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Israel’s Al-Daraj Commission Illustrates Long-Standing Institutionalisation of Impunity and Unwillingness to Genuinely Investigate Alleged War Crimes PDF Print E-mail
Tuesday, 01 March 2011 09:30

Ref: 10/2011

 

The Palestinian Centre for Human Rights (PCHR) condemns the findings of the Special Investigatory Commission mandated to analyse the Al-Daraj assassination of 22 July, 2002. The Commission’s approach and analysis, and their recommendation that no criminal procedures be initiated, comprehensively illustrates Israel’s desire to shield all alleged war criminals from justice.

 

PCHR note that it is now over 8 years since the attack, and no effective criminal investigations have been conducted in Israel. Instead, Israeli and military judicial authorities have misused the law in order to provide an illusion of investigative rigour, while comprehensively shielding those accused from justice. PCHR believe that this institutionalisation of impunity forms a core, and longstanding, component of Israeli policy. This claim is further evidenced by the absence of effective and genuine investigations with respect to Israel’s 27 December 2008 – 18 January 2009 offensive on the Gaza Strip.

 

PCHR, who act as representatives of the al-Daraj victims, strongly refute the Commission’s claims and findings. In particular, it is noted that the choice of weapon, and the timing and location of the attack – at night, in one of the most densely populated areas of the Gaza Strip – could reasonably be expected to cause extensive death, injury and destruction of property. Indeed, this is precisely what happened.

 

The Commission’s finding that the consequences of the al-Daraj attack were “unintended, undesired, and unforeseen” defies belief. The Israeli authorities, as the Occupying Power, had detailed knowledge of the area, including the layout of buildings, and the number of inhabitants. The effects of dropping a one tonne bomb in such an area are easily foreseeable.

 

In launching the Al-Daraj attack the Israeli authorities were reckless as to the effects of such an attack. This indiscriminate attack amounted to the direct targeting of civilians and civilian objects;[1] grave breaches of the Geneva Conventions to which individual criminal responsibility applies. Significantly, the Commission implicitly acknowledged this recklessness (while simultaneously ignoring the conclusion of criminal responsibility), finding that “too little weight was given to the possible risk to uninvolved civilians”.[2]

 

PCHR also note that there is no statute of limitations with respect to the commission of war crimes; these crimes are of such seriousness that they must be prosecuted regardless of when they were committed. The Commissions’ finding that “many years have passed” and so criminal prosecutions are not warranted is thus completely incompatible with the demands of international law, and is further evidence of a desire to promote impunity and frustrate the pursuit of justice.

 

The Commission’s report, and the actions of the Israeli authorities, has comprehensively proved that – in the language of the International Criminal Court – Israel is genuinely unwilling and unable to conduct effective investigations into alleged war crimes.

 

PCHR, therefore, note that:

1. this attack is currently the subject of litigation in Spain, where an appeal before the Constitutional Court is pending. In light of the Commission’s failure, the Constitutional Court should reopen Spain’s investigation into those responsible for the al-Daraj attack.

2. the impunity evidenced by this report is symptomatic of longstanding Israeli policy. In order to ensure accountability, and uphold victims’ legitimate rights, it is imperative that recourse be had to mechanisms of international criminal justice. The Security Council, acting under Chapter VII of the UN Charter, must refer the situation in Israel and the occupied Palestinian territory to the International Criminal Court.

 

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 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.[3] Available information also indicates that the Israeli authorities took into consideration the possibility that, along with Shehadeh, approximately 10 civilians would also be killed.[4]

 

Information Relating to the Special Investigatory Commission

 

PCHR note that the Commission is not impartial, and is not a criminal investigatory body, nor was it granted such powers. Significantly, its recommendations have no legal power.

 

On the basis of these institutional and well-documented inadequacies, PCHR refused to cooperate with the Commission, insisting that genuine criminal investigations constitute the only appropriate mechanism with regard to the crimes alleged. This is in keeping with the explicit requirements of international law.

 

 

For more details and information please contact:

Raji Sourani, PCHR Director

Iyad Alami, Head of Legal Unit, PCHR

Tel: + 972 8 2844299 – 2825893

 



[1] See, for example, the finding of the ICTY in this regard. Prosecutor v. Galic, Case No. IT-98-29-T, 5 December 2003, §57.

[3] Matar v. Dichter, 05 Civ 10270 (WHP), 7 December 2005, §41. Available at: http://ccrjustice.org/files/Complaint.pdf

[4] Matar v. Dichter, 05 Civ 10270 (WHP), 7 December 2005, §42. Available at: http://ccrjustice.org/files/Complaint.pdf



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