Cancellation of Racist Law Preventing Palestinians from Claiming Compensation from Israel.

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

Petition submitted in 9/05 by Adalah, HaMoked and ACRI on behalf of the three organizations, Al-Haq, The Palestinian Centre for Human Rights, B’Tselem, Physicians for Human Rights, The Public Committee Against Torture in Israel and Rabbis for Human Rights. The petitioners demanded that the Court declare void new amendments to the Civil Wrongs (Liability of the State) Law. These latest amendments, passed in 7/05, deny residents of the Occupied Palestinian Territories (OPTs), citizens of “Enemy States,” and activists or members of “a Terrorist Organization,” the right to compensation from the state of Israel for damages caused to them by the Israeli security forces, including those damages caused to them outside of the context of a military operation (with some minor exceptions). They further grant 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, which denies those injured in the area the right to seek compensation from Israeli courts. The Law operates retroactively in cases of damages sustained since the beginning of the second Intifada in 9/2000.

In the petition, the nine human rights 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 also argued that the articles of the Law de facto terminate 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.

Result: In 12/06, the Supreme Court, 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, invalidating a provision of the amendment. 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. 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” or “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.

H.C. 8276/05, Adalah, et. al. v. The Minister of Defense, et. al. (petition accepted)