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Supreme Court: No state damages for accidental killing of 22 Palestinians in Cast Lead
By YONAH JEREMY BOB
02/07/2014
Estates of the victims have not yet asked the state for voluntary damages from the state "beyond the requirement of the law."
 
The Supreme Court has rejected an appeal to try to obtain civil damages for the wrongful death of 22 innocent Palestinians killed by the IDF by accident during Operation Cast Lead.

The court spokesman announced the decision on Tuesday, though it was handed down on Sunday.

Also, late Tuesday The Jerusalem Post learned that the estate of the 22 has not yet applied to the Defense Ministry’s committee for granting compensation ex gratia (beyond the requirements of the law).

The estate’s lawyer was contacted about whether it would make such an application, now that the court case has ended, but had not responded by press time.

The 22 from the Adaliah family were killed on January 6, 2009, when an IDF aircraft accidentally bombed their house instead of bombing the house of their neighbor, the residence of a Hamas agent and the location of various weapons, which was the intended target.

The three-justice panel of Yitzhak Amit, Esther Hayot and Salim Joubran held that the bombing fell under the legal category of the “combat activities exception.”

The exception generally states that a state cannot be held accountable for negligent or accidental casualties and harm it causes in a war situation or zone.

The petitioners had asked the court to apply a doctrine of “responsibility without a liable person,” but the court said that not only would it not apply that doctrine, but that the combat activities exception set down by the Knesset would block that doctrine from being implemented.

The petitioners had also said the court should review whether the negligence was gross negligence, such that it was beyond the combat activities exception, especially in light of the extreme number of civilian casualties and since the state had outright admitted it was a mistake.

Since there was no criminal intent in the bombing and it was of the category of mistakes that happen in dynamic, largescale fighting with many military pieces acting at the same time, the court said that the exception applied to free the state from liability.

Despite the holding, all three justices individually expressed profound sadness at the “great tragedy,” almost complaining that there are some injustices in this world, particularly in the fog of war, that the law and judges cannot fix.

Justice Joubran went so far as to note that a proposed bill had existed in the Knesset to allow courts to give damages to plaintiffs in some similar cases, even without state responsibility, simply on humanitarian grounds, but that the bill had been defeated.

The case was being appealed after the Nazareth District Court had previously rejected the case.
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