A Spanish judge decided on Monday to go ahead with a probe into alleged crimes against humanity by top Israeli military figures over an air force bombing in Gaza in 2002 that killed 15 people.
Last month public prosecutors advised National Court judge Fernando Andreu to shelve the case on the grounds that the attack, which killed a suspected leader of the Islamist movement Hamas, Salah Shehadeh, had been under investigation by Israel.
But Andreu denied that such an investigation had been carried out and even if it were, the Spanish judiciary could simultaneously probe the charges since they could be classified as war crimes.
"No criminal investigation which could lead to the possibility of a conflict of jurisdictions has up until now arisen," he wrote in his ruling.
Public prosecutors and military prosecutors in Israel had decided not to open a criminal inquiry while the Israeli Supreme Court had not considered a complaint over the air raid, he said.
Andreu agreed in January to consider the complaint lodged by the Palestinian Centre for Human Rights against former Israeli defence minister Benjamin Ben-Eliezer and six senior military officials, sparking strong objections from Israel.
Israeli Defence Minister Ehud Barak rejected the complaint as "delirious" while the then Israeli foreign minister Tzipi Livni said Spain was being "cynically manipulated" by "politically motivated bodies" that "only want to criticise Israel".
Spain has since 2005 assumed the principle of universal jurisdiction in alleged cases of crimes against humanity, genocide, and terrorism.
This has served as the grounds for investigations by the National Court into alleged human rights abuses in other countries, from Argentina to Tibet.
In addition to Ben-Eliezer, the complaint names the then army chief of staff, General Moshe Yaalon, as well as the then head of the Israeli air force, General Dan Halutz.
It also names General Doron Almog, national security council head Giora Eiland, Michael Herzog, a defence ministry official, and Avi Dichter, director of the Shin Beth intelligence agency.
The majority of the 14 civilians who were killed in the air raid which dropped a one tonne bomb on Gaza were children while some 150 Palestinians were injured, according to the complaint.
Andreu's decision to consider the complaint came just days after Israel's recent offensive against Hamas in Gaza, which according to Gaza medics killed more than 1,300 Palestinians, nearly a third of them children, and injured 5,300 others.
Thirteen Israelis were killed during the 22-day military offensive, which was launched at the end of last year with the declared aim of stopping rocket attacks on southern Israel by Palestinian militants.
