Volume 35, April 2007
Human Rights Organizations Petition Supreme Court: Order Criminal Investigations against Israeli Military Commanders and Government Officials Responsible for Killings and Extensive Home Demolitions in Rafah Gaza in 2004
On 15 April 2007, Adalah together with the Palestinian Center for Human Rights (Gaza) and Al-Haq (West Bank) filed a petition to the Supreme Court of Israel demanding the opening of criminal investigations into the killing of civilians and extensive home demolitions which resulted from two military operations in Gaza – “Operation Rainbow” (18-24 May 2004) and “Operation Days of Penitence” (30 September-15 October 2004). The named respondents in the petition are: Attorney General Menachem Mazuz; Military Advocate General Avihai Mandelblit; Shmuel Zakai, Commander of the Israeli Military in the Gaza Strip at the time of the operations; then Head of the Southern Command Dan Harel; then Chief of Staff Moshe Yaalon; then Minister of Defense Shaul Mofaz; the Israeli army; and the Government of Israel, which was headed by Ariel Sharon at the time. The petition was filed by Adalah Attorney Marwan Dalal.
The military operation, code-named “Operation Rainbow,” led to many civilian killings, including at least 17 children, and to the demolition of 167 homes, inhabited by 379 families, comprised of 2,066 individuals in densely-populated areas of Rafah, in the south of Gaza. The main purpose declared by the Israeli military and government for “Operation Rainbow” was to locate weapons-smuggling tunnels via the Philadelphi Route, which separates Rafah from Egyptian territory.
During “Operation Days of Penitence,” executed in areas of northern Gaza, primarily Beit Hanoun, Beit Lahia and the Jabalia refugee camp, many civilians were killed, including at least 27 children. In addition, 91 homes were demolished, inhabited by 143 families, comprised of 675 individuals, and serious damage was cased to an additional 101 homes, inhabited by 833 individuals. The declared purpose of “Operation Days of Penitence” was to stop the launching of Qassam rockets from northern Gaza into Israel.
The petition spans 135 pages and includes 89 appendices. It contains extensive domestic and international documentation, which clearly shows that the conduct of the Israeli military and the intentions behind the two military operations constitute criminal behavior mainly illegal reprisals and cleansing areas of civilian buildings. Among them are statements given by (Reserve) Brigadier General Shmuel Zakai, the direct military commander of both operations, to Israeli journalist Shlomi Eldar, who documented them in his book “Eyeless in Gaza.” In the book, published in 2005, Eldar quotes Zakai regarding “Operation Rainbow”:
The purpose of the operation was not at all to find tunnels. Do you know how this idea came about? On Friday I gathered the units’ commanders for a briefing, and on the way I heard the IDF spokeswoman on the radio saying that the purpose is to locate tunnels. How come tunnels? Is this the way to conduct an operation to find tunnels?
As for “Operation Days of Penitence”, Eldar quotes from his conversation with Zakai:
We launched Operation “Days of Penitence” because demonstrations erupted against the IDF in Sderot. We did not do this operation thinking that we are dealing with the most serious threat to the State of Israel …
‘So many people were involved in producing the Qassams? All the workshops in Gaza produced Qassams?,’ I asked and knew the answer.
Zakai stretched in his seat and burst with laughter. ‘The Hamas produced the Qassams in workshops, but we did not know exactly where they were!!!'"
Articles from the Israeli press, which contain quotations from commanders and soldiers who took part in the two military operations, also reveal that the actual intention was to exact revenge and to clear certain areas by razing civilian buildings. The international documentation includes reports written by the UN Relief and Works Agency (UNRWA), the UN Office for the Coordination of Humanitarian Affairs (OCHA), Prof. John Dugard, the UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied by Israel in 1967, Amnesty International, The International Federation for Human Rights (FIDH), and Human Rights Watch.
Also included in the petition is documentation of the extensive international criticism of the Israeli military and the government voiced shortly before and during the military operations. Among those individuals and organizations who condemned the military action were the UN Secretary General, the UN Security Council, the United States, the European Union, various UN envoys and Special Rapporteurs, the International Committee of the Red Cross (ICRC), and Amnesty International.
Attorney Dalal argued in the petition that the acts committed by Israeli military commanders and officers in both of these operations amount to criminal offenses under Israeli domestic and international law, and that those responsible must be prosecuted and held accountable. In both operations, the Israeli military carried out willful killings and the extensive and wanton destruction of civilian property, which are classified as grave breaches under the article 147 of the Fourth Geneva Convention, and are therefore considered war crimes.
As the petitioners contended, the Israeli military’s actions further constitute violations of international human rights law, specifically of the right to life as guaranteed by Article 3 of the Universal Declaration of Human Rights (UDHR), Article 6 of the International Convention on Civil and Political Rights (ICCPR) and Article 6 of the Convention on the Rights of the Child (CRC); and the right to housing as guaranteed by Article 25 of the UDHR, Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 27 of the CRC.
The petitioners further argued that the military commanders and political leadership bear direct responsibility for ordering the two military operations and supervising the military’s conduct in executing them. In addition, as these individuals knew or should have known of these violations, due to the extensive international criticism voiced and the wide coverage by the local media of the ongoing violations, and because they could have but did not punish any individual responsible for committing them, they therefore also bear responsibility for these criminal offenses under the doctrine of command responsibility. The petitioners also argued that if the perpetrators of these war crimes and grave violations of human rights in the Occupied Palestinian Territory are not brought to justice in Israel, then any state that upholds the principle of universal jurisdiction may prosecute them. In a recent case from September 2005, for example, a British magistrate issued an arrest warrant against Major General Doron Almog upon his arrival at Heathrow airport for alleged crimes committed during his term as Head of the Israeli Military’s Southern Command. Similarly, in November 2006, an arrest warrant was filed against former Israeli Army Chief of Staff Moshe Yaalon in New Zealand for the killings and injury of civilians in Gaza in 2002. Civil lawsuits abroad are also possible, such as the class action case filed in December 2005 against Avi Dichter, the former director of the General Security Service (GSS), who was sued in New York for the death and injury of over 165 people, when the Israeli military dropped a one-ton bomb on al-Daraj, a residential neighborhood in Gaza City.
H.C. 3292/07, Adalah, et al. v. The Attorney General, et al. (case pending)