Ref: 29/2010

On 13 April
2010, the Spanish Supreme Court upheld the previous decision of the Audencia Nacional (National Court, 30
June 2009), which closed the investigation into the Al Daraj attack of July 2002, in which 14 civilians were killed.

The
Palestinian Centre for Human Rights (PCHR), Gonzalo Boye, Antonio Segura, Spanish
counterparts, and Hickman & Rose (London), acting on behalf of victims of
the attack, are submitting an appeal to the Spanish Constitutional Court; the
highest national court. 

The original
judgment was based on two principal conclusions:

             i)   that there is an ongoing investigation into the case in
Israel;

ii)   that
there are several civil cases pending in Israel, indicating that the case is
being dealt with under Israeli jurisdiction.

PCHR strongly
reject these conclusions. The Al-Daraj attack occurred on 22 July 2002. Since
then no effective investigations have occurred, and the Israeli High Court of
Justice has endorsed the State’s extrajudicial execution policy.

It is
apparent that Israel is genuinely unwilling to investigate this crime; rather,
the State’s actions have shown a desire to protect alleged war criminals from
justice. PCHR have documented the failings of the Israeli investigative and
judicial system in a recent report (Genuinely
Unwilling, available here), while Adalah have prepared an expert opinion
detailing the ‘investigations’ conducted to-date in Israel with respect to the
Al Daraj attack .

PCHR remind
that ‘justice delayed is justice denied’ and highlight the judgment of the
Inter-American Court of Human Rights in Del
Caracazo which stated that investigations which persist for a long period of
time without those responsible being identified constitute “a situation of
serious impunity and […] a breach of a State’s duty.”

The decision
of the Spanish Supreme Court 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 appropriate
mechanism whereby accountability and impunity can be combated.

Currently,
universal jurisdiction is the only legal mechanism available to Palestinian
victims of Israeli war crimes. It is the only mechanism capable of ensuring
victims’ legitimate rights to the equal protection of the law and an effective
judicial remedy.

It is a
self-evident truth that if the law is to be respected, it must be enforced. The
alternative, whereby Palestinians are denied the laws protection, brings the
integrity of international law into question.

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; the legal team involved in this case remain dedicated to the rule
of law, and will continue to pursue accountability for war criminals through
all available legal means.

The legal team also intend to
challenge the legality of Spain’s recent decision to restrict their universal
jurisdiction legislation.

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. 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.

Public Document

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For more information please call PCHR office in Gaza, Gaza Strip, on +972
8 2824776 – 2825893

PCHR, 29 Omer El Mukhtar St., El Remal, PO Box 1328 Gaza,
Gaza Strip. E-mail: [email protected],
Webpage http://www.pchrgaza.org