War crimes in Gaza: Palestinian lawyers take on Israel

Juliane von Mittelstaedt | Der Spiegel

5 June 2009

Four months after the war in Gaza, Palestinian lawyers have prepared 936 lawsuits against the Israeli military over alleged war crimes. Some of the cases could soon be tried at Spain’s National Court under universal jurisdiction.

When Iyad al-Alami wants to survey the fallout of the Gaza war, he simply has to step out of his office and walk up the stairs to the top floor of the building where he works. There, piles of shrapnel, twisted missile shells and massive armor-piercing shells are stored. New material is added every day, filling the boxes that cover the floor and are stacked along the walls. For Al-Alami, the debris is evidence of Israeli army war crimes. He hopes the weapons can be used again — but this time in a courtroom.

Al-Alami is the man behind efforts to assemble the biggest ever wave of lawsuits against Israel. He heads the legal department of the Palestinian Centre for Human Rights (PCHR) in Gaza City. From his windowless office, the taciturn lawyer is trying to convince courts around the world to take up his cause. Al-Alami is 45 years old, and he bears a slight resemblance to former Egyptian President Gamal Abdel
Nasser, whose image is hanging on Al-Alami’s wall. Although he is by no means a propagandist, Al-Alami refers to “Israeli war crimes” as if he were discussing a self-evident fact. But he sees himself as neutral, or at least as neutral as a Palestinian in the Gaza Strip can be. He has defended Hamas members in Fatah prisons and Fatah members in Hamas prisons. He has represented hundreds, perhaps even thousands, against the Israeli army since he co-founded the PCHR 14 years ago. In the best outcomes, Israel paid compensation for victims or convicted its soldiers of theft. But the center’s victories have all been minor. “We live in a system of impunity,” says Al-Alami.

The 4,747 Palestinian deaths which, according to the Israel human rights organization B’Tselem, resulted during the second intifada — the Palestinian uprising that began in September 2000 — led to 30 criminal charges against Israeli soldiers, five convictions and only one longer jail term. According to the PCHR, 1,417 people died in Israel’s most recent war against Hamas in the Gaza Strip, and many of the dead were civilians. This must not happen again, says Al-Alami. His dream is to see an international tribunal for Gaza, equipped with his files and evidence. And it seems as if his vision could soon come true, at least in part.

Dozens of attorneys around the world — in Norway, Britain, New Zealand, Spain and the Netherlands — are working on the Gaza lawsuits. In a globalized world, justice is also global: The basis for the initiative is the principle of universal jurisdiction in international law, which makes it possible to file suits worldwide for war crimes, genocide, torture and crimes against humanity.

In Norway, six attorneys have filed a lawsuit for human rights violations against Israel. They are seeking a European warrant for the arrest of senior Israel officials — including former Prime Minister Ehud Olmert.

In London, Daniel Machover and Kate Maynard, attorneys with the law firm of Hickman & Rose Solicitors, are waiting for one of the people responsible for the war on the Israeli side to travel abroad. If the official travels to a country where it is legally possible to file charges for war crimes, a local attorney will immediately petition in that country for the arrest of the Israeli official in question.

Four years ago, the two lawyers secured a warrant for the arrest of Doron Almog who, as head of the Israel Defense Forces’ Southern Command, ordered so-called targeted killings. Almog, after receiving advance warning, escaped arrest at London’s Heathrow Airport by refusing to leave his plane and flying back to Israel. Since then, senior Israeli military officials, and even some politicians, are no
longer willing to risk travel to Britain.

Al-Alami is currently pinning his hopes on Spain’s National Court in Madrid, which has become something of an unofficial world court. The National Court issued the arrest warrant against former Chilean dictator Augusto Pinochet, and it is now investigating allegations of detainee torture at Guantanamo. One of the court’s judges is investigating three Chinese cabinet ministers and other high-ranking
Communist Party officials for their role in suppressing the Tibetan uprising in 2008.

And now the court is also investigating charges against the leadership of Israel, a democratic country and the only party to the war that can be sued. Meanwhile, Hamas remains unpunished for its acts of terror.

The basis for the Spanish court’s actions is a lawsuit filed in January against seven high-ranking Israeli military officials and politicians for the targeted killing of Hamas militia leader Sheik Salah Shehadeh in 2008, an attack that also claimed the lives of 14 civilians. The case could be suspended, but to prevent this from happening, Spanish attorney Gonzalo Boyé plans to expand the suit to include a total of 13 cases compiled by the PCHR. The cases, which involve disappearances, torture and killings, go back to 1983, although most are from January 2009. Boyé’s goal is to demonstrate that Israel systematically committed crimes, which is why the victims of the Gaza campaign are the focus of the lawsuit. “One case is a war
crime,” says Boyé, “but 10 cases? That’s something else.” The new charges involve crimes against humanity. And if it becomes necessary, perhaps because the Spanish government, under pressure from abroad, is currently trying to limit the universal
claims of its courts, Boyé is prepared to introduce a victim with ties to Spain: a Palestinian with relatives in Barcelona.

So far Israel has refused to cooperate with any systematic investigations. It rejects the International Criminal Court (ICC) and is not cooperating with Richard Goldstone, the head of a United Nations Human Rights Council fact-finding mission to Gaza. There have also been no criminal investigations into charges, brought by the Red Cross and human rights organizations, that the wounded could not be evacuated during the Gaza war, ambulances were shot at and civilians and refugees were attacked.

The only Israeli investigation to date addressed reports by soldiers claiming to have witnessed indiscriminate shootings of Palestinian civilians. After spending 11 days investigating the allegations, a commission concluded that the alleged killings were nothing but rumors.

The Israeli army has now completed an internal review of the Gaza war, and has concluded that its soldiers made mistakes in only a “very small number of incidents.” These incidents “were unavoidable” and of the sort that “occur in all combat situations.”

Systematic war crimes, of the kind which Al-Alami accuses the Israelis of carrying out, are not easy to prove. The attorneys must demonstrate that the Israel military attacked civilians without reason, perhaps even deliberately. They must prove that these attacks were not part of the conduct of war against Hamas fighters, and that they were not simply cases of technical or human error, but the senseless taking of
human life. But who is to decide whether such killings were accidental or intentional and if they show carelessness or cruelty?

On the other hand, no war has ever been as well-documented as the Gaza conflict, despite the Israeli ban on journalists. The Gaza Strip is small, witnesses are unable to leave, and evidence is preserved. Keeping this in mind, Iyad al-Alami and his team of eight attorneys, helped by dozens of volunteers, began questioning witnesses during the bombings. They collected shrapnel, took photographs, made videos and recorded the damage, often risking their lives to do so. “We had to
collect evidence as quickly as possible before it was gone, before witnesses disappeared, victims died and the dead were buried,” says al- Alami.

In this way, they reconstructed the war, day-by-day and bomb-by-bomb. They compared the statements of eyewitnesses with the course of the war and with media reports. International weapons experts prepared analyses, and Palestinian doctors certified causes of death. The team even went to cemeteries to determine whether the graves matched the dead. “We have to be sure that everything is right,” says al-Alami.

The PCHR has recorded 936 cases, which represents the most comprehensive documentation of this war. They include alleged incidents of children shot at close range, women burned by white phosphorus shells and entire families buried under their houses.

“Winning a case, just one, would be enough,” says al-Alami. “Then I would retire immediately, because I would have achieved everything.” Just one out of 936 cases. Al-Alami needs the perfect case.

The perfect case would have certain characteristics. The dead must be civilians. Credible witnesses are needed. Hamas fighters must not have been in the area, as they might have abused local residents as human shields. And the identities of those who gave the orders and those who did the killing must be clear.

Al-Alami refers again and again to the 13 blue ring binders stacked on his desk. Each binder represents one of 13 cases, and together the cases represent more than 100 dead. They are the worst cases, the cases for global justice, and Spanish attorney Gonzalo Boyé will use some as evidence to support his case of crimes against humanity. There is one ring binder for the 48 members of the Samuni family killed in the Gaza offensive, and another for the six members of the Abu Halima
family burned by white phosphorus shells. There is one for the 11 members of the family of Hamas leader Nizar Rayan, whose house was destroyed by an Israeli air strike. There is one folder for those killed at the Arafat police academy. And there is one for the family of Amer al-Dayah.

Amer al-Dayah, 28, is the only member of a family of 23 who survived the bombardment of his parents’ house. The dead included his parents, three brothers, three sisters-in-law, two sisters and 12 nieces and nephews. Al-Alami shows some of the photos in the files. One depicts a child’s head in the rubble, eyes wide open, limbs severed. There was nothing left of nine of the victims, and al-Dayah found parts of his
mother’s body as far as 100 meters (328 feet) away. “My family was simply gone,” says al-Dayah, a stout man with a boyish face.

The fate of his family is one of the first cases Gonzalo Boyé plans to submit in Madrid. Al-Dayah, the sole survivor, is pinning his hopes on the European court. He also knows that it could be years — if ever — before a verdict is pronounced.

In its final report, the Israel army commented on the death of al-Dayah’s family. The pilot, the report reads, had erroneously received incorrect coordinates. Instead of the intended target, a warehouse, the bomb hit the al-Dayahs. In other words, it was a “professional mistake,” nothing more.

Translated from the German by Christopher Sultan