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Israeli Court Dismisses Civil Case for Gaza Family, Further Entrenching Impunity

23-11-2017

On Monday, 20 November 2017, the District Court in Be’er Sheva dismissed the case filed by Al Mezan Center for Human Rights on behalf of Mr Naser Abu Is’ayid’s and his family on 11 July 2012.[1] The case sought damages for the Israeli forces’ military attack on the family’s home in July 2010, in which Naser’s wife was killed, four family members were injured, and the house was partially destroyed. The court’s decision to reject the compensation claim reflects a genuine application of Israeli law, in particular Amendment 8 to the State Liability Law, which, by design prevents Palestinian victims’ access to justice and redress.[2]

 

The above-mentioned incident was followed by a second attack in 2011, in which Naser’s two sons, daughter, brother, and sister-in-law were injured, and their home completely destroyed. The criminal complaints that Al Mezan submitted to the Israeli Military Advocate General (MAG) demanded genuine investigations into these two attacks, but were closed without charges filed. Reflecting a lack of promptness, the MAG’s decision came in June 2016, six years after the date of the incident. In 2012, Al Mezan filed the compensation claim on behalf of the family, just before the expiry of the stringent, two-year statute of limitations applicable to Palestinian victims.[3]

 

In dismissing the case, the District Court held that “as stated in the Torts (State Liability) Law of 1952, Article 5(b), and as stipulated by the [court’s initial] decision on 4 February 2013 at the outset of its consideration of the State’s claim that the incident amounted to ‘combat action’ as per Article 1, the State is not responsible for the damages resulting from the incident. This ruling makes clear that targeting saboteurs on the ground, from a distance, with missiles fired by airplanes or missile batteries set up into compounds, represents combat action, even if the action does not occur in circumstances where saboteurs pose a direct threat to those who are launching missiles towards them. The concept of ‘direct threat’ for the use of force is corollary to the concept of ‘combat action’, and is a manifestation of combat within the circumstances of a military operation, according to the ruling.   

 

In arriving at this decision, the court continued to apply the above-mentioned Amendment 8; the legislative reform was passed by the Israeli Knesset in 2012 with retroactive application to 12 September 2005. Amendment 8 instructs courts to dismiss compensation claims from Palestinians in certain circumstances, including but not limited to cases in which the damages sought from the State are for incidents qualifying as ‘combat action’. The concept ‘combat action’ has been expanded to the point of Amendment 8 no longer maintaining the criterion that the Israeli forces actions must be prompted by clear necessity, such that would ensure that a soldier’s conduct would be in response to a situation that poses a threat to their life or safety.

 

Seeking justice, the family instead entered a process fraught with judicial, legislative and financial barriers strategically placed between them and their right to redress. The court’s ruling on Monday is a typical example of the Israeli courts’ application of the law—in this case Amendment 8. The amendment was established in order to prevent Palestinians from successfully seeking compensation for wrongful acts, and thus it further entrenches impunity. Under the law, damages sustained as a result of military attacks during, for instance, Operation Protective Edge in 2014, should be dismissed by Israeli courts without witnesses being heard, on the basis of the damages having occurred during a military operation—regardless of whether the Israeli forces acted lawfully.

 

The procedural and financial obstacles that emanate from Amendment 8 include a burdensome and strict statute of limitations, substantial court financial guarantees, onerous questionnaires, and the prevention of claimants and witnesses in Gaza from appearing before Israeli courts or meeting with their lawyers. Once the Israeli authorities have rejected a witness’s or victim’s request to travel to give witness statement or personally sign powers of attorney, the court is empowered to close the case on the basis of their failure to appear. More seriously, compensation claims for damages resulting from attacks that evidently occur outside of the expansive concept of ‘combat action’ can also be dismissed on the basis that the claimants are residents of a territory that is declared as an ‘enemy entity’, which Israel applies to Gaza.[4]

 

In practice, Amendment 8 and the numerous procedural and judicial barriers enable Israel to evade its obligation under international law to provide compensation and redress for damages resulting from its military force’s conduct. Consequently, Palestinian victims have no effective recourse domestically, and can only turn to international mechanisms, such as the International Criminal Court, the United Nations, and Third States, to implement their rights.

 

Al Mezan calls on States to open up their courts to Palestinian victims of serious international law violations. Failing to uphold the legal obligation to hold Israel accountable for the gross violations of the Fourth Geneva Convention, states must lend support to the Office of the Prosecutor of the International Criminal Court in opening a full investigation.

 


[1] For more details about the attacks, please see ‘The Abu Is'ayid Family Case Study: A Story of Attacks in the Access Restricted Area, and Waiting for Justice’, available at http://mezan.org/en/post/18470.

[2] UPDATE:NO REPARATIONS IN ISRAEL FOR PALESTINIANS,

HOW ISRAEL’S AMENDMENT NO. 8 LEAVES NO ROOM FOR RECOURSE GAZA, DECEMBER 2015, available at http://mezan.org/en/post/20954.

[3] The Statute of Limitations is two years for Palestinian claimants and seven years for Israeli claimants.

[4] See Joint Press Release ‘Adalah, Al Mezan oppose Israel's rejection of compensation suit resulting from declaration of Gaza as 'enemy territory', 27 November 2011, available at http://mezan.org/en/post/21730.

Tags / #NoMoreImpunity #NoAccountability #IHL