International law requires all states to remedy the consequences of illegal acts carried out by entities or persons acting on their behalf, including acts that have violated human rights. One of the major remedies required is financial compensation of victims, or victims’ families, for damages caused them, directly or indirectly, as a result of negligent or unlawful violation of their rights. The obligation to pay compensation is explicitly set forth in international humanitarian law and in international human rights law.
Until 2002, Palestinian residents of the Occupied Territories were able to sue the State of Israel for negligent or unlawful acts carried out on its behalf that caused them bodily injury or property damage. Some of the many compensation claims filed by Palestinians until then were sustained and paid, in those cases in which the injured party proved that security forces had injured them or had damaged their property unlawfully. The law exempted the state from paying compensation in cases were it was proved that the damage resulted from combat action. However, as the courts chose to interpret the expression "combat action" narrowly, the effect of the exemption was relatively minimal.
On 24 July 2002, the Knesset amended the law in a way that blocked Palestinians' ability to file compensation claims in most cases in which they were by negligent or unlawful acts by the security forces. The law significantly expanded the definition of “comat action” to include routine law-enforcement actions. Under the new definition, a combat action includes “any action of combating terror, hostile actions, or insurrection, and also an action intended to prevent terror, hostile actions, or insurrection, which is committed under danger to life or limb.” The amendment denied Palestinians entitlement to compensation in cases in which security forces harmed them through negligent or unlawful acts during activities such as restricting freedom of movement, arrests, or dispersing demonstrations.
Furthermore, the law established special procedures and rules of evidence for claims filed against the state for acts carried out by soldiers in the Occupied Territories. Under the law:
- A claim may not be filed unless the injured person gave written notice regarding the incident within 60 days from the time it occurred before filing the claim, even if the authorities were aware of the incident or were given oral notice of it. The amendment allows the filing of late notice in exceptional cases.
- The suit must be filed within two years from the time of the act, as opposed to the seven years under regular law. In cases of bodily injury, the damage often does not manifest itself within two years, and therefore the victim will only be compensated for part of the damage. The court may extend this period for an additional year (or three years in the event the plaintiff is a minor at the time of the act), if the court is convinced that the plaintiff was unable to file his or her claim earlier.
- The claimant has the burden of proof that security forces acted unlawfully. Claimants are therefore forced to prove things that they could never know, such as the circumstances under which a soldier loaded his weapon, the date that the weapon was last checked, the orders the soldier had been given. By contrast, the basic principle in normal tort cases is that if a person is harmed by an instrument controlled by another, and if it appears clear that injury resulted from negligence, the burden of proof is placed on the defendant.
Despite the restrictions imposed by the new law, a small number of claims continued to be heard, and some were sustained. On this background, the Knesset again amended the law, in 2005 (Civil Tort Law (Liability of the State), Amendment No. 7). The new amendment further expanded the state’s immunity against compensation claims by Palestinians from the Occupied Territories.
While the previous amendment centered on the nature of the action in which the claimant was injured (i.e., whether it was a combat action or not), the new amendment granted the state absolute immunity regarding any injury caused to Palestinians, provided that the injury was caused in a “zone of conflict.” The minister of defense was empowered to declare any area outside the state borders as a “zone of conflict,” even retroactively.
Upon enactment of the amendment, the minister of defense declared most of the Occupied Territories a “zone of conflict” for much of the time since the beginning of the second intifada in the year 2000. For example, the area of greater Tulkarm, which includes sections under complete Israeli control (Area C), was declared a "zone of conflict" for 88 percent of 2002 and for 82 percent of 2003; the area of the Beit Iba checkpoint (the main exit from Nablus to the west) was declared an ongoing "zone of conflict" for three and a half consecutive years, even though thousands of civilians pass through the checkpoint daily without special incident; and, the entire Gaza Strip has been declared a "zone of conflict" since the completion of the disengagement from it in 2005.
The amendment also granted the state sweeping immunity against compensation claims made by persons identified as members of, or activists in, a “terrorist organization.” The immunity does not depend on the circumstances in which the person was injured, or where the injury took place. The amendment did not define what constitutes a "terrorist organization," nor the level of connection with the organization required for a person to be considered a member or activist.
The bill’s explanatory notes stated that the purpose of the amendment was to correct the distorted situation in which Palestinians could sue the State of Israel for injuries they suffered at the hands of state agents, while Israelis injured by Palestinians were not able to sue the Palestinian Authority. This contention ignores the fact that Palestinians suing the State of Israel are not citizens of an enemy state that is at war with Israel, but persons living under Israeli occupation. Under the laws of occupation in international law, the occupying state bears overall responsibility for the lives, limbs, and property of the civilians living in the occupied territory.
Nine human rights organizations, B'Tselem among them, petitioned the Israeli High Court of Justice to nullify the amendment. The petitioners argued, inter alia, that the amendment disproportionately harmed rights that are enshrined in international law and hold a constitutional status in Israel. Among these are the right to life and bodily integrity, the right of property, the right to equality and dignity, and the right of access to the courts.
On 22 December 2006, the Court accepted part of the petitioners’ demands. In its judgment, written by President (ret.) Aharon Barak, the court held that the legal prevention of compensation claims by Palestinians for negligent or unlawful actions of security forces carried out in a “zone of conflict”, regardless of the circumstances in which the injury was sustained, was unconstitutional and therefore nullified. In Barak’s words, the expansion prescribed in the law discharges the state from liability for civil wrongs that have nothing to do with a combat action, however broad that term is defined. . . Only combat actions justify, as Amendment No. 7 seeks, removal of the arrangements from the domain of the normal tort laws.
On the other hand, the court did not nullify the provision granting the state sweeping immunity for compensation claims by a person classified as “activist in a terrorist organization.”
The government continued to work towards barring any such compensation claims. In 2008, a bill aimed at nullifying the court’s decision passed its first reading in the Knesset. Since then, the bill has been on the agenda of the Knesset’s Law, Constitution and Justice Committee. The Committee’s most recent hearing on the bill was held in November 2010.
This bill, had it been adopted in its original form, would have caused even greater harm than the provisions that the High Court of Justice nullified. It prevents compensation claims even if soldiers acted unlawfully, in an action that does not meet the expanded definition of “combat actions,” and even if the injured person meets the conditions specified in the law for filing a claim. Like the nullified amendment, the bill would grant the state immunity against claims of injury in almost all military actions in the Occupied Territories, even if the soldiers who caused the injury were not in danger at the time. The provisions of the bill would take force retroactively, from 2000.
On 9 July 2012, the Law, Constitution and Justice Committee discussed the proposed bill. Instead of the proposed version, which contravened the High Court’s ruling, the Committee accepted a milder version. A “combat action” henceforth would be defined as an “act to combat terrorism, acts of hostilities, or uprising, and acts intended to prevent terrorism, acts of hostilities or uprising if it is by nature a combat action given the overall circumstances, including the goal of the action, the geographic location, and the inherent threat to those carrying out the act.” On 16 July 2012, this proposed legislation passed its second and third readings in the Knesset plenum.
The new law slightly expands the prior definition of a “combat action,” though it does not provide the state with the comprehensive exemption from liability for damages sought by the framers of the originally proposed bill. Nonetheless, the vagueness of the expanded definition makes it hard to evaluate the potential implications for future lawsuits by Palestinians harmed by military actions in the Occupied Territories. Only time will tell how the courts will interpret the revised law.