War or not

How will the Court regard damages caused during a targeted assassination operation?

tank drives in jenin 298 (photo credit: Ariel Jerozolimski [file])
tank drives in jenin 298
(photo credit: Ariel Jerozolimski [file])
The Supreme Court yesterday, in a highly controversial decision, overturned part of an existing law in order to expand the circumstances under which Palestinians in Judea, Samaria and Gaza can sue Israel for damages incurred during IDF actions. The law continues to exempt the state from such claims if the military actions were undertaken in a clearly-defined war, or if the claimants were enemy-nationals or known terrorists. No sooner was the ruling published than a derivative controversy ensued about how to interpret the ruling, as the definition of war is hardly unequivocal. Indeed, in previous rulings the Court characterized war as a formal confrontation waged by armies of enemy states. It remains an open question how it will treat suits pertaining to the terror onslaught on Israel from the territory of the Palestinian Authority, undeniably a terror fiefdom, but not a fully-fledged state or a declared enemy. Moreover, terrorists operate as irregulars, disguise themselves as noncombatants, blend into noncombatant populations and deliberately exploit noncombatants as human shields. Such human shields could then conceivably turn around and sue attacked Israel for damages inflicted upon them in the course of Israel's self-defense in a conflict imposed upon Israel. The potential for absurdities is sky-high, all depending on future Court interpretations. How, for instance, will the Court regard damages caused during a targeted assassination operation? Is targeted assassination of terror kingpins an act of war? This in itself might be answered before the week is over. Friday marks the three-month anniversary of the end of Aharon Barak's tenure as chief justice and the cutoff date by which he must publish his remaining rulings. The issues left to be adjudicated - such as the legality of targeted assassinations - are controversial, and their resolution will cement Barak's legacy. What makes the Court's unanimous ruling yesterday particularly dramatic is the fact that (rarely, but not for the first time) it overturns significant portions of Knesset legislation - in this case, legislation adopted in 2005 by a decisive majority after painstaking deliberation and careful drafting. Operation Defensive Shield in Samaria - conducted in order to root out the organizers and infrastructure behind the wave of suicide bombings in Israel's heartland - spawned hundreds of lawsuits by PA residents. Hundreds of other cases were in earlier preparation phases when the Knesset passed its preemptive legislation to stem the tide and block the irrationality of a situation in which Israel, though directly targeted from the PA, was being asked to compensate not only the Israeli victims but also the Palestinian victims of Palestinian aggression. Despite the exceptions and protections that remain in force, and even as it remains unclear how the Court will choose to interpret its own decision, it is plain that the Court has at least opened the door to hundreds of lawsuits at immense cost to Israeli taxpayers, who will be forced to foot the bill for legal battles relating to the consequences of hostilities launched against their own existence. Plainly, too, the ruling further estranges the Court from public sentiment by reinforcing a widely held public impression that this Court gives insufficient weight in its considerations to Israel's security plight. Part of the problem doubtlessly arises from the Court's own perception of its jurisdiction. In pre-Barak days access to Supreme Court redress was limited to litigants with locus standi - i.e. to those with some direct involvement in a case. Moreover, the acceptable route to the Supreme Court was via lower court proceedings. Cause had to be shown why the Supreme Court need take up a given petition. Since Barak, any individual or grouping can appeal to the Supreme Court on any issue as a matter of principle and as a first resort. Yesterday's ruling indeed was requested by nine non-governmental organizations. Though these organizations claimed Israel was "racist" because it insisted on distinguishing between its own citizens and Palestinians, it is hard to find fault with the validity of the government's defense: namely that in war each side is responsible for compensating for damage to its own citizens. Ultimately, of course, the best solution would be for the Palestinian Authority to stop acting as an enemy state, in which case there would be no consequent Israeli military actions to cause damage, intended or not. It is surprising that Israel's highest and most thoughtful Court, in its ruling, essentially ignores the fact that were the PA to have chosen to combat and root out terror - a precondition for its very establishment - rather than to have tolerated and encouraged it, there would be no cases for Palestinian victims to bring before the Israeli judiciary.