A civilian, resident of the occupied territory, who is not taking part in combat is injured in the course of security forces activity and suffers bodily or property damages. He files a compensation claim against the state with a court in Israel. Israeli statute determines that the state is not civilly liable and is exempt from paying compensation if the damage was incurred in the course of a “wartime action”. In these circumstances, the claim would be rejected, even if the forces acted unlawfully.
The Bani ‘Odeh case concerns an event which occurred in the West Bank village of Tammun in August 1988, during which the military opened fire on Palestinians while attempting to arrest them, killed one and wounded the other. The Nazareth District Court accepted the lawsuits filed by the plaintiffs and awarded them damages.
[1] The appeal proceedings in the Supreme Court focused on the question whether the action leading to the injuries was a wartime action – in which case the state is exempt from liability – or rather a policing action, where the exemption does not apply. The court reached the conclusion that the shooting at the appellant was negligent, against protocol and executed whilst the soldiers were at no risk whatsoever. As the appellant was injured during an action aimed at apprehending suspects, rather than battling them, it was a policing action, and therefore, he is entitled to compensation.
Although in this case it was found that there was no wartime action, it seems that restricting the review to domestic Israeli law may leave other victims without proper remedy. This approach, which does not take into consideration the obligation to make reparation under international law, is inconsistent with the circumstances of the incident. The damage was incurred in an occupied territory, during use of force by the occupying power, the injuring party is a state authority and the injured party is a protected person in the occupied territory. In these circumstances, local law alone does not suffice.
Indeed, in terms of international law, the preliminary distinction between damages occurring in the course of fighting and ones occurring outside thereof is highly significant, as the law applicable to these situations is different. As a rule, damages incurred during fighting, primarily come under the laws of armed conflict, whereas damages incurred during “ordinary” law enforcement activities come under human rights law. However, whether it is a wartime or policing action, the action must be lawful. Unlawful action gives rise to an obligation to make reparation on the part of the state.
[2] It is not necessary for the unlawfulness to reach the level of a criminal act. The obligation to make reparation is broader and encompasses all wrongful acts causing damage, namely, also acts of omission or negligence.
[3] It follows that in order to determine whether a certain action imposes an obligation to make reparation on the part of the state, a dual review must be conducted. First, one must determine which law applies to the incident. Second, in accordance to the law in effect, one must determine whether the injurious action was lawful or not. Even if it is the same action in the narrow sense – factual, physical – the conclusion may differ from one case to another, as the rules of use of force may change in accordance with the actual situation and the circumstances on the ground.
Under the law of armed conflict, in a wartime action, injuring a civilian is lawful when it is collateral to an attack on a military target and is not excessive in relation to the direct military advantage expected from the attack.
[4] In such a case, the injury to a civilian who had not taken part in hostilities does not give rise to a legal obligation to make reparation. This holds true also where the injury is a result of an error in assessing the expected damage to civilians and insofar as the necessary precautions have been taken.
[5] However, conduct which is in breach of the laws of war, such as negligence in taking precautions prior to an attack, does lead to an obligation to make reparation, and all the more so when the issue is a grave breach of the laws of war, such as a deliberate attack on civilians which gives rise to both individual criminal liability and an obligation to make reparation.
In a situation of occupation, and on the presumption that no fighting is taking place in the occupied territory, the laws of armed conflict do not apply. When the issue is lethal harm to a civilian by the hands of security forces, for instance, during a demonstration in the occupied territory, the standard is human rights law. The rules of use of force by law enforcement organs are similar to those inside the territory of the occupying tower and applicable to its own civilians. In such a case, in order to determine whether the use of force was lawful, one must examine whether the use of lethal shooting was required in order to protect human life from immediate danger. In cases where it was necessary to neutralize a threat, one must further examine whether less harmful alternatives were available, such as apprehension and arrest, and, whether the use of force was employed only up to the necessary level and not beyond. In the Bani ‘Odeh case, the court ruled, as aforesaid, that as no danger was posed to the force, the shooting was unlawful and the state was obligated to compensate.
Hence, unlawful injury, whether caused in a wartime or policing context, requires compensation. Once the obligation to compensate arises, the question is whether filing a lawsuit is necessarily the adequate mechanism for realizing the victim’s right on the one hand and the state’s obligation on the other. Indeed, in the judgment, then President Barak doubts this, but it is clear that this is not aimed at denying the right to compensation, but at the need to find alternatives for compensation that are “outside classic tort laws”. Barak holds that “wartime action” is not beyond the domains of the law, but that an arrangement of compensation must be sought “which could reflect on the general picture, and distribute the risk in consideration of the special character of the action, and taking into account international agreements which the state has made”.
[6] It seems that a compensation mechanism which provides an alternative to a civil claim would be significantly advantageous to the victim. For instance, compensation through an administrative route would reduce costs and provide swifter remedy on the basis of uniform criteria. The evidentiary requirements may be more flexible. This is highly significant, particularly when the victim is at a disadvantage in terms of evidence and is hard-pressed to meet the burden of proof in his claim, considering the fact that the information on the circumstances of the incident is held by the state. In an alternative mechanism, more victims may gain compensation.
The state does have discretion with respect to the appropriate mechanism for fulfilling its international obligations, but this does not mean an exemption from the substantive obligation to make reparation. In this context, it is worth calling attention to the fact that over the past few years, there have been various attempts in Israel to deny the right to compensation for damages when it comes to particular injured parties or particular behaviors of the state and its soldiers.
[7] These attempts, which do not propose an alternative compensation mechanism, but rather a blanket exemption for the state, are a flagrant breach of international law. Even if the exemption is anchored in legislation, the state may not shirk its obligation to make reparation in accordance to international treaties to which it is party and to customary international law.
[8] As stated, once the action attributed to the state is unlawful, there is an obligation to make reparation irrespective of the victim’s identity. In its judgment, the court should have clarified the legal situation and ruled that such local arrangements are against international law.
Adv. Alon MargalitThe author is a lawyer, formerly on staff at HaMoked: Center for the Defence of the Individual. He is currently a PhD candidate at the Institute of Advanced Legal Studies, University of London.
