The Amendment: From Immunity for "Wartime Action" to Complete Expropriation of Rights
The new amendment to the Civil Wrongs (Liability of State) Law, passed by the Knesset on July 27, 2005 affords Israel blanket immunity for any damages caused to residents of the West Bank and Gaza Strip, in areas defined by the Minister of Defence as "conflict zones". The amendment also affords the state almost complete immunity from claims filed by subjects of enemy states and persons defined as "active in or members of a terrorist organization", even when the damage they sustained has no connection to the conflict between Israel and said enemy state or organization.
Under existing law, Palestinians cannot claim compensation from the state for damages sustained as a result of combat activity. The broad definition of such activity, introduced by amendment no. 4, includes "…any action of combating terror, hostile actions, or insurrection, and also an action as stated that is intended to prevent terror and hostile acts and insurrection committed in circumstances of danger to life or limb."
Yet, until now, subject to strict limitations imposed by amendment no. 4, Palestinians have been able to sue for damages caused by looting, negligence on training grounds, shots fired when soldiers were not in danger, abuse and degrading treatment at checkpoints, physical violence and more. The new amendment blocks virtually any possibility for Palestinians to sue the state for damages caused by actions it itself considers abusive or illegal and constantly condemns.
A right for whose violation there is no reparation is no right at all, but rather a dead letter. Punitive damages have a crucial role in safeguarding human rights. They ensure that no violation will remain unaddressed. They breathe life into the letters.
The new amendment strips the residents of the West Bank and Gaza Strip of their human rights.
The Amendment: "Wartime Action" Immunity to Personal Immunity
Another section of the amendment exempts the state from compensating subjects of an enemy state or members of a terrorist organization. This is so even when the damages for which compensation is sought were incurred in a situation entirely unrelated to war or conflict. The exemption is unacceptably applied on a personal basis, regardless of the circumstances in which the damages were incurred. This personal application was greatly expanded by the Constitution Committee despite the objection of the Attorney General and the Ministry of Justice. The latter two contended that the state should enjoy immunity only in cases where compensation is being sought for damages sustained while acting on behalf of an enemy state or a terrorist organization.
The Committee expanded the exemption to include not just terrorists, but also anyone who is a "member" of a terrorist organization. The Committee's Chair, MK Michael Eitan opposed this expansion, stating it was too broad and would include people who were not directly involved in terrorism.
This section grants the state tremendous power to hinder compensation claims by Palestinians, Israeli Arabs and Jews even if they concern medical negligence or injuries due to negligence in the construction of roads or bridges.
Immunity from Compensation Claims Contradicts Israeli and International Law
The amendment's advocates claim that it applies a supposedly "accepted" principle, by which each party to an armed conflict bears responsibility for the damages caused to its own subjects.
This principle does exist as far as legal wars between two countries are concerned, but does not exist in territories under prolonged belligerent occupation. Under the laws pertaining to belligerent occupation, residents of an occupied territory are considered "protected" and the occupying power bears special duties toward them. Even in a state of ordinary war between two countries, international law places certain duties on the armies of the parties to a conflict pertaining to enemy civilians. Whoever breaks these duties must pay compensation for damages caused thereby. For example, Article 3 of the Hague Convention (1907) stipulates that "A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces".
The amendment's advocates claim that it rectifies a situation in which Palestinians may sue for damages caused by Israel, while Israelis are unable to receive compensation from the Palestinian Authority (PA). This claim is untrue. Israelis have filed many claims against the PA, both in Israel and abroad. Israeli courts have already seized hundreds of millions of Shekels of the PA's funds in such suits.
Another argument is that the claims the amendment blocks are non-justiciable within the framework of ordinary tort law. This claim is also false. Some damages are resolved within the framework of international agreements rather than tort law. Yet, these are damages caused by "wartime actions." The proposed amendment is irrelevant here, as Israel is already immune from paying compensation in such cases.
Exposing the State and its Soldiers to Suits in Foreign Courts
We are living in a new international climate, the age of legal globalization. International law is gaining power. No country remains unaffected by this process. Israeli law is moving toward creating consistency between domestic and international law – even if only to save the state and its soldiers from the consequences of clashes between the two legal systems. The current amendment is on a collision course with international law and with Israel's external commitments.
The amendment will almost completely block the possibility of suing the state in Israel's own courts. The amendment will force potential claimants to file their suits abroad. Courts all over the world are increasingly willing to accept claims which, although unconnected to their geographic jurisdiction, result from the violation of basic rights or international law. If Israel blocks the option of submitting these claims in its own courts, it will be unable to use the defence of improper jurisdiction when sued in foreign courts.
The Knesset passed an amendment which is unconstitutional and, considering existing law, unnecessary. It taints Israeli law and turns Israel into a pariah in the international community.For various tort claims filed in Israeli courts over the years: