Ref: 84/2009
Date: 30 June 2009
Time: 16:31 GMT
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.
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.
