Criticism - Denial of the Right to Compensation

1 Jan 2011

The IDF Spokesperson contended that, "In accordance with international law, damage caused to private property during combat and resulting from combat events are not entitled to compensation." These comments are valid unless international humanitarian law was violated. Where there has been a breach, the state responsible for the breach must compensate the injured. This duty is a customary principle incorporated within international humanitarian law, including the Hague Convention, on which Israel relies to justify the acts of destruction.

Because the demolition of houses and destruction of agricultural land that Israel carries out in the Gaza Strip, as described above, constitute a violation of international humanitarian law, Israel is obligated to compensate the Palestinians who suffer losses as a result of these unlawful acts.

Israeli law exempts the state from the duty to pay compensation for acts that are performed during the course of "acts of warfare." Because Israel's acts of destruction in the Gaza Strip do not come within this narrow term, it is clear that the statute does not exempt it from its obligation to pay compensation. Therefore, Israel also breaches Israeli law by refusing to compensate Palestinians whose property it damaged.

It should be noted that, in the past, in situations where Israel demolished houses on the grounds of pressing military necessity, it compensated the residents of the houses who were not suspected of having committed any offense. On 20 September 1990, Sergeant Amnon Pomerantz was stoned and burned to death in the al-Burej refugee camp, in the Gaza Strip. In response, Israel sought to demolish the houses in the area in which he was killed, for "clear reasons of security and military necessity." The state offered compensation to those who suffered loss, and the defense minister at the time, Moshe Arens, stated that, "Those people who were removed from their houses will receive proper substitute housing so that they won't be thrown into the street."

The Knesset's Constitution, Justice, and Law Committee is now debating the government's proposed bill that would provide a special law for compensation claims arising from acts of the security forces in the Occupied Territories. Under the proposed law, the vast majority of IDF acts in the Occupied Territories would come within the rubric of "act of warfare," thus exempting the state from liability by law. Typical IDF actions in the Occupied Territories - patrols, setting up and staffing checkpoints, apprehending suspects, conducting searches, coping with demonstrators and stone throwers, and the like - would be deemed acts of warfare, and the state would not be obligated to pay compensation even where the victims were innocent and the security forces were negligent. In addition, the proposed law provides new rules regarding the handling of these claims. These new rules are intended to block the few claims that would reach a court hearing.

The proposed law severely violates numerous fundamental human rights. The attempt to provide immunity to security forces is a dangerous effort that effectively places them above the law. In practice, the proposed law revokes the caution that security forces are obligated to employ towards the civilian population in the Occupied Territories. By doing this, the state removes one of the primary duties that the legislature has imposed on the security forces -protection of the individual's fundamental right to his or her life and property.

The duty to pay compensation grounded in international humanitarian law is intended to ensure that states meet their obligation to comply with the law. Paying compensation is a sanction for breaching the law. It supplements the criminal sanctions that the states are supposed to take against those responsible for the breach. The exemption from paying compensation in effect endorses the damage to the property of residents of the Occupied Territories, whose welfare is the responsibility of Israel as the occupier in the Occupied Territories.