After an 18-year legal battle, a military court ordered the state to compensate five Palestinians whose plant nurseries were destroyed by the army during the second intifada.
The court ordered the state to pay the nursery owners 3 million shekels ($865,863) plus interest, linkage to the cost of living index and lawyers’ fees over the nurseries, located at a junction near the West Bank town of Qalqilyah.
The judge, who harshly criticized the attorneys for the Civil Administration over their conduct in the case, also ruled that the plaintiffs were entitled to compensation for pain and suffering in the wake of the “agonizing” bureaucracy, which ground on for so many years.
On the night between November 14 and 15, 2000, the military demolished the Alharuni, Alfardus and Qalqilyah nurseries, after stones and incendiary devices were thrown from the area around them. Some of the perpetrators hid in the nurseries and the nearby trees and the authorities demanded that nurseries’ owners post guards at the entrance, which they did. However, this did not help, and on November 12 security forces informed the owners that the nurseries were to be demolished in 48 hours. The order was indeed carried out at the end of the 48-hour period, including the equipment and plants. “The nursery owners incurred fatal economic damage,” said Dror Arad-Ayalon, a lawyer who represented the owners, together with attorney Sharon Daniel.
The owners filed their first compensation claim in 2002. The state countered by claiming that the demolition was carried out as an act of war. The suit wound its way through the courts over the next 18 years, during which rulings on the nature of the action and the amount of compensation were overturned.
In the last phase of the suit, the Civil Administration’s official in charge of lawsuits ruled that the nursery owners should receive only 660,474 shekels, after accepting the opinion of the state’s insurance adjuster. From that sum, the official subtracted sums for various reasons.
Eventually the Civil Administration’s appeals committee recommended that almost all the nursery owners’ claims be accepted.
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Military Judge Lt. Col. Ronen Atzmon said that in future, “the Israeli plant nursery test” should be applied in all such cases. He said the following questions should be posed: “Should we demolish the Israeli nursery just because Palestinian terrorists hid behind a greenhouse and carried out an attack from there? Should we make do with a warning of only two days before sending in bulldozers to demolish the nursery?”
As for the lengthy legal process, Atzmon continued his suggestion of a “test”: “Should we drag Israeli owners through five legal instances for 19 years, or should we compensate them before that?”
The judge also suggested that if the nurseries had been Israeli-owned, the army and the Civil Administration would have helped clear them out before the demolition.
The judge also related to the lower compensation the Civil Administration’s official in charge of lawsuits had determined, including a 40-percent reduction because of “contributory negligence,” the claim being that they had not done enough to reduce the damage to their nurseries. “It is completely unclear how the plaintiffs could have reduced the damage in the two days between being informed of the decision and its implementation. ... If it were that easy and cheap, it’s a pity the army or the Civil Administration did not do it, because they would have saved us all the damage and the years-long hearings.”
The judge said he expected both the army and the Civil Administration “to treat Palestinians, especially those who are innocent, as they would Israelis who incurred damage. ... I would expect that after they were forced to damage a business, they would act fairly in weighing the compensation due, and would not try to evade responsibility using creative legal arguments.”
The judge said he expected the lawyers for the Civil Administration “to see themselves as representing the public interest in the broader sense of the term and not as a lock on the state coffers.”
Arad-Ayalon said in response: “The ‘Israeli plant nursery test’ is very importance. The court ruled that ... if the state inflicts damage, it doesn’t matter who incurred the damage, the standards for compensation are the same, Jew or non-Jew, Israeli or non-Israeli. Daniel added that the state should be proud of the decision “especially in these days when attempts are being made to bring Israel to court in The Hague, because it shows respect for international law and is a badge of honor to the military justice system.”