Spanish judiciary asserts its competence for enquiry into war crimes committed in Gaza in 2002 - The prosecutor did not appeal the decision

The International Federation for Human Rights (FIDH), the Associación pro Derechos Humanos de España (APDHE) and the Palestinian Center for Human Rights (PCHR) welcome the decision taken on January 29, 2009 by the Central Investigative Judge N°4 of the Spanish National Court, which receives a complaint concerning crimes committed in Gaza in 2002 and hope that the Israeli authorities will fully cooperate with this investigation. The prosecutor did not appeal ; this decision thus marks the launch of a judicial enquiry into war crimes committed in Gaza in 2002. This 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 Beth.

The facts are related to the events of July 22, 2002, when a one ton bomb aimed at a Hamas official was dropped by an Israeli army F-16 in the Al-Daraj district of Gaza City, killing 14 Palestinian civilians as well as the Hamas leader. Some 150 Palestinians were also wounded.

In January 2006 the Israeli Supreme Court stated that the bombing was proportionate to the military objective, which was to assassinate the targeted Hamas leader.

On June 24, 2008, six surviving victims of the bombing filed a complaint in Spain, with the support of PCHR, on the basis of universal jurisdiction, in order for the crimes to be investigated and the criminal personal responsibilities of the presumed authors of the crimes be established.

"This decision marks an important step in the struggle against impunity for the crimes committed by the Israeli army in the Gaza strip," declared Souhayr Belhassen, President of the FIDH.

According to the Spanish legislation, the rules under which universal jurisdiction can be exercised in Spain do not require persons indicted to be present in the country, but, according to the principle of subsidiarity, this enquiry may take place as long as these crimes are not investigated upon in Israël, in conformity with the rules of due process. It was therefore only after having established that the Israeli authorities were not willing to investigate and bring to trial the persons presumed responsible for the death of the Palestinian civilian victims that the Spanish judge asserted his competence. In its decision the Central investigative judge N°4 of the Spanish National Court also issued an international Letter Rogatory and requested that the Israeli and Palestinian authorities cooperate with the enquiry.

The Spanish National Court has retained the status of war crime, but has not disregarded the possibility of extending this to crimes against humanity, should the enquiry establish the nature of such qualification.

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