Israel’s High Court dismisses petition filed on behalf of over 1,000 victims of operation Cast Lead in Gaza

PCHR – 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.