Factsheet

The Palestinian Centre for Human Rights (PCHR) represents 1,046
individual victims of Operation Cast Lead, Israel’s 27 December 2008 – 18
January 2009 offensive on the Gaza Strip. Criminal and civil complaints on
behalf of each of these victims were submitted to the Israeli authorities;
to-date substantive responses have only been received with respect to 2 criminal
cases, and 2 civil cases.

Criminal complaints are submitted to the Israeli Military Advocate
General. Complaints consist of a request to open a criminal investigation, and
are accompanied by an evidence bundle, including, for example, affidavits, medical
reports, expert opinions, maps, videos, photographs, and so on. PCHR submitted
490 criminal complaints (covering all 1,046 victims). The majority of
complaints were submitted by May 2009, with the last complaint submitted in
November 2009.

Civil complaints are submitted to the Israeli Ministry of Defence.
Complaints take the form of a request for compensation, and include similar
information to that submitted in the criminal complaint. These complaints must
be submitted within 60 days of the incident. PCHR submitted 1,046 civil
complaints; the last complaint was submitted in March 2009. In the event that
no effective response is received to this complaint, a tort case may be
submitted before the Israeli courts within two years of the incident. PCHR submitted
100 such tort cases, see below.

Significantly, PCHR is now receiving a number of communications
from Israeli courts in relation to these tort cases. The courts have begun to
impose a court guarantee of 20,000NIS per claimant. This guarantee must be paid
before the case can proceed. PCHR wishes to highlight two factors: first, the
amount of this guarantee is far beyond the means of the overwhelming majority
of the victims in the Gaza Strip, and so constitutes an insurmountable barrier
to justice; second, this guarantee is imposed per claimant, this results in a situation whereby the greater the
violation (and so the greater the number of claimants), the greater the
financial barrier to justice.

Status
of Criminal Complaints

In response to the 490 criminal complaints submitted, PCHR has
received responses with respect to 21
cases.

The communications received to-date from the office of the Israeli
Military Advocate General can be broken down as follows:

– 19 responses
indicating that the complaint has been received, that it will be checked, and
PCHR will be informed of the result (interlocutory response);

– 1 response
indicating that the case was closed as the witness was afraid to travel to Erez
crossing for interview;

– 1 response
indicating that a soldier had been charged. 1

PCHR notes that a number of cases relating to PCHR’s clients have
ostensibly been closed, as reported, inter
alia, by the Israeli media. However, PCHR has only received notification
that a file was closed in the one instance referred to above.

PCHR wishes to highlight the paucity of responses received from the
office of the Israeli Military Advocate General. No response whatsoever has been received from the relevant Israeli
authorities with respect to 469 criminal complaints (relating to 776 victims).
Furthermore, no further responses
have been received in relation to the 19 interlocutory responses mentioned
above.

Status
of Civil Complaints

PCHR has
received virtually no response from the Compensation Office at the Ministry of Defence.
With respect to the 1,046 compensation
applications filed, responses have
been received in relation to 26 applications (17 responses total) have been
received as of 17 February 2011. Absolutely
no communication – even acknowledging receipt of the complaint – has been
received from the Israeli authorities in the overwhelming majority of the cases.
PCHR routinely submit letters to the relevant authorities, requesting
information and so on.

The responses received from the Ministry of Defence can be broken down as
follows:

– 4 responses, relating to 11 applications, noted that they had
received complaints from another lawyer, asked that issue be resolved.

– 11 interlocutory responses, relating to 13 applications, noted
receipt of complaint, said that would be checked, and PCHR would be contacted
with the results.

– 1 response, relating to 1 application, noted that this case had
been filed by PCHR before a civil court in Israel.

– 1 response, relating to 1 application, noted that compensation
was refused, on the basis that the event was a military operation.

Between June
2010 and January 2011 PCHR filed 100 tort cases before Israeli courts, relating to the interests of approximately
600 victims. Due to the Israeli-imposed absolute closure, it is not possible
for PCHR’s lawyers to represent clients within the Israeli judicial system. As
a result these cases are filed on behalf of PCHR by a lawyer based in Israel.
It is noted that numerous requests by
this lawyer to access Gaza in order to meet with clients have been denied,
with evident implications with respect to effective representation. The initial
court fee in these cases has been paid.

PCHR is
currently receiving notifications from the court regarding a court imposed
guarantee which is decided by the judge on a case by case basis. This guarantee must be paid before a case
can proceed. Typically, this amount constitutes an insurmountable obstacle
for the Palestinian victims, and results in the cancelling of the case. With
respect to PCHR’s Operation Cast Lead cases, the guarantee is typically being
set at 20,000NIS per claimant. This amount is far beyond the means of the
victims, and constitutes an insurmountable barrier to justice. It is noted that
the guarantee is set per claimant.
This results in a situation whereby the
greater the scale of the violation, the greater the financial obstacle to
justice. For example, 22 members of the Abdul Dayem family were killed or
injured (5 killed, 17 injured), and complaints were submitted on their behalf.
The court has set the court guarantee at 440,000NIS (22 x 20,000). In the case
of the Samouni family, compensation was claimed on behalf of 62 victims (27
killed, 35 wounded). The court has set the guarantee at 1,240,000NIS (62 x
20,000).

Due to resource
restraints, PCHR was unable to file tort cases on behalf of all its clients;
approximately 400 victims, for whom PCHR had filed a damage application, were
consulted, and advised, where possible to obtain the services of a private
lawyer in order to file a reparation case before the civil courts prior to the
expiry of the statute of limitations. However, it is noted that PCHR submitted
a petition challenging the statute of limitations to the Israeli High Court of
Justice on behalf of all 1,046 victims, and that PCHR continues to represent
all these victims with respect to both the initial damage complaints submitted
to the Compensation Officer, and the, separate, criminal complaints submitted
to the Military Advocate General.

PCHR emphasizes
that virtually no communications have been received from the relevant Israeli
authorities, and that details regarding specific cases have not been
forthcoming. In total, of 1,046
compensation applications, PCHR has received responses in relation to 26 applications.

Conclusion

No
genuine criminal investigations have been conducted with respect to alleged
violations of international law committed in the context of Operation ‘Cast
Lead’.
This conclusion is based both on experience gained representing clients, and a
legal analysis of all parties’ investigative systems and the results to-date.
PCHR believes that the interests of justice demand that recourse now be had to
mechanisms of international criminal justice, and call upon the Security
Council, acting under Chapter VII of the UN Charter, refer the situation in
Israel and the occupied Palestinian territory to the Prosecutor of the
International Criminal Court, in accordance with Article 13 (b) of the Rome
Statute.