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Barriers in Access to Justice (2): Al Nabaheen Legal Fact Sheet

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Introduction

This fact sheet addresses obstacles that Israel places, by means of legislation, in the way of Palestinian victims seeking reparation and remedy for violations of Israel’s duties under international humanitarian and human rights law. The fact sheet highlights Amendment No. 8 of the Israeli Civil Wrongs (Liability of the State) of 1952 as one of these obstacles, and underscores the implications of this legislative amendment on Palestinians’ right to effective remedies. The amendment, enacted in 2012 with retroactive application to 2005, broadens the State of Israel’s exemption from liability for damages inflicted on residents of the Gaza Strip in the course of Israel’s military operations, particularly after designating the Gaza Strip an ‘enemy territory’ under the Israeli Civil Wrongs Law in 2014—a heightened status following the Israeli Cabinet’s 2007 declaration of Gaza as a ‘hostile territory’.

The fact sheet, further, provides examples of compensation cases brought by Al Mezan Center for Human Rights (hereby Al Mezan) before Israeli courts, highlighting in particular the case of Attiya Fathi Al Nabaheen, in which the exemption to State liability relating to ‘enemy territory’ pursuant to Amendment No. 8 was cited for the first time.

In November 2018, Israel's Beersheba District Court rejected the case filed by Al Mezan on behalf of the Al Nabaheen family against the Israeli military for the shooting and wounding of the child. The court ruled that the state was not liable for damages because Palestinians in Gaza are not entitled to seek compensation from Israel as they live in ‘enemy territory’.