Dr. Izzeldin Abuelaish, who lost htree daughters and a niece when the Israel Defense Forces fired shells at his home during Operation Cast  Lead filed a massive damages claim against the State of Israel  on December 26, 2010 in the district court in Jerusalem.

Abuelaish, a Palestinian gynecologist, worked in Israeli hospitals for nearly two decades. On January 16, 2009, in the height of Operation Cast Lead, the IDF fired two shells into the window of his home, killing three of his daugters: 20-year-old Bessan, 15-year-old Mayar and 14-year-old Aya. His 17-year-old niece Nour was also killed in the attack.

Israeli government officials  have declined to offer an apology, saying the mishap was an “operation of war.”

 The IDF conceded that it had fired the fatal shells on January 16, 2009 after coming under fire from a house adjacent to that of the doctor.  But, it said, soldiers shot at Abuelaish’s building after spotting figures on an upper level who were thought to be directing the Hamas fire.

 Israel's official investigation conducted by the I.D.F. and posted on its website on Febuary 4, 2009 concludes:

"… In the days leading up to the incident, Dr. Abu El-Eish was contacted personally several times by officers in the Coordination and Liaison Administration in order to urge the doctor to evacuate his home, as many others already have, because of Hamas operations and the intense fighting that was already taking place in that area for several days."

 ‘‘The IDF Spokesperson Unit also emphasizes that in addition to the personal contact made directly with Dr. El-Eish, the IDF issued warnings to the residents of Sajaiya by dropping thousands of leaflets as well as issuing warnings via Palestinian media outlets."

Abuelaish  has flatly denied that there were Hamas spotters or snipers on the upper level of his house.

In November 2009, when Abuelaish was in Winnipeg speaking at the University of Manitoba, the Winnipeg Jewish Review reported that he said that although the IDF Forces initially claimed that Hamas militants were firing from the house, later the I.D.F “announced its responsibility (for) the shelling of my house.”

Abuelaish was delivering the Sol Kanee Lecture of the Arthur Mauro Centre for Peace and Justice at the University of Manitoba when he said this.                                     

The Defense Ministry's legal adviser, Ahaz Ben-Ari has said, "Despite the severe outcome, from a legal standpoint our stance is that the operation during which Dr. Abuelaish's family members were hurt was an operation of war." He added, "Therefore, the State of Israel does not carry the responsibility for the damage it caused."

A Defense Ministry spokesperson also said, "The Defense Ministry's hearts go out to the family that was stricken by the tragedy. Unfortunately, we can only act according to the law, and we will gladly assist Dr. Abuelaish as much as we can correspondingly."

Attorney Michael Sfrad, who represents Abuelaish, has called the Israeli position a disgrace.

"The Defense Ministry's decision does not only demonstrate cruelty and insensitivity, it also lacks wisdom," he said. "The State of Israel will suffer an immense blow from such a lawsuit, and eventually it will have to pay compensation. I am not just angry as Dr. Abuelaish's  lawyer, I am ashamed as an Israeli."

In addition to his three daughters and niece that died, Abuelaish’s daughter, Shatha, then 16, lost the sight in one eye. Another cousin, Ghaida, then 14, was badly injured in the attack and is now permanently disabled.

Abuelaish told the Canadian Jewish News [CJN] that “I tried to settle the matter through mediators, but it didn’t work.” Among the mediators were Avishay Braverman,  who was at the time the minister of minorities , and Amir Peretz, the former minister of defence, both mem­bers of the Labour party.

Abuelaish told the CJN that Palestinian Authority was never involved in his decision to sue the Israeli government.  He said Israel and the Palestinians should stop play­ing the blame game. “Let’s get rid of this vicious and end­less cycle of who’s right or wrong and move forward in a positive way. That’s what we need to do…”he told the CJN, after filing his suit. Click here.

In a comment on a film clip by Aljazeera [embedded  below], Leah Tzemel, one of  Abuelaish’s lawyers said  that if Abuelaish doesn’t win in an Israeli court, maybe they would consider  petitioning to an international court.

However David Matas, an expert in international and human rights law and senior honourary counsel for B’nai Brith Canada told the Winnipeg Jewish Review that “ There is no international court with authority to consider compensation claims by individuals against states.”

When asked to comment on the case, Matas responded, “Filing a lawsuit in the Israeli courts against the government indicates a disagreement with the government, but also a faith in the courts and an acceptance of state institutions.  There is a disagreement between the parties over the facts which a court can sort out.”

[Editor’s note:  Abuelaish has advocated for a two state solution.  In his talk in Winnipeg, however, when asked during the question period, whether he would favour a “one state solution” [ for the area that now comprises Israel, the West Bank and Gaza] ,  Abuelaish  responded that  the solution could be “ a one state or two state or whatever” and   then said “I don’t mind a one state.” ]

The following is a video clip from  Al Jazeera television:

February 4, 2009

Investigations were held on many levels in the IDF, with regards to the incident at the residence of Dr. Az A-Din Abu El-Eish, that occurred on Friday, January 16, 2009, in which three of the doctor's daughters were killed. The conclusions found that two shells were fired from an IDF tank resulting in the deaths of Dr. El-Eish's three daughters.

The investigation found that a force from the Golani Infantry Brigade operated in the area of Sajaiya for several days, during which they were engaged in face to face combat within short range of Hamas terrorist cells. The forces also located tunnels used for ambushing and attacking IDF forces, and identified homes which were booby-trapped.

On that Friday, the force came under sniper and mortar fire in an area laden with explosives and IEDs (improvised explosive devices). The force identified and located the source of fire from a house adjacent to that of the doctor's, and in response, opened fire.

During the counter-fire opened by the IDF forces, suspicious figures were identified in the upper level of Dr. Abu El-Eish's house and were thought to be spotters who directed the Hamas sniper and mortar fire. Upon assessing the situation in the field while under heavy fire, the commander of the force gave the order to open fire on the suspicious figures.  It is from this fire, that the three daughters of Dr. Az A-Din Abu El-Eish were killed.

Following the opening of fire, screams were heard from the direction of the house, and immediately the IDF force ceased all fire. Only later was it understood that this was in fact the house of Dr. Abu El-Eish. When contact was made with the doctor, the IDF force operated in order to allow for ambulances to evacuate the injured via the Erez Crossing for immediate emergency medical treatment in Israel.

The IDF Spokesperson Unit stresses that in the days leading up to the incident, Dr. Abu El-Eish was contacted personally several times by officers in the Coordination and Liaison Administration in order to urge the doctor to evacuate his home, as many others already have, because of Hamas operations and the intense fighting that was already taking place in that area for several days.

The IDF Spokesperson Unit also emphasizes that in addition to the personal contact made directly with Dr. El-Eish, the IDF issued warnings to the residents of Sajaiya by dropping thousands of leaflets as well as issuing warnings via Palestinian media outlets.

The investigation of the incident was conducted by the commanders of the forces in the area, as well as the division commander, and was approved by GOC Southern Command and the Head of the IDF Operations Branch (both ranking Major Generals). The IDF is saddened by the harm caused to the Abu El-Eish family, but at the same time states that considering the constraints of the battle scene, the amount of threats that endangered the force, and the intensity of fighting in the area, the forces' action and the decision to fire towards the building were reasonable.

The investigation's results were presented yesterday to the Chief of the General Staff, Lt. Gen. Gabi Ashkenazi, and received his approval.