Translation of Appeal to Spanish Supreme Court
On 21 September 2009, an appeal to the Supreme Court of Spain was filed following
the 30 June 2009 decision of the Appeals Court of the Spanish Audencia Nacional
National Court) to close the
investigation into Israel’s attack on
Al-Daraj in July 2002.
The Appeal focuses on a number of grounds, principally:
Breach of the fundamental right to legal process, by virtue of procedural flaws
in previous appeal;
A violation of the right to court protection, inter alia, on the basis of
Israel’s unwillingness to effectively
investigate the Al-Daraj attack;
Background to the Case
The case was originally filed by Boye-Abogado solicitors, PCHR, and Hickman & Rose (UK) on June 24 2008. Under
article 26 of the Organic Law 6/1985, as
mended by Organic Law 11/1999, article 23.4 (a) and (g) Spain has an obligation
to nvestigate alleged war criminals. The lawsuit was taken on behalf of six
survivors and relatives of the Al-Daraj assassination.
On January 29 2009, the Central Investigative Judge No. 4 of the Audiencia Nacional
ruled that the Israeli authorities were not willing to investigate and bring to trial the persons
presumed responsible for the Al-Daraj assassination; Spanish competence as accordingly asserted over the case. This
decision marked the launch of a judicial enquiry into the events of July 22
The January 29 decision was appealed by the Spanish Prosecutor and the State of
Israel. However, on 4 May, 2009, Judge Fernando Andreu of the Audencia Nacional,
announced his decision to continue the investigation. The Spanish court explicitly rejected the
arguments of the State Prosecutor and the State of Israel, which claimed that
Israel had adequately investigated the crime. The judge confirmed that this
claim was incorrect, and contrary to the
rule of law. Judge Andreu noted that, "the judicial authorities of Israel have
not initiated any criminal proceedings with the objective of determining if the
events denounced could entail some criminal liability."
Israel appealed the decision of the Audencia Nacional, and on 30 June 2009 the
Appeals Court voted 14-4 in favour of closing the investigation.
Background to the 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 partment
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.
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