Ref: 38/2011

On Thursday, 28 April 2011, the Israeli High Court of Justice
dismissed a petition brought by the Palestinian Centre for Human Rights (PCHR),
and litigated by Attorneys Michael Sfard and Carmel Pomerantz.

The petition was filed on 21 December 2010, by PCHR in relation to
more than 1,000 victims of Israel’s 27 December 2008 – 18 January 2009
offensive on the Gaza Strip (Operation ‘Cast Lead’), in order to challenge the
2-year statute of limitations imposed on filing tort (compensation) cases. The petition requested that the High Court of Justice
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.

PCHR have
consistently argued that the statute of limitations, imposed monetary barriers,
and the illegal closure of the Gaza Strip, combine to fundamentally deny
victims’ legitimate right to an effective judicial remedy. In effect, they
contribute to the establishment of an ‘accountability free-zone’ in the Gaza
Strip, wherein Israeli forces are free to violate international law without
consequence. At issue in this petition is the fundamental – and universally
recognized – right to compensation in the event of a violation of international
law.

Yesterday’s
High Court of Justice ruling represents a serious setback for the victims, and
their legitimate quest for accountability and redress.

Significantly,
the Court’s decision to dismiss the petition was procedurally flawed. PCHR had
a right to reply to the State’s submission before the Court decided on the
matter. The date fixed by the Court for PCHR’s reply is 3 May 2011.

PCHR believe
that the procedurally flawed dismissal of this case represents an example of
the Israeli judiciary’s complicity in the perpetuation of a climate of
pervasive impunity, whereby those Israeli officials and soldiers suspected of
committing international crimes are shielded from justice, and victims’
legitimate rights to the equal protection of the law are systematically denied.
In this context it is noted that the UN Fact-Finding Mission on the Gaza
Conflict concluded that the series of acts that limit Palestinians in the Gaza
Strip’s “access to courts of law and effective remedies could amount to
persecution, a crime against humanity.”

It is
imperative that victims’ fundamental human rights be respected and upheld, and
that recourse to mechanisms of international justice be supported and
encouraged by the international community.

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, challenged the
two-year statute of limitations. An injunction was sought from the court
suspending the two-year statute of limitations period. The petition highlighted
a number of barriers to justice created as a result of Israeli policy,
including the illegal closure of the Gaza Strip.

This petition is brought by PCHR in
relation to 1,046 victims of Operation Cast Lead, representing the overwhelming
majority of cases prepared in the aftermath of the offensive. These cases 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.