The investigation is specifically aimed at looking into the ‘al- Daraj’ bombing of July 2002, which caused the deaths of 16 Palestinians, including 9 children and five other civilians.
"This decision confirmed the jurisdiction of the Spanish Courts to try the most heinous crimes. We welcome the strict application of international law, despite all the attempts made by the government of Israel to stop the investigation in Spain At last, victims of crimes allegedly committed by the Isreali army in the Gaza strip may finally hope to see justice be done", declared Souhayr Belhassen, FIDH President .
This decision reversed the appeal lodged by the Prosecutor to suspend the investigation on the basis that Israel was investigating the attack.
On the contrary, Judge Andreu stated that "In Israel, there [have] not been, nor [are] there now under way, any legal proceedings aimed at investigating1" the Gaza bombing. Therefore the Spanish Courts have clearly jurisdiction, on the basis of the universal jurisdiction principle and in accordance with the Geneva Conventions, to investigate such crimes, qualified as war crimes. Spanish provisions on universal jurisdiction holds that grave crimes such as genocide, terrorism, war crimes or torture can be prosecuted in Spain even if committed elsewhere. The judge argued that any investigation into those facts should be undertaken in respect of the independence of the judiciary and the strict separation of the executive and judicial powers, and therefore could not be satisfied with an administrative investigation or an internal investigation by the security forces.
The judge finally concluded that because no criminal investigation had been opened by the Israeli judicial authorities to establish the alleged criminal responsibility, victims "have been obliged to turn to the Spanish Courts in order that a judicial investigation be opened". Significantly, judge Andreu also confirmed that, as the Gaza Strip is occupied territory (i.e. not part of Israel), Spanish criminal law does not accord primary jurisdiction over suspected Israeli war ciminals.
Israelian authorities denounced the decision of Judge Andreu to continue the investigation. Defense Minister Ehud Barak plans to ask the Spanish prime minister, the defence minister and foreign minister to ‘intervene and stop the investigation’.
« It is of utmost importance that the Spanish executive does not interfere with the independence of the judiciary », said Souhayr Belhassen. « Only an impartial investigation into the events of July 2002 will bring to light what truly happened and this decision is a great step forward in the struggle against impunity and for accountability ».
Spain is one of several countries where victims whose cases were not heard by the Israeli judiciary have turned to in the hope for justice. Similar complaints were filed by victims and human rights advocates in the United States, the United Kingdom, in Norway and the Netherlands.
- see also PCHR Press Release : "PCHR welcomes the Spanish National Court’s decision to continue investigating suspected Israeli war criminals"
On 29 January 2009, Judge Andreu, Central Investigative Judge N°4 of the Spanish National Court asserted the jurisdiction of the Spanidh Courts, after he received a complaint filed by Palestinian relatives of the victims and human rights advocates, including the Palestinian Centre for Human Rights, concerning crimes committed in Gaza in 2002. The complaint alleges that the ‘al- Daraj’ bombing of July 2002 by the Israeli Air Force, constituted a grave breach of the Geneva Conventions of 1949 and could also be classified as a crime against humanity, given that it consituted part of a wide spread or systematic commission of crimes. The investigation targets seven Israeli officials, including Benjamin Ben-Eliezer, former Defense Minister and currently Infrastructure Minister, Dan Halutz, Commander of the Israeli Air Force when the crimes were committed,Doron Almog, former Commander of the Israeli Defence Forces in Gaza, Giora Eiland, President of the Israeli National Security Council, Michael Herzog, military secretary at the Ministry of Defence, Moshe Yaalon, Commander-in-chief of the armed forces and Abraham Dichter, former Director of the Shin Bet.