Center for the Defence of the Individual - The Jerusalem Magistrate's Court rejected a civil claim by HaMoked following the killing of a Palestinian on the roof of his house by helicopter air fire, during operation "Defensive Shield": The Court ruled that the attack is immune to claims suits, as it is an act of war
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חזרה לעמוד הקודם
20.07.2009

The Jerusalem Magistrate's Court rejected a civil claim by HaMoked following the killing of a Palestinian on the roof of his house by helicopter air fire, during operation "Defensive Shield": The Court ruled that the attack is immune to claims suits, as it is an act of war

On the night of 16 April 2002, a resident of the 'Askar refugee camp, in the Nablus district, climbed to the roof of his house to fix a leak. While on the roof he was hit by shells fired by military helicopters. His sons, who climbed up to help him, were also injured by the fire. The father was rushed to hospital. Following an eight-hour struggle for his life, the doctors pronounced him dead.

On 22 June 2004, HaMoked submitted a claims suit on behalf of the deceased's family. The claim stated, inter alia, that the shooting which killed the man violated open-fire regulations and that the military did not consider other alternatives involving a less drastic measure than helicopter air fire. These claims are based on the fact that the firing which killed the man was part of a planned mass arrest operation, and that he posed no danger to the soldiers involved. Therefore, the State, which is directly responsible for the attack on the father of the family and for his death, must bear the extensive damages caused to the deceased's heirs by the attack.

In its statement of defense, the State requested that the Court reject the claim in limine. The State claimed that not only had the plaintiffs failed to prove that the deceased was killed by the military fire, but the incident in which they claim the he was killed took place in the framework of operation "Defensive Shield" and therefore clearly constitutes an act of war, which entitles the State to immunity against claims under Article 5 of the Civil Wrongs (Liability of the State) Law 5712-1952.

On 21 June 2009, the Court rejected the claims suit. The Court accepted the plaintiffs' claim that the deceased was killed by the army, but ruled that this was an act of war designed "to vanquish the terrorist infrastructure", which took place in the course of operation "Defensive Shield", and in which both ground and air forces participated. In its judgment, the Court adopted previous rulings which established that "an air force strike is a clear act of war which the legislator intended to make immune to prosecution". The Court imposed costs and attorney fees, in the sum of 15,000 NIS, on the plaintiffs.  

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