NGO asks High Court to strike down immunity law for IDF harming Gazans

According to the combat activities exception, armed forces cannot be sued for damages if they negligently harm a citizen of an enemy.

PALESTINIANS WAIT at an IDF checkpoint in the West Bank late last year. (photo credit: MOHAMAD TOROKMAN/REUTERS)
PALESTINIANS WAIT at an IDF checkpoint in the West Bank late last year.
An NGO has asked the High Court of Justice to strike down a law which grants immunity to IDF personnel for negligently harming Palestinians in Gaza based on the defense that the area is a war zone.
More specifically, Adalah asked the High Court on Sunday to reverse a lower court ruling which said that because Attiya Nabaheen, a 15-year-old minor shot by the IDF in November 2014, lived in Gaza, he could not seek damages from the IDF, even if there was negligence.
Adalah said Nabaheen was a mere bystander in the front yard of his house 500 meters from the Gaza border when he was shot in the neck. Initially paralyzed, he is permanently confined to a wheelchair.
The Jerusalem Post has learned that there is a counter-narrative saying that Nabaheen approached the security fence and that the IDF fired warnings shots when he reached 50 meters from the fence.
Furthermore, the Post has learned that under the counter-narrative, when Nabaheen ignore the warning shots, he was assumed to be hostile – and the arrest procedure was ordered, which includes firing below the knees.
In this narrative, Nabaheen was only hit in the legs as part of a lawful arrest procedure.
However, this counter-narrative has not yet been made public, so the IDF has been arguing broad immunity regardless of the circumstances based on a 2012 law.
Even before the relevant 2012 immunity law was passed, Israel already applied a rule of international law called the “combat activities exception.”
According to this rule, armed forces cannot be sued for damages if they negligently harm a citizen of an enemy, provided that the harm occurred during military operations and was unintentional.
In February 2015, a three-justice panel of the High Court, including then-president Miriam Naor, Zvi Zilberthal and president-to-be Esther Hayot, upheld the combat activities exception in the case involving US citizen Rachel Corrie, who had been accidentally run over by a bulldozer.
But Adalah and the Al Mezan Center for Human Rights said that the court should still strike down the 2012 immunity law because it even goes beyond the combat activities exception and, they claimed, therefore violates international law.
The NGOs said that the 2012 law grants immunity to IDF soldiers for negligently causing harm to Palestinians in Gaza even if the harm was not caused during military operations, as long as it occurred in a conflict zone.
They said that the law essentially adopts the doctrine of “enemy aliens,” which they said was prohibited under international law in the aftermath of World War II.
According to Adalah, the “enemy alien” doctrine – which determines that any individual situated in a territory declared as “enemy territory” is to be considered an enemy – “was prohibited because of its racist and dangerous nature.”
Adalah acknowledged that the law has some provisions for suing for damages.
But the NGO said that the provisions requiring notification of an intent to sue within 60 days of the incident and the posting of a costly bond for the right to sue, among other requirements, were unrealistic and designed to eliminate the ability of Gazans to sue.
The law does not formally protect IDF soldiers from alleged criminal violations. There are a number of ongoing criminal probes against IDF soldiers for conduct related to the Gaza border conflict that have been in progress since March, though there have been no publicly announced indictments to date.
However, if an IDF soldier mistakenly harms a Palestinian, as Adalah claimed was done in the case of Nabaheen, the argument would be that no civil damage claim can be filed against Israel, even if the harm was not part of a specific military operation.
From the Israeli side, the rationale for the law was that Israel and Hamas are in an ongoing state of war. This means that virtually all actions of IDF soldiers relating to Gaza should be viewed within the lens of a military operation, even if no specific operation was ordered.
According to Adalah, when Nabaheen was shot in the front yard of his house in November 2014, there was no active war between Israel and Gaza, the most recent ceasefire having gone into effect at the end of the previous August.
It is unclear why the state has not publicly presented its counter-narrative regarding how Nabaheen was injured, though it may relate to trying to win the larger legal point, so that other damage cases by Palestinians would be foreclosed, instead of having the case decided based on the specific facts.
The Beersheba District Court rejected the lawsuit last November, leading to Monday’s appeal.