On November 12 Spanish National Court Judge Jose de la Mata ordered the state security and law enforcement authorities to include the names of Benjamin Netanyahu and six other Israeli leaders in the police's national database, so he could be immediately informed should they enter or attempt to enter Spain.

The Israeli officials named in the order are under investigation for their alleged involvement in the military attack on the Mavi Marmara vessel, a raid in 2010 that is said to have claimed Spanish victims and that is also being investigated by the prosecutor of the International Criminal Court (ICC) in The Hague.

The implication of this order is that if any of these seven Israeli officials sets a foot on Spanish soil, Judge De la Mata could summon them as suspects in the criminal investigation and even order their detention.

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This decision is reminiscent of Baltasar Garzon, another Spanish judge, who in 1998 issued an arrest warrant against Chilean General Augusto Pinochet. This case constituted a landmark in the history of universal jurisdiction as it was the first time that a country executed an arrest warrant against a former head of state.

Reasons to be less optimistic

Many commented that the Pinochet warrant had the unintended effect of imprisoning those persons wanted for international crimes in their states, as to leave the sanctity of their borders would put them at risk of arrest.

While this did not necessarily advance the case of accountability, it reduced the level of impunity that political and military leaders enjoyed globally.


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Although many deem Judge De la Mata's action as evidence of a return to the Spanish activist approach to international crimes, there are reasons to be less optimistic. As commendable an approach as this is, every factor seems to point to the likelihood that despite the judge's order, Netanyahu will never face the might of Spanish justice.

As commendable an approach as this is, every factor seems to point to the fact that despite the judge's order, Netanyahu will never face the might of Spanish justice.

 

First, in 2014, the Spanish government approved a heavily criticised law that drastically reduced the Spanish jurisdiction over international crimes. The legal reform followed a National Court's order to detain former leaders of the Chinese executive who were accused in the Tibet case, an order upon which the Chinese government expressed significant outrage.

Even after this reform, the law continued to recognise the Spanish court's jurisdiction in cases of torture "when the victims are Spanish and the accused is in Spanish territory". Yet, it substantially restricted Spanish judges jurisdictional in seeking to try foreign nationals for international crimes.

Indeed, a conservative reading of the law could deprive Spanish courts of jurisdiction to try Netanyahu as, according to the Spanish Organic Law for the Judicial Branch, they can only judge crimes of genocide, crimes against humanity and war crimes when the perpetrator is a Spanish national or has his permanent residency in Spain. This mirrors the legal framework in many other European jurisdictions such as the United Kingdom.

Moreover, Netanyahu is a sitting head of state. Consequently, according to international customary law, he enjoys immunity from prosecution in foreign jurisdictions.

Absolutist privilege

Although this principle is an unjust remnant and absolutist privilege inherited from Westphalian law, there are few precedents that could serve as justification for Spanish authorities to lawfully detain a foreign head of state.

Israeli Prime Minister Benjamin Netanyahu [Reuters]

The principle of head of state immunity in criminal cases was the main argument held by the British government to negatively respond to a popular petition to arrest Netanyahu on charges of war crimes should he enter the UK.

Although the petition received more than 112,000 signatures, the UK government decided not to even debate the proposal in parliament on this basis.

Finally, a further fundamental factor in reducing the likelihood of a Spanish trial of Netanyahu, is that of power and international politics.

Given the current instability in the Middle East and the strength of Israeli diplomatic bonds, the arrest of Netanyahu by Spanish authorities appears wholly unrealistic, especially when country-activated universal jurisdiction is in a historical twilight.


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This factor leads us to the most significant issue in international criminal law, that of selectivity. International criminal justice seems to have been infected by a selective approach since its cradle.

The reality is that in the game of international politics, power is associated with impunity.

 

This selectivity has remained in the practice of international criminal justice for decades. It explains the one-way road to (in)justice of, for example, courts such as the Bangladesh International Crimes Tribunal, which only judges crimes committed by one side in a conflict; ordinarily the losing side.

Selective approach

This selective approach has even infected the work of the paradigmatic role model of international justice, the International Criminal Court, which has received severe criticisms for its disproportionate focus on African cases and its failure to properly address allegations of war crimes committed by more powerful political leaders in the west.

The reality is that in the game of international politics, power is associated with impunity. Power is the factor that explains why certain public figures and countries are perceived to be immune from the reach of universal jurisdiction.

It is this that explicates why the arrest warrants against Tzipi Livni and Yerodia Ndombasi Pinochet did not end with a judicial process against the accused, while numerous leaders without such international influence face trial at the ICC.

Tzipi Livni [AFP]

It is this element that permitted the United States government to introduce the law known as "The Hague Invasion Act", which authorised the use of military force to liberate any US citizen or citizen of a US-allied country being held by the ICC; an extraordinary measure of impunity.

It explains why there has been little or no accountability for crimes during the wars in Afghanistan, Iraq, Chechnya or Tibet. And power and diplomatic considerations, again, have impeded bringing Bashar al-Assad to justice, despite the heinous nature of the crimes allegedly committed under his reign of terror and the wealth of credible evidence to support charges of war crimes and crimes against humanity.

Sadly, Judge De la Mata's order seems to be the "Chronicle of an Impunity Foretold"; Israeli authorities have already expressed outrage over the order, which they consider a "provocation". A spokesperson from the Isareli foreign ministry added that they "are working with the Spanish authorities to get it cancelled". However, the chronicle does end until the final chapter and international civil society still has a vital role to play in this story.

When accountability is understood as a "provocation", our duty is to defend the simplicity and appropriateness of justice, putting all of our efforts into the fight against impunity, arbitrary selectivity and double standards.

Toby Cadman is an international lawyer and is currently advising the government of the Republic of Maldives on legal and constitutional reform. In particular, he is assisting the government in responding to the allegations made to the UN by former Maldivian President Mohamed Nasheed concerning his conviction for an offence of terrorism. 

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

Source: Al Jazeera