The relationship between the Supreme Court of Israel and international law has had its share of ups and downs. The Supreme Court’s judgment in
Daud, with the lead opinion written by Deputy President Eliezer Rivlin, marks one of the lowest points in this relationship. In a short paragraph at the end of the opinion, the court relegates international law to the status of outcast among the laws it considers when it decides the rights and obligations of those who come knocking at its doors.
[1] The background for this judgment is a massive demolition operation in which greenhouses were destroyed. The Military refers to this destruction as “razing”. The operation was carried out in November of 2000, on the claim that terrorists had used the greenhouses for cover when shooting at the road leading to the settlements of Ma’ale Efraim, Karnei Shomron and Kedumim. Some years earlier, the Israeli authorities sought to demolish the greenhouses on claims relating to planning and building laws. Ultimately, the separation wall was built in that area, some of it on land where the demolished greenhouses once stood.
Israel uses international law to justify actions such as this. Article 23 of the Hague Regulations prohibits, among others, “To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war”.
[2] The overall prohibition implies what is permitted: to destroy enemy property when the destruction is imperatively demanded by the necessities of war. Similarly, Article 53 of the Geneva Convention, which concerns occupied territory, stipulates the following:
Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.[3]
Here too, prohibition implies permission: when the destruction of real property (such as the greenhouses which were the subject of the
Daud judgment) is absolutely necessary for military operations, the military commander has the power to destroy it. The instructive judgment on this issue is the judgment the High Court of Justice (HCJ) gave in
Timraz in 1991. In that case, Israel intended to demolish a home in Jabalya Refugee Camp as part of efforts to increase the security of the military post in the camp. The court approved the demolition based on the permissions implied by Article 23 of the Hague Regulations and Article 53 of the Geneva Convention. In that case, the state offered to compensate the residents of the building that was slated for demolition. Then-President Shamgar, who wrote the opinion in
Timraz, wrote that “The IDF usually compensates the injured parties in the spirit of Article 52 of the Hague Regulations”.
[4] In
Daud, the owners of the demolished greenhouses filed a claim for compensation for the demolition. The District Court heard the matter as a court of first instance,
[5] and the Supreme Court heard it in its capacity as the appeals instance. The question was whether the greenhouse owners were entitled to the remedy of monetary compensation for the demolition. The courts were asked to examine this question from two aspects: tort law and international law.
With respect to tort law, destruction of property gives rise to a right to compensation only if it was carried out unlawfully. Both the trial and the appellate courts proceeded from the premise that the legal justification for the demolition of the greenhouses lay in international humanitarian law, which grants the military commander the power to do so, as ruled in
Timraz. Having the acknowledged that the power exists, the two judicial instances reviewed the manner in which this power was exercised, for example, whether the rules pertaining to a hearing for the greenhouse owners had been breached and whether it was possible to employ other measures that would have caused less harm to them. The District Court took the position that there were flaws in the manner in which the power was exercised and that these flaws entitled the greenhouse owners to compensation: no written order was issued and the owners were not given an opportunity to present their case. The Supreme Court was of the opinion that the violation of the plaintiffs’ right to a hearing could not assist them in their claim since “The chances that a hearing held in the format that was available in the case at hand would have brought different results are not high enough to establish liability in tort”.
[6] As for the possibility of achieving the security purpose with more moderate measures, the District Court found that no attempt to take other, potentially less injurious measures, was made prior to the demolition of the greenhouses, despite the fact that such measures were ultimately taken, in addition to the “razing”. On this issue, the Supreme Court took the rare step of intervening in the factual findings of the District Court and held that it had not been established that the demolition of the greenhouses was not necessary.
Unlike compensation under tort law, compensation under international law does not require the plaintiffs to prove that the action was unlawful. An action that violates international law obviously necessitates compensation, as established in Article 3 of the Hague Convention of 1907. However, even actions that do meet the legal requirements may also require the belligerent (or occupying) power to pay compensation, as established, for example, in Article 52 of the Hague Regulations. This article addresses the requisition of property. As we have seen, in
Timraz, the Supreme Court noted that Israel does not limit the application of Article 52 to cases of seizure of property, but applies it also to the destruction of property. The District Court examined the case from this perspective and found that the greenhouse owners were entitled to compensation under international law as well.
The Supreme Court chose not to go into the issue of whether or not the greenhouse owners were entitled to compensation under international law. Instead, the court briefly ruled that:
The District Court held, as foresaid, that the Respondents have a cause of action against the state under international law as well. This argument cannot be accepted within the framework of the proceeding before us. A civil action is not the adequate proceeding for examining the argument that the state breached the duties imposed upon it under international law, including the duty to pay compensation in certain cases. There is no dispute that the Respondents, may, independently, as individuals, demand their rights under the Hague Convention which was incorporated into the Israeli legal system as customary international law (see HCJ 606/78 Ayoub v. The Minister of Defense [...], 119-121(1979)). However, the claim that the state exceeded the powers vested in it under international law (for instance, because it did not comply with its duty to pay compensation for land expropriation) should be presented within the framework of an administrative proceeding, in accordance with security legislation enacted by the military governor in charge of Respondent's area, or within the framework of a petition filed with the Supreme Court sitting as the High Court of Justice (subject to the regular rules applicable to this proceeding).[7]
In other words, the court agrees that customary international law is one of the strata that make up Israeli law. It establishes rights and duties between individuals and forms part of the Israeli legal system, just as tort law and contract law do. However, when an individual brings a monetary claim before the court, international law must stay out of the courtroom. An individual may present alternate claims based on contract law, tort law or unjust enrichment. However, when the same factual basis entitles him to monetary rights under international law – such arguments will not be heard in the context of a monetary claim. Clearly, the individual may write to the military commander in the Occupied Palestinian Territories (OPT) and ask for compensation, or contact the military officer in charge of compensation and if denied, he may turn to the HCJ.
This seems to be nothing more than a question of procedure: will the victim obtain the remedy by way of a monetary claim or by way of an administrative petition? Procedure, however, is significant. Military authorities tend to pay lower compensation than civilian courts order. Petitioning against their decision limits the claimant’s options compared to a civil suit. In addition, civil court proceedings are designed to clarify factual issues, including through examination and cross examination of witnesses. In an HCJ petition, it is difficult to prove factual issues (witnesses not normally examined or cross examined in HCJ proceedings). Petitions to the HCJ are also difficult considering the prevailing rule that the court does not intervene in decisions made by the authorities, except where narrow administrative causes are present. What is a plaintiff to do when he has two complementary arguments, one from the realm of torts and one from the realm of international law? If he turns to the civil court, where the tort issue can be resolved, he must forgo (within the context of that proceeding) the alternative argument from international law.
The judgment denies access to civil courts to plaintiffs who have causes of action that are rooted in international law almost as an afterthought and without providing real grounds for doing so. This is puzzling: as a rule, the court’s jurisdiction derives from the remedy sought. The administrative courts are suited for proceedings in which a civilian seeks an injunction against an administrative authority in order to have it exercise or refrain from exercising its power. The civil courts are, on the other hand, the natural venue for claims for monetary compensation. In some cases, the division of powers between the different courts does not derive only from the remedy but also from the specific matter that led to the proceeding. For instance, proceedings between family members are heard by the family courts (even if they do not relate to family law) and proceedings between workers and employers are heard by labor courts. However, establishing the court’s jurisdiction based on the area of law on which a plaintiff relies presents a number of difficulties, which the
Daud court ignores. On a practical level, difficulties do arise when norms from different areas of law support the same remedy, but the premise is, theoretically, that the law is an integral entity and that its various branches harmoniously complement each other to serve a common social purpose. The distinction between the different areas of law is an analytical tool, but it should not affect rights and obligations. This approach lies at the heart of statements made by the court in other cases, that the right to compensation is a fundamental right. The right to compensation is embedded in a person’s property, and property is constitutionally protected. The right to compensation also derives from other human rights. It is a necessary remedy when these rights are violated.
[8]In addition to the diminished status of international law vis-à-vis other branches of law, this ruling leads to a systemic absurdity. While the greenhouse owners were unable to rely on international law to establish an independent cause of action, when it came to the cause of action in tort, international law was indispensable for rejecting the claim they filed! The Israeli courts must decide: Is international law an inseparable part of Israeli law, a basis for establishing the rights and duties of the “players” on the legal field and the parties to legal proceedings? If so, then it is a sword as well as a shield. It can establish causes of action in monetary claims rather than just arguments that help the defense make its case for rejecting them.
Adv. Yossi WolfsonThe author is a lawyer and an activist for human and other animals' rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.
