Palestinian No-shows Denied Justice in Israeli Courts

Even though Hassan Lutfi Albishawi says there were dozens of witnesses to the shooting and its aftermath, neither he nor his witnesses are being allowed out of Gaza to testify in court.

January 13, 2005 was meant to be a special day for Hassan Lutfi Albishawi and his wife, Hanan, who were awaiting the birth of their son. When the pains started, Albishawi called his wife's sister, Dalal, and a neighbor, Ilaa Hasuna, and asked them to drive him and his wife to the hospital.

When they reached the Fadus neighborhood, Gaza's realities suddenly turned their special day into a nightmare. Their car came under fire from IDF soldiers who had commandeered a building in the area. Hasuna was hit in the head and died at the scene, while Albishawi was hit in his thigh and hand.

Albishawi - Eman Muhammed - 25112011
Eman Muhammed

Dalal got out of the car and tried to explain the situation, but was told to keep quiet. She and the Albishawis were taken into the building, and were refused medical attention, even though though Albishawi was bleeding.

After about 90 minutes, the soldiers left the building. Only then they were able to seek help, and were finally taken to the hospital.

Albishawi, a father of 12 who had worked as a tile-layer but has been unable to work since he was wounded, says his family is now trying to subsist on the NIS 2,500 he gets from welfare agencies and UNRWA.

He has sued the Defense Ministry the in Haifa Magistrate's Court, demanding compensation, but then ran into a brick wall: Even though he says there were dozens of witnesses to the shooting and its aftermath, neither he nor his witnesses are being allowed out of Gaza to testify in court.

The Haifa judge hearing the case suggested that if that were the case, the plaintiff and witnesses could be questioned by videoconference. But the Nazareth District Court recently nixed that option, saying testimony in such cases could not be taken by video.

"The fact that only the soldiers are being allowed to testify is an effort to whitewash the facts and prevent us from claiming compensation and damages," says Albishawi, who added that he had never been active in the armed struggle against Israel. "I see no reason to prevent our entry other than to stop us from getting to court."

Albishawi is not alone. While there is no data on the number of damage claims that have been filed over the years as the result of IDF actions, what is known is the number of such claims filed in response to Operation Cast Lead.

According to the State Attorney's Office, 1,500 such claims have been filed, mostly claims for bodily harm. There are 110 suits pending in various Israeli courts regarding such damages, many of which are going nowhere because of restrictions on plaintiffs or witnesses leaving the Gaza Strip.

Adalah - the Legal Center for Arab Minority Rights in Israel, recently petitioned the Jerusalem District Court on behalf of 13 families that filed damage claims against the state, but have been unable to pursue their cases because they cannot leave Gaza.

According to the petition, permission to leave Gaza is only granted for "urgent humanitarian reasons." But at the same time, Israeli lawyers representing these claimants are not allowed to enter Gaza to meet with their clients, prepare their cases and get their signatures on relevant documents.

Adalah also noted that there is a serious financial impediment to filing such claims: Claimants from the territories must deposit NIS 30,000 as a guarantee that the state will have its expenses covered in the event the damages claim is rejected. Most claimants cannot come up with such a large sum.

As a result, most of the claims face repeated petitions by the state attorneys to close the cases because the claimants have not completed the preliminary paperwork, such filling out questionnaires, signing a waiver of medical secrecy and providing powers of attorney.

The state's attorneys also asked that cases be closed because the claimants or their witnesses don't show up for court dates to give evidence, even though it is the state itself that is blocking their appearance.

This is how a claim made in 2006, by bystanders who were hurt or people whose relatives were killed during the assassination of Sheikh Ahmed Yassin in 2004, got erased by the Haifa District Court this past April - with the claimants forfeiting the NIS 30,000 guarantee.

Similarly, a suit filed in 2004 by the relatives of a woman and girl allegedly shot and killed by IDF soldiers as they were herding sheep near their home was dropped by the Hadera Magistrate's Court in 2009, on grounds that the plaintiffs were not showing up in court. In this case, the suit was refiled last year, but hearings have been suspended pending a ruling in Adalah's petition to the Jerusalem District Court.

In a letter to Adalah, written before the group petitioned the district court, Deputy Attorney General Shai Nitzan wrote that not only is it Israel's prerogative to decide whom it will allow to enter, but Gaza residents are subjects of the opposing side in an armed conflict, who no longer live in an occupied area.

Nitzan also said that in an era of online communications, it is hard to accept the claim that the inability of Gaza residents to enter Israel or an Israeli attorney to enter Gaza should prevent the filing of claims, when plaintiffs can still communicate with their lawyers by phone, fax and e-mail.

Nitzan added that once a claim had reached the point where it was crucial for witnesses to appear but their entry to Israel was being blocked, the proper courts could be approached and asked to overrule the decision.

Attorney Fatmah El-Ajou, who filed the petition for Adalah, said that Israel argues before the international community that it grants legal remedies to those who were harmed by its security forces, including residents of Gaza. "The law and Supreme Court rulings have recognized the rights of victims to claim damages from the state in Israeli courts," said El-Ajou. "But government policy that forbids the entry of Gaza residents in order to file these claims have turned the right granted to them into a dead letter."