Jerusalem24– Two Palestinian and European human rights organizations say a decision by the German Federal Prosecutor not to open an investigation into the killing of the German-Palestinian Kilani family in an Israeli airstrike in Gaza in 2014 runs “contrary to the legal obligation to prosecute.”
Eleven people from the Kilani family and their relatives the Derbas family, including five Kilani children aged 3 to 11, were killed when an Israeli airstrike hit the Al-Salam building in Gaza City on 21 July 2014. Ibrahim Al-Kilani and his five children were all German nationals.
The Palestinian Center for Human Rights (PHCR) and European Center for Constitutional Human Rights (ECCHR) filed a criminal complaint in December 2014 with the German Federal Public Prosecutor on behalf of Ramsis Kilani, Ibrahim Kilani’s eldest surviving son. Both organizations submitted additional information, evidence and analysis to the Prosecutor over the course of seven years.
In August 2021, the Prosecutor announced he would not open an investigation as the evidence needed to conclusively determine whether a war crime had been committed was not obtainable.
PCHR and ECCHR accessed parts of the case file related to the decision in April and issued a statement on Sunday, calling the failure to open an investigation “a missed opportunity.”
A legal obligation under German law
According to the organizations, “In cases that concern German citizens as victims of a crime abroad, it is standard procedure and a legal obligation under German law and practice to open formal investigations and to seek interstate cooperation not only through diplomatic, but also legal channels.”
The Prosecutor’s decision to close the case constituted “an exception”, in his own words, where he would have usually proceeded with a formal investigation. The German Code of Criminal Procedure precludes closing a case where a German citizen is a victim of an alleged international crime.
By invoking an exception in the Kilani case, the Prosecutor “applied double standards with respect to German victims in Gaza and their relatives in Germany vis à vis other situations,” say the organizations. “The reasons brought forward by the Prosecutor for this exception do not justify the decision to not even open formal investigations.”
According to the Prosecutor, an Israeli investigation by the Military Advocate General concluding there was no “reasonable suspicion of criminal misconduct” warranted no further investigative steps from the part of the German prosecution.
“The German Federal Prosecutor’s decision stands as emblematic of the double standards applied in cases against powerful actors.”
The PCHR and ECCHR further explain that international criminal justice does not require the exhaustion of domestic remedies (such as the Israeli military investigation) before pursuing the case in foreign courts, contrary to the justification invoked by the Prosecutor when closing the Kilani case.
“In many other cases, the Federal Prosecutor did not require any legal steps to be taken domestically – let alone the exhaustion of all local remedies – by victims or their relatives in their respective jurisdictions, e.g. in Syria, Iraq, The Gambia or Sri Lanka, before proceeding with an investigation, and rightly so.”
The organizations point out that it is often unrealistic for victims and their families to seize domestic courts with cases against domestic armed forces or secret services.
“A missed opportunity”
“The Federal Prosecutor missed an important opportunity to extend international criminal justice in an equal manner to victims of crimes by a powerful actor,” say the organizations. “Regardless of the potential outcome of a criminal investigation, the procedure has to be inclusive and non-discriminatory, guaranteeing the rights of victims and their relatives.”
“Unfortunately, in this case, it was not, and thus constituted a missed opportunity for applying international criminal justice in all cases and situations equally to all.”