In further evidence of the Israeli judiciary’s complicity with
impunity, and a continued denial of access for Palestinian victims to justice,
the Israeli Central Court in Nazareth issued a decision on 05 September 2012
dismissing a claim filed on behalf of the al-Daya family, who lost 22 family
members during the Israeli offensive on the Gaza Strip known as “Operation Cast
Lead.” The court claimed that the
victims were killed in the course of a military operation and Israel is not
responsible for their deaths. The
Palestinian Centre for Human Rights (PCHR), in its capacity as the legal
representative for the only surviving member of the family, was informed of the
decision on 10 September 2012.
Israeli newspapers quoted the Israeli judge: “The casualty was not
intended. In all wars, there are mistakes
that may lead to deaths on both sides.
In wars, each party is fully responsible for the damage incurred to its
members or to civilians, but not the damage incurred to the other party.”
In the context of “Operation Cast Lead,” the Israeli Occupation
Forces (IOF) bombarded a house belonging to Fayez Misbah al-Daya in al-Zaytoun
neighborhood in the east of Gaza City.
The three-story house was destroyed, and 22 out of its 23 inhabitants
PCHR has followed the case of al-Daya family since 23 January
2009. On 11 February 2009, PCHR
submitted a civil complaint to the Compensation Officer of the Israeli Ministry
of Defense. On 18 May 2009, PCHR
submitted a criminal complaint to the Israeli Military Prosecutor. PCHR did not receive any response to these
complaints, so it filed a claim before the Israeli courts on 19 August 2010.
It should be noted that, in July 2009, the IOF admitted that “false
intelligence led Israeli fighter jets to bombard the house of the al-Daya
family, which left 22 of its members dead.”
It is not sufficient to simply accept
the reasoning of this Israeli judge, who admitted that a mistake had occurred
while, at the same time, exempting Israel from responsibility by claiming that
the victims were killed in the context of a military operation; these victims were
civilians, who are protected under the Fourth Geneva Convention.
Israel’s recognition of their mistake indicates that the IOF did
not take the necessary precautions during the attack required by international
standards, including confirming that targets are not civilian objects or
persons. The criminal nature of the
attack, which resulted in the death of 22 members of a family, including 13
children, and 6 bodies that have never been recovered, is unchallengeable.
This new decision by the Israeli courts further evidences the
Israeli judiciary’s complicity with crimes committed by the IOF. It also further confirms PCHR’s conclusion,
gained through practical experience in the Israeli courts, that the Israeli
judiciary systematically covers up crimes committed by the IOF to prevent
accountability. Moreover, this emphasizes
PCHR’s fight for universal jurisdiction, as a step towards achieving justice for
Palestinian’s who are clearly denied access to effective remedy in the Israeli
PCHR will appeal this decision and exhaust all possible legal means
to ensure justice, especially as the court based its decision on the 8th
amendment to the Tort Law – State’s Liability, which was adopted in July 2012, and
which defines an act of war. In his
decision, the Israeli judge quoted articles regarding when the above amendment
entered into force, but ultimately applying a new definition of an act of war
to the subject of this claim even though there is an explicit provision that
the amendment will not be applied retroactively, which means that its
application to the case of the al-Daya family is illegal.
IDF, Operation in Gaza: Factual and Legal Aspects, July 2009.