Israel to appeal Spanish war crimes probe against its senior officials

01.29.2009 | Haaretz
By Barak Ravid, Haaretz Correspondent, Haaertz Service The Associated Press

Israel will on Friday appeal a decision by a Spanish judge to open a probe against National Infrastructures Minister Benjamin Ben-Eliezer and six other current or former Israeli officials over a 2002 bombing in Gaza that killed one Hamas militant and 14 other people, inluding nine children.

Ben-Eliezer, who was defense minister at the time of the bombing, blasted the decision as “ludicrous” adding that “even more than ludicrous, it is outrageous. Terror organizations use the courts of the free world and the mechanisms of democratic nations to file suit against a country that operates against terror.”

Judge Fernando Andreu said the attack by Israel, which targeted senior Hamas militant Salah Shehadeh in a densely populated civilian area, might constitute a crime against humanity.

“I do not regret my decision.” added Ben-Eliezer. “Salah Shehadeh was a Hamas activist, an arch-murderer whose hands were stained with the blood of about 100 Israelis and who carried out the most heinous attacks against our citizens.”

The Justice Ministry on Thursday sent the Israeli Embassy in Madrid a large amount of documents which included legal rulings and Supreme Court decisions dealing with the targeted killing of Shehadeh.

Israeli Ambassador to Spain Rafi Shotz will on Friday give the material to the Spanish judge in order to help bring a cancellation of the ruling.

Defense Minister Ehud Barak earlier Thursdsay lambasted Andreu’s decision as “hallucinatory.”

“Whoever calls the assassination of a terrorist a ‘crime against humanity’ is living in an upside-down world,” said Barak, in a statement released by his ministry.

Barak added that, “All senior officials in the security establishment, current and erstwhile, have acted appropriately on behalf of Israel and from a commitment to defend its citizens.”

The judge is acting under a doctrine that allows prosecution in Spain of such an offense or crimes like terrorism or genocide even if they are alleged to have been committed in another country.

Andreu announced the probe in a writ issued Thursday.

The people named in the suit include Dan Halutz, former Israel Defense Forces Chief of Staff and Israel Air Force commander at the time, as well as Ben-Eliezer.

Opposition leader Benjamin Netanyahu also condemned the decision to open the probe.

“It’s absurd; Israel is fighting against war criminals and they are charging us with crimes?” said Netanyahu, speaking on Army Radio.

He added: “There is nothing more ridiculous and absurd than them accusing us, a democracy legitimately protecting itself against terrorists and war criminals, of these crimes; it is absurd and makes a mockery out of international law.”

Meanwhile, Israel is preparing for a wave of lawsuits by pro-Palestinian organizations overseas against Israelis involved in the latest Gaza fighting, claiming they were responsible for war crimes due to the harsh results stemming from the IDF’s actions against Palestinian civilians and their property.

Senior Israeli ministers have expressed serious fears following the war about the possibility that Israel will be pressed to agree to an international investigation of the losses among non-combatants during Operation Cast Lead; or alternately, that Israelis will be faced with personal suits, such as happened to Israeli officers who were accused of war crimes in Britain for their actions during the second intifada.

Jurists tell Barak: Don’t shell Gaza population centers

12.12.2008 | Haaretz
By Amos Harel

Israel should not use artillery fire to target rocket-launching militants in the Gaza Strip if the fire is aimed at populated areas, the defense establishment’s legal adviser recently told Defense Minister Ehud Barak.

“Artillery fire is permissible only in relatively open areas,” Ahaz Benari wrote in the legal opinion. “Artillery fire at urban areas is problematic, if the assessment is that the chance that the shell will hit the launchers is relatively low, while the risk that many civilians will be hurt is substantial.”

Barak and Chief of Staff Gabi Ashkenazi have previously expressed doubts about an extensive Israel Defense Forces operation in Gaza now. Benari’s opinion appears to be backed by leading military prosecution officials, though Attorney General Menachem Mazuz has yet to express a firm opinion on the matter. Prime Minister Ehud Olmert has promised to hold a cabinet meeting on the issue shortly.

Benari wrote the legal opinion December 7, after cabinet ministers called for a reexamination of the steps Israel is using to counter Qassam fire. The opinion reviews international law on the matter and finds that while there is no wholesale ban on artillery fire at sites from which rockets were launched, the fire should be aimed at military targets and be able to distinguish between the target and civilians or civilian property.

The opinion also states that if damage to civilians or their property is expected as a result of the artillery fire, the IDF must make sure the damage is not much greater than the expected military benefit – an expression of the legal principle known as proportionality.

Meanwhile, Palestinian militants in Gaza fired seven Qassam rockets and mortar shells on southern Israel yesterday, causing no injuries. Defense officials said last night that even though Hamas leaders are saying the cease-fire with Israel will not be extended past Friday, the organization has not completely given up on continuing the lull.

The IDF developed a detailed procedure for artillery fire in Gaza in 2006, which approves shooting only in open areas and mandates that a distance be kept from buildings. But the IDF halted its use of artillery fire altogether after accidentally killing 18 Palestinian civilians in the Gaza town of Beit Hanun in November 2006, even though the artillery fire was meant to target open areas.

The legal opinion also addressed the creation of ghost towns in Gaza, involving the eviction of Gazans from their homes in areas Palestinian militants use for launching rockets, as an Israeli response to the rocket fire. Benari said international law allows Israel to warn the residents of the intended IDF artillery response and evacuate a particular area for a short time. But even then, he said, the IDF cannot engage in carpet bombing, which would lead to the intended massive destruction of property that does not constitute a legitimate target. He said Israel must also take into account that some civilians will remain in the area even if they are advised to leave.