Haifa, Israel – Maher Ismail Abu Daqqa has been waiting more than 10 years for justice.
He was 40 years old when, in August 2001, Israeli soldiers fired at his car at an Israeli military roadblock in the Gaza Strip. From the village of Bani Suheila, near Khan Yunis, Abu Daqqa was wounded by live ammunition, which fractured his left knee.
“I saw an Israeli soldier in a cement observation tower pointing his gun at me. I heard something hitting the car. My sons cried and moved their heads down. I felt a burning sensation in my left knee. I shouted [at] the soldier, telling him that I was wounded, but he did not stop shooting,” Abu Daqqa told the Gaza-based Palestinian Center for Human Rights (PCHR) in his testimony after the incident.
Not long after he was shot, Abu Daqqa filed a case against Israeli security forces in the Jerusalem District Court.
After receiving a hearing date, his lawyer applied for permits to allow Abu Daqqa and his witnesses to enter Israel to testify in court.
These applications were denied, however, and prompted the court to put the proceedings on hold. To date, Abu Daqqa has yet to receive the permits, or his day in court.
Entry permits denied
In the aftermath of the recent Israeli offensive on Gaza Strip that left scores dead and hundreds injured, many more Palestinians are likely to contemplate court action against Israeli for its attacks.
But if past experience is any indicator, it is unlikely that victims of Israel’s “Operation Pillar of Defense” will have any legal recourse to seek damages.
“The law says that [Palestinians] have the right to bring the case before the courts. The court has declared their right as a constitutional right, but the state in different practices is refusing to implement that. It is putting different obstacles in front of the plaintiffs and in this way, it is denying them an effective remedy,” said Attorney Fatmeh El-Ajou from Adalah, a legal centre for Palestinian Arabs in Israel, from her Haifa office.
On September 27, Adalah submitted a petition to the Israeli Supreme Court arguing that the refusal to issue entry permits to Palestinians from Gaza to file damage claims in Israeli courts is illegal.
“An entry to Israel for legal proceedings is not an exceptional humanitarian case which justifies the granting of entry permits. However, the authorities will consider responding to such requests in exceptional cases with humanitarian grounds…“
– Israel Civil Administration statement
According to El-Ajou, hundreds of Palestinian cases have been affected by this Israeli policy. Since 2007, no permits have been granted to petitioners or witnesses from the Gaza Strip to enter Israel for the purposes of testifying in court, he said.
Israel has implemented severe movement restrictions on residents of the Gaza Strip since the early 1990s. A strict closure policy, however, was enforced shortly after Hamas, the hardline Palestinian group, won parliamentary elections in 2006 and retained control of Gaza after a 2007 coup attempt by rival Fatah members.
That same year, Israel designated the Gaza Strip as “hostile territory”.
The Israeli Civil Administration (ICA) – the military body that controls the occupied Palestinian territories, and issues entry and exit permits for Palestinians living therein – stated in an email that entry into Israel from the Gaza Strip is only permitted in “exceptional humanitarian cases”.
“An entry to Israel for legal proceedings is not an exceptional humanitarian case which justifies the granting of entry permits. However, the authorities will consider responding to such requests in exceptional cases with humanitarian grounds, which justify a deviation from the general policy. This will be approved only if there is no security or criminal prevention from entering Israel, and if the denial of entry would thwart the judicial process,” the ICA statement read.
Still, the Hague Regulations (1907) outlining the laws of war say that a belligerent party that violates the provisions of the Regulations “shall be responsible for all acts committed by persons forming part of its armed forces” and will be liable to pay compensation.
The refusal to regularly and openly grant permits for Palestinians to access legal proceedings in Israel also violates a 2006 Supreme Court ruling, which found that individuals affected by Israeli military operations have a right to seek damages in Israeli courts.
In order to file a damage claim against the Israeli security forces, claimants must submit an “intent to file a damages claim” within 60 days of the date that the event took place, and must file a lawsuit within two years of the event.
Without the necessary permits to enter Israel, would-be claimants from Gaza are unable to meet with lawyers that can represent them in Israel. They also cannot conduct medical examinations with Israeli doctors, and get opinions from Israeli experts, two necessary requirements for filing a lawsuit.
Petitioners must also deposit large financial sums guaranteeing that, should they lose their case, they will be able to cover the state’s legal fees and overall expenses.
Israel also maintains a wide definition for what constitutes an “act of war” – an act that, according to the law, may exempt Israel from responsibility. Recently, the Israeli military acquitted itself of all responsibility in the death and serious injury of dozens of members of the Samouni family, which occurred in an aerial bombing during Israel’s attacks on Gaza in 2008-2009, known as “Operation Cast Lead”.
According to the fee required to appeal to Israel’s Supreme Court, the Samouni family would have had to pay upwards of NIS 1 million ($255,820) to have its case heard in Israel.
“At the end of the day, the court is saying that the Israelis don’t carry any responsibility for these acts,” said Eyad Al Ami, director of the legal unit at the PCHR.
“Israel does not admit mistakes, even when grave and serious violations occur,” says Hamzi Shakura of the PCHR. For example, 490 legal claims were filed by Palestinians from Gaza in Israeli courts post-Operation Cast Lead representing over 1,000 victims and their families, but only a handful received some kind of written response stating that their claims would be addressed or investigated. None got entry permits.
‘Not the best strategy’
When a ruling that benefits Palestinians is handed out by an Israeli court, it often takes numerous subsequent appeals and sometimes years before it is implemented on the ground.
In 2009, for instance, the Israeli High Court responded to a petition filed by the Association for Civil Rights in Israel (ACRI) on behalf of six Palestinian villages near Ramallah, in the occupied West Bank, that had been barred from accessing an important highway since 2002.
“The court actively misleads us by obscuring the forest and focusing on the trees.”
– Nimer Sultany, Palestinian lawyer
The Court found that the closure of Road 443 – a road that connects Jerusalem to nearby settlements and eventually to Tel Aviv through the occupied West Bank – to Palestinian cars was illegal, and ordered the Israeli military to open the span by May 2010.
To date, however, the ruling hasn’t been carried out, and Palestinian access to Road 443 remains severely restricted. This lack of implementation of the Court’s ruling constituted, according to ACRI, “a blatant mockery” of the rule of law and human rights.
“The new arrangement,” ACRI found, “creates the false impression of new regulations, genuine freedom of movement, and adherence to the rule of law, though in fact no real change will occur; the Palestinians’ situation will actually only worsen”.
For some, the lack of implementation and low likelihood of success proves that appealing to Israeli courts isn’t the best strategy to secure Palestinian rights.
“[The court] gave the false image that there is ‘rule of law’, that there is a legal system that is able to adjudicate Palestinian complaints and that whatever problems arise within the system, the system has enough resources to solve it,” said Nimer Sultany, a Palestinian lawyer and a post-doctoral fellow at SUNY-Buffalo Law School in the US state of New York.
Sultany said that while the Israeli court system can sometimes provide small victories to Palestinians, such as delaying home demolition orders or providing basic services to communities, it will never challenge the underlying system of inequality fuelling Palestinian human rights abuses.
“The court actively misleads us by obscuring the forest and focusing on the trees,” he said.
But according to Adalah’s Fatmeh El-Ajou, for many Gazans, appealing to the Israeli courts is sometimes a necessary step for them to rebuild their lives. “Their lives were ruined. Their lives were destroyed. This is one of the venues that they have to go through in order to get any kind of reparation for the damages, to try to start over.”