The Attorney General authorizes Dolores Delgado to investigate Israel's crimes in Gaza and points to genocide.

The Attorney General of the State, Álvaro García Ortiz , has agreed to investigate the crimes committed in the Gaza Strip within the framework of the military operation launched by Israel almost two years ago, already pointing to genocide and other crimes against humanity, while ordering the creation of a joint team for this purpose, which will be composed of the Prosecutor for Human Rights and Democratic Memory, Dolores Delgado, and the head of the Prosecutor's Office at the National Court, Jesús Alonso.

This is stated in a decree, to which Europa Press has had access, in which García Ortiz grants Delgado the authorization he requested on July 28 to carry out these investigations as a "co-investigator," alongside Alonso.

Delgado made this request after receiving "a report from the General Information Commissioner of the National Police regarding the actions of the Israeli army against the civilian population in the Gaza Strip that could be contrary to international law, an investigation carried out within the framework of 'Operation ELIAT.'"

According to the decree, Delgado " proceeded to analyze the information contained in the report prepared by the operational unit , relating to, among other aspects, the testimony of protected witnesses, and which also provides important evidence regarding the actions and circumstances on the ground."

García Ortiz states that "the events described are considered serious violations of international human rights law and international humanitarian law, constituting crimes provided for in articles 607 (genocide) and following of the Penal Code," referring to crimes against humanity.

In his response, the Attorney General ordered that the report from the General Information Commissioner be sent to Alonso "in order to initiate the corresponding pre-trial investigation proceedings, which will be communicated to the International Court of Justice (ICJ), the Prosecutor of the International Criminal Court (ICC), and the acting police force."

Secondly, it agrees to "create a joint investigation team" made up of Alonso and Delgado, "who will act jointly, with the participation of the prosecutor coordinating International Cooperation," Francisco Jiménez-Villarejo, "in any actions carried out in this area."

According to legal sources consulted, the objective of these investigations is to cooperate with the ICC. Thus, as was done with the war in Ukraine, the Public Prosecutor's Office intends to gather evidence to make it available to the competent authority.

García Ortiz asserts that "the legal requirements are met" to take this step, given the "special significance" and "gravity" of the events, as well as the "number of victims so far."

"The events that occurred constitute serious violations of international human rights law, making an effective investigation particularly unique and complex, and also having international implications," he states.

The head of the Public Prosecutor's Office explains that Article 23.4 p) of the Organic Law of the Judiciary (LOPJ) "assigns jurisdiction to Spanish courts over 'any other crime whose prosecution is obligatorily imposed by a treaty in force for Spain or by other normative acts of an international organization of which Spain is a member, in the cases and under the conditions determined therein.'"

And this is despite the fact that the same article in its section a) establishes that Spanish courts may only investigate acts committed outside Spanish territory that could constitute the crime of genocide, crimes against humanity or against persons and property protected in the event of armed conflict, when the procedure is directed against a Spaniard or against a foreign citizen who habitually resides in Spain, or against a foreigner who is in Spain and whose extradition has been denied by the Spanish authorities.

The Attorney General recalls the proceedings underway at the ICJ and the ICC regarding possible international crimes committed by Israel in Gaza and emphasizes that Spain is not only a party to both but, in the specific case of the one brought by South Africa at the ICJ, our country "decided to formally intervene on June 28, 2024, exercising its right as a State Party to the Convention on the Prevention and Punishment of Genocide," and supported the precautionary measures imposed.

It also refers to the report published last Tuesday by a United Nations commission that describes what happened in Gaza as genocide, urges Israel to stop it, and calls on UN members to help prevent it by any means possible, including "cooperating with the investigation by the ICC Prosecutor."

García Ortiz also emphasizes that, apart from the aforementioned provision of the LOPJ, the Constitution itself, in its article 96.1, declares that "international treaties, 'once officially published in Spain, shall form part of the internal legal system' and that 'their provisions may only be repealed, modified or suspended in the manner provided for in the treaties themselves or in accordance with the general rules of international law.'"

It also points to Article 10.2 of the Constitution, according to which "the rules relating to fundamental rights and freedoms shall be interpreted in accordance with the Universal Declaration of Human Rights and the international treaties and agreements on the same matters ratified by Spain."

However, the Attorney General maintains that "our country has assumed the obligation to provide due cooperation and channel the necessary assistance from the competent bodies to investigate the conduct taking place, which legitimizes the opening of investigative proceedings within the framework of the powers of the Public Prosecutor's Office to make the principle of international cooperation real and effective, in accordance with an integrative interpretation of international norms and constitutional principles."

García Ortiz argues that, "in the current context, cooperation between states is necessary to meet the demands for justice and security of individuals and society, as well as to effectively combat impunity."

For this reason, he argues, "States have established legal mechanisms that allow for extraterritorial cooperation in the investigation of serious international crimes, while safeguarding the sovereignty of each State, allowing for the collection of evidence for subsequent prosecution of the facts by the appropriate jurisdiction."

On this point, he maintains that, "given the current situation in the Palestinian territories, any evidence, direct or indirect, that can be collected in our country must be incorporated into a procedural framework that allows for its subsequent use."

"And this has a double meaning: as a catalyst for international cooperation and for preserving the body of evidence that can be collected so that it can be used appropriately in the future as evidence against the crimes committed," he explains.

García Ortiz believes that "the creation of a working team comprised of the specialist prosecutors involved" will allow "the operational capabilities of the National Court Prosecutor's Office to be combined with the expertise in International Human Rights Law and International Humanitarian Law of the specialized unit" headed by Delgado "in the processing of the investigations initiated in connection with these events."