A Spanish judge has instituted a judicial inquiry against seven Israeli political and military personalities on suspicion of war crimes and crimes against humanity. The case: The 2002 dropping of a one-ton bomb on the home of Hamas leader Salah Shehade. Apart from the intended victim, 14 people, most of them children, were killed.

I should be happy that at long last somebody is ready to put that action to a judicial test (even if he seems to have been thwarted by political pressure.) But I am sorry that this has happened in Spain, not in Israel.

Israeli TV viewers have lately been exposed to a bizarre sight: Army officers appearing with their faces hidden, as usual for criminals when the court prohibits their identification.

On the orders of the military censors, this applies to all officers, from battalion commanders down, who have been involved in the Gaza war. Since the faces of brigade commanders and above are generally known, the order does not apply to them.

Immediately after the cease-fire, Defense Minister Ehud Barak, promoted a special law that would give unlimited backing by the state to all officers and soldiers who took part in the Gaza war and who might be accused abroad of war crimes.

I don’t object to trials abroad. But I would prefer suspected Israeli war criminals to be put on trial in Israel. That is necessary for the country, for all decent officers and soldiers of the Israeli Army, for the education of future generations of citizens and soldiers.

There is no need to rely on international law alone. There are Israeli laws against war crimes. There is not the slightest doubt that in the Gaza war, crimes were committed. The question is to what extent and by whom.

Example: The soldiers call on the residents of a house to leave it. A woman and her four children come out, waving white handkerchiefs. A soldier in a near-by tank stands up, points his rifle and shoots them dead at short range. According to testimonies, this happened more than once. Another example: The shelling of the United Nations school full of refugees, from which there was no shooting — as admitted by the army, after the original pretexts were disproved.

These are “simple” cases. But the spectrum of cases is far wider. A serious judicial investigation has to start right from the top: The politicians and senior officers who decided on the war and confirmed its plans must be investigated about their decisions. In Nuremberg it was laid down that the starting of a war of aggression is a crime.

An objective investigation has to find out whether the decision to start the war was justified, or if there existed another way of stopping the launching of rockets against Israeli territory. Without doubt, no country can or should tolerate the bombing of its towns and villages from beyond the border. But could this be prevented by talking with the Gaza authorities? Was our government’s decision to boycott Hamas, the winner of the democratic Palestinian elections, the real cause of this war? Did the imposition of the blockade on a million and a half Gaza Strip inhabitants contribute to the launching of the Qassams?

The war plan included a massive attack on the civilian population of the Strip. Some 1,300 men, women and children were killed; about 5,000 people were injured, most of them children; some 2,500 homes were partly or wholly destroyed; the infrastructure of life was totally demolished — all this must have been a part of the war plan.

The things said during the war by politicians and officers make it clear that the plan had at least two aims, which might be considered war crimes: (1) To cause widespread killing and destruction, in order to get the population to rise up against Hamas and overthrow their government. (2) To avoid casualties to our army at (literally) any price. In certain cases, inhabitants were warned that they must flee, but there was nowhere to flee to, and often fire was opened on people trying to escape.

An independent court will have to decide whether such a war-plan is in accordance with national and international law, or whether it was ab initio a crime against humanity and a war crime.

This was a war of a regular army with huge capabilities against a guerrilla force. In such a war, too, not everything is permissible. Arguments like “The Hamas terrorists were hiding within the civilian population” may be effective as propaganda but are irrelevant. That is true for every guerrilla war. It must be taken into account when a decision to start such a war is being considered.

In a democratic state, the military takes its orders from the political establishment. Good. But that does not include “manifestly” illegal orders, over which the black flag of illegality is waving. Since the Nuremberg trials, there is no more room for the excuse that “I was only obeying orders”. Therefore, the personal responsibility of all involved — from the chief of staff, the front commander and the division commander right down to the last soldier — must be examined. From the statements of soldiers one must deduce that many believed that their job was “to kill as many Arabs as possible”.

Among those suspected of war crimes, the rabbis have a place of honor. Those who incite war crimes and call upon soldiers, directly or indirectly, to commit war crimes may be guilty of a war crime themselves.

The most outstanding example is the “Chief Army Rabbi”, Col. Avichai Ronsky. He and other rabbis openly called upon the soldiers to be cruel and merciless toward the Arabs.

We must pursue all the legal processes in Israel and call for an independent investigation and the indictment of suspected perpetrators. We must demand this even if the chances of it happening are slim indeed. If these efforts fail, nobody will be able to object to trials abroad, either in an international court or in the courts of those nations that respect human rights and international law.

Until then, the black flag will still be waving.