13 March 2013| Palestinian Centre for Human Rights, Occupied Palestine
At approximately 07:30 am on 5 January 2009, during ‘Operation Cast Lead’, Israeli forces fired a tank shell at the house of Hany Abdel Dayem. At the time of the attack, members of the Dayem family were mourning the death of a family member named Arafa, a medic, who had been killed in an Israeli attack on the previous day while he was on duty treating other injured people. A number of civilians were injured in the first attack. The family erected a tent outside their damaged home, in order to hold the traditional mourning service but, less than an hour later, Israeli forces attacked the tent with two more tank shells and, as a result, 5 members of the Dayem family were killed and 17 others were injured.
Arafat Hassan Abdel Dayem (24) was severely injured in the second attack, when several flechettes from a tank shell pierced his body. One of the flechettes hit Arafat in the neck, impairing his nervous system. He has been paralyzed ever since, no longer able to walk and experiencing great difficulty using his arms and hands without assistance. On 19 August 2010, the Palestinian Centre for Human Rights (PCHR) filed a civil compensation case before the Israeli court on Arafat’s behalf but, on 14 February 2013, the case was dismissed by the court on the grounds that certain Israeli legal provisions, in particular a 2012 amendment to the Israeli Civil Tort Law, absolve the State of Israel of any liability arising from the damages caused by Israeli forces during a ‘combat action’.
“I collapsed when I was told that my case has been dismissed,” Arafat explained. It was a huge shock, because I was hopeful that my case would succeed. After all, I am a civilian and I was mourning the loss of my cousin.” When the court’s decision was explained to him, Arafat burst into tears and said, “I will not give up my case. They cannot dismiss it like this. I don’t want money. I want treatment. This is injustice. Call the judge here, or take me to him. I want to ask the judge what right do they have to put me in this condition?”
Arafat struggles to calm himself, adding, “On the night before I was injured, I went to the hospital to donate blood for my cousin but he did not survive. When I came back home that night, I took a shower and cried. Now, when I remember that night, it feels as though I was saying goodbye to my body. If they can make me walk again, even if I have to walk with a stick for the rest of my life, then I will drop the case. I don’t want their money. I want to walk again.” Nonetheless, Arafat’s family is struggling financially: “My family and I are very poor. We cannot afford the treatment. The judge knows this and still he has denied me the help I need. What sort of a law is this? They have put me in this condition, so they should help me to walk again. Why are they doing this to me?”
The medical treatment Arafat has received so far is insufficient to improve his condition. He explains: “After the attack I was taken to Turkey for surgery because there were burns on my legs. The Turkish government and the Palestinian Authority funded that treatment. I get my medicines from the Al Salaam foundation and the WAFA foundation. Even getting all these medicines has been a difficult experience. Previously, I had to go to get them myself because they wanted to check my condition and only then would they give me the medicines. Now, my father goes to get the medicines. But these are not enough to help me walk again. The doctor in Turkey said that if I go to Germany for treatment I might get better. But I can’t afford that. It is very costly. I don’t know anyone who can pay for my treatment. This court case was my only hope and now even that is gone. I am feeling cheated.”
For the past four years, Arafat has been using a wheelchair to move around inside his home, but even this limited movement is restricted: “The wheelchair runs on battery power and it costs around NIS 500 per month. I don’t have that much money and so I don’t move around too much. Also it is in a bad condition now. This wheelchair has been giving me problems for the past 2 years now, and I need a new one. It has cracks in it and I often fall down while using it. When I see someone walking on the road, I cannot face that person. I avoid them, because I cannot walk anymore. I want my life back. This is not how I was supposed to live my life, in a wheelchair.”
Following the 2008-2009 Israeli offensive on the Gaza Strip (‘Operation Cast Lead’), PCHR filed 1,046 civil complaints (or “damage applications”), on behalf of 1,046 victims, to the Compensation Officer in the Israeli Ministry of Defence. These damage applications sought compensation for victims following alleged violations of international law committed by Israeli forces. Because the Israeli authorities did not act upon these damage applications, between June 2010 and January 2011, PCHR filed 100 civil cases before Israeli courts, seeking compensation for 620 victims. However, the Israeli legislature (Knesset) and the courts, through legislative amendments and recent decisions, have imposed various legal and procedural obstacles on the achievement of justice for victims.
In dismissing Arafat’s case, the court relied upon the 2012 Amendment No. 8 to the Israeli Civil Tort Law (Liability of the State), which exempts the State of Israel of any liability arising from damages caused to a resident of an enemy territory during a “combat action” or a “military operation”. This amendment, which applies retroactively from 2000 onwards, and specifically in the context of the Gaza Strip from 12 September 2005 onwards, widened the scope of “combat action” by including any operations carried out by Israeli forces in response to terrorism, hostilities, or insurrections, if it is by nature a combat action, given the overall circumstances, including the goal of the action, the geographic location, and the inherent threat to members of the Israeli forces who are involved in carrying out the action. This amendment disregards the vital question of the legality of these attacks and ignores the damages caused to the victims as a result of such attacks, which can potentially constitute violations of the rules governing the conduct of armed forces during military operations, as prescribed under international humanitarian law. Amendment No. 8 directly contravenes norms of customary international law, which establish that a State is responsible for all acts committed by persons who are operating as part of its armed forces. Moreover, as a High Contracting Party to the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, Israel cannot be absolved of any liability it incurs in respect of grave breaches or serious violations, which are committed against the civilian population during military operations. Moreover, the Israeli courts charge an average court guarantee of approximately NIS 30,000 (USD 8,000) from every claimant, and if the case does not reach the trial stage the court withholds this guarantee as ‘defense costs’.
Significantly, these decisions result in a situation whereby victims are financially penalised for having pursued their legitimate right to access to justice by filing civil cases before the courts. The judicial system is being used to provide an illusion of justice, while systematically denying Palestinian civilians their right to an effective remedy.
