Spain’s highest court, the Audiencia Nacional, has issued arrest warrants on charges of war crimes against six Israelis who were high-ranking military officials at the time of the IDF’s bombing of an apartment building in Gaza City in 2002 which killed 15 civilians.
The six include current Infrastructure Minister Binyamin (‘Fouad’) Ben-Eliezer, who was defense minister at the time of the incident; Moshe Yaalon, who was IDF chief of staff; and Dan Halutz, then chief of the air force and later IDF chief of staff. The others are Doron Almog, Giora Eiland, and ‘Mike’ Herzog.
(Does anyone have the text of the arrest warrant? I’d love to see that.)
The 2002 incident was part of a longstanding policy of the Israeli government of undertaking extrajudicial killings (EJKs) of its opponents. EJKs, also known as assassinations or in Israel’s somewhat euphemized parlance “targeted killings”, are precisely what they sound like: completely extra-judicial, that is, outside the rule of law. That is, there is no duly constituted court that considers in an impartial and open manner the evidence against the “accused”, listens to his defense, and judges the case on its merits. Instead, Israel’s military authorities get to be prosecutor, judge, jury, and executioner all wrapped into one, though they have made various attempts to describe their efforts as “humane”, “restrained” and, of course, completely “justified.”
For one such attempt see this piece of sympathetic hasbara reporting from the WaPo’s Laura Blumenfeld back in August 20096. In it, Bluemnfeld describes the “anguish” experienced by several Israeli commanders– including, crucially, arraigned-in-Spain Moshe Yaalon– as they recalled their calculations regarding whether to undertake any particular EJK
Actually, though Blumenfeld’s reporting was extremely sympathetic to Israel’s high-ranking assassins, it contains many revealing details that could be useful in any court case against Yaalon and his co-defendants. (And also, against present Israeli Defense Minister Ehud Barak, a leader of some of Israel’s earlier EJK ops.)
Reflecting on her conversations with Yaalon about the period 2000-2003, Blumenfeld wrote,
- Almost every day, Yaalon had to decide who would live or die. “Who is a ‘ticking bomb’ ? Can we arrest him? Who is a priority — this guy first, or this guy first?” Yaalon recalled. Once a week, military intelligence and Shin Bet proposed new names. At first, the list was limited to bombers themselves, but several years later it expanded to those who manufacture bombs and those who plan attacks.
“I called it ‘cutting weeds.’ I knew their names by heart,” Yaalon said. How many did he kill? “Oh, hundreds, hundreds. I knew them. I had all the details with their pictures, maps, intelligence, on the table… ”
Then this, which is of direct relevance to the court case:
- Only once, Yaalon said, did he knowingly authorize a hit that would also kill a noncombatant, the wife of Salah Shehada. Shehada helped found Hamas’s military wing, which had asserted responsibility for killing 16 soldiers and 220 Israeli civilians. In 2002, the air force dropped a one-ton bomb on his home. The blast also destroyed a neighboring house, which Yaalon said he had thought was empty. Fifteen civilians were killed, including nine children. It felt, Yaalon said, “like something heavy fell on my head.”
Excuse me– something fell on his head??
Blumenfeld’s piece makes eery reading. But it also provides a vivid example of two important points:
- 1. How unresolved feelings of victimization and helplessness from the past can be used to try to justify the perpetuation of new acts of escalation and violence. In this regard, she makes a point of noting that Yaalon’s mother, and the parent of one of the other high-ranking EJK perps were Holocaust survivors, and how this affected their thinking about the use of violence.
2. How extremely slippery the slope of the justification of violence “for self-defense”, “pre-emption”, “prevention”, and “deterrence” can become. The Israeli decisionmakers were justifying their use of EJKs since 2000 mainly in terms of “deterrence,” that is, sending a powerful message “to discourage others from trying the same thing.” It worked in terms of raw violence, resulting in the deaths of hundreds of those “targeted”– along with additional hundreds of bystanders. But at the crucial level of politics, it didn’t work. Hamas kept on generating new cohorts of leaders, while retaining intact both its core political ideology and its ability to hit Israel with new kinds of weapons, primarily the fence-hopping rockets. Only recently did the Israeli government try another approach to the challenge posed by Hamas: the Egypt-mediated negotiations which resulted in the conclusion of a ceasefire (tahdi’eh) back in June. The ceasefire has not been totally successful, since a handful of very small, non-Hamas groups remain uncommitted to it. But by and large it has worked. The number of rockets falling inside Israel has been drastically reduced. And yesterday, even Ehud Barak– who was previously a strong skeptic of the ceasefire approach– announced that he now thinks it is the best way forward!
In Blumenfeld’s piece, she reports on the recollections of some of Israel’s super-assassins of another operation they conducted, against a reported gathering of Hamas leaders in a Gaza City apartment in September 2003. On that occasion, they used “only” a quarter-ton bomb, which was designed to hit “only” the third story of the targeted building. But the Hamas leaders being targeted– who included both political and military leaders– were sitting on the ground floor, and escaped with little damage. (Note that the idea of killing political leaders is completely outside what is allowed in the laws of war, as is the idea of killing military personnel when they are not on active duty. So such operations were war-crimes from the get-go, regardless of whether “untargeted” bystanders were also harmed, which in many or most cases they certainly were.)
Among those who escaped the airborne assassins that day were Hamas’s paraplegic founder and historic leader Sheikh Ahmad Yassin, whom the Israelis did succeed in killing a year later, and Ismail Haniyyeh, who ran in the Palestinian parliamentary elections of January 2006 and emerged as Prime Minister of the Palestinian government elected that month. Haniyyeh and his colleagues in the Gaza portion of Hamas’s leadership have been essential participants in the Egypt-mediated negotiations for the June ceasefire.
It is almost certain that if Israel had indeed “succeeded” in assassinating Haniyyeh and others in the present Hamas leadership, then it would have been far harder, or perhaps impossible, for the Egyptians and Israelis to find any Palestinian leaders with the political charisma, clout, and legitimacy that have been required to negotiate and implement the ceasefire from the Palestinian side. (It would be kinda nice if Barak could admit that publicly, and also apologize to Haniyyeh for his past attempts to assassinate him?? Dream on, Helena.)
As part of the tahdi’eh, Israel undertook to stop its EJK attempts against the Hamas leaders, which is valuable first step towards the further de-escalation of tensions (and positive peacemaking!) that is so desperately needed.
B’tselem has some good updates about the state of the EJK policy as of the end of 2007 in its 2007 annual report (PDF here.) It includes this:
- On 14 December 2006, the High Court of Justice issued its decision on the petition filed in January 2002 against Israel’s targeted-killing policy. The court did not rule the policy illegal, but it held that the actions involved in the targeted killing had to meet the principle of proportionality. It also ruled that, after the attack, a “thorough and independent inquiry” must be conducted to verify the identity of the persons hit and the circumstances. However, when B’Tselem demanded an inquiry of this kind into seven targeted-killing cases that took place in 2006 and 2007, which killed 36 bystanders, including 16 minors, the State Attorney’s Office rejected the demand.
Seven EJKs that killed 36 bystanders? Where’s all the much-vaunted “proportionality” and “restraint” that Blumenfeld was writing about in her article?
As for the Spanish arrest warrants against Ben-Eliezer and the others, the Israeli government is reportedly “battling hard to overturn [the] Spanish court’s decision.”
My view– with this case in Spain, as with the earlier attempts to indict Ariel Sharon through the Belgian courts– is that though these court cases play an important role in helping to sensitize wwestern opinion to the nature of some of the actions involved, and though they hold out the important hope that “international criminal justice” can be brought to bear impartially, including against offenders who are not members of groups marginalized within the present, “west”-dominated international system, still, the pursuit of these cases is not the path that will lead to finding and implementing a durable end to the Israeli-Palestinian conflict. And it is that path of conflict termination that is the one that must most urgently be pursued.
Back in the early 2000s, when the Belgian court made a (notably halfhearted and short-lived) attempt to go after Ariel Sharon for war crimes committed against Palestinians in 1982, he was still the Prime Minister of Israel. And though seeing him in the dock may have given some satisfaction to some Palestinians, still, what they most needed from him at that time was his serious engagement in serious peace negotiations… and inasmuch as the Belgian court case distracted attention or commitment from that path, it might actually have been harmful.
And similarly with the present Spanish court cases. Of course, the actions on which the defendants stand arraigned were heinous ones: the assassination of political opponents on a wide scale, and with far too little heed to the effects of those actions on bystanders. And the past actions and decisions of many of the Hamas leaders were equally heinous in their disregard for the laws of war, including the absolute injunction to avoid civilian casualties. But the priority– with regard to the misdeeds of both sides– must still remain on the search for a durable political outcome to the conflict.
Is such an outcome in sight? Perhaps not as far distant as many westerners seem to think. I think the new interest that some leaders in the secular portion of the Palestinian nationalist movement are expressing in the longheld goal of a single, binational state in all the area of Mandate Palestine is a heartening development.
Since 1967, the Israelis have had numerous chances to achieve a two-state solution, which could keep essentially intact their goal of having a state in existence that would be strong, secure, intentionally Jewish, and at peace with all of its neighbors. That would involve a return to something at or very close to the lines of June 4, 1967.
But repeatedly over the years they avoided making that choice. Instead, every time, they voted with their concrete mixers, pouring vast volumes of concrete into the project to build Jews-only colonial settlements throughout the West Bank (and Golan) and to connect them with their own, beyond-apartheid grid of Jews-only roads. As a result of that, and of the implantation of 450,000 Jewish settlers into those settlements, it is now almost impossible to imagine how the West Bank could be separated from Israel proper. The small chunks of land there that might be left to a Palestinian Bantustan would be quite incapable of supporting a viable Palestinian state.
Time to return to the older dream of humane Zionists like Martin Buber or Judah Magnes, who held up the goal of a unitary, binational state…
Helena,
The 2002 incident was part of a longstanding policy of the Israeli government
It’s HOT AIR Helena.
Look not far from your administration and longstanding policy of mascaras around the worlds till now in Iraq and Afghanistan you as Americans call these massacres Heroism!!!
So is the 51st Stat differing from the rest of other 50 US states?
Sorry, but I have been off on a camping trip for the weekend. Seems like these indictments and warrants would be big news. I can’t find it anywhere else, certainly not the Wapo, BBC or NYT. Did I just miss it while I was gone? Are there any other reports of the arrest warrants?
I wrote a long critique of Blumenfeld’s puff piece when it came out because it disturbed me deeply on so many levels. I’ve linked that post to this comment.
I agree w. you that such indictments & trials shouldn’t distract fr. the main goal, which is peace. But I do think it’s useful having the indictments in the backs of the minds of Israeli policymakers & generals so that they have to consider, even if for a millisecond, the prospect that they will be held accountable for their actions at some future date.
A cynical & despairing view is: “There is no judge and there is no justice.” But one hopes there is & will be.
Looks like the Spanish are stuck in 1492, thinking that they can dispose of Jews at will. Essentially, this means that Israelis are barred from the EU. Perhaps Israel can return the favor in some way, such as halting any anti-terror cooperation with the Policia Nacional, freeing any Basque separatists it holds, and halting El Al flights to Spain or the admission of Spanish nationals (other than fleeing Jews) to Israel. This smacks of a posturing EU judiciary that knows full well both countries have little leverage on each other, for good or ill, and wants to score cheap points with the anti-Israel Euro-Left without actually having to face the issues.
Looks like the Spanish are stuck in 1492, thinking that they can dispose of Jews at will.
A bit old hat, isn’t it, pulling out the anti-Semitic meme again? The typical slide from the truth, that is, specific allegations against a number of representatives of the Israeli state, to an accusation of generalised hatred of the Jews.
I was a little puzzled as to how this event happened. There is apparently no specific Spanish interest, in as far as this story has come out. In the Pinochet case, there were Spanish dead. Still, there could be a Spanish element that has yet to be revealed. I suppose that, like in many countries, Spanish law is that war crimes anywhere can be prosecuted.
Perhaps someone with a legal background can comment.
I can only comment on the political and cultural sentiments involved. There is a lot of pro-Arabism in Spain – not anti-Semitism – which exists on a theoretical level among the elite. The Islamic past in Spain plays a strong role: you can’t ignore it. Grenada and Cordoba are Spain’s most visited touristic sites, much more so than any Christian places. Since the 1970s at least, Spain has promoted relations with Arab countries. I have known many Spanish archaeologists, funded to explore the past of Arab countries in the Middle East, with a particular concentration on the Islamic past.
Nevertheless, Muslims are forbidden from praying in the mosque of Cordoba, since become a cathedral. (Actually, Muslims should be grateful that the mosque of Cordoba still exists; none other in Spain does). Islam in Spain belongs to a closed past, not to the present day.
So, there is a certain schizophrenia, pro-Arab Islam, as long as it is not at home. That certainly explains the decision of the Audiencia Nacional, a high-level court.
Spanish readers, a comment?
Alex, I’m not Spanish, but the schizophrenia about the past also extends to the descendants of the Spanish Moors who were expelled in 1492. Other “Spanish” diasporas, such as the Sephardic Jews and the descendants of Spanish colonists, either have an automatic right of return or an immigration preference. The Moors, most of whom live in Morocco these days and (like the Sephardim) retain Spanish cultural traits, don’t. They’ve lobbied for equal treatment for years, and won the support of the Andalusian regional parliament, but the national legislature has given them short shrift.
On the main topic, my first thought about this kind of indictment has always been “who, other than a truly international body, is clean enough to cast the first stone?” (The most striking example, IMO, wasn’t any of the cases involving Israelis but Belgium’s indictment of a former colonial subject in the DRC.) I’m sure that if an Israeli court began to investigate, some of Spain’s military actions in Afghanistan, Bosnia and Haiti might be found wanting. I’ll have to respectfully disagree with Richard here: unless and until there is a true international rule of law, coequal nations shouldn’t be passing judgment on each other. The law can’t solve everything; the solution is peace and peace is political rather than legal.
How convenient, Jonathan! As long as no one’s hands are perfectly clean, everyone, including the Israeli (and American) criminals, can keep committing their crimes with impunity. How lovely!
And based on all that, Saddam Hussein should still be alive and doing his “thing” in Iraq, too (of course, ironically, most Iraqis would be better off in that case than they are now since they are currently under the boot of an even more brutal, deadly criminal).
Turn it around, Shirin, and imagine that an Israeli court issued indictments against Syrian military officers for the Hama massacre (in which, as far as I know, there were no Israeli victims). Or suppose that an Israeli national filed a criminal complaint about Hama in the same Spanish court that is considering the case of Ya’alon. Would you be OK with that, or would you be on about hypocrisy and violation of Syria’s sovereignty?
And no, we don’t need a perfectly clean world. All we need is an international institution capable of delivering equal justice rather than political justice. There are a few already existing institutions that might fit the bill if reformed. It wouldn’t necessarily be easy, but it could be done, and it would be preferable to someplace like Spain exercising an implied moral superiority to which it has no right.
Well, a bit of an odd motivation crops up given that NO state actors (and there must be quite a few, chez le 2eme bureau marocain, par exemple) have been indicted for the Atocha attacks, while the self-defense efforts of the ONLY Jewish state merit maximal indictments from the Spanish Supreme Court. Cowards as well as hypocrites, as the ETA (who had members murdered by the Spanish government in Spain and France) well know. I look forward to Israeli indictments of the relevant Spanish Ministers of the Interior, Foreign Affairs, Defense and the heads of whatever secret services carried out those acts.
Tu quoque IS an argument in the Middle East.
And of course an indictment for Genocide for Felipe Gonzalez, President of Spain and head of the PSOE at the time, since the victims were Basque and chosen on that basis, since Israel still allows the death penalty for genocide.
Tu. Quoque.
Incidentally, France has jurisdiction a priori since many assassinations of alleged ETA members took place on its soil. Since France apparently refuses to investigate and prosecute, someone must step in. Nulle crimen sine poena and all that.
Jonathan, I do not find your example very apt. There are a number of reasons you cannot compare the indictments of the Israel officials by Spain with an imaginary indictment of the Syrian government by an Israeli court. The most glaring of these reasons is that Syria’s crimes in Hama were an internal matter that arguably do not involve the international community. Israel’s too-numerous-to-mention crimes, on the other hand, and specifically the crime for which the indictment has been issued, are brazen violations of international agreements to which Israel is a signatory, and are therefore very much the business of the international community.
And then there is the little matter of Israel having the chutzpah to indict Syria for Hama given Israel’s past and ongoing crimes against Syria and its citizens – crimes which include attacks on and murder of civilians, massive destruction of civilian property, ethnic cleansing (some 96% of the Syrian inhabitants of the Golan Heights were ethnically cleansed), illegal colonization and annexation of Syrian sovereign territory, denying Syria and its citizens access to and use of their land and resources in order to use them for its own benefit and profit, and on and on and on.
Frankly, Jonathan, your example only serves to make Spain’s indictment of Israeli officials look more reasonable and justified. Of course those Israeli officials really belong in the Hague along with the other war criminals, including a host of members of the Bush administration, but if the International Court won’t take action, good on the Spanish for doing so. And if someone wants to indict Spanish war criminals, go for it. I won’t complain.
Shirin, you have part of a point with your first paragraph, but you spoiled it with your second. Once you brought in the “chutzpah” argument, then you admitted my basic premise – i.e., that one nation with spots on its record has no business judging another, and that this should best be left to the international community as a whole.
Anyway, going back to your first contention, I believe that you’ve argued long and hard that crimes against humanity are very much the business of the international community, even when committed within national borders. That’s the foundation on which those countries with universal-jurisdiction statutes base their right to prosecute such crimes, such as the Belgian indictments of Congolese officials for crimes occurring entirely in the DRC. By that measure, Hama qualifies.
But if you don’t like Hama, then let’s go with Eurosabra’s example – Spanish assassinations of ETA members on French soil, carried out at the orders (or at least with the acquiescence) of some people who are still in positions of power in Spain. That’s international by any standard, and I’m sure you wouldn’t object if Israelis were indicted for similar assassinations outside Israeli soil. So how about it – let’s arraign Felipe Gonzalez in Tel Aviv. I’ll save a seat for you.
It’s really pretty easy. Imagine that I decided, for whatever reason, that you did something wrong, and although it didn’t damage me, I was offended. Imagine that I then held a trial, found you guilty, and when you happened to walk past my house, I grabbed you and locked you up in my basement. Pretty anarchic, right? In fact, that would be the crime of kidnapping on my part, and if I did it, you would be entirely justified in calling the cops and having me sent to prison. We have, as a society, ceded the prosecutorial function to a level higher than the individual, which can (at least in theory) dispense even-handed justice between individuals.
By the same token, if we want to judge nations for their collective acts, then we need an agency capable of dispensing even-handed justice between nations. I’m not against such prosecutions by a proper agency – for instance, if the ICC were free of its shackles and had an impartial prosecutor’s office, I’d be perfectly willing to see Olmert at the Hague right next to Nasrallah, waiting their turn behind all the others. The kind of prosecution taking place in Spain now, though, is a political stunt – do you think the same people who filed the complaint there would also file one against Nasrallah? – and an implied assertion of moral superiority by one nation over another, neither of which really qualifies as justice in my estimation.
Jonathon,
I’m not quite sure which Israeli court would sit in judgement on such a case, but I’m pretty sure it would be in Jerusalem, with the precedent of the Eichmann and Demjanjuk trials. Perhaps the Supreme Court itself (as High Court of Justice) because (as Eichmann’s was) the first claim would be that Israel had no jurisdiction. But such tit-for-tat is irrelevant, to the extent that Israel makes no special claim to enforce justice for Basques (unlike Jews).
More interesting is that NO indictments of ANY state actors have been forthcoming for the MAJOR acts of terror against Spanish citizens, the train bombings, while Israelis are indicted. Obviously Spanish judges feel they have something to fear from Arab states that they don’t from Israel, and an interest in pursuing political points against a Jewish state rather than justice for Spanish victims of terror.
Eurosabra, from what I understand, a Spanish court can’t issue an arrest warrant unless someone files a criminal complaint. According to the press release linked in Helena’s main post, the complaint against Ya’alon et. al. was filed by the Palestinian Center for Human Rights. So the Ya’alon case and the train bombings aren’t directly comparable: a complaint has been filed against Ya’alon, while a complaint can’t be filed against the people who carried out the bombings because nobody knows exactly who they are. Nor is the indictment the initiative of the judges; it was obtained by a private party who wanted to use Spain’s courts for political purposes and, I’m sure, has never sought to prosecute human rights violators from its own nation.
Actually, I should take back what I said about the PCHR. It has been critical of human rights violations by Palestinians, both Fatah- and Hamas-affiliated. Nevertheless, I don’t believe it has been over-eager to seek indictments against them in foreign courts, despite the fact that there is little prospect of domestic redress.