Israel High Court of Justice vacates verdict in Cast Lead Case: Appoints New Panel of Judges and Orders Case on behalf of 1,046 victims be Re-heard

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On Wednesday, 15 June 2011, the Israeli High Court of Justice vacated (cancelled) a previous judgment dismissing a case brought by the Palestinian Centre for Human Rights, and litigated by Advocates Michael Sfard and Carmel Pomerantz, on behalf of 1,046 victims of Operation ‘Cast Lead’.

The case had been illegitimately dismissed in April 2011 when the Court issued its decision solely on the basis of the State’s submission, effectively denying PCHR’s ‘right of reply’. This procedural irregularity was challenged, resulting in the successful decision of 15 June 2011. A new panel of judges will now be appointed, and the case can proceed.

This successful decision constitutes an important step towards ensuring victims’ legitimate right to access a court, and obtain an effective judicial remedy. 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.

Background to the Case

The initial petition was filed before the Israeli High Court of Justice on 21 December 2010 against Israel’s State Attorney on behalf of 1,046 victims of Operation Cast Lead. The petition requests that the High Court of Justice (HCJ) 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.

The Knesset (Israeli parliament) amended the Israeli Civil Torts Act in 2002, reducing the statue of limitations in these types of civil suits to two years, instead of the previous seven-year limitation.The closure policy on the Gaza Strip prevents these victims from meeting with their Israeli lawyers and from entering Israel in order to testify before Israeli courts.

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.

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.

Public Document