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ADALAH'S NEWSLETTER
Volume 38, July 2007

An interview with Marwan Dalal, a former Senior Attorney at Adalah, who was recently appointed as a prosecutor to the International Criminal Tribunal for the Former Yugoslavia.

Adalah’s Board of Directors and staff are proud of Attorney Marwan Dalal’s achievement of being appointed as a prosecutor to the International Criminal Tribunal for the Former Yugoslavia (ICTY), and we congratulate him on his new important position. Marwan Dalal was a senior lawyer with Adalah. He began work in 1997 as our first stagaire, and continued to work as an attorney with Adalah over the next ten years. During that time, Attorney Dalal litigated numerous cases on behalf of Palestinian citizens of the state and Palestinian civilians under Occupation before the Israeli Supreme Court. Attorney Dalal brought a series of cases representing Palestinian Bedouin citizens of Israel living in “unrecognized villages” in the Naqab (Negev), demanding services and basic rights denied to them by the state including the crop spraying case. Attorney Dalal coordinated Adalah’s work before the official Or Commission of Inquiry. Other high profile petitions brought by Attorney Dalal challenged Israel’s violations of international humanitarian law including the military’s use of Palestinians in the Occupied Palestinian Territory (OPT) as human shields, and home demolitions in Rafah, Gaza. The last petition submitted by Attorney Dalal demanded the opening of criminal investigations against political officials, military commanders and soldiers responsible for killing civilians and extensive property demolition and damage during military operations in Gaza in 2004. Attorney Dalal has also written many articles, including a legal analysis of the construction of the Wall and the policy of targeted assassinations, both conducted by Israel as an Occupying Power.

Q. What were the most challenging cases that you worked on in Adalah?

I worked on several challenging cases during my time at Adalah, such as the use of Palestinian civilians as "human shields" by the Israeli military in the Occupied Palestinian Territory (OPT). In this case, there was clearly an illegal policy that the Attorney General's Office tried to overcome by advocating for dangerous changes to established principles of international humanitarian law. Here, the Attorney General’s Office argued that such practices were legal if the military obtained the consent of the civilian to assist them, and thus the military sought the participation of civilians in hostilities initiated by the occupying power, as a part of that power. Civilians in the OPT of course enjoy the status of a protected person under the Fourth Geneva Convention (1949) and cannot be used by the military occupation for these purposes.

To challenge the extreme confidence of the Attorney General’s Office in arguing for the effectiveness and legality of such practice, we brought many testimonies and affidavits from victims of this policy before the Supreme Court to the contrary. These testimonies included affidavits obtained from soldiers who participated in military operations in which Palestinian civilians were used as "human shields".

Another challenging case was our representation of the 13 families of those killed by Israeli police during the October 2000 protest demonstrations. Adalah has made continued efforts to reveal the great failings in the investigations of those responsible among the police, including snipers, who used live ammunition against unarmed civilians. The conduct of the Israeli investigative and prosecutorial authorities, as we have established in various reports, including "The Accused" and "Law and Politics before the Or Commission", has not only been flawed, but outright illegal.

Q. Did you use the case law of the ICTY in your casework at Adalah?

Adalah has pioneered the use of the jurisprudence of the ICTY before the Israeli Supreme Court, in cases pertaining to grave breaches of the Geneva Conventions by the Israeli military in the OPT. For example, in the human shields case we referenced the ICTY decisions in the Aleksovski and Blaskic cases. In our petition relating to criminal responsibility for extensive home demolitions in Gaza, we used the decision in the Cerkez case on the relevant norms relating to such demolitions, as well as the decision in the Delalic case to establish the question of command responsibility.

Q. What legal experiences from your work in Adalah will you take to the ICTY?

There is no doubt in my mind that in my new position I will also have to use a rigorous approach to understanding the relevant facts and applying the law. This is an approach that will benefit most from established precedents in the field of international criminal law and international humanitarian law, in addition to the academic best analyses of these subjects. Not less important, I will take with me from Adalah the conviction that victims deserve viable and visible justice, and that perpetrators should not enjoy impunity.