(Arafat Hassan Abdel Dayem
on his wheelchair)

At
approximately 07:30 am on 5 January 2009, during ‘Operation Cast Lead’, Israeli
forces fired a tank shell at the house of Hany Abdel Dayem. At the time of the
attack, members of the Dayem family were mourning the death of a family member
named Arafa,
a medic, who had been killed in an Israeli attack on the previous day while he
was on duty treating other injured people. A number of civilians were
injured in the first attack. The family erected a tent outside their damaged
home, in order to hold the traditional mourning service but, less than an hour
later, Israeli forces attacked the tent with two more tank shells and, as a
result, 5 members of the Dayem family were killed and 17 others were injured.

Arafat Hassan
Abdel Dayem (24) was severely injured in the second attack, when several
flechettes from a tank shell pierced his body. One of the flechettes hit Arafat
in the neck, impairing his nervous system. He has been paralyzed ever since, no
longer able to walk and experiencing great difficulty using his arms and hands
without assistance. On 19 August 2010, the Palestinian Centre for
Human Rights (PCHR) filed a civil compensation case before the Israeli court on
Arafat’s behalf but, on 14 February 2013, the case was dismissed by the court
on the grounds that certain Israeli legal provisions, in particular a 2012
amendment to the Israeli Civil Tort Law, absolve the State of Israel of any
liability arising from the damages caused by Israeli forces during a ‘combat
action’.

(The
1.5 inches long flechette that hit Arafat in his neck)

 “I collapsed when I was told that my case has
been dismissed,” Arafat explained. It was a huge shock, because I was hopeful
that my case would succeed. After all, I am a civilian and I was mourning the
loss of my cousin.” When the court’s decision was explained to him, Arafat
burst into tears and said, “I will not give up my case. They cannot dismiss it
like this. I don’t want money. I want treatment. This is injustice. Call the
judge here, or take me to him. I want to ask the judge what right do they have
to put me in this condition?”

Arafat
struggles to calm himself, adding, “On the night before I was injured, I went
to the hospital to donate blood for my cousin but he did not survive. When I
came back home that night, I took a shower and cried. Now, when I remember that
night, it feels as though I was saying goodbye to my body. If they can make me
walk again, even if I have to walk with a stick for the rest of my life, then I
will drop the case. I don’t want their money. I want to walk again.”
Nonetheless, Arafat’s family is struggling financially: “My family and I are
very poor. We cannot afford the treatment. The judge knows this and still he
has denied me the help I need. What sort of a law is this? They have put me in
this condition, so they should help me to walk again. Why are they doing this
to me?”

The medical
treatment Arafat has received so far is insufficient to improve his condition.
He explains: “After the attack I was taken to Turkey for surgery because there
were burns on my legs. The Turkish government and the Palestinian Authority
funded that treatment. I get my medicines from the Al Salaam foundation and the
WAFA foundation. Even getting all these medicines has been a difficult
experience. Previously, I had to go to get them myself because they wanted to
check my condition and only then would they give me the medicines. Now, my
father goes to get the medicines. But these are not enough to help me walk
again. The doctor in Turkey said that if I go to Germany for treatment I might
get better. But I can’t afford that. It is very costly. I don’t know anyone who
can pay for my treatment. This court case was my only hope and now even that is
gone. I am feeling cheated.”

For the past
four years, Arafat has been using a wheelchair to move around inside his home,
but even this limited movement is restricted: “The wheelchair runs on battery
power and it costs around NIS 500 per month. I don’t have that much money and
so I don’t move around too much. Also it is in a bad condition now. This
wheelchair has been giving me problems for the past 2 years now, and I need a
new one. It has cracks in it and I often fall down while using it. When I see
someone walking on the road, I cannot face that person. I avoid them, because I
cannot walk anymore. I want my life back. This is not how I was supposed to
live my life, in a wheelchair.”

(Arafat’s
worn out wheelchair)

Following the 2008-2009 Israeli offensive
on the Gaza Strip (‘Operation Cast Lead’), PCHR filed 1,046 civil complaints
(or “damage applications”), on behalf of 1,046 victims, to the Compensation
Officer in the Israeli Ministry of Defence. These damage applications sought
compensation for victims following alleged violations of international law
committed by Israeli forces. Because the Israeli authorities did not act upon
these damage applications, between June 2010 and January 2011, PCHR filed 100
civil cases before Israeli courts, seeking compensation for 620 victims.
However, the Israeli legislature (Knesset) and the courts, through legislative
amendments and recent decisions, have imposed various legal and procedural
obstacles on the achievement of justice for victims.

In dismissing Arafat’s case, the court
relied upon the 2012 Amendment No. 8 to the Israeli Civil Tort Law (Liability of
the State), which exempts the State of Israel of any liability arising from
damages caused to a resident of an enemy territory during a “combat action” or
a “military operation”. This amendment, which applies retroactively from 2000
onwards, and specifically in the context of the Gaza Strip from 12 September
2005 onwards, widened the scope of “combat action” by including any operations
carried out by Israeli forces in response to terrorism, hostilities, or
insurrections, if it is by nature a combat action, given the overall
circumstances, including the goal of the action, the geographic location, and
the inherent threat to members of the Israeli forces who are involved in
carrying out the action. This amendment disregards the vital question of the
legality of these attacks and ignores the damages caused to the victims as a
result of such attacks, which can potentially constitute violations of the
rules governing the conduct of armed forces during military operations, as
prescribed under international humanitarian law. Amendment No. 8 directly
contravenes norms of customary international law, which establish that a State
is responsible for all acts committed by persons who are operating as part of
its armed forces. Moreover, as a High Contracting Party to the 1949 Fourth
Geneva Convention relative to the Protection of Civilian Persons in Time of
War, Israel cannot be absolved of any liability it incurs in respect of grave
breaches or serious violations, which are committed against the civilian
population during military operations. Moreover, the Israeli courts charge an
average court guarantee of approximately NIS 30,000 (USD 8,000) from every
claimant, and if the case does not reach the trial stage the court withholds
this guarantee as ‘defense costs’.

Significantly, these decisions result in a
situation whereby victims are financially penalised for having pursued
their legitimate right to access to justice by filing civil cases before the
courts. The judicial system is being used to provide an illusion of justice,
while systematically denying Palestinian civilians their right to an effective
remedy.