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 2002.

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.