six Palestinian victims since it was “impossible to bring the relevant prosecution before the Israeli judicial authorities”. In August 2008 the court asked Israel for information on judicial proceedings; this January it ruled that “the facts can and must be investigated by the Spanish jurisdiction... since no response whatsoever has been received to the request made by this Court… nor is there any evidence that any proceedings have been brought to investigate the facts” (3).

Just as this ruling was made, Israel sent a 400-page file claiming that proceedings were under way in Israel and that the Spanish court should desist. However, even if the Shehadeh affair has been reviewed by legal authorities in Israel including the High Court of Justice (HCJ), no decision has been taken as to whether to initiate criminal proceedings. In September 2002, the pacifist movement Yesh Gvul requested the military advocate general, and then the state advocate general, to open a criminal investigation against those who had planned and executed the operation. An internal investigation within the army found that the collateral damage was the result of an intelligence failure and had not been anticipated by the decision-makers. The attorney general adopted this version of the facts, ruling out a criminal investigation.

Implicit recognition

Yesh Gvul and five Israeli authors then filed a petition to the HCJ demanding that it review the authorities’ decision not to open a criminal investigation. The petition, on 30 September 2003, ended: “There is no intention to disguise the fact that appellants are guided by the desire that the investigation and indictment (if evidence is found) remain within the confines of the State of Israel. The High Court of Justice is the last stop of the law enforcement train before it crosses the borders of the State of Israel and we find ourselves giving the nations of the world the justification to conduct criminal proceedings... according to international law.”

A petition questioning the legality of the targeted killings policy had been pending before the same court since January 2002: the HCJ decided to suspend the Shehadeh petition. On 14 December 2006 it ruled that the policy could not be defined as legal or illegal, and should be determined on a case-by-case basis on the principle of proportionality. Judge Aharon Barak, then HCJ president, emphasised the difficulty of establishing the principle: “Take the usual case of a combatant, or of a terrorist sniper shooting at soldiers or civilians from his porch. Shooting at him is proportionate even if as a result, an innocent civilian neighbour or passer-by is harmed. That is not the case if the building is bombed from the air and scores of its residents and passers-by are harmed.”

By using facts similar to the elimination of Shehadeh, Barak was implicitly acknowledging that a war crime had been committed. After this decision, the HCJ recommended that the Shehadeh affair be examined by an independent body (rather than by the court). On 23 January 2008 the Israeli prime minister Ehud Olmert appointed a commission of inquiry with three members: two former generals and an ex-security services officer. The structure, nature and mandate of the commission were determined by the state – the very body whose actions were to be investigated. The commission was to function as a military inquiry: all the procedure, testimonies and final report remain confidential and inadmissible before a court of law, and the commission can only provide non-binding recommendations to the army. It has yet to complete its mandate.

The Spanish public prosecutor submitted a request, on 2 April, for the Spanish court to decline competence over the case since parallel proceedings had been taking place in Israel: but Israel would only have the priority if it were willing and able to prosecute. On 4 May the Spanish court rejected the prosecutor’s request to decline competence. The Spanish court found that the Israeli prosecution authorities’ endorsements of an internal military probe, and the fact that the commission of inquiry had been appointed by the prime minister, meant that the case was neither independent nor impartial.

Politicised reactions in Israel show how states perceive the separation of powers doctrine in reaction to accountability for international crimes. The procedure in Spain was described in the media as a “cynical attempt by the Palestinian plaintiffs to exploit the Spanish judicial system to advance a political agenda against Israel”, using diplomatic channels. Ehud Barak, leader of the Labour Party, said: “I intend to appeal to the Spanish foreign minister, the Spanish minister of defence and, if need be, the Spanish prime minister, who is a colleague of mine in the Socialist International, to override the decision” (4).

Under political pressure from Israel, China and the US, the Spanish Congress agreed to amend the law on universal jurisdiction, limiting it to cases with Spanish victims, or suspects present on Spanish soil. On 30 June the Court of Appeal ordered the closure of the investigation.

This is not the first such case. In 2003 Belgium was bullied into changing its law and procedure, following Israeli and US pressure about complaints brought against the former Israeli prime minister Ariel Sharon and ex-US Secretary of Defence Donald Rumsfeld. (The US threatened Belgium with moving Nato headquarters out of Brussels.) Since then, victims have been unable to initiate any judicial investigation; that is now the prerogative solely of the prosecution, which normally reflects government policy. This is a major obstacle to accountability under international law.

Unwilling or unable

Israeli state practice demonstrates the existence of a culture of impunity. According to the Israeli non-governmental organisation Yesh Din, criminal prosecutions are conducted only in exceptional cases – soldiers who act wrongly on their own account – and military inquiries are used to avoid criminal investigation (5). In 2003 the human rights organisation B’tselem filed a petition that challenged the policy not to open criminal investigations in cases in which bystanding Palestinians were killed by the Israeli army. The petition is still pending.

Israel is well aware of the possibility of accountability abroad: it did not allow the publication of photos or names of soldiers in Operation Cast Lead (the Gaza war). Officers who travel abroad have first to get approval for their trip. Israel has even declared it will pay all legal expenses for trials abroad.

Yet awareness in Israel of the possibility of being held accountable abroad does not seem to influence the treatment of war crimes allegations, as was demonstrated by the Shehadeh case, or recent war crimes committed in Gaza. If Israel does not change its practice of impunity, this indicates its unwillingness, or inability, to prosecute war crimes allegations. If Israel is not able to prosecute its own war criminals and if the International Criminal Court has no jurisdiction, the only way to get justice is through the exercise of universal jurisdiction, an obligation for all states set in the 1949 Geneva Conventions.