Ref:108/2012

In a further example of the continued denial of Palestinian victims' right to access to justice, on 06 September 2012, the Israeli District Court in Jaffa delivered a decision rejecting the judicial case filed on behalf of Abu Selmiya family, which lost 9 of its members when the family home was shelled by Israel’s forces in 2006.  The case was rejected under the pretext that the victims were killed in the context of a military operation, and that Israel is not responsible for the damages incurred.  As the legal representative of the victims, the Palestinian Center for Human Rights (PCHR) received a copy of the court's decision on 25 September 2012.

On 12 July 2006, Israel’s forces shelled a house in al-Sheikh Redwan neighborhood, which belonged to Nabil Mohammed Abdul Latif Abu Selmiya, a lecturer at the Islamic University.  As a result of the attack, the 2-storey house collapsed and 9 members of the family were killed.

PCHR has followed up the family's case since 13 July 2006.  In this context, PCHR filed a civil complaint to the Compensation Officer at the Israeli Ministry of Defense on 25 July 2006, and a criminal complaint to the Israeli military prosecution on 06 August 2006.  On 07 September 2006, PCHR received an acknowledgement of receipt of the civil complaint from the Compensation Officer at the Israeli Ministry of Defense.  Aside from this, PCHR did not receive any reply from the concerned authorities.  For this reason, PCHR filed a case for compensation before the Israeli civil court on 10 May 2007.

PCHR finds unacceptable the reasoning adopted by the judge in issuing her decision.  The judge accepted the assertion that the Abu Selmiya family was killed as a result of a bomb or missile fired by an F-16 Israeli plane.  However, she exempted Israel from responsibility for this crime under the pretext that the victims were killed in the context of a military operation.  In addition, the judge held that an incident may be identified as a military operation without due consideration of the principle of proportionality, a finding which is in violation of international humanitarian law.  According to the principle of proportionality, which is codified in Article 51 (5) (b) of Additional Protocol 1 to the Geneva Conventions, an attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof is considered excessive in relation to the concrete and direct military advantage anticipated.

PCHR considers that this decision by a judge of the Israeli civil court demonstrates that the Israeli judicial system is inherently flawed; it prevents the effective prosecution of the perpetrators of serious crimes, thereby denying accountability for victims and contributing to a culture of impunity.

PCHR intends to appeal this case and to pursue all available local litigation measures in an effort to obtain justice for the Abu Selmiya family.  Furthermore, PCHR will continue its efforts to bring Israeli war criminals to justice, by securing their prosecution in international and national courts based on the principles of universal jurisdiction and criminal accountability.  This work is aimed at challenging the culture of impunity and guaranteeing Palestinian victims their right to an effective remedy. 

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