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Israel versus Universal Jurisdiction: A Battle for International Human Rights Law

[Image from Haaretz.com and ynetnews.com] [Image from Haaretz.com and ynetnews.com]

On October 31, 2010, Spanish Judge Ferdinand Andreu refused to grant former Internal Security Minister Avi Dichter immunity from prosecution during his trip to Spain where he planned to participate in an international peace summit. Dichter faces charges for war crimes and crimes against humanity for his role in the 2002 targeted assassination of Salah Shehade, former senior Hamas member. Under Dichter’s supervision, the Israeli Air Force dropped a one-ton bomb on Shehade’s home located in Al-Daraj, a densely populated residential neighborhood in Gaza, killing fourteen civilians, including eight children, and injured at least 150 other civilians.

The attack on Shehade and Al-Daraj, was premeditated and executed at a time when it could be reasonably inferred that a high number of civilians would be present and therefore at extreme risk of harm. Undeterred, Israeli officials proceeded with the attack that was so intense it completely destroyed eight adjoining apartment buildings, partially destroyed nine others, and sustained considerable damage to yet another 21 buildings. In response to the magnitude of the civilian and residential casualties, Israeli Major-General Doron Almog explained, "Even if innocent (Palestinian) civilians inadvertently got in harms way, the State never set out to do so."

Regardless of intent, assassinating someone without due process or judicial review amounts to extrajudicial killing prohibited in both human rights law and humanitarian law. Only in cases where there exists an imminent threat and no time for deliberation or due process, is killing without trial or conviction permissible. Still, far from complying with this prohibition, Israel has systematically challenged it in an effort to establish new standards and redefine the laws of war.

In November 2000, the Israeli Government confirmed the existence of a policy of targeted assassinations and justified its policy by explaining that “the Palestinian Authority was failing to prevent, investigate, and prosecute terrorism, and especially suicide attacks directed at Israel.” In 2002, the Israeli Army’s Judge Advocate General reaffirmed the State’s overt rejection of humanitarian law when he published a legal opinion outlining the conditions under which targeted killings would be legal. Israel’s deliberate attempt to make permissible extrajudicial assassinations within the scope of legal self-defense has borne considerable influence as evidenced by the United States’ use of drone attacks in Pakistan as well as its declaration of intent to assassinate Yemeni-American Muslim cleric, Anwar al-Awlaki

The US’s own questionable policy helps to explain a federal court’s decision to dismiss a similar suit brought against Dichter in the U.S. In 2005, the Center for Constitutional Rights sued Dichter for civil damages on behalf of those families whose members were injured or killed during the Al-Daraj bombing pursuant to the Alien Torts Claims Act. The case, Matar et. al., v. Dichter, was never heard on its merits. Instead, in 2009 the Second Circuit Court of Appeals dismissed the suit deferring to the Executive Branch, which urged it to decline jurisdiction over the case

While U.S. courts have failed to be sites of effective judicial redress due to undue political influence, European courts have been much more favorable to Palestinian rights. Consider that on November 1st, just one day after Spanish authorities declined immunity to Dichter, Intelligence and Atomic Energy Minister, Dan Meridor, cancelled a visit to England for fear of being issued an arrest warrant upon arrival. Meridor’s precarious status in England has generated uproar in Israel, which has long lobbied British authorities to change their universal jurisdiction laws in order to protect Israeli officials who travel there.

Israeli officials began their campaign to change the UK law in the aftermath of a string of arrest warrants for, and canceled visits by, Israeli officials. Among those threatened with arrest and prosecution is Major-General Doron Almog who did not disembark from a plane in London in 2005 upon learning of a warrant for his arrest. Similarly, in 2009 former Kadima Chairperson and MK Tzipi Livni cancelled her trip to London when she learned that she was at risk of arrest for war crimes committed during Operation Cast Lead. Although Prime Minister David Cameron promised to change England’s universal jurisdiction laws upon taking office, the law remains in tact and Israeli officials remain vulnerable to international prosecution.

The lack of immunity has angered Israelis who, failing to acknowledge the scope of universal jurisdiction, have claimed that the lawsuits are politically motivated. Universal jurisdiction is the principle, derived from the Nuremberg Trials, that some crimes are so heinous as to warrant their prosecution anywhere in the world. In the words of Bar Ilan University Professor Irit Kohn,

Universal jurisdiction is the power of a country to legislate, implement, judge, and punish a person for crimes committed outside that country’s borders, whether these crimes were against its own citizens or not. It is applied in relation to war crimes, crimes against humanity, and genocide. Around these crimes there exists an international consensus – anyone who commits them must be punished.

Notwithstanding its genesis at the Nuremberg Trials, or its robust legacy, former Southern Command Chief Major-General Almog decried the Spanish decision and exclaimed "Spain has no saying, no cause to discuss an internal Israeli conflict. Who are they to sit in judgment? What moral or judicial superiority do they have over us, that they thinks they can determine what is and isn’t legal?"Almog seems to conveniently omit the fact that universal jurisdiction in particular, and international law in general is premised on the notion that state prerogatives should be limited by internationally agreed to principles. Absent this consent, there would be no international law to speak of and the global rule of law would amount to no more than national determinations of what the law should be.

This point seems to be missed among those advocates for Israel who believe that any criticism of the state is unfounded and therefore all criticism is politically motivated. Consider that in the aftermath of Operation Cast Lead, an Israeli Army spokesperson condemned all lawsuits brought against Israeli soldiers and officers in Operation Cast Lead as tantamount to “legal terrorism.”  More recently, advocates created a new initiative called “The Lawfare Project” which defines lawfare as

The use of the law as a weapon of war” or, more specifically, the abuse of the law and judicial systems to achieve strategic military or political ends…It consists of the negative manipulation of international and national human rights laws to accomplish purposes other than, or contrary to, those for which they were originally enacted.

Such positions create a problematic juggernaut: if Israel allegedly violates international law then the law is wrong and, alternatively, if Israel is prosecuted for such violations then the prosecutors are abusing the law. In effect, adherents to this troublesome position are arguing that the law is whatever Israel deems it to be and that any challenge to this position is tantamount to political targeting and bias. Ironically by making such an argument Israel is singling itself out among a community of nations for being above the law and bringing upon itself the criticism it desperately seeks to deflect. Dichter’s response to Judge Andreu’s denial of immunity is quite telling: “Anyone who thinks Israel is a small country that can be gored is mistaken."

Dichter’s equation of Spain’s commitment to the rule of law with an attack on Israel would have one believe that the law is only fair if there exists no third party arbiter- otherwise it is a draconian tool of the strong to be applied against the weak. Taken to its logical end, in the name of fairness, he would have us discard all mechanisms that subvert state prerogatives to international principles, including the International Criminal Court, the International Court of Justice, universal jurisdiction, and even the United Nations. This is certainly a deleterious example of throwing out the baby with the bath water, especially where the baby, international human rights law and its associated mechanisms, is the product of fifty plus years of systematic advocacy in the realm of politics, diplomacy, and culture. Thus, Spain’s rejection of Israeli demands to dismantle universal jurisdiction is not only a matter of holding Israel to account, but it is a critical safeguard of the international human rights regime writ large.   

2 comments for "Israel versus Universal Jurisdiction: A Battle for International Human Rights Law"

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Well said and researched. Universal Jurisdiction maybe the most promising approach to combat impunity.

Joseph Farsakh wrote on November 07, 2010 at 07:55 AM
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As with much commentary on Israel, this article is partial and misleading. The main issue over universal jurisdiction (UJ) in the UK is that there is no central process for the issue of a warrant, and any judge can issue an arrest warrant for any international person, regardless of government policy, legislative priority, status of the country from which the person comes, or chance of success or cost of a prosecution. You may take the position that cost, for instance, should not enter into the equation, but it would clearly not be in the national interest of any country to have its judicial branch issue scattershot warrants for any citizen of, say, Sudan, just in case that person were connected with atrocities in Darfur, without some sort of overall review of chances of success and the balance of benefits involved in a prosecution. The changes called for in the UK would simply remove that power from individual judges and place it in the hands of the Attorney-General. No reasonable person could object to that, or could claim that it amounts to a denial of the principle of UJ.

Nigel Blumenthal wrote on November 19, 2010 at 07:00 AM

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