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  • Prosecuting Israeli War Criminals

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    why the israeli political and military must be prosecuted. Pourquoi politiciens et militaires israéliens doivent être poursuivis pour crimes contre l'humanité.

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    why the israeli political and military must be prosecuted. Pourquoi politiciens et militaires israéliens doivent être poursuivis pour crimes contre l'humanité.

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    26 Ansichten20 Seiten

    Prosecuting Israeli War Criminals

    Hochgeladen von

    moa bara
    why the israeli political and military must be prosecuted. Pourquoi politiciens et militaires israéliens doivent être poursuivis pour crimes contre l'humanité.

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    Attribution Non-Commercial (BY-NC)
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    PROSECUTING ALLEGED ISRAELI WAR ‘CRIMINALS IN ENGLAND AND WALES Daniel Machover and Kote Maynard” The eriminal justice system in England & Wales faced with llegatons ‘made by Palestinians of Isracti mar crimes coniary. to the Gener Conventions et 1957 and whil in some cases aso involve allegations of {ortare contary ta 8134 Criminal Justice Aet 1948) ~ hove wll i cape with ‘is challenge? INTRODUCTION AND BACKGROUND TO ISSUES J 2005, the authors! worked with twyer fom the Palestina Cente for ‘ure Rights (CHR), on behalf of mua chiens, on fle of evidence for sein England and Wales relating to alleged “grave breaches" ofthe Furth Geneva Convention 1949,” including torture (which is also an inerational crime regardless of the existence of military accupstion)* Evidence files “Die! Machover isa parte Kate Mayda sistant sco a eka and Rose Saletan Landen "The sathory Daniel Machover and Kate Mayan are eemely afl to Sony Shah, forme »paaeal al Hickan snd Rose Sls snd Corea an LUNE soent at London Univer, for be siniese onrnton an each werk. Any {on or omisions ae couse esl sponsible alr =PCHR sun independer Pesan hue ight ongnsntion based in Gea City ‘The Cente enjoys Consave Sans wi ft ECOSOE othe United Nation te ofthe Tnewatonl Comsrsion of ste-Genvay the Trai! eration for Hunan Righs (FIDE) ~ Pais, and the Erode Haan Rigs Netw» Capeges, Arab Organization fr Hhinan Rigs Cai. Iss ‘ein! of the 1996 French Republic Award an Haman Rigs alts 2002 Bryno Krcy Award for Oustadiag Achievements inthe Arce of Huma Rights Mane ‘permit abot PCI ca be fund os Hs webste : we peng or *Convation {V) reave tothe Protection of Cian Parone in Tine of Wt. (Geneva 12 Anus 1598, Vol 7S UNTS 287 (TVG), *tsae! signed the UN Convenon agin Terre snd Othe Crh inhuman oe Degraing Treatment or Punts 184, GA, Rex 3846 30 UN GAGR Supp No. 451) UN Doe. A/9/S1 (19B, entered eo force in I9H7, Val 1868 UNTS 85 (UNCAT) on 22 Oxaber 1986 sd rated 0 3 Oetber 199). The Convestion ‘ater in fein Isael on? Nove 1991. Arte (2) of UNCAT reqs ne "ptf tke measures shah univers jurdiston ovr pron spel ot ‘ort unless erates th suspect The UK rated UNCAT tn 8 December 1938 ta tok eet on 7 Jasuery B89, Sextin 124 of the Criminal Justice Act 1588 relating to Gzza cases were hunded over to the anitoroist and war eres ‘hit ofthe Metroplitsn police on 26 Agus: 200." "Natunlly, in soch esos, lawyers in England and Walks are reliant to a geal extent on the colletion of evidence by layers and other human righ ‘etendes in the Oscupied Palestinian Ternary (OPT), The cases discussed here therefore have thei origins in work eared out by many such peopl, primatly PCHR, led by Raji Sourai,” and by a variety of other Lawyers, NGOs, ‘seademics and researchers working, in the OPT. Without tht professional, dediated and often dangerous work, i would simpy not have toon poss to crodibly purse cases in England and Wale, ‘Grave breaches are ctiminalised in England and Wales under the Geneva Conventions Act 1957 (ihe 1957 Act The 1957 Act wes introduced in oder ‘0 comply with this county” teary obligaons fo provide domestic laws to cmuble “universal jurisdiction” 10 be exercised over the grave breaches Specified inthe fair Geneva Conventions of 1949. The alleged victims only ought remedies in England and Wales Because they were denisd any remedy "hough the sree system, (o) The allegations Before considering in detail the legal issues mentioned above it will be helpful ost out moze dso the type of eases under review and ow they have been dealt wih so far in England and Wales. The following eases, which all identity Major General (eserve) Doron Almog" a a supe, demonstrate very well the allegations made by Palestinians under aupation ‘aks ito rinil fence ora pubic person ing i a oil cpa {o committe or el, inka o dgrting ene! or poise, ner [is patna and wherevr inthe world be commis the often nthe absence ofa natna oie force, he Neropotian Plice Service (MPS). 5 ‘he rast police abet ibe cou, has early proved nome” For ‘otonalinemational police operations. Inthe cary 1980s Tie MPS esablshed 9 entalyRsded War Cres Uno ives eases under the War Cres Ac 191, ‘ozatingalegntions dating bck to Wosd War IL That Unit was band is 199, bats “ddisted seen f the Ani-Teronst Unit of the MPS cannued fo have ‘esponsibiy aves War eines and reed inal eins soe Hoard HE June 2005236. + Raj Soon iu pretsing lawyer ond the Dieta of PCH Hes been deine at ou tines by bth sel nde Pls Autor Mostes * GOC Souem Commane fhe Isl Defence Forces ID} rom 8 December 2000 10 lay 2003 |. The demolition of59 houses in Rafuh, Giza Sti, om 10 danusry 2002 2 The killing of Nba Suk Al Makadina on 3 Match 2003 ashe reult of & punitive house demolition 3. Thekiling of Mohamad Abd Elshman oa 30 December 2001 ‘4 The dropping ef one ton bomb onthe Al Dra} neighbourhood of Gaza City on 22 July 2002 Mz Almog was due to spesk t «syaagogue in Solihll, Birmingham, on 11 September 2005. After having rosived the Hes of evidence at his ei liability for the above alleged fences, the police failed to make a decision wieer they would arest Decon Alnog. ude thei “general atest” powers. However, they adopted a neural stance in relation to. the complainants pplication to Bow Sect Magistrates’ Court fr an arest waren That step docs not require the consent ofthe polis, the Direetor of Public Prosecutions (DPP) oF the Auorney General (25 Prosecution of Offences Act 1983) whereas a prosecution under the 1987 Act in principe reuse all ther involvement. an in practice the Attomey General must provide his onsen or proceedings io be instaned (0) Me warrane A hearing took place st Bow Steet Magistates' Court on 9 September 2003, before Senior Bistriet Judge Timotay Workman. The application was for ‘vara all four ofthe above eases in which Doron Alm ws named as ¢ suspect. The Court was provided with all ofthe evidence that had been supplied to the police in rlaion 19 these ease. The Senior Distt Jule ‘djourned the matter overnight and on the morming of Satrdsy, 10 Septemoe, he issued a warrant for the arest af Dovan Almog (backed for bal bu wit stringent conditions) in relation tothe complaint regarding the 59 house id pra 2G fs 2048 (XV), 27 UN GAOR Supp (N02), UN Doe 44291971) » Soe gory M. Chev Busou aed ard M. Wie or Dade Jaca The Duty to Era or Pace Imarationl Lov (M Ni, 1985) id 24 2 See M Che Bussioul “Users Jriictionfor Iterations Crimes Hist Papecives and Cosenporsy Prize" 42 Va! fv lt 117 aad Ealesboe ‘Proection of Human Rights Viton (199) 7 LIL Sat 1516 82, Mid Eases a 13 Jn gelation to tour, iis engued that UNCAT™ specifically imposes an stligton to either prosecute or extradite hose secured of commiting torus by vite of Atle 71 ofthe Torte Convention. This ale ss “The State Party in the tery under whose jurisdiction pesun alegd to have commited any offence refered to ‘nicl 4is found sall inthe cases cotemplated in artic 5, iF it does not extradite him, submit the case i competent authors Tar the purpose of proses,” ‘hig postion was firmed by Lord Brown-Wilkinsa in the Pinochet (No 3) case When he state “The purpose of the Convention wast ntalce the principle of eedere out pure citer you extadite o you puis” Fucthenore, te wording of Arce 7.1 ofthe Torture Convention clearly ‘ndictes thatthe obligation arses when an alleged offender is found in ‘eritory of the Site Pary and is thus capable of providing for universal jidition. The cours of England and Wales therefore. have univers jurisdiction over ats of torre under the Criminal Junie Act 1988, § 134 (which covers acts commited “in the UK or elsewhere”). There is 00 requirement for any connection with England and Wals of the defendant, atin or suspects IMPUNITY IN ISRAEL, (OF course itis always to be hoped that country engaged in @ military cceupaton will uphold civilised standards and avoid the temptation to take ‘advantage ofthe overpowering stongth i wields over the elvis under is tonto Occupying armies anc the lity’ and civilian legal systems ofthe ‘ccupying power should beable to bring to accounts awn "wae eiminale” Unforunaely, the record shows that most alleged grave breschos in the (OPT are noc even iavestigated as such by Isl, They ae ether ignored or ‘officially sanctioned as legal inthe teeth of international legal opinion to the ‘ontay, For many years, most cases of punitive house demolitions, killings and vertu in the occupied Palestinian terres have not Been the subject of FB gcensabove Rega» Bow Sree Sipenary Misses and Oars, Ex Pate Poche Uperte (803) [200 AC T47 per Lord Bro Wsn 200. ‘he eases in point (in elaton to house demolitions and assassinations), (@) Punitive house demolitions ‘Acconting fo PCHR, between 29 September 2000 and 31 Janry 2005, mote than 2,702 houses inthe Caza Strip were completely demolished by the Tarek oceapying forces siace the oubcak of te (escond) inode, rendering "housands of Palestinian evian homeless. B'Tselem put the gute of house ‘emalitogs in the whole othe OPT fom Sepemer 2000 to November 2008, 254.170 ‘According 1 a policy bet by Harvard University to the United Nations Information ‘Syste on'the Question of Palestine (UNISPAL).” house emotions broadly come within tze categories: 1. First, houses are demolished by Israeli cccuption forces because a building permit was no sought prior to thei eastrustion, or for some other technical breach of applicable adavnisative Second, houses are demolished as part of military operations. Such esnctons are argusly necessary during seed hostilities end fall 0 Be judged under the rules rating wo sliary nocasity. 4. Filly, demolitions wosur outside the ssope of military operations or Israel dminstative power in she OPT. These demolitions sr purportedly a response against persons suspected of aking. part in = or dietly Supporting - erimial guerilla activites. These demolitions are rfered to routinely 25 "punitive demsalions™ ‘The distineon in pracce is however often difficult to determine, parcusly between 2 and3 above ‘A serss of eases in the Supreme Court of are confirm that the domestic cours do not regard the policy of punitive house demolitions as unl” > up phrase n/n ie nupilw aelem on EngtPabcatonSermris!20041| Punitive. Howse D “Shp an org UNISPAL NSE I3ES65545eb79485256en60064146720pe0 Document og Alara IDF Commander bx Gaza Sip HCI 272092 (he au ofthe commander extends the dstution a hose prs ofthe propery at ae gud or {el by mbes ofthe aly ofthe aspect or by ee) nina y OC Cour Command HCI 200697 (he cat wefsed io irre wh the dherton of the ‘The authority for punitive house demolitions stem fom the Defence (Emergency) Regulations 1945 (according co Israels cours Uist insist the Regulalions are still good law). These cepuations were intoded int the legal since of Palestine by Britain in respoase to resistance to British ue. Regulation 119(1) sta: A Miltary Commander may by order dieet the forfeiture to ‘he Goverment of Palestine of any house, structure, of land fiom which he hs caso to suspect at ay fear fe been ilegally discharged, or aay bomb, grenade oF explosive or inctadiry acl legaly tows, orof any house, truce or land sisted in any ae, town, village, quarter of sre: the ‘nhbitans or some of te inhabitants of whieh he ssid ave commited, of attempted 10 commit, or abetted the ‘commission of, o¢ been accessories after the Tac to the commission of, any offence aguinst these Regulations involving violence or intimidation ar any Miliary Court ‘offence; and when sny house, structure or land i Forfeited st foresai, the Miltary Commander may destroy the Rouse of the sractare er anything on growing om the and” Demons purportedly required by military neestily must be judged by incermationaly adcepted evtera (Ge. a set out inthe ebove policy brie 19 UNISPAL} |. The individual house must offer sn essential and immediate eontiation 0 ‘he enemy's militsry operation and herefors, endanger the secur af tie occupation forces; an The demolition ofthe House mus, atthe Gime, be an adequate response to that specie ter and there must be no les iatuve response possible: and 3. The demotion of the house must off concrete mitary advantages tht ‘the damage cused tothe civilian ast and its contequences on ‘heli of Paesiian individuals and Tas, ‘The fet ofeach ease mus meet his (relatively high) theshol, otherwise ‘he house demolition in question fe not ali necessy, ‘Two cases involving house demons were presented tothe police nd Bow Sirest Magistrates" Court in relation to Doron Almog alleging the grave miliary commander and top the house dealin ode by he miliary comme be Wee Bn). breach of “extensive desieton of property not justi by military necessity tnd coviod ov unl fly nd wantonly" One involved the demolition of $9 houses in Rafe by bulldozer on 10 January 2002. The IDF gave coating and inconsistent reasons for these ‘emotitons, including tht the eperaign was a realistory measure Tor the {unelated) death of tvo Ina soles,” to weaken he fear ofthe existence of tunnels”, and fr purported reasons of military necessity “The ether case involved the punitive demeliton ofthe bouse ofthe family fof a suspected suicide bomber by dypanste, which partially demolished 3 righbouring house killing Noha Shokri Al Makadma who was im her ninth month of pegnaney. “The Vist in both of these cases claimed that these demolitions were igal, bot 00 investigation took. place, PCHR attempted to instigate investigations imo oth of these eases Inflation 1 the ease ofthe $9 house emalitons, PCHR wrote to the IDF legal advisor requesting a eximinal inveatigation, but no reply was received, In relation to the house demolition ‘at kled Noha Shuke Al Makadma, PCH wrote to the Lega! Advisor af the IDF requesting an inquiry and for disciplinary measures tobe brought agai ‘hose responsible Init ely the Ministry of Defence expressed regret Prt injuries of giles people but rejected the request for an ngury. Evidence of two otter similar punitive house demolitions by dynamite in ‘he Gaza Strip conducted inthe fur moat pio 1o the deat of Noha Shui ‘Al Maka and ending in civilian death, were al presented tothe British Police as “evidence of similar Tae" In both these casos PCHR wrote 10 the Jezal advisor ofthe IDF requesting criminal investigations and asking fr the IDF to change thei practices to avoid further deaths of innocent civilians. In ‘one case na reply was ever eceived. Inte oer, without any obvious inguy, the reply sated thal there was “no suspicion of any reac of duty by the IDE to watant he opening of xminal investigation ‘On 17 Febmury 2005, Defence Minister Shaul Mofaz announced the end to the poliey of demolishing the houtes of “erariss” families” However, the Spwebarchive gv 20037011 famney ta yapneb archive onpwoh 200508010 DempisNanacasement 200 ymuay27 sm Mini ease of he klleg of Noha Shik AL Makadna, Ke was abaped ta the property destucton was exesve as par of a wir pois of exes've™puive nue danolens of he ovensten of Uvasl and snplemensd by) mlilny commande. It wis so alged at be deat ao amoaned te ve Bech yauliling Se thea ID announcement: piv a/DOVEER te maingageaepet=I&sIMENR TE 37ERS ww Joenlisbanneanemens/20 demolition of Palestinian homes purportedly for reasons of military necessity Tas at abated. (0) Tongeted assassinations According to PCHR, ftom 29 September 2000 4931 January 2005, sai ‘ceupying frees and stiles killed 2,714 Palestinian Civilians in the OPT. 418 (145) were killed in assassination options, and of hase, a least 154 wore bystanders, of whom 48 wee childson Evidence in relation to one ofthese assassination operations was presented {o the British police. This was the well known case of the assassination of Sl Shekadeh ‘Between 11.30 pm and mihight on 22 July 2002, an IacliF16 Fgher plane dropped a one ton bomb on the Al Daaj neighbourhood of Gaza City (Cie al-Daraj bombing”) The target of te bombing was the house of ‘Stehodsh, and it was advect hit However, his house was in one ofthe mos

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