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Averting Abuse of Universal Jurisdiction
[Institute for Contemporary Affairs-Jerusalem Center for Public Affairs] Irit Kohn - Right at the outset of Israel's recent operation in Gaza, French pro-Palestinian organizations filed a lawsuit against the Israeli president, foreign minister and defense minister. Turkish prosecutors said in February 2009 that they were investigating whether Israeli leaders should be prosecuted for crimes against humanity over Israel's offensive in Gaza, after Mazlum-Der, an Islamic-oriented human rights organization, filed an official complaint in Turkey. At the same time, a Spanish judge is currently investigating the role of Israeli soldiers and security officials in a bombing in Gaza in 2002 in which a top Hamas suicide bombing planner, Salah Shehada, and 14 other people were killed. Universal jurisdiction refers to the power of a state to legislate, adjudicate, and punish any individual for war crimes, crimes against humanity, or genocide committed outside its borders, even when those crimes were not committed against that country or its citizens, and even if the accused is not its citizen. The idea is that anyone who commits such atrocious, internationally condemned crimes will not be able to find shelter or hide from judgment anywhere on the globe. Human rights organizations all over the world have been instrumental in the implementation of universal jurisdiction. This has contributed to the entry of politics into the universal jurisdiction process, as may be seen in many actions brought by NGOs that are supported financially by special interest groups or even states for the benefit of their own agendas. In 2005, Israeli Brig.-Gen. Doron Almog was warned not to leave his plane at Heathrow Airport in London after a UK court issued a warrant for his detention. It is important to remember that universal jurisdiction and the International Criminal Court are applied when a country does not or cannot act to prosecute. Yet Israel is a democracy with a well-developed judicial system and does not need external intervention to conduct any investigation. In fact, the Israeli military police reported that between 2000 and 2007, Israel's military judicial system conducted 272 investigations of illegal firing of weapons, with 31 indictments and 17 convictions; 330 investigations of property damage, with 36 indictments and 36 convictions; 475 investigations of violence, with 37 indictments and 34 convictions; and 128 investigations of crimes in the Palestinian areas, with 20 indictments and 18 convictions. The case of Salah Shehada, mentioned above, has already been reviewed thoroughly by Israel's Supreme Court, which is widely respected in the international legal community. What would a Spanish court have to add? Dr. Henry Kissinger wrote that we are witnessing an unprecedented movement to turn international politics into legal proceedings. International law does not require that the prosecuting country be neutral or politically impartial in order to exercise its jurisdiction in a given case. The purpose for which universal jurisdiction was created may be a worthy and noble one. However, its current execution is problematic, to say the least. The writer was director of the International Affairs Department at the Israel Ministry of Justice from 1995 to 2005.