The Doctor From Gaza: A ‘Legal Orphan’

Ravit Hecht
Ravit Hecht
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Palestinian doctor Izzeldin Abuelaish gives a press conference at the Israeli Supreme Court in Jerusalem on November 15, 2021.
Palestinian doctor Izzeldin Abuelaish gives a press conference at the Israeli Supreme Court in Jerusalem on November 15, 2021.Credit: Ahmad Gharbali/AFP
Ravit Hecht
Ravit Hecht

First off, the indisputable facts: Dr. Izzeldin Abuelaish’s three daughters and niece were innocent young girls who were killed by accident due to a faulty decision to fire two tank shells at the doctor’s home in Jabaliya on January 16, 2009. The tank fire at the doctor’s house was carried out on the basis of a mistaken impression by the battalion commander, who thought the passing figures in the window – Abuelaish’s daughters – were lookouts aiding terrorist snipers.

>> 'Don't kill my daughters again': Gaza doctor looks for justice at Israel's top court

The doctor and his family were not involved in terrorist activity or combat. During the war, the doctor informed soldiers from one battalion that he was a doctor who was employed in Israel and that no one in his household was involved in the fighting, and as a result a tank that had been situated close to his house was moved. But the information about the identities of the people in the household was not conveyed to another battalion, which ultimately fired the fatal shells. The battalion commander’s investigation following the incident did not get down to the level of the members of the tank crew, and the division commander’s investigation did not include questioning of the tank commander, according to a 2018 district court ruling.

What has changed over time are the state and army’s claims about the incident. Initially it was claimed, as reported by Ynet, that IDF soldiers were fired upon from the doctor’s house. Later, the district court ruling, which marked the first rejection of the suit by the doctor’s family for financial compensation from the State of Israel, addressed the claim that shrapnel inconsistent with IDF ammunition was extracted from the wounded girls’ bodies – i.e., that ammunition belonging to terrorist groups was stored in the house. (This ruling also said the doctor was unaware of the presence of any such materiel.) The Supreme Court ruling handed down this week by Justices Yitzhak Amit, Ofer Grosskopf and David Mintz completely ignored the matter of the ammunition, and rejected the appeal because the tragedy suffered by Abuelaish was due to an “act of war.”

Dr. Izzeldin Abuelaish posing for a picture with his children in his Gaza Strip home in May 2009, four months after three daughters and a niece were killed by an Israeli shell.Credit: Khalil Hamra / AP

The Supreme Court ruling opens with the following sentence, which encapsulates the whole story: “The three sisters we see in the picture, cheerful and laughing on the shore in Gaza, remind us that every human being has a face and a name given to them by their parents. But we must already state that the damages the appellant seeks from the state remain orphaned from a legal standpoint, as shall be explained.” In other words, the court momentarily tries to display its compassion before getting right down to business, which can be better understood by the following sentence, which appears in the current ruling as a citation from an earlier ruling: “The concept at the basis of the arrangement is that civil claims for damages, by their very nature, are not consistent with combat situations, and the application of traditional tort laws in these situations could cause legal distortions and expose the state to huge compensation payments.”

For good reason, the ruling mentions another incident from that same Operation Cast Lead, in which 22 members of one family were killed when a bomb was mistakenly dropped on them. Oops, sorry. “An act of war.” And in acts of war, as the court says, “each side is responsible for its own damage.”

What is Abuelaish’s side? The parties agree he does not belong to Hamas or any other group that fights the IDF. Let him try to figure it out.

Officials of the justice system, and Supreme Court justices in particular, portray themselves as defenders of Israeli democracy versus all the Amsalems and Ohanas who are plotting to destroy their lofty work. The court, they intone, is the last place to turn for the plundered and tormented who are trampled by bigger, stronger forces. What remedy and what justice did the Israeli court give Abuelaish, who remains “legally orphaned”?

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