PCHR files petition to Israeli Supreme Court on behalf of victims

Palestinian Centre for Human Rights

Press Release: Israel Effectively Denies Palestinian Victims Of Operation Cast Lead Access to Justice

Today, 20 December 2010, the Palestinian Centre for Human Rights (PCHR) is filing a petition to the Israeli Supreme Court 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 challenges Israeli policies which effectively deny Palestinian residents of the Gaza Strip’s fundamental rights to a judicial remedy and the equal protection of the law. The case is being litigated by Michael Sfard, and Carmel Pomerantz.

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.