Ref: 96/2011

 

In response to civil claims filed by the
Palestinian Centre for Human Rights (PCHR), Israel’s Central Court in Nazareth
has issued two decisions which obstruct Palestinian victims’ access to justice
and an effective remedy. These decisions compel each claimant in a civil case
to pay a court insurance fee (guaranty) of 20,000 NIS before the court will
allow the case to proceed. If the money is not paid within 120 days, the claim
will be dismissed.[1]

 

The
imposition of such a high guaranty per claimant results in the grotesque
situation whereby the financial barrier to justice increases in proportion to
the violation. The higher the number of victims, the higher the total cost of
the guaranty. The cost associated with these guaranties effectively denies
Palestinians access to justice.

 

The
first decision was issued on 15 June 2011, with respect to a case taken on
behalf of the ‘Olaiwa family. The 9 complainants were compelled to pay a total
guaranty of 180,000NIS (approximately 48,870USD). The claim relates to an
incident which took place on 5 January 2009, when an Israeli tank stationed on
al-Rayes hill fired a shell at an apartment in the al-Shuja’iya neighbourhood
of Gaza City. 5 members of the family (4 children and a woman) were killed, and
4 others, including 3 children, were wounded. This decision was appealed to the
Supreme Court in Jerusalem requesting annulment of the decision, or a decrease
in the amount of the guaranty.

 

The
second decision was issued on 14 July 2011, with respect to a case taken on
behalf of the ‘Abdul Dayem family. The 22 complainants were compelled to pay a
total guaranty of 440,00NIS (approximately 119,461USD). The claim relates to an
incident which also took place on 5 January 2009, when a flechette shell was
fired at a condolence tent near to Izbat Beit Hanoun. 5 people were killed,
including a child, and 17 others, including 2 children and a woman, were
wounded.

 

The
right to reparation is an essential component of customary international law.
While compensation can never replace the loss incurred, it is necessary to
enable victims to rebuild their lives, and their livelihoods.

 

PCHR
affirms that the extent of the guaranties imposed effectively deny Palestinian
claimants’ fundamental rights to access justice and to an effective remedy.
Unemployment and poverty rates in the Gaza Strip are amongst the highest in the
world. Currently, 75% of Gazans are dependent on foreign aid.

 

In
imposing these guarantees Israeli Courts are placing a price on justice that is
far beyond Gazan’s reach; the cost of the guaranty is simply insurmountable. In
effect, the Courts are denying judicial remedy under a perceived veil of
legitimacy. The message to victims is clear: the doors to justice are closed.

 

These
two decisions set a dangerous precedent. PCHR have filed a total of 100
compensation cases on behalf of over 600 victims of Israel’s 27 December 2008 –
18 January 2009 offensive on the Gaza Strip. The imposition of prohibitive
guaranties may be repeated in the remainder of these cases, resulting in their
dismissal.

 

PCHR
provides free-of-charge legal representation to victims, including the cost of
court fees and guaranties. However, due to financial constraints, PCHR has
already been unable to file compensation cases on behalf of approximately 400
victims of the offensive, for whom a damage complaint had already been submitted.
These 400 victims and their representatives were simply unable to meet the
financial demands imposed by the Courts.

 

PCHR
notes that these two decisions form part of a series of measures enacted by
Israeli authorities in recent years and intended to prevent Palestinians from
claiming compensation in the event of a violation of international law. On 27
July 2005, the Knesset amended the Civil Torts (Liability of the State) Law
which sought to prevent Palestinian (not Israeli) residents of a ‘conflict zone’
from seeking compensation. Israel classifies the entire occupied Palestinian
territory as a ‘conflict zone’. In response, 9 human rights organizations,
including PCHR, filed a petition to the Supreme Court challenging the law, and
were able to obtain a decision allowing Palestinians to institute individual
compensation claims before Israeli courts. The Civil Torts (Liability of the
State) Law had previously been amended to decrease the statute of limitations
with respect to a compensation claim from 7 to 2 years, and requiring that a
written notice be sent to the Israeli Defence Ministry within 60 days of the
incident otherwise the right to judicial remedy will be terminated.
Furthermore, since 2007, Israel has prevented Palestinians – whether victims, witnesses,
or their lawyers – from travelling from the Gaza Strip to appear before Israeli
courts. As a result, the courts have dismissed many cases under the pretext of
absent witnesses.

 

The
conclusion is unambiguously clear. Israel effectively denies Palestinian
victims’ access to justice and right to a remedy with respect to both civil and
criminal cases, (detailed further in Genuinely Unwilling: An Update). In
the language of the International Criminal Court, Israel is unwilling to fulfil
its legal obligations, recourse must now be had to mechanisms of international
justice.

 

PCHR
call upon States gathered at the United Nations General Assembly to submit the
report of the UN Fact-Finding Mission on the Gaza Conflict to the UN Security
Council, with the explicit recommendation that the Security Council refer the
situation in Israel and the occupied Palestinian territory to the International
Criminal Court. All States must fulfil their obligation to enforce international law.

 

PCHR
will continue to use all available means to ensure victims’ fundamental human
rights, including the right to reparation. Recently, compensation of 500,000NIS
was secured on behalf of the family of Rayah Salama Abu Hajjaj, 64, and Majeda
‘Abdul Karim Abu Hajjaj, 37. These two women were killed when a group of white
flag carrying civilians was attacked by Israeli forces near Juhor al-Dik
village during Operation Cast Lead. The compensation was awarded in an out of
court settlement.

 

 

 

 



[1] The guaranty is based on
Article 519 of the Israeli Civil Code, whereby the Court is granted the right
(not obligation) to request payment of a guarantee, before the case begins, in
order to cover the other party’s expenses (the Ministry of Defence in this
case) in the event that the case is lost. There is no specified amount for the
guaranty, and it is set at the discretion of the Court in each specific case.