In Unprecedented Move, Judge Bases Verdict on Controversial Nation-state Law

A Jerusalem District Court ruled that Hamas must pay $1.5 million to a Jewish man injured in a terror attack in 1998

FILE Photo: Prime Minister Benjamin Netanyahu with members of Knesset on the eve of the passing of the nation-state law, July, 2018.
Olivier Fitoussi

In the first verdict based on the controversial nation-state law, the Jerusalem District Court ruled Monday that a Jew injured in a terror attack is entitled to punitive damages from his assailants.

Judge Moshe Drori ruled that Hamas must pay 5.4 million shekels ($1.5 million) to David Mashiah and his family. Mashiah was injured along with 15 other people when a bomb exploded in a garbage can on Allenby Street in Tel Aviv in 1998.

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Drori, who has a history of controversial decisions and remarks in court against Palestinians and other minorities and is expected to retire in about a year, based his ruling on a clause in the new law – which is a Basic Law, carrying constitutional weight – that the state will strive to ensure the safety of the Jewish people.

As is the usual practice in such cases, Drori determined most of the amount of compensation on proof of damage to Mashiah and his family, such as loss of income and psychological damage. However, Israeli law permits compensation to exceed proven damage and to include punitive damages in “particularly unusual circumstances,” and Drori ruled that 1 million shekels out of the total 5.4 million shekels would be punitive damages. Drori noted that courts have only imposed punitive damages in four cases of terror attacks, two of which were cases brought before Drori himself.

The scene of the terror attack in Tel Aviv, 1998.
Havakuk Levison / REUTERS

In December, the Supreme Court awarded punitive damages to the family of Amit Amos Mentin, a Bezeq telecommunications technician who was shot in the head in 2003 in the Arab town of Baka al-Garbiyeh, where he was sent on a repair job. Justice Noam Sohlberg noted that such damages were unusual and should be imposed with great caution.

According to Drori, the approach expressed by Sohlberg has changed in light of the nation-state law, passed about two months ago. Drori cited clause 6(a) of the law, which states: “The state will strive to ensure the safety of the members of the Jewish people in trouble or in captivity due to the fact of their Jewishness or their citizenship” as changing the picture in such cases.

“Since the attack on the plaintiff was carried out by Hamas, whether the Jewish people or the citizens of the state are in trouble due to this organization must be scrutinized,” he said. Drori added that “because the state had not succeeded in its primary task” – referring to the clause requiring the state to “ensure the safety” of Jews – and Hamas perpetrated the attack in question, this clause of the nation-state law can be “a kind of alternative relief in ensuring – and certainly not obstructing – a Jew injured in a terror attack by Hamas from receiving the highest possible compensation according to Israeli law.”

Judge Moshe Drori.
Batei Mishmas website

Drori, 69, is known for his controversial rulings that reflect an anti-Arab and anti-minority attitude. His candidacy for a Supreme Court seat was quashed in 2009, partly because of his acquittal of a yeshiva student who ran over an Ethiopian woman. Drori exonerated the yeshiva student, who was up for a Religious Court judgeship, so as not to jeopardize the student’s appointment. Drori also was the target of complaints by then-Jerusalem District prosecutor Nurit Litman, who said the judge had made a series of racist remarks against an Arab prosecutor in a case against a Jewish youth charged with throwing stones at Arabs. In addition, Drori ruled last year that he was unable to convict a 15-year-old Jewish boy for throwing stones and a Molotov cocktail at the cars of Arabs, in view of what he determined to be the trauma the boy had endured after one of his classmates was kidnapped.

In Monday’s case, Drori said there was justification for applying a Basic Law retroactively to the case of an attack that happened 20 years ago.

Drori also noted in his ruling that the nation-state law was not declarative, and when the Knesset passed it as a Basic Law, it intended it to be used in court. “We, the judges, as part of the government authorities in Israel, must apply and invoke the Basic Law: Israel as the Nation-State of the Jewish People, including clause 6(a).”

The Knesset passed the nation-state law in July by a majority of 62 to 55. Last week, the eighth petition to annul the law was filed in the High Court of Justice. A panel headed by Justice Esther Hayut is to hold a hearing on the law in January.

Members of the Joint List Party throw the shreds of the document nation-state law at Netanyahu, July, 2018.
Olivier Fitoussi