On Wednesday, 6 May 2009, at 9 am, the Supreme Court of Israel heard a petition filed by Adalah together with the Palestinian Center for Human Rights (PCHR-Gaza) and Al-Haq (West Bank) in April 2007, demanding criminal investigations into the killing of civilians and extensive home demolitions during two Israeli military operations in Gaza: “Operation Rainbow” (18-24 May 2004) and “Operation Days of Penitence” (30 September-15 October 2004). The petition was filed by former senior Adalah Attorney Marwan Dalal.
Chief Justice Dorit Beinisch headed the three-justice panel that heard the case. This hearing was the first to be held on the petition, two years after its filing, despite numerous motions submitted by the petitioners requesting an immediate hearing on the case.

Responding to the petition on the behalf of the Attorney General’s office, Mr. Annar Hellman argued that the case should be dismissed on the grounds that its arguments are too general and that it was brought to court too long after the military operations had ended.

Adalah Attorneys Hassan Jabareen and Orna Kohn, arguing on behalf of the petitioners, emphasized that the petition provided detailed documentation on grave breaches of the Fourth Geneva Convention and that the abundance of evidence presented warranted an investigation into the possible commission of war crimes. Adalah stressed that the State Prosecutor is obliged to open a criminal investigation to discern the veracity of the allegations under international and Israeli law.

Adalah further argued that the only aspect of the petition that was overly broad was the extent of the wanton killing and massive destruction of property perpetrated by the Israeli military in the course of the two operations. The petitioners contended that the petition should not be dismissed on the ground that it relates directly to the principle of the rule of law: allegations of war crimes have no statute of limitation and it is the state’s responsibility under international law to investigate these crimes.

During the hearing, certain justices made political statements that were entirely extraneous to the case put before them. For example, one justice inquired about the identity of one of the petitioners, PCHR-Gaza, and asked Adalah for that organization’s position towards the question of captured Israeli soldier Gilad Shalit. Moreover, the justices vehemently criticized the petition’s legal references to the principle of universal jurisdiction i.e., the possibility of bringing the case before a foreign national court where no domestic remedy is available.

“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 the operation 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 contains extensive documentation from the UN, local and international human rights organizations, and published statements of commanders and soldiers who took part in the operations which clearly show that the conduct of Israeli military and political leaders constitutes criminal offenses under Israeli domestic and international law. 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 discussing the purpose behind the launch of 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?”

Adalah argued that the acts committed by Israeli military commanders and officers in both operations amount to criminal offenses under Israeli 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. The petitioners emphasized that the military commanders and political leadership bear direct responsibility for ordering the operations and supervising the military’s conduct in executing them.