“I expect the state authorities in the area, both the army and the Civil Administration, to treat Palestinians, especially those who are innocent of any crime, as they would Israelis who are injured parties. I expect that after [the authorities] are forced to damage businesses, they act fairly when considering the compensation due them and not try to evade responsibility using creative legal arguments.” So wrote Military Judge Ronen Atzmon in awarding plaintiffs — Palestinians whose plant nurseries were needlessly destroyed by the Israel Defense Forces in 2000, during the second intifada — some 3 million shekels ($865,000), a sum that with interest and inflation linkage differentials is likely to reach seven million shekels.
It’s been more than 19 years since the army’s rampage at the greenhouses near Qalqilyah, 18 years since the first suit was filed and about a decade since a district court ruled that the IDF’s excuse, according to which the damage was incurred in the course of “warfare activity” (and that as a result the government is exempt from paying damages), does not hold. The plaintiffs surely deserve a medal for their patience and their resolve. Thousands of Palestinians who have suffered damages from the IDF’s non-wartime activities gave up on appealing to the courts in the first place, settling in the best case for the crumbs offered by the Civil Administration by way of compensation.
The Defense Ministry attempted to use a so-called winning strategy against the nursery suit, too. It offered the plaintiffs slightly over 660,000 shekels, minus expenses. But after so many years the plaintiffs decided that while the money was important, the principle was even more important. If the state tried to take shelter beneath the umbrella of “warfare activity,” they would turn that umbrella inside-out, like a strong gust of wind. We can only hope that Atzmon’s ruling gives a tailwind to other Palestinians who had regarded the destruction of their property as an act of God, against which there is no recourse.
One can only rub one eyes in astonishment at Atzmon’s remarks. To rock the lords of the occupation out of the clear blue sky? To expose, with one stroke of the pen, the bluff known as “warfare activity,” used to justify all cruelty and abuse? When he ruled that the IDF must treat Palestinians the same as Israelis, proposing what he called the “Israeli nursery test” as the standard of conduct vis-a-vis Palestinians, he did more than redefine the meaning of “warfare activity” and actually punctured the occupation hot air balloon. He also undermined a policy that views Palestinians as meriting discrimination merely because they are Palestinians. But right-wingers aren’t the only ones who should be infuriated. The ruling also poses a serious challenge to the left’s claim that apartheid policies provide the government with an instrument of control in the territories. Clearly, this judge must be booted out of the system.
But before we wave the flag of equality and pronounce the death of discrimination between Palestinians and Israelis in the territories, let’s remember that this was just one ruling, against thousands in which the courts have meekly swallowed the “warfare activity” argument to justify any damages done. The legal definition of warfare activity has passed through multiple incarnations before it gave the government a nearly free hand to cause extensive harm, including death and bodily injury as well as the destruction of homes and fields, without running the risk of having to pay compensation.
According to B’Tselem, the state paid out an average of 21.6 million shekels a year in compensation to Palestinians from 1997 to 2001, but from 2012-16 the average payout dropped to just 3.8 million shekels. These numbers not only explain the Palestinians’ distrust of Israel’s legal system and the military courts in particular, they reflect the resilience of discrimination. All that remains is to imagine what would happen if the government were to annex the territories, or only the Jordan Valley. In that case, paying out compensation would be the least of its worries.
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