PCHR will Appeal to Supreme Court
against Spanish Appeals Court’s Decision
Today the Spanish Appeals Court voted 14-4 in favor of
closing the Spanish Audencia Nacional’s (National Court) investigation into
the Al-Daraj attack of July 2002.
As it stands, the resolution has been voted on but not
issued; precise details are unavailable at this time. It is expected that
the resolution will be released in one to two weeks. PCHR, Gonzalo Boye,
Antonio Segura, Spanish legal counterparts and Hickman and Rose (London)
intend to appeal the decision before the Supreme Court.
In their decision the Court upheld the argument of the
Spanish Prosecutor, which argued that Israel and not Spain should
investigate the incident. This decision overturns the previous decision of 4
May 2009, when Judge Andreu of the Spanish Audencia Nacional announced the
Court’s decision to continue the investigation into events surrounding the
Al Daraj attack. The Court had explicitly rejected the arguments of the
Spanish Prosecutor and the State of Israel, claiming that Israel had
adequately investigated the crime. The Judge had confirmed this position to
be incorrect, and contrary to the rule of law.
The case was filed before the Spanish court on 24 June 2008 by a legal team
consisting of Gonzalo Boye, Antonio Segura, their Spanish associates, the
Palestinian Centre for Human Rights, and Hickman & Rose (London). It relates
to the Al Daraj attack in June 2002, wherein Israeli occupation forces (IOF)
killed 14 civilians, injured approximately 150 and cause extensive
destruction and damage to civilian property.
This decision represents a major setback in the pursuit of
international justice and victims’ rights. The victims and their legal team
have placed their trust in the criminal justice system, believing it to be
the only mechanism whereby accountability can be pursued, and impunity
combated. To date, neither the State of Israel nor individuals accused of
committing war crimes have been brought before a court and prosecuted in
accordance with international legal standards.
International law codifies explicit protections for
individuals and civilian populations. However, in order for the law to be
relevant it must be enforced. As long as States and individuals are
permitted to violate international law, to commit war crimes and crimes
against humanity with impunity, they will continue to do so; civilians – the
protected
persons of international humanitarian law – will continue to
suffer the horrific consequences
The decision of the Spanish Appeals Court, has been reached
in the context of intense political pressure. Spanish Foreign Minister
Moratinos has repeatedly condemned the investigation, and sought to reassure
his Israeli counterparts. Additionally, the Spanish Prosecutors have
consistently adopted the argumentation proffered by the State of Israel.
Political pressure cannot be allowed to interfere in the work of an
independent judiciary. The separation of powers is essential in order to
ensure that a situation may not arise whereby international law is cast
aside in the interests of States, whereby political concerns and
self-interest are placed above individual’s legitimate rights. International
human rights law is designed to protect the individual from the abuse of
State power. Justice must remain distinct from politics.
PCHR wish to highlight the source of this political pressure. It emanates
from those States who are accused of violating international law. It
emanates from those States who attempt to shield alleged war criminals from
justice. It emanates from those States who disregard the fundamental
principles of humanity and human rights, and who seek to act above the rule
of law.
The legal team will redouble its efforts in the pursuit of
justice and the protection of victims’ rights. Early next week the case will
be expanded to include four new cases, Bus 300, the destruction of Gaza
airport, and two cases resulting from the recent Israeli offensive on the
Gaza Strip, Al Dayah and a flechette case
Those accused of war crimes and crimes against humanity must
be investigated and prosecuted in accordance with international law.
Victims’ legitimate rights must be upheld. The fight for accountability will
be continued.
An expert report prepared by Adalah is available on
PCHR’s
website,This
report details Israel’s complete failure to live up to its international
obligations, and adequately investigate the alleged attack.
Background information relating to the Al Daraj attack
On 22 July 2002, at approximately 11:55 pm, an Israeli Air
Force F16 fighter jet dropped a 985 kilogramme bomb on a three-storey
apartment building. The attack was intended to kill Salah Shehade, the
suspected leader of the Izzidin al-Qassam Brigade, Hamas’ military wing. The
apartment building was located within the densely populated Al Daraj
district, a residential neighbourhood in Gaza City. At the time of the
attack, Shehade was on the upper floor of the building. As a result of the
blast impact, eight other adjoining and nearby apartment buildings were
completely destroyed, nine were partially destroyed, and another 21
sustained considerable damage. Excluding Shehade and his guard, a total of
14 civilians were killed, including eight children. Approximately 150
civilians were injured.
Israeli Occupation Force (IOF) officials have acknowledged
that they decided to drop the bomb on Shehadeh’s house knowing his wife was
with him, intentionally killing her as well. The decision to attack
apparently also took into consideration the possibility that, along with
Shehadeh, approximately 10 civilians would also be killed.
This attack was planned in advance, targeted a densely
populated residential area, and was conducted at a time when it could
reasonably be expected that there would be an extremely high number of
civilians present. This attack constitutes a grave breach of the Geneva
Conventions of 1949, and as part of wide spread and systematic war crimes,
it also classifies as a crime against humanity.
