The Spanish Inquisition
Spanish courts function in a way not well understood by Americans. To begin with, prosecutors and judges are on the same team. There is no Grand Jury before which evidence is presented and charges brought or dropped. In addition, Spain has created for itself "universal jurisdiction" that permits judges to try a case involving any country if the Spanish judge decides the country is either not an "acceptable" democracy or didn't do a "good enough" job investigating itself.
Spanish prosecutors considered the case of Israel's 2002 bombing that killed terrorist mastermind Salah Shehade and the 14 civilians Shehade was using as human shields in his home in Gaza. The prosecutors concluded that Israel is a democratic country with an independent judiciary that had properly investigated the bombing, and they recommended that the Spanish court drop the case. [We can't tell you how relieved we were that Spanish prosecutors consider Israel a democratic country!] But the judge decided the Israeli investigation was insufficient and that Spain will try seven Israelis for "crimes against humanity."
Just in case it wasn't clear, the Spanish deputy prime minister is reported to have said, "Spain is a country ruled by law and the justice system enjoys absolute independence."
Spain is also, of course, pursuing war crimes investigations against four American officials regarding conduct during the Bush Administration.
Should the judge issue an international arrest warrant for any of the Israelis involved, or ultimately any of the Americans now being investigated, they could be detained upon arrival in any EU member state. [Or not, if the EU is like the Arab League that ignored the warrant from the International Criminal Court and welcomed Sudan's chief butcher Omar Bashir, who has been indicted for war crimes in Darfur.]
Israeli officials denounced the Spanish decision; one MK suggested indicting Spanish officials for their role in the NATO bombing of Serbia in 1999, during which hundreds, if not thousands of civilians died. American Attorney General Eric Holder, on the other hand, said, "We would look at any request that would come from a court in any country and see how and whether we should comply with it... to the extent that we receive lawful requests from an appropriately created court, we would obviously respond to it."
It is hardly obvious. One could argue that the Spanish court is not "appropriately created" because "universal jurisdiction" by an uninvolved country is actually "unilateral jurisdiction," and, on its face, inappropriate. Further, the criminalization of military activity is a double-edged sword. To some countries, including but not limited to Spain, all military activity by the United States and Israel is potentially criminal.
The idea that a new Spanish Inquisition will be kinder in the future to officials of the Obama Administration, currently pursuing military operations in Afghanistan and Pakistan, than it is to Israel or Bush Administration officials is naïve and dangerous.
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