Top Court Accepts 'Disturbing Pattern' of Yemenite Children's Disappearance in Israel's Early Years

Justices avoid deciding whether there had been kidnappings, but said 11 cases against the state and the Jewish Agency point to a 'common question'

A woman of Yemenite origin is holding the birth certificate of her son, while attending a demonstration on missing Yemenite children in Jerusalem.
Olivier Fitoussi

The Supreme Court on Tuesday accepted the appeal of Yemenite immigrant families who had filed suit against the state and the Jewish Agency regarding their missing children, ruling that their cases should be heard as one combined case, rather than as separate cases.

The families claim that their children, a total of 11 of them, had disappeared from children’s homes in the immigrant transit camps during the years 1949 to 1950. The Kedmi Committee, which investigated claims regarding children who’d gone missing during the state’s early years, had stated in 2001 that each of these 11 cases was indeed “inexplicable” and there were no findings indicating what might have happened to these children. The Supreme Court ruling seems to recognize a common denominator among the cases.

The families were appealing a ruling by a district court that categorically dismissed the families’ suit for compensation, in which they jointly argued that the disappearance of their children, among others from Yemen, the Middle East and the Balkan countries, had caused them serious emotional damage. The district court ruled in favor of the state, saying that there is no identical factual basis for all the cases of missing children described in the lawsuit, but that they were different and separate cases. As such, any attempt to clarify the facts in a joint legal proceeding would unjustifiably complicate the procedure. Therefore, each case would have to be adjudicated separately.

The question at the heart of the families’ appeal was whether the disappearance of the babies, toddlers and children constitutes “one act” or “one series of acts” that raise, “A common legal or factual question” that would justify adjudicating their compensation claims in one lawsuit.

Supreme Court Justice Yosef Elron overturned the lower court decision, with the agreement of Justices Neal Hendel and Ofer Grosskopf, stating that, “The 11 events described in the lawsuit reveal one portion (and in fact, only a small part) of a harsh and painful chapter in the history of the State of Israel: The disappearance of Yemenite immigrant children in the early days of the state, during the period of their immigration and absorption.”

Elron avoided deciding whether there had been any kidnapping of Yemenite children, but said that common characteristics among the cases require a clarification of the facts.

“Without expressing a position on the chances of the lawsuit, which is at a fairly early stage, a review of the suit alone indicates that the actions and failures of the respondent officials; the information which, according to the claim, was given to the children’s parents, who disappeared suddenly, and primarily, the total disappearance of the children without leaving any trace, all raise disturbing suspicions regarding a singular pattern of action by the respondents, which could establish the right of the appellants to relief at the end of the proceeding.”

Elron also stated that to rule on the lawsuit the court will be required to deliberate several factual and legal issues that are common to all the cases, among them the procedure for transferring children to the infant homes and hospitals by the state and the Jewish Agency; the involvement of state and Jewish Agency officials in creating the conditions that led to the children’s disappearance and their separation from their parents; the admissibility of reports from investigative committees as evidence in legal proceedings; the admissibility of historical documents as evidence, among them written complaints that parents had sent to the authorities regarding their children’s disappearance, as well as the central question of whether a statute of limitations applies.

Another reason Elron agreed to unify the claims is that most of the appellants are over 90 years old and requiring separate proceedings would likely prevent them from taking place.

“Separating the lawsuits raises a real concern that the doors to the court would be closed to the appellants,” Elron wrote. “One must assume that the costs of conducting separate proceedings by each family against the respondents would be high.” Elron added that given the advanced age of a number of the parents, “there is a reasonable concern that if the appellants were required to start from scratch with separate proceedings, they won’t be able to do so.”