Spain's probe of Israelis presents legal quandary

By PAUL HAVEN, Associated Press Writer

MADRID, Spain – A Spanish judge's decision to investigate seven Israeli officials over a deadly 2002 attack against Hamas that had nothing to do with Spain has renewed a debate about the long arm of European justice.

Critics say Madrid should mind its own business, particularly since Spain is still struggling to address its own bloody past. Supporters argue that some crimes are so heinous that all of humanity is a victim and somebody has to prosecute them.

Spain is hardly alone. A number of European countries have enacted some form of "universal jurisdiction," a doctrine that allows courts to reach beyond national borders in cases of torture or war crimes.

• In 2001, a war crimes suit against Israeli Prime Minister Ariel Sharon was filed in Belgium by Palestinian survivors of the 1982 Sabra and Chatilla refugee camp massacre in Lebanon. Belgium's highest court then dismissed the war crimes proceedings against Sharon and others, ruling it had no legal basis to charge them.

• French judges have opened investigations into Congolese security officials and convicted a Tunisian Interior Ministry official of torturing a fellow citizen on Tunisian soil.

• And Spain has indicted the late Chilean dictator Augusto Pinochet and Osama bin Laden among others, including Argentine dirty war suspects.

"I think some of these judges are looking for publicity, taking on causes that have no business being tried in Spain," said Florentino Portero, an analyst with the Strategic Studies Group, a conservative Spanish think tank. "They are practicing politics through judicial work."

The most recent case involves a 2002 bombing in Gaza that killed Hamas militant Salah Shehadeh and 14 other people, including nine children. Spanish Judge Fernando Andreu agreed to take the case on the grounds the incident may have been a crime against humanity — prompting a furious response from Israel.

Former Israeli Prime Minister Benjamin Netanyahu said the Spanish decision "makes a mockery out of international law," and Moshe Yaalon, a former Israeli general named in the probe, termed the case "propaganda."

Israel's Justice Ministry said Friday it had transferred material on the case to Spanish authorities and hoped the investigation would be closed soon. Foreign Minister Tzipi Livni said her Spanish counterpart had assured her his government would promote legislation to limit the authority of Spanish courts.

But Deputy Spanish Prime Minister Maria Teresa Fernandez de la Vega appeared to contradict Livni's statement Friday, saying the courts are independent of politics.

Philippe Sands, a professor of law at University College London and the author of "Torture Team," which looks at U.S. interrogation practices during the administration of President George W. Bush, said most countries allow prosecutions in cases involving torture or war crimes, so long as they have some connection to the case.

He noted that a U.S. court recently convicted the American son of Liberian President Charles Taylor, despite the fact his crimes were committed overseas against non-American citizens. Still, Sands said the question of universal jurisdiction gets murkier when there is no connection to the country doing the prosecuting.

"I am less persuaded that you can exercise universal jurisdiction when there is no connection at all, or where there is no solid treaty basis for exercising such jurisdiction," Sands said.

Belgium rolled back its universal jurisdiction law in 2003 after foreigners started filing a spate of genocide and war crimes complaints against foreign leaders, including Colin Powell and Dick Cheney, prompting Washington to threaten to move NATO headquarters out of Brussels. The case against Sharon did not result in conviction.

In Spain, the issue is particularly sensitive since the country has never brought charges against its own citizens for crimes committed in the name of Gen. Francisco Franco, the fascist dictator who ruled from the 1930s until his death in 1975. It was only two years ago that Spain passed a law even acknowledging victims of the 1936-1939 civil war.

Emilio Silva, who heads an organization that leads efforts to exhume the bodies of civilians killed by Franco's forces, said he has no problem with Spanish courts looking outward.

"I think it is good that Spanish courts investigate who they have to investigate, but it is strange that they make an exception of their own country," he said. "Spain is part of the universe too."

Then there is the diplomatically explosive prospect that a European court could bring charges against American CIA and military operatives accused of torture anywhere in the world, or even indict former Bush administration officials for war crimes.

Former Bush administration official Susan Crawford was quoted in a Washington Post interview published this month as saying the United States tortured one inmate at Guantanamo Bay, Saudi Mohammed al-Qahtani, in 2002.

Eric Holder, President Barack Obama's designee for attorney general, has said he considers interrogation methods like waterboarding to be torture, but has not indicated he plans to bring charges against any CIA or military operatives who might have used the technique.

If European courts sense a reluctance on the part of American officials to act, analysts say, they could use that to justify bringing charges themselves.

"Without a doubt the United States is the next step," Portero said.