Ref: 112/2010

Today,
21 December 2010, the Palestinian Centre for Human Rights (PCHR) is filing a
petition to the Israeli High Court of Justice against Israel’s State Attorney
on behalf of 1,046 victims of Israel’s 27 December 2008 – 18 January 2009
offensive on the Gaza Strip (Operation Cast Lead). The petition requests that the
High Court of Justice (HCJ) order the State Attorney to refrain from raising a
claim under the statute of limitations in future civil suits brought before
Israeli courts. According to PCHR, the right of access to the courts demands
that the statute of limitations on bringing such civil cases, begin to accrue
only once Israel’s illegal closure of the Gaza Strip has ceased.

The
Knesset (Israeli parliament) amended the Israeli Civil Torts Act in 2002,
reducing the statue of limitations in these types of civil suits to two years,
instead of the previous seven-year limitation.

The
closure policy on the Gaza Strip prevents these victims from meeting with their
Israeli lawyers and from entering Israel in order to testify before Israeli
courts.

As a
result of the physical, financial, and legal obstacles imposed by Israel,
Palestinian residents of the Gaza Strip – including the thousands of victims of
Operation Cast Lead – are effectively prevented from seeking redress before
Israeli courts. This situation results in the systematic denial of fundamental
human rights.

The
issue addressed in this petition relates to the right to reparation and the
filing of civil tort compensation cases before Israeli courts on behalf of
victims of Operation Cast Lead.

Background Information

Customary
international law recognises all victims’ right to reparation (including
compensation) in the event of a violation of international law. However,
Palestinian victims from the Gaza Strip are currently faced with a number of
significant hurdles which effectively prevent them from accessing justice, in
violation of their fundamental rights. Claimants face three principal
obstacles:

1. Statute of Limitations. Under Israeli law, a complaint for
civil damages must be brought within two years of the date of the incident, or
the right to compensation is irrevocably lost. As a result of the illegal
closure of the Gaza Strip, and the significant number of victims of Operation
Cast Lead, this two-year limit means that the victims are often unable to
submit their cases within the required time-frame. Prior to 1 August 2002, the
statute of limitations was seven years.

2. Monetary Barrier. Israeli courts often require
claimants to pay a court insurance fee before the case can begin. While this is
a discretionary fee applied by the court, in practice, this fee is always applied to Palestinian claimants.
The exact value of the fee is not fixed, and it is determined on a case-by-case
basis by the court. With respect to claims for damage to property, the fee
usually constitutes a percentage of the value of the property being claimed,
however, for death or injury there is no informal guideline. In PCHR’s
experience this amount is typically set at a minimum of NIS 10,000 (about US
$2800); however, it can reach significantly higher amounts. In a recent case
brought by PCHR, the claimants were required to pay an insurance fee of NIS
20,000 (US $5,600) for each of the
five wrongful deaths claimed. Thus, grave violations equal extremely high
monetary barriers to justice. This insurance fee constitutes an insurmountable
obstacle to justice. Simply put, claimants from Gaza – crippled by the economic
devastation wrought by the occupation and the illegal closure – cannot afford
this fee and their cases are being dismissed and closed.

3. Physical Barriers. Under Israeli law, in order
testimony to be valid, the victim or witness must be present in court to
undergo cross-examination. However, since June 2007, despite a letter from the court requesting their presence, the Israeli
military authorities have not allowed a single individual to leave Gaza to
appear in court. As a result, their cases are dismissed and closed. Further,
PCHR’s lawyers – although qualified – cannot enter Israel to represent their
clients before the courts. As a result, PCHR is forced to work with and hire
lawyers in Israel (at extra cost). However, clients are not allowed to enter
Israel to meet with their lawyer, and all requests made by lawyers to enter
Gaza – to meet with clients, visit the crime scene, and so on – have been
denied. Necessarily, this affects the lawyers’ ability to represent their
clients, thereby undermining victims’ right to an effective remedy.

The Petition

The
petition, brought by PCHR and litigated by Attorneys Michael Sfard and Carmel
Pomerantz, challenges the two-year statute of limitations. An injunction is
sought from the court suspending the two-year statute of limitations period.
The petition highlights a number of barriers to justice created as a result of
Israeli policy, including the illegal closure of the Gaza Strip; the petition
develops a letter previously submitted by Adalah to the Israeli Attorney
General. This petition is brought on behalf of 1,046 victims of Operation Cast
Lead, representing the overwhelming majority of cases prepared in the aftermath
of the offensive.

The
approximately 490 cases prepared by PCHR, on behalf of 1,046 victims of
Operation Cast Lead (OCL), constitute the overwhelming majority of cases
prepared in the aftermath of the offensive. They cover virtually the entire
spectrum of international humanitarian law violations, and among them are the
most infamous cases of the offensive, including those of the Samouni, Abu
Halima, and Al-Dia families.

The
policies and practices challenged in this petition serve to comprehensively
deny victims’ right to access justice. They perpetuate a climate of pervasive
impunity, and effectively contribute to the establishment of an accountability
free zone in the Gaza Strip.

PCHR can facilitate interviews with victims in
the Gaza Strip.

For further information or comment, please
contact:

· Raji Sourani, Director, PCHR, 0599608811 (Arabic and English)

· Michael Sfard, Attorney, 0544713930 (Hebrew and English)

· Daragh Murray, International legal officer, PCHR, 00 (353) 85 768
4647 (English)