Supreme Court Cancels Racist Law, Ruling that Palestinians Harmed by Israeli Military in the Occupied Palestinian Territories are Eligible for Compensation from Israel

Attorney Hassan Jabareen, the General Director of Adalah: “The Supreme Court's decision nullified one of the most racist laws legislated by the Knesset in the last five years. After this decision, Palestinians who have been injured or killed, or who have sustained property damage, outside the context of a so-called combat situation, can again submit tort cases for compensation in Israeli courts against the security forces. However, we foresee in the future another legal battle on the question of what is the scope of combat operations.”

Today, 12 December 2006, the Supreme Court of Israel, in a unanimous ruling delivered by nine justices, decided that the State of Israel cannot exempt itself from paying compensation to Palestinians in the West Bank and Gaza who have been harmed by the Israeli military. The decision invalidates a provision of a recent amendment to the Civil Wrongs (Liability of the State) Law (popularly known as “the Intifada law”). This provision was intended to release the state from all liability for compensation for any damages caused to Palestinians by the Israeli military or other security forces in areas designated as “conflict zones” (nearly all of the West Bank and Gaza) by the Ministry of Defense. As a result of this ruling, Palestinians who have been harmed by the Israeli military since September 2000 can again seek compensation in Israeli courts.

Writing for the Court, Chief Justice Aharon Barak stated that this law exempts the state from liability in tort for any damages caused by the security forces, even though these damages do not fall within the context of combat operations. The law exempts the state from tort liability in circumstances which have nothing to do with security. It violates rights disproportionately - the rights to life, dignity, and property of Palestinians in the Occupied Territories - and is therefore unconstitutional.

However, the Supreme Court also decided not to strike down another provision of the law that provides that Israel does not have to pay compensation for damages caused in military operations since September 2000, for “a citizen of an Enemy State” and “an activist or member of a Terrorist Organization.” The Court left this provision intact but open for future legal challenges, ruling that the petitioners did not bring enough factual material before the Court concerning the applicability of this provision. Therefore, in the future, individuals can bring cases before the Israeli courts to challenge the constitutionality of this provision.

The petition was submitted on 1 September 2005 by Adalah, HaMoked: Center for the Defence of the Individual and the Association for Civil Rights in Israel, in their own names and in the names of Al-Haq (West Bank), The Palestinian Center for Human Rights (Gaza), B'Tselem, Physicians for Human Rights - Israel, The Public Committee Against Torture in Israel, and Rabbis for Human Rights, by Adalah Attorneys Hassan Jabareen and Orna Kohn, HaMoked Attorneys Yossi Wolfson and Gil Gan-Mor, and ACRI Attorney Dan Yakir.

The petitioners challenged the amendments to the Civil Wrongs Law, which were passed by the Knesset at the end of July 2005. These amendments deny residents of the 1967 Occupied Palestinian Territories (OPTs), citizens of “Enemy States” and activists or members of a “Terrorist Organization” the right to compensation for damages caused to them by the Israeli security forces, even those damages caused to them outside of the context of a military operation (with some minor exceptions).

The amended law granted the Minister of Defense the authority to proclaim any area outside of the State of Israel a “Conflict Zone,” even if no war-related activity has taken place there. This proclamation denied those who sustain injury within the area the right to seek compensation from Israeli courts. The law was also meant to operate retroactively in cases of damages sustained since 29 September 2000, the date of the outbreak of the Second Intifada, and for claims already pending in the courts.

In the petition, the organizations emphasized that the law grossly violates the fundamental principles of international humanitarian law and international human rights law, which apply in the OPTs. It also breaches basic rights in contravention of Israel's Basic Law: Human Dignity and Liberty, and is therefore unconstitutional. The petitioners further argued that the Law sends out a dangerous and extreme message that the lives and rights of those injured in a “Conflict Zone” have no value, as the courts will not come to their aid, and those who caused their injuries will face no punishment. As a result, the Law is both immoral and racist. The petitioners also argued that the articles of the Law de facto terminate the monitoring of the Israeli military's activities in the OPTs, discourage investigations and bringing those responsible for cases of death or injury before the courts, including in cases in which damages were caused by the random or deliberate opening of fire, torture and abuse, and looting and theft of civilian property. The Law thus violates the fundamental rights to life, bodily integrity, equality, dignity and property, as well as the constitutional right of access to the courts.

The petition stressed that the violations entailed by the law are gross, as they deny in a sweeping manner the awarding of any remedy for the breach of fundamental rights, and that this denial is tantamount to a denial of the rights themselves.

The petitioners asked the Supreme Court to determine that the Basic Law: Human Dignity and Liberty applies to all residents of the area under effective Israeli control. The Court has recently determined, in its decision regarding the Israeli government's “Disengagement Plan” from the Gaza Strip that the Basic Law applies to Israeli settlers living in the OPTs. Therefore, a decision that the Basic Law does not apply to Palestinians in the OPTs would create a constitutional regime of "apartheid."

The petitioners also dealt with one of the central claims put forward by the initiators of the law, that each party must bear the costs for its own damages: the State of Israel bears the costs of damages sustained by its citizens, and the Palestinians will carry the burden for damages incurred by Palestinians. The petitioners contended that this sweeping principle not only has no basis in international law, but also relies on the assumption of equivalence in power between the Israelis and Palestinians, as two independent states, or at least two political entities, with no relationship of domination and subordination. This logic, however, ignores the clear and obvious reality that the relationship between the two sides is that of an occupying power and a protected population under occupation, and that the occupying power is obliged to apply the norms of international humanitarian law and international human rights law, and afford protection to the civilians in the OPTs.

H.C. 8276/05, Adalah, et. al. v. The Minister of Defense, et. al.

 The Decision of the Supreme Court (H)

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