Complementarity: Contest or Collaboration? - FICHL
Complementarity: Contest or Collaboration? - FICHL
Complementarity: Contest or Collaboration? - FICHL
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<strong>Complementarity</strong> in Universality Cases:<br />
Legal-Systemic and Legal Policy Considerations<br />
consequence of a targeted killing is not necessarily in violation of international<br />
law: only to the extent that the collateral damage is disprop<strong>or</strong>tionate<br />
to the military advantage sought would this be the case. 65 This decision,<br />
taken by a presiding judge who is well-known f<strong>or</strong> his liberal, human<br />
rights-friendly views, 66 was generally praised in the international law literature<br />
f<strong>or</strong> its moderate nature. 67 When after a th<strong>or</strong>ough analysis based on<br />
the facts of the case, Israeli legal experts conclude that there has been no<br />
violation of the law, prosecutions should arguably not be brought. Rather<br />
than an unwillingness to bring a case, there is simply no case to answer in<br />
this situation. As a result thereof, complementarity jurisdiction does not<br />
come into play at all. 68<br />
The perception of the judge‟s insensitivity towards Israel‟s situation<br />
in the Shehadeh case is augmented by his holding that the facts “must be<br />
considered as a Crime against Humanity, and concerning which the international<br />
commitments subscribed by Spain impose prosecution”, and that<br />
they constitute “an attack against civilian population, already illegitimate<br />
from the start” (translation by the International Federation f<strong>or</strong> Human<br />
Rights, FIDH) 69 – as if there is no act involved of carefully weighing the<br />
protection of the lives of innocent civilians against the military advantage<br />
anticipated. The judge‟s failure to heed, <strong>or</strong> even discuss, Israel‟s arguments<br />
as to the unlawful character of the targeted killings – arguments<br />
that are not extreme, but are crafted on the basis of recognized principles<br />
65 Public Committee against T<strong>or</strong>ture in Israel and Palestinian Society f<strong>or</strong> the Protection<br />
of Human Rights and the Environment v. Israel and others, Original petition to the<br />
High Court of Justice, HCJ 769/02, Oxf<strong>or</strong>d Rep<strong>or</strong>ts on International Law in Domestic<br />
Courts, ILDC 597 (IL 2006), paras. 40-46.<br />
66 See E. Peled, annotation ILDC 597 (IL 2006), above note 62, A8 (“The fact that<br />
President Barak, whose deep commitment to preserving human rights has been evident,<br />
decided to uphold the targeted killings policy, albeit on strict conditions, could<br />
be read to signify the uniqueness of the phenomenon of terr<strong>or</strong>, at least from an Israeli<br />
perspective, and the acute necessity of confronting it seriously”).<br />
67 E.g., A. Cassese, “On Some Merits of the Israeli Judgment on Targeted Killings”, 7<br />
JICJ, 2007, vol. 7, 339; A. Cohen and Y. Shany, “A Development of Modest Prop<strong>or</strong>tions.<br />
The Application of the Principle of Prop<strong>or</strong>tionality in the Targeted Killings<br />
Case”, 7 JICJ, 2007, vol. 7, 310.<br />
68 Compare Rosenzweig and Shany, supra note 64 (submitting that “it is unclear<br />
whether Spain is particularly well-suited to address [the criminality of the targeted<br />
killing of Shehadeh] especially given the fact that proceedings in Israel are still pending<br />
(although, admittedly, at a very slow pace)”).<br />
69 Audencia National‟s Order, supra note 60, at para. 3.<br />
<strong>FICHL</strong> Publication Series No. 7 (2010) – page 193