Emotional Drama Marks Start of Gazan Doctor's Civil Suit Over War Deaths of 3 Daughters, Niece

Dr. Ezzeldin Abuelaish says through tears, 'I’ve waited eight years for this moment'; Israeli judge expresses 'great sorrow and profound shock over the tragedy that happened to your family.'

Explosions seen over Gaza during Israel's Operation Cast Lead on January 9, 2009.
Reuters

Dr. Ezzeldin Abuelaish, the Palestinian doctor whose three daughters and niece were killed in an IDF tank shelling during Operation Cast Lead, came to court in Be’er Sheva Thursday. Accompanied by activists, Abu Al-Aish, who has lived in Canada for several years, came to give testimony in the civil lawsuit he filed against the state in 2010.

On January 16, 2009, the IDF fired a pair of shells at the home of Abuelaish on Saladin Street in Jabalya. The army claimed the shells were fired at the building because enemy observation posts were spotted there. Killed in the shelling were Abu al-Aish’s three daughters: Bisan, 20, Mayar, 15, Aya, 14 and his niece Nur, 17.

Before the court session commenced, Abuelaish, a gynecologist who had worked at two major Israeli hospitals, Tel Hashomer and Soroka, told the media outside the courtroom, “I’ve waited eight years for this moment. God kept us strong with patience and tolerance. I am crying because I see my daughters before me. They are with me. My niece is with me. It pains me that I have to come here to defend them and prove that they are victims, rather than for those who did this to take responsibility. It hurts when I think about the girls. Today my daughter Bisan would have been 28 years old, with a family of her own. She had dreams. Mayar was going to be a doctor. She was number one in math in all Palestine. Aya was going to be a lawyer. Nur was going to be a teacher. This is why I came here. And they are with me. I miss them. I’m embracing them. I want to tell them, You are still here with us, we haven’t forgotten you. I am keeping them alive.”

As he spoke, tears fell on his cheeks. “These are tears of pain and of hope. To say that we were able to give others life from their death. This tragedy was a cause of the ceasefire. I taught my daughters and my children only to give life and to help others. Not with bullets and shells but with wisdom, education and words. Strong words come from love, kindness and good deeds. This is why I hope we will all join in this message and bring it to everyone.”

At the start of the district court hearing, Judge Shlomo Friedlander took the unusual step of addressing Abuelaish directly. “I would like to express great sorrow and profound shock over the tragedy that happened to your family. There can be no argument about this. One gets choked up reading and hearing about this calamity. I express my condolences. We have assembled here to hold a court hearing on the factual questions that are in dispute. We will have this hearing without detracting in any way from our sympathy for the family’s loss.”

Among the matters in dispute between Abuelaish and the Defense Ministry, the plaintiff contends the army knew that the girls were in the building because a few days before the incident, IDF tanks had taken up positions near his home and Abu al-Aish conveyed a message to the army, via people he knew, that his family lived in the building. The army maintains it did not know there were civilians in the area, and that it had taken a number of measures, such as disseminating fliers, to keep civilians away from the area.

Witness backs up doctor's account

Miri Minuskin, an associate of Abuelaish's from before the incident, backed up the doctor's contention. She testified that two days before the fatal tank fire, Ezzeldin called her “in hysteria” and told her there were tanks outside his home. “I knew Baruch Shpiegel, a former brigadier general, and I quickly called him. I was on the phone with both of them at the same time, and I gave Shpiegel descriptions of the building from what Ezzeldin told me ... so they could identify the location. A few minutes later, during the conversation online, the tanks moved away,” Minuskin testified.

She said that two days later, the day of the killings, Ezzeldin called her again, “this time even more hysterical,” and shouting that the tanks had come back. “I again called Baruch Shpiegel and I told him this, and he said, ‘There’s no way, the house is marked and they know that it’s his house,’ and then suddenly we heard the booms. I felt that I’d failed to save the girls.”

Shada Abuelaish, the doctor's daughter who was wounded in the shelling, testified that during the shelling she hadn’t ever seen any combatants from Hamas or other militant organizations in the vicinity.

The crux of the dispute between Abuelaish and the state is whether the tank fire that caused the deaths of the four girls was an “act of state” – i.e, a combat operation that bestows immunity from civil suits, as the state argues. In a pretrial discussion of this issue in 2013, Judge Friedlander ruled that the suit could not be thrown out, primarily because the IDF spokesman's statement about the army’s investigation of the incident said Golani troops (a Golani battalion commander ordered the tank fire) were present in the Shujaiyeh neighborhood, which Abu al-Aish says is seven kilometers from his Jabalya home - too far away to know if civilians are near the target or not.

Yet this fact is also in dispute, with the state prosecutor saying there was a “mistake” in the wording of the IDF Spokesman’s statement. The statement given by Colonel D., the Golani battalion commander who gave the order for the tank fire, doesn't mention either Shujaiyeh or Jabalya. It does say that “the scene of the incident where the building that is the subject of the lawsuit is located is well-known to me as the site of fierce fighting at the time relevant to the lawsuit. This area was the central friction point for the combat of the Golani Brigade during Operation Cast Lead.”

Friedlander said, “As it is claimed that in the immediate surroundings of the victims’ house, no combat action was carried out, and as the explanation given by the state refers to a place seven kilometers away, it cannot be fully determined ... that there was in fact combat action.”

The state denies that the tank fire was the direct cause of the girls’ deaths, saying that tests done by an IDF laboratory found that six pieces of shrapnel removed from the bodies of the two wounded girls, who were taken to Israel for treatment, appeared to come from materiel and weapons different from those of the IDF. The State Prosecutor’s Office, representing the Defense Ministry, cites this finding in arguing that it has not been proven that the girls' deaths were caused by IDF tank fire.

However, the IDF’s own investigation found that “the strike [on the building] was the result of two IDF tank shells being fired.”