A Spanish court attempted to open a criminal investigation under international law into the killing of a Hamas leader in Gaza City. But the Spanish government backed off under US and Israeli pressure. Israel won’t investigate. Who can?

An Israeli Air Force plane dropped a one-tonne bomb on the al-Daraj district of Gaza City, one of the most densely populated areas in the world, around midnight on 22 July 2002. It was meant to kill Salah Shehadeh, the former military leader of Hamas in the Gaza Strip, who was at home with his family. It succeeded; Shehadeh and 14 civilians, most of them children, were killed, 150 people were injured, many severely. Nearby houses were damaged or destroyed.

In Madrid on 29 January this year, Judge Fernando Andreu Merelles decided, on the basis of universal jurisdiction. to open a criminal investigation against seven Israeli political and military officials for allegedly committing a war crime. The court claimed that the facts pointed even to crimes against humanity, and so lawyers said they would do their utmost to demonstrate that the bombing was part of a policy of systematic attacks against a civilian population.

The Spanish proceedings had been initiated by six Palestinian victims since it was “impossible to bring the relevant prosecution before the Israeli judicial authorities”. In August 2008 the court asked Israel for information on judicial proceedings; this January it ruled that “the facts can and must be investigated by the Spanish jurisdiction... since no response whatsoever has been received to the request made by this Court… nor is there any evidence that any proceedings have been brought to investigate the facts”.

Just as this ruling was made, Israel sent a 400-page file claiming that proceedings were under way in Israel and that the Spanish court should desist. However, even if the Shehadeh affair has been reviewed by legal authorities in Israel including the High Court of Justice (HCJ), no decision has been taken as to whether to initiate criminal proceedings. In September 2002, the pacifist movement Yesh Gvul requested the military advocate general, and then the state advocate general, to open a criminal investigation against those who had (...)