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War crimes accusations rattle Israel

In the wake of the Gaza war, Israel is preparing to defend itself and its soldiers against possible criminal charges in European courts that claim 'universal jurisdiction.'

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Ironically, Israel was one of the first countries to invoke the principle of universal jurisdiction when its court system asserted its right to try Nazi chief Adolf Eichmann for crimes against humanity and war crimes during World War II.

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Neither Israel nor the Palestinians, however, are parties to the treaty that set up The Hague-based International Criminal Court, making it difficult to mount a war crimes trial in that venue. Instead, legal challenges to Israeli behavior have been made in domestic courts in Europe rather than international tribunals.

One Israeli legal expert dismissed the effort to try the war crimes abroad as an extension of a "media war" against the Jewish state for the Gaza operation. Daniel Reisner, the former head of the Israeli military's international division, says universal jurisdiction is being used to pursue allegations against Israel only and not Hamas.

"The danger to Israel now are those countries that have extra territorial jurisdiction that don't have a nationality requirement," says Mr. Reisner. "The question is whether that is a major danger or a minor danger."

A Belgian court considered in 2001 an indictment of former Israeli Prime Minister Ariel Sharon for his role in alleged massacres during the Israeli invasion of Lebanon in 1982.

But broad application of universal jurisdiction by third-party national courts without links to the alleged perpetrator or victims of the war crimes is a relatively recent development, and some European legal experts say it hasn't gained traction.

Belgian lawyer Michael Verhaeghe filed charges against Mr. Sharon – a legal effort that awakened Israelis to the threat of war crimes prosecution in local European courts. He finally convinced the Belgian Supreme Court to give his case jurisdiction and standing on a 1993 national statute, but the legislation was later revoked by the Belgian parliament.

The number of states in Europe and elsewhere that have the kind of universal jurisdiction needed to try war crimes by combatants of other wars in their own courts is in decline, he said. Still, Mr. Verhaeghe believes the Israeli soldiers, if they have committed war crimes, "can't consider themselves as untouchable and safe as before."

Neither of the cases ever went to trial.

On Jan. 29, however, a National Court of Spain judge ordered an investigation into Israeli actions in the 2002 bombing of Hamas operative Salah Shehadeh that killed 14 others, including nine children.

Israeli National Infrastructure Minister Binyamin Ben Eliezer, who was defense minister at the time of the attack and was one of seven suspects named in the probe, said the court's decision was "outrageous."

"Terrorist organizations ... use the systems put in place by democratic states to sue a country fighting terrorism," he said.

Staff writer Robert Marquand contributed from Paris.