An Israeli human rights organisation has launched a legal challenge to the state's policy of denying Palestinians permission to leave Gaza to pursue claims for damages resulting from military action, which has led to dozens of cases being dismissed by the Israeli courts.
The petition follows a supreme court ruling in 2006 that Palestinians were entitled to sue the state of Israel for compensation for damages caused to civilians by the military outside of "acts of war". Lawsuits were filed for death, injury, house demolitions, torture and cruel or inhumane treatment.
However, plaintiffs and witnesses have been refused permission to enter Israel to appear in court, give evidence and complete necessary legal processes, such as signing affidavits witnessed by their lawyers, for their cases to proceed. Israel tightly restricts entry from Gaza which it says is necessary on security grounds.
Adalah, a human rights and legal action centre, cites a case in 2009 where the judge concluded "there is no option other than to dismiss the lawsuit".
The plaintiffs, he said, "live in Gaza City and are unable to enter Israel. Therefore, they cannot hold meetings with their lawyer or sign various documents in front of him. They cannot stand before the court to give their testimony, to prove their case … The situation cannot be expected to change in the foreseeable future."
The petition, filed by Adalah on behalf of 13 plaintiffs from Gaza plus lawyers and human rights groups, must be heard by the end of February.
The cases include that of Mohammed Asad Mohammed Alloh, disabled after being shot in the head from an Israeli military helicopter at the age of 13 in 2004. He was refused entry to Israel to undergo medical examination by an expert witness, as required by the court. His lawyer, Hussein Abu Hussein, was forced to withdraw the case in 2010 after a five-year battle.
Hassan Lutfi Saed al-Bishawy was taking his pregnant wife to hospital with her sister and a neighbour in January 2005 when their car came under fire from Israeli soldiers. The neighbour was killed and Bishawy was shot in his thigh and hand. None of the nine plaintiffs and four witnesses in the case have been permitted to enter Israel to testify. The case is still pending.
Kamla Saleh Suliman Abu Said and her niece were shot dead while working in fields near the Gaza-Israel border. The case was dismissed in 2009 after five years of legal battles because three witnesses were not permitted to enter Israel to appear in court. A second case is now pending, but the witnesses are still being refused access to Israel.
"In all these cases, there is a good chance to prove the liability of the state of Israel," said Fatmeh El-Ajou, a lawyer for Adalah. "This is the way the state is trying to avoid accountability. The plaintiffs are banned from exercising their rights. And in this way [the state] is turning the supreme court ruling into a dead letter."
Under Israeli law plaintiffs must also deposit a sum of money‚ "usually around 30,000 shekels (£5,000)‚" to guarantee the costs in case they lose their claim. The sum is forfeited if the case is dismissed. "This is another obstacle to the plaintiffs," said El-Ajou.
Israel's ministry of justice referred the Guardian to a letter it sent to Adalah prior to the petition being filed. The ministry said there was no legal obligation on the state of Israel to allow the entry of residents of Gaza.
It said there was "an armed conflict between Israel and the Palestinian terror organisations which are active in the Gaza Strip … Since June 2007 [when Hamas took control of Gaza] there exists alongside this conflict a terror government, which, as a result of a violent revolution which it carried out, which had turned the Gaza Strip into a "hostile territory' for the state of Israel". Claimants "have a wide array of methods to establish contact with their lawyers, among others, through telephone calls, faxes, and emails".
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