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14.3.2016

Thirteen years after a toddler was killed by an Israeli soldier’s gunfire in Gaza: the state finally allowed the father to enter Israel to testify in court about his son’s tragic death

On October 2, 2003, a 17-month-old toddler climbed up to the rooftop of his home in al-Amal Neighborhood in the city of Khan Yunis, the Gaza Strip. His father, who hurried after him, heard a shot followed by a cry and found the toddler had been shot and critically wounded. The father rushed the toddler to hospital, where he died two days later.

For over ten years the bereaved parents have been struggling against a callous system which has done the utmost to deny them recognition for their tragedy and deprive them of their basic right to compensation over the loss of their son’s life. In the years after the fatal incident, the military thwarted the possibility of an effective inquiry into the death and disclaimed responsibility for the calamity; ultimately in 2008, the Military Police Investigation Unit (MPIU) closed the inquiry file – which was opened only following HaMoked’s petition to the High Court of Justice (HCJ).

In July 2005, the toddler’s parents filed a lawsuit against the State of Israel. A long while after, the hearing of the witnesses was scheduled for July 7, 2011. But then the state erected another obstacle and refused to allow the entry to Israel of the three key witnesses from Gaza: the deceased toddler’s parents – the father and the mother who had heard the lethal shot and saw the father carrying their injured son – and a physician living nearby who also heard the shot and worked as a surgeon in hospital where the toddler was pronounced dead.

Therefore, on June 9, 2011, HaMoked filed an administrative petition with the Court for Administrative Affairs, to instruct the state to allow the three witnesses to enter Israel. HaMoked held that Palestinians from the OPT were entitled to sue for damages in Israel, and that this was recognized as one of their constitutional rights which must be ensured by the state. HaMoked asserted that the state’s conduct infringed on the grieving parents’ right to seek legal remedy through the court system.

On May 16, 2012, the state announced its consent to allow the entry of the father to Israel, “in view of the exceptional circumstances of the case, including the nature of the tragic event”, and also because the father’s presence in court was recognized as vital for the proceeding. However, the state persisted in refusing to allow the entry of the two other witnesses, explaining it on the “the current political-security situation” in the Gaza Strip. Moreover, the state – i.e., the defendant in the case – asserted that the testimony of the two “was not vital for proving the lawsuit”, and that “their affidavit cannot significantly promote the lawsuit’s position”.

HaMoked countered by criticizing the state conduct, saying its response “merely illuminated the petitioners’ claims as to the various hats through which the respondents were operating while piling up hurdles on the petitioners’ path to have their lawsuit reviewed”; given that “the respondents who are preventing the petitioners’ entry for the hearing of their lawsuit are also the defendants in the lawsuit”. HaMoked stressed that the state’s claims as to what was beneficial or not to the lawsuit were irrelevant for the petition, which centred on “the petitioners’ right to receive remedy and their right to access the courts”. As to the security claim for refusing the witnesses’ entry to Israel, HaMoked noted that the state had recently allowed the entry from Gaza to Israel of merchants, journalists and even footballers.

Following the Court for Administrative Affairs’ decision to dismiss the petition, HaMoked filed an appeal with the Supreme Court on October 17, 2012, requesting that the state be directed to allow the mother and the physician to enter Israel to testify in court. HaMoked noted that despite the obligation to ensure the right of OPT residents to sue for their damages in Israel, in practice the state habitually banned the entry to Israel of witnesses and plaintiffs from Gaza and thus causing the deletion of their lawsuits. It should be noted that it was only later, in April 2013, that the state published for the first time a procedure for reviewing applications by Gaza residents seeking to enter Israel to manage their judicial proceedings in Israeli courts; this procedure clearly entrenches the state’s advantage in lawsuits against it, as it is the state which decides whether to permit or prohibit the entry of witnesses in such cases.

In the preliminary hearing held on December 4, 2012, Justice Vogelman remarked that there were several proceedings taking place in parallel on the general issue, and noted that “the state is aware of the need not to block the path of plaintiffs in the courts”. The Justice ruled that the affidavits of the mother and the physician were pertinent to the lawsuit and instructed the state to “find a way to let them enter”.

On January 30, 2013, following the Supreme Court’s decision, the state announced that it would allow the two witnesses to reapply for entry to Israel once the father gave his evidence.

Following repeated postponements of the lawsuit hearing, the father was summoned to testify on February 14, 2016. Therefore, on December 31, 2015, the court decided that the application for Israeli entry permits for the two other witnesses should be filed by February 21, 2016.

On February 14, 2016, the toddler’s father entered Israel – 13 years after the tragic event in which he lost his son – and gave his evidence in the Be’er Sheva District Court. Thereupon, HaMoked applied for entry permits for the mother and the physician. The parties then reached an agreement which rendered the physician’s testimony redundant. The entry permit application for the mother is still being reviewed by the state. According to the court’s decision, the state must announce its position on the matter by March 30, 2016.
mail@hamoked.org.il (02) 627 1698   (02) 627 6317

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