|In Continued Denial of Access to Justice, the Israeli Central Court Dismisses a Claim Filed on Behalf of the al-Daya Family|
|Tuesday, 11 September 2012 00:00|
In further evidence of the Israeli judiciary’s complicity with impunity, and a continued denial of access for Palestinian victims to justice, the Israeli Central Court in Nazareth issued a decision on 05 September 2012 dismissing a claim filed on behalf of the al-Daya family, who lost 22 family members during the Israeli offensive on the Gaza Strip known as “Operation Cast Lead.” The court claimed that the victims were killed in the course of a military operation and Israel is not responsible for their deaths. The Palestinian Centre for Human Rights (PCHR), in its capacity as the legal representative for the only surviving member of the family, was informed of the decision on 10 September 2012.
Israeli newspapers quoted the Israeli judge: “The casualty was not intended. In all wars, there are mistakes that may lead to deaths on both sides. In wars, each party is fully responsible for the damage incurred to its members or to civilians, but not the damage incurred to the other party.”
In the context of “Operation Cast Lead,” the Israeli Occupation Forces (IOF) bombarded a house belonging to Fayez Misbah al-Daya in al-Zaytoun neighborhood in the east of Gaza City. The three-story house was destroyed, and 22 out of its 23 inhabitants were killed.
PCHR has followed the case of al-Daya family since 23 January 2009. On 11 February 2009, PCHR submitted a civil complaint to the Compensation Officer of the Israeli Ministry of Defense. On 18 May 2009, PCHR submitted a criminal complaint to the Israeli Military Prosecutor. PCHR did not receive any response to these complaints, so it filed a claim before the Israeli courts on 19 August 2010.
It should be noted that, in July 2009, the IOF admitted that “false intelligence led Israeli fighter jets to bombard the house of the al-Daya family, which left 22 of its members dead.” It is not sufficient to simply accept the reasoning of this Israeli judge, who admitted that a mistake had occurred while, at the same time, exempting Israel from responsibility by claiming that the victims were killed in the context of a military operation; these victims were civilians, who are protected under the Fourth Geneva Convention.
Israel’s recognition of their mistake indicates that the IOF did not take the necessary precautions during the attack required by international standards, including confirming that targets are not civilian objects or persons. The criminal nature of the attack, which resulted in the death of 22 members of a family, including 13 children, and 6 bodies that have never been recovered, is unchallengeable.
This new decision by the Israeli courts further evidences the Israeli judiciary’s complicity with crimes committed by the IOF. It also further confirms PCHR’s conclusion, gained through practical experience in the Israeli courts, that the Israeli judiciary systematically covers up crimes committed by the IOF to prevent accountability. Moreover, this emphasizes PCHR’s fight for universal jurisdiction, as a step towards achieving justice for Palestinian’s who are clearly denied access to effective remedy in the Israeli courts.
PCHR will appeal this decision and exhaust all possible legal means to ensure justice, especially as the court based its decision on the 8th amendment to the Tort Law – State’s Liability, which was adopted in July 2012, and which defines an act of war. In his decision, the Israeli judge quoted articles regarding when the above amendment entered into force, but ultimately applying a new definition of an act of war to the subject of this claim even though there is an explicit provision that the amendment will not be applied retroactively, which means that its application to the case of the al-Daya family is illegal.
 IDF, Operation in Gaza: Factual and Legal Aspects, July 2009.