Adalah Petitions Israeli Supreme Court against Policy Banning Gazans Entry to Israel which Prevents Access to Courts for their Compensation Claims
(Haifa, Israel) On 27 September 2012, Adalah submitted a petition to the Supreme Court against the Ministry of Defense, the Ministry of the Interior and other administrators arguing that Israel’s policy of refusing to issue entry permits to Palestinian residents of Gaza filing tort claims against the Israeli military is illegal. Under the policy, most claims for compensation filed by Palestinian residents of Gaza Strip are dismissed after the claimants and/or their witnesses from Gaza fail to appear before the court because the state, a party in the case, denies them entry permits. Subsequently these claimants are also then required to pay full court costs. Adalah Attorney Fatmeh El-Ajou filed the petition.
Adalah demanded that the court order the state to allow all claimants and their witnesses to enter Israel for the purposes of the proceedings, and that clear procedures be set for issuing permits in the future. Adalah submitted the petition on behalf of four individuals from Gaza with cases pending in the Supreme Court, the Al Mezan Center for Human Rights, the Palestinian Center for Human Rights (PCHR), Physicians for Human Rights – Israel and in the name of Adalah.
Attorney El-Ajou emphasized in the petition that in 2006, the Supreme Court decided in a case brought by Adalah, HaMoked and ACRI that those affected by war operations do have a right to submit claims for damages in Israeli courts. However, since this initial decision, Israeli authorities have prevented claimants from Gaza and their witnesses from entering Israel, preventing any of them from providing testimony according to the law, undergoing medical examinations from Israeli personnel, appearing before the court during hearings, and conducting the necessary questioning of their central witnesses. Additionally, Israeli lawyers are prevented from entering Gaza to meet with their clients. Consequently, these cases are dismissed.
Mr. Maher Ismail Abu Daqqa is one of the petitioners in the case. He was wounded by live Israeli fire that crushed his knee. Mr. Abu Daqqa filed a case against the Israeli security forces in the Jerusalem District Court. After obtaining a hearing date, his lawyer applied for permits for him and his witnesses to appear in court, but the applications were all denied despite court orders requesting his appearance and that of his witnesses. The court refused to continue. Mr. Abu Daqqa’s lawyer requested to either conduct the court hearing at the Erez checkpoint - between Gaza and Israel, or to hold a video conference at the hearing or by any other means to continue legal action.
In addition to Mr. Abu Daqqa’s case, the petition included examples of dozens of other files that have been pending in court for several years, and others that were re-filed after being dismissed. The examples show that the state has used this practice since 2006 and has thwarted court proceedings by preventing Gazan witnesses from entering Israel. In one cited case, the state blatantly issued permits to its witnesses, while refusing to allow the claimant’s witnesses to attend the evidentiary hearing.
Attorney El-Ajou stressed in the petition that the prevention of entry to Israel is not the only obstacle for Gazans who are seeking access to Israeli courts for compensation claims. In addition, they are required to submit an “intent to file a damages claim” to the authorities within 60 days of the event’s occurrence, and to file their lawsuits within two years of the event. If the case does not meet these strict requirements, it is dismissed. In many cases meeting these requirements is impossible as the claimants were severely injured or their homes destroyed, and years of rehabilitation or reconstruction is necessary before victims can consider the possibility of filing a lawsuit.
Additionally, the exorbitant amount of financial security guarantees to file a lawsuit creates another obstacle. The courts require plaintiffs to deposit guarantees to insure the state's expenses, if the lawsuit is rejected. This requirement is a pre-condition to hearing the lawsuit. For example, in the Samouni family’s case, in which dozens of family members were killed and injured, the fee required as a guarantee for the family amounted to over NIS 1 million (about US $250,000 or EUR 200,000).
Adalah added that denying Gazans the ability to enter Israel to file claims perform infringes on their right to a legal remedy, the right to life, and the right to bodily integrity. The right to compensation is enshrined not only in Israeli law but also in international law and in binding international treaties that Israel has signed and ratified. International law includes clear instructions that those injured in a conflict must be compensated. Further, Israel’s policy and practice contradicts statements made by the state that in international fora and other national courts, namely, that Gazans’ claims to a legal remedy are available in Israeli domestic courts. According to the State, the Israeli courts, and not foreign jurisdictions, are the appropriate venue for effective legal civil remedy for the residents of the Gaza Strip, and they have the right to submit their claims and obtain compensation from courts within Israel. However, Israel’s denial of entry permits to Gazans to access Israeli courts contradicts these statements and renders Israel's claim false. .
Adalah has also filed a petition to the Beer Sheva District Court on 27 June 2012 on regarding additional claims by Gaza residents to enter Israel for purposes of their pending compensation cases.
Case Citation: HCJ 7042/12, Abu Daqqa, et al. v. the Interior Minister, et al. (case pending)