Palestinian Center for Human Rights 30 November 2006
New Zealand Attorney General stays prosecution of Israeli war crimes suspect, enabling him to evade international justice
Moshe Ya’alon was spared arrest or any proper prosecution process in New Zealand on 28 November, despite a decision on 27 November 2006 by His Honour Judge Avinash Deobhakta in the District Court at Auckland to issue warrants for his arrest on suspicion of committing a grave breach of the Fourth Geneva Convention 1949, which is a criminal offence in New Zealand under the Geneva Conventions Act 1958 and International Crimes and International Criminal Court Act 2000.
Moshe Ya’alon is a 56 year old Israeli national who was Chief of Staff of the Israeli military from 9 July 2002 to 1 June 2005, answerable directly to the Prime Minister. Under his command the Israeli military were responsible for a countless variety of extensive human rights violations and war crimes inside the Occupied Palestinian Territory during its belligerent occupation.
The Court’s decision came after years of failed efforts to pursue the suspect through the Israeli judicial system. It was because of the failure of the Israeli judiciary to even deal with petitions asking for a criminal investigation or for a decision as to the lawfulness of the assassination policy that PCHR proceeded to build a file of evidence with Hickman & Rose solicitors (London, UK) to bring war crimes suspects to justice outside Israel in accordance with the legal principle of universal jurisdiction.
Lawyers in New Zealand presented the above evidence in support of the application for the arrest of Moshe Ya’alon, and the issue of the warrants obliged the police to arrest him. However, the police instead sought the advice of the Solicitor-General in New Zealand, who advises the Attorney-General when he makes decisions on authorising such prosecutions and other relevant decisions, including staying them. After initial indications that the Solicitor-General would be advising the Attorney-General to refuse to authorise a prosecution, at 5pm New Zealand time on 28th November 2006, the Attorney-General filed papers directing the District Court to stay the prosecution permanently, so the arrest warrants were extinguished. The Attorney-General has given no reasons for staying the prosecution, despite the ruling of the judge that there were ‘good and sufficient reasons’ to justify the arrest of Moshe Ya’alon.
At 6pm (New Zealand time) on Thursday, 30th November, District Judge Deobhakta lifted the suppression order and confirmed in a ruling that the AG’s decision had brought an end to the proceedings, and provided the following details:
“When no arrest was forthcoming [on 27/28 November] despite the Police having the warrants with them for some 30 hours, the informant moved the Court for orders regarding their execution.
As this hearing the Commissioner of Police was represented by counsel. He submitted that the New Zealand Police was an independent body and could not be subject to any direction from this Court as to how it conducted its function particularly in relation to the execution of arrest warrants.
This Court was well aware of this demarcation. All it could have done was to make a strong urging to the Police to process the Court’s orders without further delay. What the informant could not understand is why the Police when aware of the gravity of the allegations and urgency in the matter had either ref to or neglected to execute the warrants. They knew of his whereabouts he having apparently been under surveillance. Instead, on the material supplied to this Court by the informant’s solicitors, and if accurate, the Police chose to wait for some response or reaction from the Solicitor-General before effecting arrest.
In the end the Attorney-General in the afternoon of 28 November filed a warrant staying further proceedings on the informations filed. In other circumstances that decision of the Attorney-General might have been subject to a judicial review by the High Court if arrest of the defendant had eventuated and if time had permitted.”
The Palestinian victims are devastated that Moshe Ya’alon has evaded justice in New Zealand. An arrest and proper decisions on prosecution or extradition of Moshe Ya’alon should have taken place, based on the evidence presented to the court.
The warrants were issued in relation to events which occurred on the 22nd July 2002 when between 11.30 pm and midnight, an Israeli F16 fighter plane dropped a one ton bomb on the Al Daraj neighbourhood of Gaza City. The target of the bombing was the house of Salah Shehadeh, and it was a direct hit. He was suspected of being a commander in Hamas and the objective was to assassinate him. However, Salah Shehadeh’s house was in one of the most densely populated residential areas on earth. Mr Ra’ed Mattar’s house (one of the complainants) was located next to the house occupied by Salah Shehadeh - the houses were less than two metres apart.
As a result of the bombing, Mr Mattar’s house was completely destroyed. Seven members of his family were killed including his wife, sister and three of his children. In total:
In January 2005 Israel decided to suspend the policy of what it calls “pre-emptive liquidations”, but this suspension lasted less than six months. Between September 2000 and September 2006 this policy has resulted in the deaths of at least 209 non-targeted civilian bystanders as well as the extra-judicial execution of at least 376 people targeted in the attacks.
Despite the resumption of the policy in June 2005, the Israeli High Court has continued to adjourn the matter indefinitely. Accordingly, PCHR and our global partners continue to pursue the suspects on behalf of the victims through the judicial systems of other jurisdictions.
The pursuit of suspected war criminals and the prosecution of those allegedly responsible for war crimes is a long term strategy designed to combat the culture of impunity which is endemic inside the Israeli military, judicial and political system.
The prosecution of suspected Israeli war criminals can only happen in an open and fair trial system, which applies international standards: this has not been available through the Israeli judicial system.
PCHR sees its work in the context of the fight against the growing global climate of impunity where attacks against civilians have now become the accepted norm, despite the fact that civilians are due clear protection under international humanitarian law. Under such circumstances, when faced with the stark choice between the rule of law and rule of jungle there is a clear moral imperative to fight for the rule of law- PCHR’s work on universal jurisdiction forms a central part of our efforts to do this.
PCHR and Hickman & Rose fear that, as the decision indicates, political expediency has triumphed over justice yet again. However, we will continue to work to achieve the arrest and prosecution of suspected war criminals in this other jurisdictions, and continue to liaise with lawyers throughout the world to do so.
The Palestinian Centre for Human Rights (PCHR) is an independent legal body based in Gaza City dedicated to protecting human rights, promoting the rule of law and upholding democratic principles in the Occupied Palestinian Territory. It holds Special Consultative Status with the Economic and Social Council (ECOSOC) of the United Nations and is an affiliate of the International Commission of Jurists, the Federation Internationale des Ligues des Droits de l’Homme (FIDH), and the Euro-Mediterranean Human Rights Network. PCHR is a recipient of the 1996 French Republic Award for Human Rights.
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