Israel is not liable to pay damages to two Gaza companies whose property was demolished during a July 2006 IDF aerial raid on the southern Gaza Strip, the Beersheba District Court ruled on Wednesday.

The air force conducted the raid on July 16, 2006, to destroy the infrastructure of a tunnel intended to be used to carry out terrorist attacks in Israel. Three days later, on July 19, 2006, the IDF bulldozed the tunnels. The army said it carried out these military actions to prevent terrorist attacks against Israeli civilians.

Two Palestinian companies – named in the lawsuit as Masri Gabon Ltd and Haprahim L’Efroahim Ltd – complained that the aerial attack and subsequent IDF bulldozer action in the Gaza border region destroyed their poultry coops, which had been located on land above the tunnels.

The Palestinians sued the Defense Ministry for NIS 8 million in damages, arguing that there was no operational justification for destroying the privately owned coops, because they were not a security risk.

Therefore, the Palestinians’ lawyer, attorney Zaki Kamal, contended, the state could not argue that it was not liable for damage claims on the grounds that its actions were carried out within the context of a lawful military objective.

In response, lawyers for the state admitted that the IDF had destroyed the coops, but argued that it had done so as part of an act of war, since there had been no way to destroy the tunnels without also demolishing the property above them.

Therefore, the Defense Ministry argued, the state is not liable for damages.

Judge Shlomo Friedlander examined the Palestinians’ claim in the context of the Torts Law, which stipulates that the state is not civilly liable for an act carried out by the IDF as part of an act of war, which includes any act of war against terrorism or insurrection, or to prevent terrorism or hostilities that endanger life.

Referring to testimony from IDF officers involved in the Gaza operations and evidence from military logbooks, Friedlander said that the specific acts the army carried out in this case met the definition of an act of war, and that the coops had been destroyed specifically because of suspected tunneling operations beneath them.

Based on this evidence, Friedlander said that “the IDF would not have destroyed the coops, causing damage to civilians, if it had not had authoritative expert intelligence providing a basis for the military need to demolish them.”

The Palestinians also argued that the IDF had been negligent because its decision to destroy the coops, which belonged to innocent civilians, was disproportionate in the context of the risk posed by tunnels in the Gaza Strip.

Friedlander said the burden of proving the IDF acted negligently in destroying the coops fell with the Palestinian plaintiffs.

“The plaintiffs have not brought any evidence of negligence on behalf of the defendant,” the judge said.

However, Friedlander noted, the Defense Ministry had brought detailed evidence, including excerpts from operational logbooks and aerial photographs, to support its version and to back up its arguments that the military actions regarding the tunnels were justified.

Friedlander said that there had been a “vital necessity” to destroy the tunnels to prevent terrorist activity, and it had not been possible to do so without also demolishing structures above the tunnels, and therefore the collateral damage had been proportionate.

However, the judge said, since the coops were private property and the Palestinian plaintiffs themselves had not been involved in any terrorist activity, the court had deliberated whether they had a claim under international humanitarian law to compensation because Israel had taken their property for security requirements.

Friedlander noted that under international law, civilians who suffer proportional damage as a result of a lawful military attack are left to bear the cost of their losses, despite calls for a change in this policy that would entitle such victims to compensation.

“It is unfortunate for those animals who perished and for those civilians who suffered a severe blow to their property rights, their livelihoods and their hard work,” he said.

“However, the State of Israel is not the correct recipient of [the Palestinian civilians’] grievances and for their compensation claims. The plaintiffs should direct [these] to the terrorists, their agents and their collaborators responsible for digging the tunnels, and to the prevailing regime

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