Ref:
58/2011 

On
Wednesday, 15 June 2011, the Israeli High Court of Justice vacated (cancelled)
a previous judgment dismissing a case brought by the Palestinian Centre for
Human Rights, and litigated by Advocates Michael Sfard and Carmel Pomerantz, on
behalf of 1,046 victims of Operation ‘Cast Lead’. The case had been illegitimately
dismissed in April 2011 when the Court issued its decision solely on the basis
of the State’s submission, effectively denying PCHR’s ‘right of reply’. This
procedural irregularity was challenged, resulting in the successful decision of
15 June 2011. A
new panel of judges will now be appointed, and the case can proceed.

This
successful decision constitutes an important step towards ensuring victims’
legitimate right to access a court, and obtain an effective judicial remedy.
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.

Background
to the Case

The
initial petition was filed before the Israeli High Court of Justice on 21
December 2010 against Israel’s State Attorney on behalf of 1,046 victims of
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.

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.