The Spanish court’s decision to indict senior Israeli figures involved in Salah Shahade’s assassination confirms what we already know: The courts in any country have the authority to indict individuals suspected of war crimes or crimes against humanity. The same is true for the courts in Israel. However, there are limits to this authority.
In some states, including Israel, such indictment can only be filed with the approval of the Prosecutor’s Office. This limit is meant to prevent a situation of false complaints and harassment, and also avoid an extra load on the courts due to false charges. In Spain there is no such regulation, even though the Spanish government is attempting to introduce legislation to that effect. Another condition to the utilization of this authority is that the state where the violation took place has not investigated the incident in question or indicted its own citizens, because it has no interest in doing so, or because it lacks an independent judiciary.
In cases pertaining to states with an impartial and independent legal establishment, it is not customary for other states to get involved. The problem with Spain is that the specific judge who took the decision showed great interest in the past in getting the court involved in international affairs. He used his authority even though, as we know, Israel is home to an impartial and independent judiciary, and a commission of inquiry was established to look into the incident in question: The dropping of a one-ton bomb on Salah Shahade.
The notion of war crimes was not meant for these kinds of cases. The question that arose following the incident is whether a bomb of certain size should have been used there of all places. Yet there is no doubt that the objective, that is, killing a terrorist, was legitimate. War crimes cases normally refer to the deliberate and cold-blooded killing of civilians, and not to considerations in respect to which means should be used against a legitimate target. Any military operation may entail civilian casualties if the military target is close by, and military officials need to make an effort to minimize the number of citizens involved.
This case presents a question of professional judgment regarding the proper means, yet in no way does it argue that Israel embarked on the operation in order to kill civilians. Therefore, what we see here is the misuse of the universal authority to look into war crimes, and we can assume that the Spanish authorities themselves would appeal the judge’s decision: The legal system is supposed to deal with criminal matters and not with the military operations of other states.
However, we should expect to see continuing efforts by hostile elements to harass Israeli commanders at various courts worldwide. The only way to prevent it is to act via the various governments.
At this stage, I would advise the commanders in question not to visit Spain. Theoretically, should the procedure continue, Spain may issue an arrest warrant and seek extradition from other states as well. However, we can assume that neither Spain nor other governments would be interested in such development.
Foreign governments are aware that the IDF is an organized army that operates in line with international law, and that Israel is home to an independent judiciary. Indeed, there were cases where IDF troops were brought to justice over violations of the rules of war, as was the case in other countries such as the United States, which indicted soldiers during the Gulf War. We see anomalous cases in every country.
The problem faced by Israel was not vis-à-vis Western governments. Israel is attempting to prompt every state to promote legislation that would prevent the courts from acting based on complaints with a political bent. Belgium, for example, changed its laws, but it did so because of American pressure, because once complaints were being lodged against leaders such as Kissinger, the US pressed Belgium and even threatened to remove NATO’s headquarters from Brussels. As we can assume that other states would also attempt to harass the Americans, hopefully here too the US would exert pressure in order to prevent this type of harassment.
Dr. Robbie Sabel, an international law lecturer at Hebrew University, is a former Foreign Ministry legal advisor