Spanish Supreme Court Rejects Shehadeh War Crimes Jurisdiction

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The Israeli army has won a victory on behalf of impunity in its war against the Palestinian people with this week’s announcement that the Spanish High Court has rejected jurisdiction over the case of the assassination of Palestinian militant Salah Shehadeh and 18 civilians by the IDF in 2002.

After an appeal by Israeli human rights lawyer Michael Sfard to the Israeli Supreme Court, the State established the Inbar commiittee, ostensibly to investigate the incident and determine whether criminal charges were warranted. As insurance, anti-Occupation activists brought cases against the IDF principals in Britain and Spain.

Now it appears likely Gens. Doron Almog and Dan Halutz, the senior chain of command for the attack, may never be held accountable.  The Spanish court, in its decision pointed to the creation of the Inbar committee as proof that Israel itself was pursuing its own investigation.  Under international law, the nation in which the violation occurred is given first opportunity to prosecute the case.  If they don’t, then other states may take up the case.

The hypocrisy of the Spanish decision is noted by Sharon Weill’s International Journal of Criminal Justice article in which she described the members, structure and mandate of the Inbar committee:

…Following the recommendation of the HCJ [Israeli High Court of Justice], the state agreed to establish an objective and independent commission of inquiry investigating into the killing of Salah Shehadeh. The structure, nature and mandate of that commission would be entirely determined by the state: the very entity whose actions were to be investigated. On 23 January 2008, the commission was appointed by the Prime Minister: it was composed of three members, two of them former Military Generals and another a former official from the security services.

The commission was mandated to investigate the legality of the killing of Salah Shehadeh according to the same legal framework as a military inquiry….While all the procedures, testimonies and even the final report remain confidential, it is authorized to bring to the attention of the relevant authorities criminal recommendations. Later on, if theMilitary Advocate General finds that there is a basis to open a criminal investigation, he can do so only after consulting a Major General.

Brig. General (Res.) Zvi Inbar, formerly the Military Advocate General and the Knesset Legal Counsel was appointed head of the commission; with him were appointed as members of the commission Maj. General (Res.) Iztchak Eitan, formerly the head of the IDF Central Command and Mr Iztchak Dar, who formerly held a large number of operative positions in the General Security Service (GSS), amongst others as the Head of the Service’s Israeli and Foreign Interests Section.

In other words: the fix was in.  Proof of this is that since its creation in 2008 it has not actually investigated the incident, let alone made recommendations.  And as Prof. Weill points out the longer the period from the actual crime to its investigation the greater likelihood witnesses die or disappear and evidence is lost or compromised.  Given Israel’s reputation in these matters this certainly shouldn’t be suspected in this case.

The inactivity of the Committee hasn’t stopped both the Israeli and Spanish Supreme Courts from pointing to its existence as proof that Israel was dealing with the matter.  So here you see the weakness of international law, which allows accused nations like Israel to use smoke, mirrors and obfuscation to exploit loopholes.  In addition, often the legal systems of other nations which might eliminate such impunity refuse to do so out of lack of political will.

Israel, of course, takes maximum advantage of this situation.  Like many authoritarian regimes and serial human rights violators, it develops maximally bureaucratic responses to maintain the network of terror and impunity behind the Occupation.  Whether this involves appropriating (i.e. stealing) Palestinian private land to build settlements or undermining the principle of universal jurisdiction, such regimes become quite skilled at the game.

But this doesn’t mean the game is over.  It means a skirmish has been lost and activists must redouble their political and legal efforts.

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