Justice for victims of alleged Israeli crimes remains elusive

Palestinians have little legal recourse with Israel, reports Hugh Naylor.

Fayez Salha holds a hand-written letter from his dead son Dia El Din. Mr Salha, 51, lost four children, his wife and her sister in an Israeli airstrike on his home in northern Gaza on January 8, 2009. Heidi Levine for The National
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BEIT LAHIA, GAZA // Fayez Salha offered some advice to Palestinians wanting to take legal action against Israel over its latest Gaza offensive.

Don’t expect much.

“There is no justice for a Palestinian from Israel,” said Mr Salha, 51, who lost four children, his wife and her sister in an Israeli airstrike during a previous war in the territory.

They died during a three-week military campaign Israel launched in December 2008, which killed about 1,400 Palestinians, wounded more than 5,000, and laid waste to civilian structures.

Scores of Gazans lodged more than 1,000 criminal complaints against Israel’s Military Advocate General (MAG), with the help of Palestinian, foreign and Israeli human rights lawyers. More than five years later, little has come of these efforts.

There are few legal avenues for Palestinians who live under Israel's blockade of the Gaza Strip. Their complaints regarding deaths and damage caused by Israel are investigated by the Israeli military, but rarely go anywhere. Claims for damages brought in Israel's civil courts are usually thrown out.

The scale of the latest round of destruction has piled pressure on Palestinian leaders to join the International Criminal Court, the only place most Palestinians believe Israel can be brought to justice.

The president of the West Bank’s Palestinian Authority (PA), Mahmoud Abbas, has repeatedly said he would join the ICC despite pressure not to do so from Israel and the United States.

Last week, Palestinian foreign minister Riad Al Malki met with ICC officials at The Hague to discuss signing up and to push for an investigation of alleged Israeli crimes.

Israel held its own military-led investigations after its Cast Lead operation, in which Mr Salha’s family were killed. Just four soldiers were indicted.

Two soldiers who took part in the operation were demoted and given three-month suspended sentences for using a nine-year-old boy as a shield to open bags suspected of containing explosives. Another served a 45-day sentence over an incident in which women carrying white flags were killed. The most-severe punishment was a seven-month prison stint served by a solider over credit card theft.

“We investigated cases in Cast Lead that demonstrated strong evidence of war crimes, and they weren’t investigated by Israel in any serious way,” said Bill Van Esveld, Human Rights Watch’s Israel and Palestine researcher.

The apparent lack of accountability from Cast Lead and another war in Gaza two years ago may have encouraged military recklessness in the latest round of fighting that began on July 8, said Khaled Elgindy, a fellow at the Brookings Institution's Center for Middle East Policy.

Some estimates put civilian causalities at 85 per cent of approximately 2,000 Palestinians killed, although the Israeli military says the figure is closer to half.

“Obviously this is way worse than what we saw in Cast Lead and that’s because it’s exactly a product of that problem, that there’s been no accountability,” said Mr Elgindy.

For Mr Salha, a security guard at a United Nations school in Gaza, who recalled having to sort through his children’s body parts at a morgue, the legal process was futile.

A request for a criminal investigation into his case was raised with the MAG shortly after the attack in the early hours of January 9, 2009. An Israeli “warning” rocket struck the roof of his home in Gaza’s Beit Lahia area. Before all his family could escape, a second, bigger airstrike hit, killing six.

“I had to guess which piece of flesh and limb went to which child,” said Mr Salha, who was at work at the time of the attack. “Imagine having to do that.”

Evidence collected by Palestinian and international rights workers countered Israeli claims that his home had been used by militants to store weapons. Israel’s military closed its investigation into the attack claiming a lack of evidence.

A civil court in Israel also refused to examine his damages claims.

“The court said there could be proof that the military was wrong, but it still refused to take our case,” he said.

“All we, the Palestinians, have left is the International Criminal Court.”

The Gaza-based Al Mezan Centre for Human Rights has already gathered evidence of crimes during the latest round of Israeli attacks. The group has issued more than a dozen preliminary complaints to Israel’s military over indiscriminate fire, destruction of civilian infrastructure and targeting civilians.

Mahmoud Abu Rahma, director of international relations at Al Mezan, said he was shocked by the scale of the destruction, which included air strikes, shelling and troop incursions that destroyed about 10,000 homes and levelled entire neighbourhoods such as Shujaieh and Khuzza.

Last week, Amnesty International called for an international investigation into Israel’s “apparently deliberate attacks against hospitals and health professionals in Gaza, which have left six medics dead”. The organisation suggested the issue “be referred to the International Criminal Court”.

Two years ago, the ICC’s prosecutor rejected a Palestinian request to examine war crimes allegations committed during Cast Lead because Palestine was not a state. That barrier was removed in November 2012 after Palestine was upgraded to a non-member observer state at the UN.

The hope of building a stronger case with the ICC explains why Palestinian human rights groups continue to pursue legal action through Israel’s judicial system, despite all the obstacles.

“We know we are blockaded by Israel’s legal system,” said Raji Sourani, director of the Gaza’s Palestinian Centre for Human Rights (PCHR).

His organisation filed 1,068 criminal complaints related to Cast Lead with Israel’s MAG, the authority that handles the cases. It is unclear whether the group’s complaints led to the military’s indictments because the MAG rarely communicates with him over the issue, he said.

“We don’t hear from them,” he said.

PCHR has dealt with such cases as the Samouni family, who the Israeli military forced to take cover in a house before attacking it. Nine children were among the 21 family members killed.

A UN inquiry into the war, which accused both Israel and Hamas of war crimes, called the incident a grave breach of the Fourth Geneva Convention. Israel’s military closed the case two years ago, saying there were no grounds for disciplinary action.

Mr Sourani, of the PCHR, also filed 490 compensation cases from that conflict in Israeli civil courts. But he said he was forced to withdraw most of them starting last year because of a 2012 law that indemnifies Israel of liability to Gazans during times of combat or war.

The law also denied Mr Salha’s case for damages, yet the court still made him and his team of lawyers pay US$5,765 (Dh 21,175) in charges.

Those barriers are no coincidence, said Smadar Ben Natan, an Israeli human rights lawyer. They are part of efforts to change Israel’s legal framework with Gaza from occupied to enemy territory — a “hugely significant shift” that Ms Ben Natan said would insulate Israel from legal and financial repercussions following its military operations there.

An Israeli military official involved in legal matters confirmed that a “fact-finding” assessment teams have begun examining incidents into the current war, but no criminal investigations have been launched yet.

Yigal Palmor, Israel’s foreign ministry spokesman, rejected criticism that Israel has failed to investigate allegations of war crimes.

He also criticised Hamas for stifling investigations into allegations of its own war crimes.

Attempts to contact Hamas for comment were unsuccessful.

Back at his new home in Gaza’s UAE-funded Zayed City complex, Mr Salha has tried to move on from the Israeli strike that destroyed his family.

He remarried and had two more children. But he longs for justice, something that he believes Palestinians can only obtain from international pressure on Israel.

“The world is seeing Israel’s atrocities in this war,” he said of the current fighting.

“They can no longer deny that what is happening here is anything but crimes against the Palestinian people.”