Nazi Court Dismisses Three Cases, Denying Palestinians the Right to Judicial Remedy and Compensation

On Thursday, 7 February 2013, The Israeli Southern Central Court in Be’er Sheva dismissed 3 civil claims cases brought before it by the Palestinian Centre for Human Rights (PCHR). These cases concerned three separate incidents involving the killing of 14 Palestinian civilians and wounding of 24 others during the Israeli offensive on the Gaza Strip, ‘Operation Cast Lead’, in 2008-2009. The first case was filed to claim compensation for the victims who suffered losses, during the Israeli forces’ targeting of paramedics of the Al Awda hospital on 4 January 2009. The second case concerned the targeting of a 4th floor apartment with an Israeli artillery shell in the Shejaiyah area of Gaza City on 5 January 2009. In the third case, Israeli forces attacked a family home with flechette bombs during a mourning service, also on 5 January 2009.

These cases were of a civil nature, and sought reparations for the victims of these attacks; PCHR also filed separate criminal complaints for all three incidents before the Military Advocate General (MAG). PCHR has not received any responses from the MAG in relation to two of these cases. In the third case, although the Israeli authorities commenced an examination back in 2009, its outcome has not yet been made available despite PCHR’s repeated requests to the concerned authorities. The dismissal of these civil claims is a serious setback for the victims, denying them their right to accountability and redress, particularly in light of the unjust reasoning behind the court’s decisions.

The court in its reasoning relied on the 2012 Amendment No. 8 to the Israeli Civil Torts Law (Liability of the State),[1] which sweepingly exempts the State of Israel from any liability arising from damages caused to a resident of an enemy territory during a “combat action” or a “military operation”. This amendment, which applies retroactively from 2000 onwards, and specifically in the context of Gaza from 12 September 2005 onwards, widened the scope of “combat action” by including any operations carried out by the Israeli forces in response to terrorism, hostilities, or insurrections, if it is by nature a combat action, given the overall circumstances, including the goal of the action, the geographic location, and the inherent threat to members of the Israeli forces who are involved in carrying out the action.  This amendment disregards the vital question of the legality of these attacks and ignores the damages caused to the victims as a result of such attacks, which can potentially constitute violations of the rules governing the conduct of armed forces during military operations, as prescribed under international humanitarian law. The Amendment no. 8 directly contravenes norms of customary international law, which establish that a State (in this instance Israel) is responsible for all acts committed by persons who are operating as part of its armed forces. Moreover, as a High Contracting Party to the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, Israel cannot be absolved from any liability it incurs in respect of grave breaches or serious violations, which are committed against the civilian population during military operations.

Most importantly, it must be noted that these decisions form part of a series of measures enacted by the Israeli authorities in recent years, which result in the dismissal of a large amount of cases and are intended to prevent Palestinians from claiming compensation in the event of violations of international law by Israel. Israel classifies the entire occupied Palestinian territory as a ‘conflict zone’ and, since 2007, Israel has prevented Palestinians living in the Gaza Strip – whether victims, witnesses, or their lawyers – from travelling to appear before Israeli courts. As a result, the courts have dismissed many cases under the pretext of the complainants and witnesses not being present during the proceedings.

Such tactics employed by the Israeli judiciary deny Palestinian victims the right to access to justice and the right to an effective remedy with respect to both civil and criminal cases. Such measures very strongly indicate Israel’s unwillingness to fulfil its legal obligations towards the victims of its military operations through its domestic mechanisms. Recourse to international justice mechanisms, such as the International Criminal Court, is essential for achieving justice and accountability for Palestinian victims, thereby tackling Israeli impunity and ensuring respect for the rights of Palestinians in the future.

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