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Petitioning the Israeli High Court for justice - Raji Sourani

Dec. 30, 2010 3:48 P.M. (Updated: Dec. 31, 2010 4:47 P.M.)
The reality of life in the Gaza Strip is hard to convey. Individuals throughout the world have seen the pictures and the images: shootings and maiming, air strikes and artillery shelling, and the unforgettably horrific sight of white phosphorous raining down over Gaza city. However, beneath these images lies a complex reality.

The civilians of Gaza have lived under occupation for over 40 years. They have been collectively punished since June 15, 2007, cut off from the outside world for almost 1,300 consecutive days. Systematic violations of international human rights law have created abject poverty, and reduced approximately 1.7 million people to 'beneficiaries' of international aid, forced into dependency as the result of a human-made, and completely preventable, humanitarian crisis.

International human rights law and international humanitarian law offer necessary protections to every individual on the basis of their shared humanity. However, if they are to have meaning, these laws must be enforced.

This is a core component: in the event of a violation, accountability and judicial remedy are the essential consequences. Customary international law, binding on all States, recognizes that this accountability should take the form of criminal accountability, through investigations and prosecutions, and civil accountability, through the payment of compensation.

It is this right to compensation that the Palestinian Centre for Human Rights is fighting for today. In the current climate, given the bias inherent in the Israeli judicial system, compensation is one of the only hopes for achieving some form of justice. Importantly, this compensation – although insignificant in comparison to the loss suffered – is essential for victims as they attempt to rebuild their lives and their homes.

This right is being comprehensively denied by the Israeli authorities.

Israel imposes a 2 year statute of limitation on the submission of civil complaints. Given the scale of violations committed in the context of the 22-day offensive on the Gaza Strip alone, this places an often insurmountable burden on the legal representatives of the victims. Until the second intifada, the statue of limitations was 7 years.

Second, and in a requirement that places the final nail in the coffin with respect to the right to a remedy, the court imposes an insurance (or guarantee) fee on each claimant, before a case can proceed. There is no fixed amount for this insurance fee, it is set at the discretion of the court. However, it represents a significant financial hurdle, typically in excess of 10,000 shekels (around $2,800), and often much more.

In one case brought by PCHR, the claimants were asked to pay 20,000 shekels for each of the five deaths reported. This raises the bizarre, but all too real, scenario whereby the greater the violation, the greater the financial hurdle.

Palestinian victims are simply unable to raise this money, and the case is closed firmly in their faces. This insurance fee is completely discretionary. It is not mandatory. In practice, it is always applied to Palestinian claimants.

On top of this is the reality of the closure. PCHR's lawyers cannot travel to Israel to represent our clients, and we are forced to hire lawyers in Israel. However, these lawyers cannot come to Gaza to meet the clients, and the clients cannot go to Israel to meet them. In addition, since June 2007, the Israeli military has refused permission to Palestinians involved in civil cases to appear in court, despite the issuance of a court order. This results in the effective dismissal of the cases, and the absolute denial of justice.

PCHR represents over 1,000 victims of Operation Cast Lead. The approximately 500 cases prepared on their behalf constitute the overwhelming majority of cases prepared following Operation Cast Lead. These individuals, who have suffered virtually the entire spectrum of rights violations – from illegal killing and injury, to the illegal destruction of their homes and workplaces – have the right to justice. They deserve to be heard by a court.

Since March 2009, when the last notice to the Ministry of Defense was submitted, we have been systematically ignored. Despite repeated requests, PCHR has only received interlocutory responses – with no information – with respect to 23 cases.

On December 20, PCHR and attorney Michael Sfard, filed a petition before the Israeli High Court of Justice, demanding that these victims rights to a judicial remedy be upheld. Our request is simple, that the statute of limitations be delayed, that the victims of Operation Cast Lead are at least afforded the opportunity to take their case to court.

If the court rejects this position, it will be closing the door to justice on all the victims of Operation Cast Lead.

The rule of law is something we respect and hold dear. But it is a self evident truth that in order to be relevant, the law must be enforced. The absence of justice has resulted in the dire situation we face today, in the systematic violation of fundamental human rights, and the closure of the Gaza Strip. Without justice, what is there to prevent what happened in Gaza from happening again?

Behind the closed doors of the Gaza Strip, it is our shared humanity that continues to link us to the outside world. We demand that our human rights be respected and protected. We demand that the international community stay silent no longer, that it exerts its influence in the name of fundamental freedoms and justice.

Raji Sourani is the director of the Palestinian Centre for Human Rights. He is the recipient of the Robert F. Kennedy award for human rights, and was twice named as an Amnesty International Prisoner of Conscience. He is currently a vice-President of the International Federation for Human Rights in Paris and is on the Executive Committee of the International Commission of Jurists in Geneva.
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