The Knesset approved Amendment No. 8 of Civil Wrongs (Liability of the State) Law: Israel continues to exempt itself from liability for damage caused by its soldiers in the OPT and raises additional obstacles on the way of Palestinians to sue compensation for the damage sustained by them
State liability for damages caused by the Israeli security forces in the Occupied Palestinian Territories (OPT) is regulated by the Civil Wrongs (State Liability) Law, 5712-1952
. The Law establishes the limits of the state's liability for the payment of compensation and was also applied to injured parties, residents of the OPT. Initially, the Law exempted the state from liability for damage caused by security forces acting on its behalf in a "wartime action". An initiative for the promotion of legislation which would prevent Palestinians who were injured over the course of the first intifada from suing the state, commenced during the Oslo Process (the initiative was supported, inter alia, by the Prime Ministers Rabin and Peres (the successor of Rabin following the assassination). Following delays and lengthy legislation procedures, the Knesset plenum passed on July 24, 2002, an amendment to the Law – Amendment No. 4
, in the framework of which the definition of the term "Wartime Action" was revised as follows: "Wartime Action" – including any action of combating terror, hostile actions, or insurrection, and also an action as stated that is intended to prevent terror, hostile actions, or insurrection committed in circumstances of danger to life or limb" whether the injured parties are innocent or not.
Another milestone in the history of the Law was in 2005, when on July 27, 2005, the Knesset passed Amendment No. 7
of the Law. Here too the legislation procedures stretched over a long time. They began in December 2001, and the Knesset passed the first reading of the bill on July 16, 2002, a week before Amendment No. 4 was passed. Two major provisions were added to the Law by Amendment No. 7. The first one, denies the victim of the right to claim compensation on a basis which is mainly personal by exempting the state from liability in torts towards subjects of enemy states or activists or members of terrorist organizations or anyone acting on their behalf (subject to the exceptions prescribed by the Law). The other, which denies the right to claim compensation on a basis which is mainly territorial, provides that the state will have no liability to compensate for damages caused in a "conflict zone", which was defined as – any area outside the territory of the state of Israel which was proclaimed by the Minister of Defense as such.
In December 2006, following a petition
filed by nine human rights organizations, including HaMoked, the High Court of Justice (HCJ) held that the territorial clause was unconstitutional and therefore void
. However, the court did not find it necessary to rule on the constitutionality of the clause which concerns the identity of the victim, but stated that the petitioners would be able to argue against the constitutionality of said clause in the context of specific cases.
The ink was hardly dry on the Supreme Court's judgment when the state acted to swiftly re-enact the provisions which had been revoked with minor changes and various additions. As early as July 30, 2007, the Ministry of Justice distributed the memorandum of the Civil Wrongs (Liability of the State ) Law (Amendment No. 8), 5757-2007
. The purpose of this amendment was to fully exempt the state from liability for damage caused by the security forces acting on its behalf to Palestinian residents. Five years after the legislation procedures have commenced, the Knesset plenum approved, on July 16, 2012, a softened version of the bill of Amendment No. 8
, according to which the state was not granted absolute immunity from any liability in torts for injury to life or limb, regardless of the circumstances of the injury and whether it involved a threat to the life of the security forces. Like its predecessors, this amendment also limits the cases in which Palestinians may claim compensation from the state for damages caused to them by its representatives. The definition of the term "Wartime Action" was changed, in a manner that a threat to the life or limb of the security forces is no longer required, and for this purpose no distinction is drawn between an event which took place within or without Israel. However, from now on a "Wartime Action" should have "a warlike nature, taking into consideration its entire circumstances, including the purpose of the action, its geographic location or the threat posed to the force which carries it out."
Moreover, the Amendment also expands the immunity of the state and applies it to damages based on the victim's identity. The previous amendment of the Law exempted the state from compensating victims, subjects of enemy states and persons defined as active in or members of a "terrorist organization", or anyone who was injured while acting on behalf of any of the above, even if the state injured him unlawfully and even when there was no connection between the injury and any security activity whatsoever. The current amendment expands the immunity even further, by stipulating that the government may proclaim any territory outside the state of Israel as a "conflict zone", and by doing so afford the state immunity from liability for any damage caused to the residents thereof (who are not Israeli citizens).
In addition, three procedural provisions were approved, concerning the filing and management of claims with Israeli courts. The first one, provides that where the state raises an argument of a "wartime action", the court will review said argument as a preliminary argument rather than deferring it to the end of the proceeding, and it should deny the claim already at this stage if it found that the action was indeed a "wartime action", contrary to the situation in ordinary claims, where the court has the discretion to decide whether to review this argument as a preliminary argument, before the claim was heard on its merits, or defer the decision to the end of the proceeding, after the court has heard the entire evidence and established full factual findings concerning the nature and circumstance of the incident in which the injury was caused. The second provision, entrenches the state's authority to proclaim an area outside the state of Israel as "enemy territory", thus granting immunity from liability for any damage caused to its residents (who are not Israeli citizens), and the third, grants exclusive jurisdiction to hear civil wrongs claims of Palestinian residents from the West Bank to the competent courts in Jerusalem, and to the competent courts in the southern district to hear civil wrongs claims of Palestinians from the Gaza Strip. It was stipulated that the Amendment would apply retroactively to all claims in which the hearing of the evidence has not yet commenced.
HaMoked wishes to emphasize that the compensation is designed, first and foremost, to give the victim financial means which would place him, to the maximum extent possible, in a situation similar to that in which he would have been at, had his rights not been violated. The law of torts, as stipulated by the HCJ, is one of the major tools that a legal system can use to protect the fundamental rights of the injured party, including the right to life, liberty, dignity and privacy. In addition, the obligation to pay compensation expresses a basic legal, social and moral principle: the principle of accountability (according to which the injuring party should be held accountable for his actions). Therefore, where compensation is paid – there is also recognition, both in principle and in practice, of the injury which was caused to the victim and the importance of the human rights which were violated in that case is reinforced.