The question is will the state be forced to pay
Under international law, the territories are defined merely as a 'confrontation zone.'
Though it may sound strange, Israel is not currently engaged in combat in the territories, and it has not been at any time since the year 2000, or, in fact, since the Yom Kippur War either. This is the case in the legal sphere, in which every action and situation has a definition. And according to international law, there is no "combat" in the territories; the territories are merely defined as a "confrontation zone."
Tanks on the outskirts of Jenin, jeeps in the Nablus Casbah, targeted killings in the heart of the Gaza Strip, and widespread house demolitions in Rafah are not acts of war, according to legal definitions. Why is this important? Because a nation engaged in a state of war is immune to damage claims made by the other side in the context of battle. In other circumstances, such as "occupation," as defined in international law, the story is different.
This is exactly where Amendment Seven to the Civil Damages Law, passed by the Knesset two months ago, enters the picture. The amendment incurred the wrath of no less than nine human rights organizations: Adalah - the Legal Center for Arab Minority Rights in Israel, HaMoked Center for the the Defense of the Individual, the Association for Civil Rights in Israel, Al Hak - Law in Service of Man in the West Bank, The Palestinian Center for Human Rights in Gaza, B'Tselem, Physicians for Human Rights, the Public Committee Against Torture in Israel, and Rabbis for Human Rights. In a joint appeal to the High Court of Justice presented this month, these organizations claimed that the amendment virtually frees the state of any obligation to compensate Palestinians for damages during "non-combat" actions in the territories that occurred since September 29, 2000.
"[This] conveys to the public a grave and extreme ethical message in which the lives and rights of Palestinians have no value, and anyone who hurts them will be freed without consequences. The law, in fact, dictates that when it comes to the question of injury and damages to Palestinians, there is no justice and no jury," according to these nine organizations.
The appeal presented by these nine organizations, demanding that Amendment Seven be overturned, came as no surprise to the government. Caustic criticism of the legislation was presented during initial deliberations on the proposed amendment in the Knesset Constitution, Law, and Justice Committee. "They are confusing you," said Professor Ariel Porat, dean of Tel Aviv University's Law Faculty and international tort liability expert. "They tell you that liability for damages does not enter the picture when there is active combat. But this matter has been sealed for some time. A few years ago, the [international] law of torts was clearly amended such that not only does active combat no longer preclude the option of suing for damages, but the definition of active combat was broadly expanded, and special rules of evidence were established for these cases."
Who is an enemy?
What does the new law actually mean? That despite "what is stated in law," the state is not obligated to compensate "the subject of an enemy nation," "an activist or member of a terror organization," or "a party that sustained damages in the service or under the auspices" of either of the two. The definition of an "enemy" in the law is as broad as anyone might imagine: "A combatant or one who is engaged in a state of war against Israel, or one who declares himself to be one of these, whether or not war has been declared, and whether there is hostile action or not."
A similar, albeit less sweeping, amendment to the law was enacted in response to "non-combat" activities that occurred during the first intifada. But that law left room for the court to define the actions of certain soldiers as "negligence," which is not immune to claims for compensation.
In January 2004, nine High Court justices, who upheld an appeal by two residents of a Jenin refugee camp, ordered the state to compensate one of them for injuries sustained from rubber bullets fired by Border Police in July 1990. The original ruling was handed down by Haifa District Court Judge Tova Strasberg-Cohen, in 1994, before she was appointed to the High Court.
One of the two Palestinians, Osama Hamad, sustained wounds to the head when he was 11 years old, in riots in the Jenin camp. After Palestinians hurled rocks at a military base and a Border Police jeep, police chased the perpetrators on foot. During the chase, one police officer fired three rubber bullets in the direction of the youths. The court declared that the police were negligent in the shooting, and that they had adopted unreasonable measures in their use of rubber bullets.
"Not all police activity is reasonable," wrote Chief Justice Aharon Barak. "Police are not entitled to do everything to control riots and impose order. They must only adopt reasonable means, which are appropriate to the circumstances. The shooting was implemented during the dark hours of the day while running in a location with poor visibility. The policeman shot directly at rioters, without shooting warning shots into the air."
In December 2004, the High Court ordered the state to pay damages in response to a shooting by a soldier during the "disturbances" in the Jenin Casbah in 1988. The soldier opened fire at a demonstrator standing on the roof of a building near demonstrators throwing "rocks the size of a grapefruit" at soldiers. The soldiers were ordered to shoot at their legs, but the demonstrator bent down and was wounded in the back. The court rejected the state's claim that the action it defined as "active combat" was not subject to suit for damages. "There is no justification, under any circumstances, to suppress disturbances when the price is the endangerment of life," Barak wrote in his ruling. "Even in dangerous situations, there is no license to do everything to prevent risk."
"The state prosecutor loses cases - it's true," said Professor Porat to the MKs. "Even after the last amendment to the law, lawsuits against the state continued to be filed. This happens because Israeli judges rule that certain actions do not represent combat, and are not part of the war on terror, but are merely misconduct and intolerable behavior on the part of soldiers in one instance or another. In other words, the court acts in a way that does not exactly please one party in the dispute. Imagine a criminal defense attorney, in an attempt to defend his client, persuading the Knesset to enact legislation that enables him to get his client to go free. I am telling you, a situation that allows soldiers to act on any whim without paying the price, as far as the law is concerned, is a situation that should shame every one of us."
The problem of retroactivity
There is almost no legal impediment that the amendment to the Civil Damages Law did not fail to overcome, say human rights organizations in their appeal. The law revokes the basic right to due process; it violates human rights; and it was enacted for an inappropriate purpose. This is also a retroactive law, which addresses events that occurred since the year 2000. "Retroactive legislation denies the accepted terms of justice," the appellants quote Barak, who wrote the same in a ruling more than a decade ago. "The rule of law demands certainty and security in human relations. Disruptive legislation harms all of this, and does not permit premeditated behavior."
Attorneys Hassan Jabarin, Orna Cohen, Dan Yakir and Gil Gan-Mor claim that the rights of Palestinians violated by the law do not only include rights protected in international law, but rights included in Israel's Basic Laws. This is a precedent-setting claim: The entire issue of the legitimacy of Basic Laws in the territories was recently questioned in High Court deliberations in relation to two issues - the legality of the disengagement, and the separation fence. In both cases, justices examined settlers' rights, in conjunction with Basic Laws, while they reside in the nation's sovereign territory. In both cases, justices ruled that settlers are entitled to basic rights guaranteed in the Basic Laws.
In the case of the disengagement, the justices ruled that the injury to their rights was "moderate," and in the case of the separation fence, the court ruled that the IDF has the right to surround settlements with a fence because the settlers' entitlement to the "right to life" has no relation to the legality of settlements in which they reside.
Now is the time, according to human rights organizations, to move on to the next stage - to declare that Basic Laws apply not only to the settlers, but to the Palestinians, too. "If the court faces this question," they write in their appeal, "it will be required to rule that Basic Laws also apply to Palestinians in the territories."
They note that according to the letter of the Basic Law on Human Dignity and Freedom, these rights apply to all individuals, not only citizens and residents. "Every soldier carries not only the burden of Israeli legal, administrative principle but even that of the Basic Laws, and he is obligated to honor the rights secured in those laws. This conclusion empowers claims in the confrontation zone, where residents who are denied rights and political power, require additional protection of their rights, and on the other hand, both authorities of the occupying army are particularly obligated to guard the rights of the civilian population."
The State Prosecutor has yet to present its response to the appeal, and a date for the appeal has not been set. In any case, the High Court is not asked every day by such a broad coalition of human rights organizations to overturn legislation by the Knesset. The last time there was an enlistment of this extent was two years ago, in an appeal that sought to overturn an amendment to the Citizenship Law that would prevent "family reunification" in families that include Arab-Israeli citizens and their Palestinian spouses. It comes as no surprise that these appeals languish in the High Court like boulders that cannot be overturned.