The Cost of the First Intifada Still Mounts

With 900 claims outstanding, lawmakers race to pass legislation that would block paying any compensation for the current conflict

Gideon Alon
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Gideon Alon

Justice Minister Meir Sheetrit will today ask the Knesset Constitution, Law and Justice Committee today to authorize second and third readings of a bill to curb the ability of Palestinians hurt by the first intifada from getting compensation from Israel.

Committee chairman Ophir Pines-Paz MK (Labor) is unhappy with the formulation of the bill and wants several revisions. "This is a very problematic law," opines Pines-Paz. "If the Justice Ministry wants to cooperate with the committee, it should show flexibility and add some changes to the bill. Otherwise, we won't approve it."

The Defense Ministry wants the bill made law as quickly as possible, since each passing day adds to the intifada compensation sums the security system has to pay. Up to now, the state has paid close to NIS 300 million to compensate for physical injuries and property damage caused to Palestinians during the uprising that started in November 1987, and effectively ended with the start of diplomatic negotiations that led to the signing of the Oslo accords in 1993.

So far 6,000 claims have been filed against Israel by Palestinians for damage allegedly sustained during the first intifada. No decisions have been reached in 900 of these cases - most of the unsettled claims are still pending in the courts.

In addition, hundreds of compensation claims have already been submitted by Palestinians who say they have been hurt by the present Al-Aqsa Intifada, which began in late September 2000.

The proposed bill, called "Law for Handling of Claims Related to IDF Activity in Judea and Samaria," has gone through a number of versions since 1992, when senior security officials frantically approached then Prime Minister Yitzhak Rabin, and urged him to pas a law that would drastically reduce the number of Palestinian compensation claims against the state.

The officials reported to Rabin that claims were piling up, and that Israel's courts were awarding compensations in almost every instance, since it was difficult to establish in court that the IDF's actions were "war activity," in a legal sense that would exempt the state from compensation liability.

The security officials warned Rabin that if a law were not legislated to dam the wave of compensation claims, Israel might possibility be called on to pay billions of shekels in compensations to the Palestinians.

Rabin supported the legislation initiative, and ordered the State Prosecutor's Office and the IDF to draft a proposed bill holding that Palestinians are not eligible for compensation if they were hurt by intifada events.

The intifada, this law would maintain, was a collective, violent and sometimes lethal struggle in which use was made of rocks, molotov cocktails and sometimes firearms in a way that endangered IDF soldiers. Israeli security forces, which were called on to maintain order and protect Israelis, operated in difficult circumstances that involved mortal danger.

Hence, the proposed law would claim, the soldiers' activities should be seen as "war actions" and any damage caused by these war actions was not the state's responsibility, the bill would claim.

The bill was delayed. Several officials in the Justice Ministry objected to it and said it infringed the Basic Law on Human Dignity and Freedom. They opposed the retroactive clause in the bill that exempted Israel from liability for damage caused before the law became valid.

Meanwhile Israel was required each year to pay scores of millions of shekels in compensations to Palestinians. After the first intifada ended, compensation claims continued to stream into Israel's legal system - under the country's damages and liabilities law, compensation claims remain valid up to seven years after a disputed incident. Furthermore, under existing law, a minor who sustains damage has the right to submit compensation claims up to seven years after his or her 18th birthday. In other words, a Palestinian infant who was hurt by IDF fire in 1993 has the right to submit compensation claims up to the year 2017, unless Israel passes a new law.

The Justice Ministry, working in concert with the security establishment, did not complete the proposed law until 1997. Then Justice Minister Tzachi Hanegbi relates how he was stunned to find when he took up his post that the system had paid some NIS 150 million in compensation for physical injuries sustained during the intifada, and that more than 4000 compensation claims had been submitted (of which 700 were at the time pending in the courts).

"As I saw it, this was an immoral, and illogical, situation," recalls Hanegbi. When he submitted the proposed law to the Knesset, Hanegbi said "we are being forced to pay huge sums of money to people who posed a threat to the welfare of citizens of Israel, and launched a brutal, violent war against them. We think that not a single penny of taxpayers' money ought to be awarded to those who declared war against the state."

The version of the law which was approved on a Knesset first reading in May 1997 (by a vote of 55 MKs in favor to 49 MKs against) was much more softly worded than the original. Hanegbi explains that he assented to the appeals made by government attorney general Elyakim Rubinstein and State Prosecutor Edna Arbel. He says Rubinstein and Arbel agreed to support the proposed bill if it guaranteed that basic human rights and liberties would be protected.

The proposed law stirred vocal protests among human rights groups. A number of such groups issued a statement which propounded that "the proposed law essentially creates different liabilities standards for those who were injured in the territories, and represents a sharp, retroactive deviation from fundamental principles of civil damages law in Israel."

They charged that "providing a wholesale exemption to the state by stretching the meaning of the term `war action,' effectively negates the obligation of caution borne by the state's security forces toward the civilian population in the territories. The state is abdicating responsibility for one of the fundamental obligations which is imposed on security forces, and which is designed to protect the fundamental right of an individual to his security and well-being, and to his property."

The attorney general's office prepared in 1997 a special report that analyzed whether there was genuine basis for the security establishment's claim that the courts were deciding in the Palestinians' favor in most damages claims. The report showed that the number of claims decided in the favor of Palestinians had declined over the years. In 1997, Israel's courts rejected 82 percent of such claims. Hence the attorney general's office argued that the rationale for the bill ought to be re-considered.

After Yossi Beilin became Justice Minister in 1999, he decided to suspend the legislation of the "intifada law." This suspension incurred the wrath of security officials. Beilin believes this is "an immoral, illegal proposed bill, and so I was not prepared to move ahead with its legislation."

Security officials were furious, and claimed they kept coming across attempts by Palestinians to defraud Israel and win compensation by submitting dubious claims. Attorney Ruth Bar, who heads the Defense Ministry's insurance and claims department says "not a small number of the claims submitted by Palestinians for physical or property damage caused during the intifada involve attempts to defraud the security system and the courts, via the use of fabricated medical reports, and mendacious testimony."

Bar cites cases in which the Defense Ministry submitted criminal complaints to the police against Arab attorneys, who had submitted compensation claims for Palestinian clients - the Ministry issued its counter-charges after establishing that the damage claims were totally unfounded. In one instance, Bar relates, a Palestinian demanded compensation for being blinded by IDF gunfire, but it was established that the claimant was crossing streets without a cane or guide dog and while he suffered from a nervous disorder, he was far from blind.

When he replaced Beilin as Justice Minister in 2001, Sheetrit was determined to resume legislation of the intifada law. "I believe there is no justification for Israel paying compensations to anyone who wages an armed struggle against it," Sheetrit says.

In view of sharp criticism leveled by human rights organizations, the Justice Ministry decided to push for a new, softened version of the bill. A more moderate version of the bill was submitted for review to the Knesset's Constitution Committee in December 2001. Formulations in this new bill were worked out in consultations involving Sheetrit, Rubinstein, Arbel, and a number of officials from the State Prosecutor's Office and branches of the security system.

The new version of the law does not impose a ceiling on the amounts of compensation claims - the original version authorized the courts to set a ceiling. On the other hand, compared to the original version of the bill, the new law stiffens standards in one area to the detriment of claimants - the burden of supplying evidence and proof in a claim will rest with the Palestinian, not the state of Israel. That is, the injured Palestinian will have to prove that any damage caused to him or his property resulted from the intifada.

Sheetrit says the new law will apply to claims that have yet to be initiated. Claims which are already under review in the courts are to be settled according to existing standards and laws.

Sheetrit has asked the Constitution Committee to authorize legislation of the bill as quickly as possible. Deputy Defense Minister Dalia Rabin-Pelossof supports Sheetrit's position and emphasizes the great importance that security officials accord to the finalization of this law.

"The state cannot allow enemies which fought against it in armed struggle to knock on its courtroom doors, and make compensation claims," says Rabin-Pelossof, who views legislation of the bill as the closure of a circle that began when her late father ordered that the law be drafted in 1992.

Committee Chairman Pines-Paz vowed last December that "I will not delay that proposed law, nor will I bury it." But, since then, legislation of the bill has not moved ahead.

Special law for current conflict Under orders from Meir Sheetrit, the Justice Ministry is drafting a separate bill to entirely deprive Palestinians of any right to claim compensation for physical injuries or damage incurred during the present intifada.

Up until now, Israel has dismissed any compensation claims forwarded by Palestinians who have been hurt since the violence erupted in the territories in September 2000. Security officials reject such claims outright, on the grounds that the IDF's operations are "war activity."

Damages law holds that the state is exempt from liability for any damage caused as "a result of war activity undertaken by the IDF."

Thus, damages have not been awarded to civilians who were hurt under questionable circumstances in the intifada, as in the example of 12 year Mohammed a-Dura from the Gaza Strip, who was shot to death at the Netzarim junction at the start of the intifada.

The security establishment has also rejected an NIS 4.5 million compensation suit filed by a Beit Jala residents whose home was damaged by IDF fire - as Israel sees it, the soldiers fired shots while defending Gilo neighborhood.

More than 600 compensation claims have been submitted up to now for physical injuries or property damage sustained during the Al-Aqsa intifada. Put together, these claims total hundreds of millions of shekels. Each month, some 50 new compensation claims are submitted, most of them for alleged property damage.

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