supreme court 88 298.
(photo credit: Ariel Jerozolimski)
Following a High Court of Justice ruling on Tuesday that overturned the so-called "intifada law," civil courts will have to deal with hundreds of lawsuits filed by Palestinians who suffered material loss in the wake of IDF actions, Adalah head Hassan Jabarin told The Jerusalem Post.
"We also expect hundreds of new lawsuits to be filed as a result of recent IDF operations, particularly in the Gaza Strip," Jabarin said. "These civil courts will have to decide whether the deaths and injuries suffered by Palestinian civilians during the IDF operations in Beit Hanun and other areas are to be regarded as war operations or not."
A panel of nine High Court justices headed by retired Supreme Court President Aharon Barak unanimously struck down a key provision in a law passed by the Knesset last year that prevented virtually all Palestinians from suing the state for damages caused by IDF soldiers during the second intifada. The court ruled that Palestinians who suffered damages in a situation that was demonstrably not combat-related could demand financial compensation.
The court ruled that the key provision of an amendment to the Civil Wrongs (Liability of the State) Law passed on July 27, 2005 violated the Basic Law: Human Freedom and Dignity and was therefore null and void.
"The amendment denies responsibility for damages from any injury inflicted in the conflict zone by [Israeli] security forces, including acts that had nothing to do with war operations," wrote Barak. "This expansion of lack of state responsibility is unconstitutional...
"It releases the state from acts resulting in damages having nothing whatsoever to do with military operations. There is nothing in regular law enforcement activities carried out by the security forces in areas under their control that justifies their being removed from the sphere of regular tort law."
Tuesday's ruling marks the sixth time that the High Court has canceled all or part of a law passed by the Knesset since the two human rights laws, Basic Law: Human Dignity and Freedom and Basic Law: Freedom of Occupation were passed in 1992. It is arguably the most significant of the six and the most important in the eyes of the Knesset.
MK Michael Eitan (Likud) submitted an urgent motion to Knesset Speaker Dalia Itzik calling for a debate on the issue in the plenum. "If the court continues to strike down Knesset legislation, it will put an end to Israeli democracy and the IDF's capacity to defend," he said.
The amendment in question has two provisions. The first states that citizens of enemy countries, terrorists and anyone executing a mission on behalf of either cannot sue for damages under any circumstances. The court did not reject this provision.
The second provision empowered the minister of defense to designate areas of the West Bank and the Gaza Strip as "conflict zones." The law was to be applied retroactively, starting with the beginning of the intifada and continuing for six months.
During the time the areas were designated as "conflict zones," people living within them were unable to sue the state for damages for any injury caused by Israeli security forces, whether the injury was connected to the war against terrorism or not.
Soon after the law was passed, then-defense minister Shaul Mofaz divided the West Bank into 88 subdistricts and the Gaza Strip into four subdistricts. He designated the subdistricts as conflict zones for specific periods of time beginning on September 29, 2000, many of them for months and years.
The amendment included provision for paying damages to Palestinians in conflict zones in a small number of specific circumstances (for example, injuries sustained in traffic accidents with military vehicles not involved in war activities) and for the establishment of a committee to consider recognizing state liability in exceptional cases, beyond the requirements of the law.
The court ruled Tuesday that the system granting the state sweeping immunity was improper. "We must remember that the areas of Judea and Samaria and, until August 2005, Gaza, have been held under belligerent occupation for almost 40 years," wrote Barak. "In this context, Israeli security forces have been deployed in the area on a permanent basis and on a large scale.
"The residents of the area come into close, routine and daily contact [with soldiers] at all times, on their way to work and school, at checkpoints in the territories and at the crossing points to and from Israel. The security forces are present in the territories on a permanent and ongoing basis. They are deployed and operate within the territories both in a fighting capacity and for policing duties, and in different areas, including those where there is hostile terrorist activity and those which are relatively quiet.
"In these circumstances, the sweeping immunity granted to the state by the amendment is tantamount to giving the state immunity from responsibility for actions that are not of a military nature... This means that many people who were not involved in any hostile activity whatsoever will suffer."
Barak wrote that the Knesset first amended the Civil Wrongs (Liability of the State) Law in 2002. This amendment was originally drafted in 1997 to address lawsuits filed by Palestinians during the first intifada. Then, the government said the amendment was necessary to clarify the original Civil Wrongs legislation, passed in 1952, which exempted the state from liability for injury caused in wartime but did not provide a detailed definition of what constituted a war operation. The 1952 legislation did not anticipate ongoing clashes between Israeli forces and terrorists where Israel controlled the territory from which the terrorists were operating. As a result, judges hearing lawsuits each provided their own definitions of "wartime."
The 2002 amendment was meant to provide the missing definition and to limit the interpretive scope of the judges. It defined a war operation as "any action combating terror, hostile acts or insurrection, and also an action intended to prevent terror, hostile acts, or insurrection that is taken during a situation endangering life or limb."
Barak wrote in Tuesday's ruling that the 2002 amendment was all that was needed to deal with lawsuits for damages incurred during the second intifada.
In expanding the state's immunity, as the 2005 amendment did, the cabinet and the Knesset violated the constitution without justification, he wrote.
Although Barak has passed the mandatory retirement age of 70, every retiring judge has three months to complete rulings he was working on at the time of his retirement. Thus, Barak has until December 16 to finish off what whatever cases he can.
The ruling resulted from a petition submitted by nine NGOs: Adalah, Hamoked, The Association for Civil Rights in Israel, Al Haq - the West Bank, The Palestinian Center for Human Rights - Gaza, B'Tselem, Physicians for Human Rights, The Public Committee against Torture in Israel, and Rabbis for Human Rights. Two other petitions were submitted by the estates of Palestinians who were killed by Israeli troops during the intifada.
The human rights groups welcomed Tuesday's decision.
"The Association for Civil Rights in Israel welcomes the important decision by the High Court, which cancels the sweeping injury to the rights of Palestinian citizens who were hurt or whose property was damaged by Israeli non-war activities in the occupied territories," ACRI said in a statement. "The High Court accepted the argument of the petitioners that the state's real aim was to save money, and such an aim cannot justify such a deep injury to human rights."
The Land of Israel Legal Forum wrote, "Barak's ruling confirms the statement of former High Court justice Mishael Cheshin that 'Barak is prepared to have 30 to 50 people blown up as long as there are human rights.' In [handing down this ruling] the High Court joins the list of bodies that threaten human life in Israel. The ruling is immoral and will make the lives of Israeli citizens cheap."
Adalah said it "received with satisfaction the High Court ruling canceling the Knesset's racist legislation denying compensation to the Palestinian residents of the occupied territories."
However, Adalah complained that the court had not canceled the provision of the law preventing terrorists, enemies of the state, and the emissaries of either from suing for damages in circumstances not related to war operations.
Meir Indor, head of Almagor, an organization representing Jewish victims of terrorism, said the ruling "contradicted earlier decisions given on petitions filed by terror victims in which the rights of the victims were rejected because of diplomatic considerations... The court likes to dance at all the weddings but prefers to dance at those of the Palestinians."