Judge: Regardless of the case’s outcome, I share in your sorrow.
By YONAH JEREMY BOBIZZELDIN ABUELAISH(photo credit: YOUTUBE)
A doctor from Gaza testified in the Beersheba District Court on Wednesday in his wrongful death damages case against Israel for killing three of his daughters and his niece and wounding others in January 2009, during Operation Cast Lead.Dr. Izzeldin Abuelaish said that “it pains me that I have to prove that they were victims,” referring to his daughters.Abuelaish’s lawsuit against the State of Israel stems from an IDF tank shelling his house during the 2008-9 Gaza war.The suit demands Israel acknowledge responsibility for the deaths and injuries of his daughters, ages 13, 15 and 21, and his niece, and formally apologize and compensate Dr. Abuelaish’s family.Abuelaish, who has since moved to Canada, has said any damages awarded will be donated to the Daughters for Life Foundation, a registered Canadian Charity established in memory of his daughters and niece.In his testimony, he said that “I had convinced my daughters to give life and to help others, not with tank shells, but with wisdom and education, with words from the heard.”In a highly unusual gesture, Judge Shlomo Friedlander personally addressed Abueliash at the start of his testimony and said he wanted to “express sorrow and terrible grief at the tragedy that happened to you and your family. Regarding this there can be no disagreement... We have come here to hold a judicial proceeding regarding factual questions in dispute. We will hold it without taking away from the grief of the family.”The lawsuit maintains that tanks approached the Abuelaish residence in the Jabalya refugee camp, but withdrew when they were told through intermediaries that there were only peaceful civilians inside, as proof that the IDF knew the building had no combatants.Case documents include a leaked copy of a classified IDF post-operation evaluation that suggests that officers on the ground mistook the family for Hamas lookouts who had previously operated in the area.The lawsuit rejects this explanation, saying that report shows the army had doubts about whether the people were lookouts, doubts which should have overcome an order to attack since the closest sharpshooters were 7 kilometers away – too far away for lookouts to be useful.
How the judge decides on whether mistaking the family as Hamas lookouts was a reasonable mistake in the fog of war or a grossly unreasonable error, may determine the case’s outcome.Abuelaish has contended that originally the IDF said it fired on his family’s building because there was Hamas fire coming from it, then changed the story to the lookout theory, and most recently has claimed that, based on a ballistics study, Hamas explosives inside the building may have killed some family members.Israel says that putting forth the theory that the soldiers mistakenly, but reasonably, thought they were firing on a lookout, along with a parallel theory that once the tank fired, exploding concealed Hamas ordinance, not its shell, may have caused the family’s deaths, is standard in civil proceedings.The state’s submission attempted to prove the argument that concealed Hamas ordinance killed the family members, using a ballistics study showing fragments from some of the victims’ bodies were consistent with Hamas ordinance and not with IDF shells. Also, a commander on the ground the day of the incident filed an affidavit that he saw black smoke billowing from the structure after it was hit, also inconsistent with tank shells.Further, under the combat activities exception, a country does not need to pay damages for civilians killed as collateral damage in a war zone, if the mistaken killing of civilians was not unusual for the war zone.Last week, B’Tselem – The Israeli Information Center for Human Rights in the Occupied Territories produced a report claiming that Israel has passed a series of laws and regulations making it nearly impossible for Palestinians like Abuelaish to win such cases.