On April 11, 2002, during Operation Defensive Shield, the curfew on the city of Jenin was temporarily lifted to allow the residents to go out and restock their home supplies. A 14 year old went with his younger brother to a grocery store near their home. As they reached the store's entrance, a bullet was fired in their direction from an Israeli tank close by. The boy was injured and died shortly in hospital
. HaMoked demanded the military investigate the incident, prosecute those responsible and compensate the victim's family. Having received no substantive response from the military, despite repeated appeals, the family filed a
civil claim via HaMoked, demanding compensation for its loss. The claim stated that the military was responsible for negligence causing death, for the unjustified shooting in a residential area of a person who was not involved in any violent activity or unlawful assembly.
In its
statement of defense and attached affidavit, the state contended that the incident had "never occurred" and that, in any case, it constituted a "wartime action" which exempts the state from liability. In February 2006, following the seventh amendment to
the Civil Wrongs (Liability of the State) Law 5712-1952, the state filed a motion for a summary dismissal of the claim, following the declaration of the area as "a conflict zone" by the Minister of Defense, wherein the state was exempt from liability for military action.
The Jerusalem Magistrates' Court accepted the civil claim, determining that the youth had been killed by the soldier's gunfire, for which action the state was held liable and obligated to pay damages to the family. The judge dismissed the state's claim that the protection of "wartime action" applied "sweepingly for the entire duration of Operation 'Defensive Shield', without needing to address each event separately and concretely", and noted that the state itself did not claim the shooting in this case "resulted from a situation of dire distress and real threat" to the soldiers. The judge noted that the amendment to the law did not effect a change in the decision "as procedurally, its date of enactment makes it inapplicable to our case, […] and also substantively, it does not affect our present concern, due to the nature and circumstances of the shooting incident". The court ordered the state to pay the victim's family NIS 721,000 in damages.
The state appealed against decision to the District Court, and persisted in denying the incident, and reasserting that in any event it constituted a "wartime action", as all military action in Jenin during Operation Defensive Shield.
In its response to the appeal, HaMoked argued that it was an established fact that the youth had been innocently killed by gunfire of a soldier in no imminent danger, and added that the "wartime action" protection should not be invariably applied to the entire period of Operation Defense Shield, without considering each case on its own merits.
On August 7, 2011,
the Jerusalem District Court dismissed the state's appeal upon finding no error in the Magistrates' Court's decision over the circumstances of the killing, and its exclusion from the scope of "wartime action", as would exempt the state from civil liability.
