Universal Jurisdiction Has Hounded Israel For 7 Years

The decision of Spanish Judge Fernando Andreu to try to bring seven Israeli officials to trial over the Gaza bombing that killed Hamas terrorist Salah Shehadeh and 14 others marks the fourth time in the past seven years that foreign courts have sought to try Israeli leaders under the principle of universal jurisdiction.

The most famous case involved Ariel Sharon who served as defense minister during the Operation Peace for Galilee in Lebanon. Survivors of the massacre of hundreds of Palestinians in the Sabra and Shatila refugee camps near Beirut by Israeli-allied Christian Falangists filed suit against Sharon in a Belgian court, charging him with responsibility for the killings.

A few years later, a London judge issued a warrant for the arrest of Doron Almog, former OC Southern Command, for responsibility for IDF actions in the Gaza Strip during the second intifada.

In December 2006, an Auckland, New Zealand judge issued a warrant for the arrest of former chief of General Staff Moshe Ya'alon. In that case, the New Zealand projector stayed the prosecution.

The other two cases were eventually closed.

But the threat, while diminished somewhat over the years, still remains in some Western countries, including Spain, France, and New Zealand.

These countries, and many others to one degree or another, have passed laws authorizing their own courts to try alleged perpetrators of various offenses, including crimes against humanity, genocide, torture and war crimes. In most of the cases, neither the perpetrator of the alleged crime nor its victims have to be nationals of the country that claims the right to try them.

Some of the countries that passed such laws were taken aback by the potential diplomatic consequences of having leaders of other countries, including allies, tried in their courts. Germany and Belgium (after the Sharon affair,) for example, made changes in their laws, giving the government power to reject such a lawsuit before the court has the chance to consider it.

This, however, is not the case in Spain, where criminal suits are submitted directly to the court, which then hears the position of the government whose representatives have been charged and that of the Spanish government. In the end, however, it is independent and free to decide as it sees fit.

According to Spanish law, "a prison term of 10 to 15 years shall be the sentence for such a person who, in armed conflict, performs or causes to be performed indiscriminate or excessive attacks or makes the civilian population the object of attacks, reprisals or acts or threats of violence with the purpose of terrifying it."

At the beginning of April, the Spanish government prosecutor submitted a brief to Andreu, calling on him to reject the lawsuit on the grounds that the matter was being dealt with properly by Israel.