Time: 12pm (+2 GMT)

On 13 July 2010, members of Israel’s artillery forces shelled the house of Naser Abu Is’ayid, which is located near the parameter fence in the east of Johr Al Deek village, Gaza Strip. Ne’ma Abu Is’ayid, Naser’s wife, was killed in the attack and four members of the family were wounded. The house was attacked again on 28 April 2011, causing the injury of three of Naser’s sons and the total destruction of the house. Despite evidence of serious wrongdoing on the part of the military, an Israeli lower court rejected the liability of the state—a decision the court based on legislation that restricts Palestinians’ right to access effective remedies. The recent, 3 July 2019, decision by the Israeli High Court of Justice, sitting as a Court of Appeals, upholds the lower court’s decision and effectively deprives Palestinian claimants of justice and redress from within the entire Israeli judicial system.

Al Mezan Center for Human Rights brought the Abu Is’ayid’s case to the Israeli courts, beginning with the Be’er Sheva District Court, on 11 June 2012. On 20 November 2017, following five years of legal proceedings, the court ruled that the killing of Ne’ma, the injury of family members, and the destruction of the family home occurred during what it considered “combat action”—conduct that exempts the Israeli State from liability.

The court based its ruling on Amendment No. 8 to Israel’s Civil Wrongs (State Liability) Law. Under this amendment, issued on 23 July 2012, a soldier does not need to face a threat to life or safety in order for his/her conduct to fall under the “combat action” exemption for liability. Rather, the definition of “combat action” was broadened so that its nature, goal, and geographical location are considered. In short, this excessively broad definition of “combat action” exempts the state from liability for any military activity in and around Gaza, without consideration for adherence to Israeli and/or international law.

With paragraph 5/B of the amendment preventing counter-claims—a process that would allow claimants to provide testimony—the court can rule on cases without even hearing from witnesses. This protective cover for the State applies retroactively to cases dating back to 12 September 2005.

On 4 July 2018, Al Mezan decided to appeal the District Court’s decision and petitioned Israel’s High Court of Justice. At the beginning of this month, the High Court dismissed the appeal and upheld the earlier decision by the District Court and the broad exemptions that the ruling provides.

In its ruling, the High Court stated the following:

“The Court has investigated the incident meticulously and assessed that the second attack [the subject of the appeal] was perpetrated with dereliction, which the court does not deal with. This dereliction is part of individual acts by the soldiers rather than being part of the incident itself. As such, the attack was launched per the standards of self-defense and according to the provisions of the law. We regret the results of the attack. At the legal level, however, the appeal is rejected.” (Unofficial translation)

The ruling raises the possibility that the use of military force against the family in the second incident might have resulted from negligence. However, the Court refuses to deal with this question and found no reason to interfere in the District Court’s ruling, which in the High Court’s opinion, applied the definition of “combat action” properly as per Amendment No. 8.

Al Mezan’s lengthy experience in Israeli courts brings to light the increasingly stringent barriers placed in front of Palestinian victims. Introduced through legislative reform and administrative procedures, the restrictions are clearly designed to protect the State from liability, instead of upholding a victim’s right to justice and redress. Without Israel’s highest court protecting a claimant’s rights, survivors and family members are now forced to seek due process internationally.

Allowing the State to shield itself from virtually any responsibility for the conduct of its agents encourages a cycle of violence without deterrent. Al Mezan categorically rejects the Supreme Court’s decision, which fails to protect the rights of victims and instead favors protection of the State. Given the ineffectiveness and unwillingness of the domestic justice system, the international community must take meaningful steps to ensure that international accountability mechanisms are made available to victims of international law violations.

END

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