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