HaMoked - The Center for the Defence of the Individual opines in a position paper, that the memorandum of Amendment No. 8 to the Civil Torts Law (Liability of the State) is unconstitutional, violates basic principles of Israeli and international law, and should therefore be set aside: The proposed memorandum attempts to revive Amendment No. 7 which has been unanimously struck down as unconstitutional by a panel of nine Supreme Court justices.
The purpose of Amendment No. 8 is clear: to reverse the Court’s ruling in H.C.J. 8276/05. It is a reprehensible attempt to lend the branches of the executive authority and the security forces supra-statutory status, and to exempt them from judicial review of human rights violations and from responsibility for their actions. The new memorandum seeks to reach, albeit via different legal language, the same result that was sought to be attained by Amendment No. 7. Its substance is the same, its violation of human rights is the same, and the arguments in its justification are the same. Just as Amendment No. 7 was unanimously struck down by the nine Supreme Court justices – so should the proposed amendment.
A review of the provisions of the memorandum attests that its drafters seek to reach the same result which they sought to attain in Amendment No. 7: Lending sweeping immunity to the State for the army’s actions in the territories – and to a large extent also inside Israel. In a series of matters, the provisions of the memorandum far exceed even the provisions of Amendment No. 7 which has been struck down. Illegal, wrongful and even criminal acts will remain unanswered for. The victims of such acts – orphans and widows, disabled persons or persons rendered destitute by the destruction of their property – will be left without any remedy. Certain savings will be recorded on the books of the Ministry of Defense.
In the opinion, the Center for the Defence of the Individual points out the vast importance of subjecting the State’s actions to review, if only in retrospect. The courts should be allowed to hear witnesses, examine evidence and decide whether or not the security forces acted legally. Closing the court’s gates before any population, based on its identity and affiliation is inherently wrong. International law harbors the well-established principle that an illegal act entails compensation, even if committed in a time of war in breach of the laws of war, and a fortiori
if it is unrelated to the belligerent acts themselves. This principle was established in as early as the Hague Convention of 1907, and has been implemented in recent years via diverse mechanisms in respect of injuries caused to civilians in international disputes.
Thus, for instance, Section 1
of the proposed memorandum, which defines an act of war, expands even further the definition which has already been expanded in the past far beyond its natural meaning. Its result is that virtually all of the I.D.F.’s actions in the territories will confer immunity upon the State against legal action, for any damage caused in the course thereof. This consequence is even further-reaching than that of Amendment No. 7, which limited the State’s exemption only to those parts of the territories which had been declared as conflict zones. Sections 4-5
of the proposal provide that claims against the State under the law would only be heard in the courts of Jerusalem and Beer Sheva. The official annotation attempts to state that the restriction of the right of access to the courts along those lines is designed merely to lead to the courts’ “specialization” and to “create uniformity in the case law”. These arguments are clearly unfounded. Attorneys and judges in the northern districts have accumulated vast experience in cases such as these. Also from the perspective of geographic proximity, in respect of many areas in the territories, it is actually the courts of the Central and Northern districts to which they are closest. Moreover, this argument of “specialization” is true – or untrue – with respect to any suit in a certain subject matter which is filed against the State. It therefore appears that the objective of Sections 4-5 is the desire to “dispose” of certain judges in those districts, who did not favor the State in their judgments.
Therefore, due to its violation of basic principles of Israeli and international law, and due to its drafters’ attempt to circumvent the Supreme Court’s decision and even to broaden the damage therefrom, the Center for the Defence of the Individual calls for the memorandum of the law to be set aside already at this stage. To view the organizations’ opinion of 7 September, 2007To view the Memorandum of the Civil Torts Law (Liability of the State) (Amendment No. 8), 5767-2007 (Hebrew