Complementarity: Contest or Collaboration? - FICHL

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Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes tion of that information, concerning the presence of innocent civilians near Shehadeh‟s vicinity, the timing or the method of the action would have been changed, as was done a number of times in the past”. 62 Although it is true that no criminal prosecutions were subsequently brought, 63 it is no less true that a number of rulings by Israeli courts, including the Israeli Supreme Court – courts that are known for their independence – were made in relation to the Shehadeh case. 64 It is almost superfluous to note that a dismissal of the case does not in itself evidence unwillingness on the part of Israel to genuinely investigate and prosecute. More generally, reference should also be made to the Israeli Supreme Court‟s momentous „targeted killings‟ decision of 14 December 2006. In this decision, the Court, drawing widely on recognized sources of international humanitarian law, held that the death of civilian bystanders as a 62 Israeli Ministry of Foreign Affairs, “Findings of the inquiry into the death of Salah Shehadeh”, 2 August 2002, available at http://www.mfa.gov.il/MFA/Government/Communiques/2002/Findings%20of%20the %20inquiry%20into%20the%20death%20of%20Salah%20Sh. 63 In 2006, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions called on Israel to explain whether the findings of the inquiry were followed by any disciplinary or criminal proceedings, and, if not, the reasons given as to why not (UN Doc. E/CN.4/2006/53/Add.1, (2006)), but apparently the request went unanswered. 64 According to the Israeli daily Haaretz, immediately upon the judge‟s order being made public, the Israeli Ministry of Justice sent the Israeli Embassy in Madrid a large amount of documents which included legal rulings and Supreme Court decisions dealing with the targeted killing of Shehadeh. The Embassy would submit those documents to Judge Andreu. Haaretz, “Spanish FM: We'll act to prevent war crimes probes against Israel”, 3 February 2009, available at http://www.haaretz.com/hasen/ spages/1059964.html. The Israeli case is known as Hess and ors v. Military Advocate General and ors, HCJ 8794/03. The petitioners before the Israeli Supreme Court demanded that the Attorney General initiate criminal proceedings against the commanders involved in the bombing of Shehadeh, and that the government establish a more independent and more competent investigation committee than the one in fact appointed. On 23 December 2008, the Israeli Supreme Court denied the petition on administrative law and not on international law grounds. It held that the decisions taken by the respondents were not so unreasonable as to justify judicial intervention, and that such intervention would only possibly be appropriate after an independent examination committee concluded its investigation. Thanks to Elad Peled for pointing this out to me. See also I. Rosenzweig and Y. Shany, “Universal Jurisdiction: Spanish Court Initiates an Inquiry of the Target Killing of Salah Shehadeh”, available at http://www.idi.org.il/sites/english/ResearchAndPrograms/NationalSecurityandDemoc racy/Terrorism_and_Democracy/Newsletters/Pages/3d%20Newsletter/1/SpanishCour tInquirySalahShehadeh.aspx. FICHL Publication Series No. 7 (2010) – page 192
Complementarity in Universality Cases: Legal-Systemic and Legal Policy Considerations consequence of a targeted killing is not necessarily in violation of international law: only to the extent that the collateral damage is disproportionate to the military advantage sought would this be the case. 65 This decision, taken by a presiding judge who is well-known for his liberal, human rights-friendly views, 66 was generally praised in the international law literature for its moderate nature. 67 When after a thorough analysis based on the facts of the case, Israeli legal experts conclude that there has been no violation of the law, prosecutions should arguably not be brought. Rather than an unwillingness to bring a case, there is simply no case to answer in this situation. As a result thereof, complementarity jurisdiction does not come into play at all. 68 The perception of the judge‟s insensitivity towards Israel‟s situation in the Shehadeh case is augmented by his holding that the facts “must be considered as a Crime against Humanity, and concerning which the international commitments subscribed by Spain impose prosecution”, and that they constitute “an attack against civilian population, already illegitimate from the start” (translation by the International Federation for Human Rights, FIDH) 69 – as if there is no act involved of carefully weighing the protection of the lives of innocent civilians against the military advantage anticipated. The judge‟s failure to heed, or even discuss, Israel‟s arguments as to the unlawful character of the targeted killings – arguments that are not extreme, but are crafted on the basis of recognized principles 65 Public Committee against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v. Israel and others, Original petition to the High Court of Justice, HCJ 769/02, Oxford Reports on International Law in Domestic Courts, ILDC 597 (IL 2006), paras. 40-46. 66 See E. Peled, annotation ILDC 597 (IL 2006), above note 62, A8 (“The fact that President Barak, whose deep commitment to preserving human rights has been evident, decided to uphold the targeted killings policy, albeit on strict conditions, could be read to signify the uniqueness of the phenomenon of terror, at least from an Israeli perspective, and the acute necessity of confronting it seriously”). 67 E.g., A. Cassese, “On Some Merits of the Israeli Judgment on Targeted Killings”, 7 JICJ, 2007, vol. 7, 339; A. Cohen and Y. Shany, “A Development of Modest Proportions. The Application of the Principle of Proportionality in the Targeted Killings Case”, 7 JICJ, 2007, vol. 7, 310. 68 Compare Rosenzweig and Shany, supra note 64 (submitting that “it is unclear whether Spain is particularly well-suited to address [the criminality of the targeted killing of Shehadeh] especially given the fact that proceedings in Israel are still pending (although, admittedly, at a very slow pace)”). 69 Audencia National‟s Order, supra note 60, at para. 3. FICHL Publication Series No. 7 (2010) – page 193
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Complementarity and the Exercise of
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TABLE OF CONTENTS Preface .........
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4.4.10. The Right of the Person Con
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3.1. Introduction 3 ______ Compleme
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Complementarity: Contest or Collabo
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Publication Series Co-Editors Mr. M
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Complementarity: Contest or Collaboration? - FICHL

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