Dutch prosecution authorities failed to arrest Ami Ayalon, currently Minister without Portfolio in the Israeli Government, while he was visiting the Netherlands from 16 to 20 May 2008. An application for his arrest was submitted to the Dutch authorities by Khalid al-Shami, who alleged that he was a victim of torture from 1999-2000, when Ami Ayalon was the director of the Shin Bet (the Israeli General Security Services - GSS), which investigates individuals suspected of committing crimes against Israel’s security. Ami Ayalon was the director of the GSS from 18 February 1996 to 14 May 2000.
Al-Shami’s evidence file was collected by his lawyers in Gaza City from the Palestinian Centre for Human Rights (PCHR) and he only sought justice abroad after the Israeli authorities failed to act on his allegations, in part because torture is routinely sanctioned in Israel.
The Dutch authorities failed to arrest Ayalon, even though there was a prima facie case and they concluded he was not immune from prosecution — that failure will now be the subject of a legal challenge in the Court of Appeal in The Hague, and an order will be sought requiring a criminal investigation supported by an extradition request or an international arrest warrant.
On 31 December 1999, al-Shami was arrested by Israeli soldiers and taken to Ashkelon prison, where he was interrogated for 20 days, in sessions ranging between 20 to 40 hours, with an interval of two to three hours in the seclusion of a two by two meter cell. In addition, he alleges that he was subjected to low temperatures, stretching and being bound to a small chair by his hands and feet for long periods. After 20 days he was brought before a military court, without legal representation, where his arrest was extended by an additional 30 days. He spent a week in solitary confinement and alleges further ill-treatment, this time at the hand of collaborators, who forced him to make a written confession. Al-Shami has been left with seriously life-long injuries as a result of the torture.
In May 2008, al-Shami instructed Dr. Liesbeth Zegveld of the Dutch law firm, Bohler Franken Koppe Wijngaarden (BFKW), to submit a complaint to the prosecutors’ office on his behalf asking for Ayalon to be arrested and prosecuted in the Netherlands.
Al-Shami’s complaint to the Dutch prosecution authorities comes after years of failed efforts to pursue the suspect through the Israeli judicial system on behalf of the victims. PCHR has built files of evidence with London-based Hickman and Rose Solicitors, including that of al-Shami, to bring war crimes suspects to justice outside Israel in accordance with the legal principle of universal jurisdiction.
On 16 May 2008, law firm BFKW filed a torture complaint with the Dutch prosecution authorities on behalf of al-Shami. Under Article 6 and Article 7 of the United Nations Convention Against Torture any State Party in whose territory a person alleged to have committed torture is present should arrest the suspect and prosecute him or her (or extradite the suspect for trial elsewhere).
Ayalon’s visit to the Netherlands provided an exceptional opportunity and engaged a duty to arrest him and establish jurisdiction. The initial torture complaint included a request for urgency, since Ayalon was thought to be due to leave the Netherlands on 20 May 2008. The failure of the Public Prosecutor to initiate an investigation occurred because of a delayed decision by the College of Procurators-General that Ami Ayalon lacked immunity. Accordingly, Ayalon could indeed be prosecuted in the Netherlands, but by the time the decision of the College was made, on 21 May 2008, he had just left Dutch territory.
The application to the Court of Appeal
Al-Shami on 6 October 2008 applied to the Court of Appeal in The Hague for an order requiring the Prosecutor to start a criminal investigation into Ayalon and to issue an extradition order or an international arrest warrant to secure his presence in the Netherlands during any trial. Alternatively, Al-Shami at least seeks an Order for an “anticipatory investigation,” so that a criminal investigation file is opened.