Article: Universal Jurisdiction Once Again Under Threat

On 2 April 2009, following the delivery of the document by Israel to the Spanish court, the Spanish public prosecutor submitted a request for the court to decline competence over the case, since parallel proceedings were taking place in Israel.

Despite the political inconvenience in upholding its previous stand, on 4 May 2009, the court forcefully rejected the prosecutor's request to decline competence. The court found that the procedure, and decisions made by the Israeli military advocate attorney general, the high court and the Committee of Inquiry, did not satisfy the constitutional right to effective protection by an independent and impartial court. It upheld that the decisions of the prosecution authorities, which endorsed an internal military probe, could not be perceived as independent and impartial, nor could the commission of inquiry that was appointed by the prime minister and functioned under the discretion of the executive branch. The Spanish court equally noted that an overarching deficiency of Israel's decisions was that none of them provided a detailed legal assessment of the facts. This ruling was immediately appealed, and the case is still pending.

The Israeli media portrayed the Spanish procedure as a "cynical attempt by the Palestinian plaintiffs to exploit the Spanish judicial system in order to advance a political agenda against Israel;" an issue, as the press appreciated, that should have been resolved through diplomatic channels. The Israeli daily Haaretz quoted Israeli Defense Minister Ehud Barak on 4 May 2009: "I intend to appeal to the Spanish foreign minister, the Spanish minister of defense and, if need be, the Spanish prime minister, who is a colleague of mine, in the Socialist International, to override the decision."

Spain and universal jurisdiction

Spain is one of the most important contributing actors to the securing of accountability of international crimes, principally due to its state-of-the-art universal jurisdiction legislation. The Spanish judiciary was the one that initiated the procedure against Augusto Pinochet, the former Chilean dictator, in 1998, and it is currently investigating dozens of other cases. One of the specific features of the procedure in Spain is that the victims themselves can initiate the investigation, and directly submit their complaint to the court, thus avoiding political obstacles that usually exist if it is the national prosecutor or the police who determine what cases are to be investigated. Further, Spanish law does not require the presence of the foreign suspects for the commencement of the judicial investigation. However, trials in the absence of the accused are prohibited in Spain.

Following political pressure from the governments of Israel, China (regarding an ongoing investigation accusing its former foreign minister of committing genocide in Tibet) and the US (for two cases against US officials alleging torture), on 19 May 2009 the Spanish parliament passed a resolution backing a proposed amendment to the Spanish universal jurisdiction legislation. The amendment limits the legislation's exercise to cases with a Spanish victim, or some other connection such as when the suspect is present on Spanish soil. It is not clear if the proposed amendments would apply to ongoing cases once in force. It is hoped that if the law is modified, victims can still initiate judicial investigations.

In 2003, Belgium faced a similar situation. It was bullied into changing its law and procedure, following Israeli and US pressure concerning the complaints brought against then Israeli Prime Minister Ariel Sharon and former US Secretary of Defense Donald Rumsfeld. In response, Washington threatened to move NATO headquarters from Brussels. In contrast, when a judicial arrest warrant was issued against Israeli Major General Doron Almog in 2005, then British Prime Minister Tony Blair declared his intention to modify the United Kingdom's laws on universal jurisdiction. Four years later, no such amendment has even been proposed to the UK Parliament.

Amendments to universal jurisdiction laws, as well as the actual initiation of investigations by the state prosecutors, have historically been markedly affected by public opinion and action. Pressure of such kind stands to be the most effective means of ensuring that justice is achieved for the victims, and the law is upheld against those who have violated it. This is particularly important when international war crimes and crimes against humanity are at issue. Governments and the international community should be mindful of this reality, in which the law is politicized in order to be evaded, and act upon it (a sample letter to government officials and contact information is provided by the Palestinian Centre for Human Rights). We must, in any way possible, ensure that all necessary measures are taken to guarantee respect of the most fundamental pillars of international law.

Sharon Weill is a PhD candidate in International Humanitarian Law (IHL), University of Geneva, and lecturer in IHL. Valentina Azarov is a Legal Researcher with HaMoked - Center for the Defence of the individual and author with the International Law Observer.

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