War Crimes Suit Against Israeli Justices Rejected by Chilean Court

Legal team representing Palestinians in the South American country say they will file an appeal with the country's Supreme Court.

Israel's separation barrier near the West Bank town of Beit Jala, July 27, 2016.
Emil Salman

A Chilean court rejected Friday a war crimes suit filed against three Israeli Supreme Court justices for authorizing the construction of the West Bank separation barrier in the Bethlehem area.

The legal team representing six Palestinian landowners, headed by Nicholas Paves, said they will file an appeal of Judge Judith Guzman Martinez's decision with the Chilean Supreme Court on Monday.

One of the members of the legal team told Haaretz that the rejection of the suit, which alleged that the three Israeli justices were responsible for war crimes and crimes against humanity, rested on three grounds, which they intend to challenge in their appeal: that Israeli didn't ratify the Rome Treaty, which established the International Criminal Court; that what is in question is destruction of property, and that the region isn't in a permanent state of conflict and thus isn't subject to international humanitarian law.

According to the attorney, the first ground conflicts with the principal of universal jurisprudence, which is enshrined in the Chilean constitution. The second ground conflicts with the facts presented in the suit, since the building of the separation barrier constituted the uprooting of a protected population from its land, which is banned by international humanitarian law and was not mere land appropriation.

The third ground, said the attorney, is based on a misinterpretation of the facts presented in the suit, namely, that the barrier was erected despite the fact that no terrorist attack came out from the area in question in years, thus allegedly undermining the fence's military justification.

The claimants in the suit are six landowners from the Beit Jala in the West Bank, whose lands will be separated from the village as a result of the barrier's construction. Five of the plaintiffs are Chilean nationals residing in the country and the sixth is a Palestinian that lives in Beit Jala.

Asher Grunis, Neal Hendel and Uzi Vogelman.
Shaul Golan, David Bachar, Tomer Appelbaum

The suit was filed against former chief Justice Asher Grunis, and Justices Neal Hendel and Uzi Vogelman. The three presided over a petition lodged by Beit Jala residents and rejected an alternative route for the barrier fence suggested by the Council for Peace and Security, an Israeli group comprised of retired military experts.

On April 2, 2015, the court ruled that the alternative route – which did not cut off the villagers from their lands – failed to fulfill the wall's security role in the way the Defense Ministry's route did.

Universal jurisdiction

A Chilean court has already rejected a suit based on Chile's universal jurisprudence in the past, but the Supreme Court overturned this decision. Last year, a number of Chilean citizens filed a suit in a Chilean court against the arrest and the terms of confinement of Venezuelan opposition leader Leopoldo López – despite the fact that they had no familial or other ties with him, and despite the fact that Chile has nothing to do with his arrest. The Chilean court rejected the suit, but the Supreme Court overturned the decision, and ruled that Chile's international obligations require that it protect López's rights and investigate his condition in prison.
 
López was arrested in 2014 after he led a popular protest movement against Venezuelan President Nicolás Maduro. He was charged with incitement to violence, in a trial – which human rights groups said did not meet the standards of a fair legal proceeding – behind closed doors. He was sentenced to nearly 14 years in prison under life-threatening conditions.

Chile ratified the Rome Treaty in 2009, and its understandings were embedded in Chilean law in 2012. The first reliance on the treaty was in the suit concerning López. The current suit against the Israeli justices is the second time the treaty is called unpin in a Chilean court.

In response to Haaretz's question whether the characterizing of the building of the separation barrier in the Beit Jala area as a crime against humanity wasn't excessive and preposterous, a member of the legal team responded explaining that the uprooting of protected populations and the crime of apartheid – raised in the suit – are clauses in article7 of the Rome Treaty, which defines "crimes against humanity." Thus these crimes meet the legal definition set by the treaty.