Three Spanish activists who were on board the Gaza aid ships that were raided by Israeli commandos on May 31 have filed a lawsuit against Israeli Prime Minister Benyamin Netanyahu, six members of his cabinet and a senior military officer for war crimes and crimes against humanity. The lawsuit is the second attempt by pro-Palestinian activists to prosecute Israeli political and military leaders in Spanish courts by using the legal concept of universal jurisdiction.
Laura Arau, David Segarra and Manuel Espinar Tapial, three Spaniards who were on board the aid ships, lodged the complaint at Spain's National Court (Audiencia Nacional) on July 22. They claim they were illegally arrested in international waters, tortured and forcibly removed to Turkey. The 86-page lawsuit was filed on behalf of the three plaintiffs by a non-governmental organization called the Arab Cause Solidarity Committee, which is based in Madrid.
In addition to Netanyahu, the lawsuit names as defendants Israeli Defense Minister Ehud Barak, Foreign Minister Avidgor Lieberman, Intelligence Minister Dan Meridor, Deputy Prime Minister and Minister for Strategic Affairs Moshe Ya'alon, Interior Minister Eli Yishai, minister-without-portfolio Benny Begin, and Navy Vice Admiral Eliezer 'Chiney' Marom.
According to the lawsuit, the plaintiffs were "illegally detained, forcibly moved into Israel and deported to Turkish territory outside the provisions of international law." However, most of the rest of the complaint is framed within the broader context of the overall Palestinian cause, which reveals the politically motivated nature of the lawsuit.
The lawsuit claims the eight defendants came together "from the moment they learned of the departure of the fleet" in order to "plan the operation … in the context of a systematic and widespread attack against the Palestinian civilian population" with the aim of "aborting any and all attempts of common action to help the Palestinian people."
The Spanish court is now deciding whether or not the lawsuit is admissible. In June 2009, the Spanish parliament passed a law to limit judges from pursuing cases of torture or war crimes committed abroad under the concept of universal jurisdiction. Spanish law previously enabled investigators to probe alleged human rights crimes regardless of where they are committed or where the defendants live.
The open-ended interpretation of universal jurisdiction led to massive abuses of the Spanish legal system by leftwing groups that were out to pursue a political agenda, and by media savvy activist judges who were more interested in scoring political points than in upholding the law. At one point in mid-2009, judges at the Spanish National Court were pursuing more than a dozen international investigations into suspected cases of torture, genocide and crimes against humanity in places as far-flung as Tibet and Rwanda. But most of these cases had little or no connection with Spain.
Under the new restrictions, cases involving universal jurisdiction can be pursued in Spanish courts only if they involve Spanish citizens. The lawyers in this latest case argue that the Spanish court has jurisdiction precisely because the three plaintiffs are Spanish citizens.
This was not the case in a previous attempt by pro-Palestinian groups to prosecute Israeli political and military officials in Spain. In April 2010, the Spanish Supreme Court upheld a decision by the Spanish Court of Appeals against conducting an investigation of seven current or former Israeli officials over an air attack in Gaza that killed Salah Shehadeh, a top Hamas militant, in July 2002.
Cases against Israeli officials are also pending in several other European countries.
In Belgium, lawyers representing Palestinian plaintiffs filed a lawsuit on June 23 against 14 Israeli officials on charges of war crimes allegedly committed during the Gaza War, a three-week armed conflict that took place in the Gaza Strip during the winter of 2008–2009. Those charged include Israeli opposition leader Tzipi Livni for her role as foreign minister during the war, former Israeli Prime Minister Ehud Olmert, Deputy Defense Minister Matan Vilnai, and other Israeli military and intelligence officials.
The 70-page lawsuit is based on a report by Judge Richard Goldstone, which claims that an Israeli attack on a mosque near the Jabalia refugee camp in the Gaza Strip killed 16 civilians, including women and children. The plaintiffs, who include one Palestinian-Belgian national and thirteen Gaza Strip residents, were either wounded or lost relatives in the attack.
In France, pro-Palestinian activists announced on June 13 that they would file a lawsuit against Israeli Defense Minister Ehud Barak both in France and at the International Criminal Court in The Hague. The International Civil Campaign for the Protection of the Palestinian People (CCIPPP) and Committee for Charity and Support for the Palestinians (CBSP) are suing over the Israeli army's May 31 raid on the Gaza-bound Freedom Flotilla in which nine activists were killed. The groups say Barak should be held personally responsible for the deaths.
The lawsuit forced Barak to cancel a visit to Paris in mid-June. Pro-Palestinian activists had called for French police to arrest Barak at the airport upon his arrival in the country. The Israeli Defense Ministry said Barak decided to remain in Israel "until the team of experts investigates the raid on the Gaza-bound flotilla."
In Britain, a court issued an arrest warrant for Tzipi Livni in December 2009 for her role in Operation Cast Lead. Livni, who had been due to address a meeting in London, cancelled her attendance. The court issued the warrant at the request of lawyers representing Palestinian victims of the Gaza War. The 1988 Criminal Justice Act gives courts in England and Wales universal jurisdiction in war crimes cases.
In October 2009, Moshe Ya'alon turned down an invitation to attend a fundraising dinner in London after he was warned that he might face arrest on suspicion of war crimes. Ya'alon was chief of staff of the Israel Defense Forces from 2002-2005 and is wanted by pro-Palestinian groups for his alleged role in the Shehadeh assassination.
In September 2009, a British court was asked to issue an arrest warrant for Ehud Barak, who was attending a meeting at the Labour party conference in Brighton. He escaped arrest after the Foreign Office argued that as a serving minister, Barak enjoyed immunity under the 1978 State Immunity Act.
In September 2005, retired Israeli Major General Doron Almog arrived in London on an El Al flight, only to learn that a British judge had issued a warrant for his arrest for allegedly violating the 1949 Geneva Convention in Gaza. Almog stayed on the plane and immediately returned to Israel.
In February 2004, a London court rejected an application for the arrest of Israeli Defense Minister Shaul Mofaz for allegedly committing "grave breaches" of the Geneva Convention in dealing with the Palestinian uprising. The judge in the case argued that as a government minister, Mofaz qualified for immunity.
In Norway, Chief Prosecutor Siri Frigaard in November 2009 dismissed a complaint filed by a group of Norwegian lawyers accusing Olmert, Livni and Barak of committing war crimes during the Gaza War. Frigaard said "there is no good reason" for Norwegian authorities to investigate further. She also said Norway "must show great care" when deciding whether to investigate alleged war crimes committed by individuals with no connection to Norway.
In Belgium, the country's highest court in September 2003 threw out a war crimes lawsuit against Israeli Prime Minister Ariel Sharon. The Cour de Cassation ruled that Sharon was immune from investigation in Belgium over his alleged role in a 1982 massacre of Palestinian refugees.
Even though none of the lawsuits against Israeli officials in European courts has achieved its objectives, the latest cases of 'lawfare' in Spain, Belgium and France show that the Palestinians and their supporters in Europe are determined to keep on trying until they succeed.
