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Ref: 16/2013

 

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.

 


[1] On 16 July 2012, the Israeli
Knesset accepted the Law and Explanatory Matters Bill, which was published in
the Government Act Bill – 387
in May 2008, page 598.