On Thursday 7 February 2013, Israel’s central court of Beersheba rejected a lawsuit filed by the Al Mezan Center for Human Rights against the shelling by the Israeli Occupation Forces (IOF) of a civilian house which belongs to Fayez Salha on 9th January 2009.
Fayez’s wife, his four children and his sister-in-law were all killed as a result of the attack.
The family’s two-story house was also totally demolished.
The court also ruled that prosecutors pay a fee of 20,000 NIS (about $5.
The court’s ruling mentions that looking at past rulings in relevant cases of IOF aerial attacks in the context of war – during the Cast Lead Operation – despite evidence that no time was given to the civilian inhabitants inside the house to vacate it, which clearly demonstrates disregard to civilian life by the offenders, the claim of disregard for civilian life, though proven it might be, does not constitute a charge since the attacks took place in the context of a military operation, the court said.
According to investigations by Al Mezan, the body which represents the victims, an IOF drone launched one airstrike at the Salha house, so the people rushed to vacate it.
However, this was followed only a few minutes later with another heavy airstrike by an Israeli war jet which directly hit the house.
8 individuals live in the two-story house with the size of 180 square meters which is located in Beit Lahiya, north of Gaza.
6 of them were killed in the attack, all of them children and women: Randa Fayez Salha, 33, and her children, Diyaa’ Ad-Din Fayez Salha, 14; Baha Ad-Dine Fayez Salha, 4; Rana Fayez Salha, 12; Rolla Fayez Salha, 1 year in addition to Fatma Fayez El-Haw, 22.
The investigations point out that the second attack took place less than 10 minutes following the first one.
The house residents and their relatives woke up to the first explosion and started vacating the house immediately.
Some of them successfully did while the others were still on the entrance steps when the second missile hit the house.
The house was completely damaged in addition to two shops below it.
Five other neighboring houses were also severely damaged.
In November 2009, Al Mezan Center for Human Rights in Gaza appealed to the Military Advocate General’s office in order to open a criminal investigation into the incident.
The investigation was soon terminated without any charges laid against the offenders.
The Israeli authorities imposed restrictive measures on Palestinians that render their ability to access justice nearly impossible.
On 23 July 2012, new amendments to Civil Wrongs (Liability of State) Law – namely, Amendment No.
8 – were ratified.
The definition of war operation is modified.
The previous text included a paragraph that requires that such operations exist in a context where there is imminent danger threatening the life of IOF soldiers.
This paragraph was omitted, and the new definition requires such operations be as such in terms of their nature; including the purpose, location, or the danger facing the force as a result of conducting the operation.
Paragraph 5(B) of the law was amended to State the ability to invoke the no-liability defense when damages occur as a result of a military operation.
Courts should now consider this argument and have the power to dismiss cases on this preliminary ground, even without hearing witnesses or considering evidence.
Even more, these amendments apply retroactively and can be applied to all cases from 12 September 2005, which means that cases pending within the Israeli justice system can be dismissed including Israeli violations which took place during Operation Cast Lead in 2008-2009 such as the Salah family case.
In light of the court’s decision and the amendments to the Israeli law which prevent Palestinian victims from realizing their rights and arriving at justice through Israeli justice system, which insistently continues to absolve the IOF of any responsibility even in clear cases of such severity like the Salha case, therefore the only legal avenues accessible to Palestinians at the present moment seem to be those through international justice mechanisms including the UN bodies and the International Criminal Court (ICC).
Al Mezan Center for Human Rights stresses the responsibility of the international community, particularly states parties to the Fourth Geneva Convention which are obliged per Article (1) to respect the articles of the convention at all times.
This is in addition to the states parties’ obligation to promptly put an end to any violation of the convention’s articles, contrary to the case in the oPt, which highlights the failure of the international community to put an end to Israel’s grave, pervasive and systematic violations over the past years, including violations occurring during its latest offensive against the Gaza Strip in November 2012.
Al Mezan hereby calls on states parties to make their courts accessible to victims in order to hold perpetrators of crimes accountable under the rules of international law.
Furthermore, it also reiterates its call issued jointly with other Palestinian human rights organizations urging that Palestine joins the Rome Statue, per which the ICC was established, without delay and that it accepts the court’s jurisdiction over its territory.
Finally, Al Mezan strongly condemns the Israeli court’s decision which only blatantly provides perpetrators of crimes with further impunity and serves only to punish the victims for merely trying to arrive at justice through Israeli law.
Al Mezan calls on the international community, especially the High Contracting parties to the Fourth Geneva Convention– to act with a sense of urgency in order to put an end to IOF grave and systematic violations of International Human Rights Law and International Humanitarian Law.