In a most dangerous precedent, Israeli Supreme Court OKs sweeping immunity for the state, denies all civil remedies to Gaza victims of war crimes
Case citation: Additional Civil Hearing (SCT) 5653/22 Attiya Nabaheen v. Israeli Defense Ministry
CLICK HERE to read the request to hold an additional hearing
CLICK HERE to read the Supreme Court judgment [Hebrew]
CLICK HERE to read the summary of the judgment in English
Adalah and Al Mezan Center for Human Rights, on behalf of the boy and his family, appealed the 2018 judgment of the Be'er Sheva District Court finding that the State of Israel is not liable for damages. The Supreme Court appeal was filed by Adalah Attorneys Sawsan Zaher, Dr. Hassan Jabareen, and Al Mezan Attorney Mohammad Jabareen.
At issue in the case was the constitutionality of Amendment No. 8 of Israel's Civil Wrongs Law (State Responsibility) of 1952, which was enacted in 2012. This law prescribes that the residents of a territory declared by the Israeli government as “enemy territory” - as Gaza was declared in 2007 - are not eligible for compensation from Israel. In the appeal, Adalah and Al Mezan argued that the lower court’s decision and the law violate both Israeli and international law, which require that protected civilians be entitled to effective legal remedies, especially when the injury resulted from actions not related to “acts to war”.
CLICK HERE to read: Declaration of the Gaza Strip as "Enemy Territory" according to the Civil Wrongs (State Liability) Law, 5712-1952
CLICK HERE to read more about the appeal
The Supreme Court ruled that the law is not contrary to international law, and even if it is, “the Knesset [Israeli Parliament] has the power to override the rules of international law.” The Court acknowledged that the law infringes on Palestinian victims’ fundamental rights, namely the right to life, bodily integrity, dignity, liberty, property and the right of effective legal remedy. However, it ruled that the level of protection of fundamental rights afforded to Nabaheen is limited due to his residence in Gaza – an “enemy territory”. The Court further determined that the law serves an appropriate purpose: “the prevention of economic or moral assistance to the enemy”. According to the Court, this rationale justifies the sweeping infringement of the fundamental rights of Palestinian civilians injured by Israel’s armed forces.
Adalah and Al-Mezan responded to the ruling:
“The Israeli Supreme Court's decision violates international humanitarian law, and justifies the immediate initiation of an ICC investigation, as it deprives Palestinian civilian victims of war crimes committed by Israel of any legal remedy, even remedies under civil law. The Court’s justification for the denial of compensation to an innocent boy, confined to a wheelchair for life because of Israel’s unlawful assault, is the "prevention of economic and moral assistance to the enemy" is an unprecedented, moral low for the Court. This decision not only grants sweeping immunity to the Israeli military to injure Palestinians wherever they are, but also determines, in a radical move, that the deliberate denial of compensation is an appropriate tool for harming the enemy. There is no clearer evidence of the fact that the Israeli legal system is committed to the legitimization of war crimes and to assisting the military in its efforts, by denying all legal remedies to victims, especially when, at the same time, the Court refuses to intervene in the state’s closure of criminal investigations into alleged war crimes and thus also providing impunity for criminal actions committed by the Israeli military."
International bodies have recognized the importance of this case. In its report of March 2019, the independent UN International Commission of Inquiry into the 2018 protests in the Occupied Palestinian Territory concluded in regard to this case that:
“The [District] Court ruling and the law on which it is based, excludes Gazan residents from eligibility for compensation under the law, without examining the harm itself. In doing so, Gazan victims of violations are denied the main avenue to fulfil their right to ‘effective legal remedy’ from Israel that is guaranteed to them under international law (…) The importance of this ruling is thus difficult to overstate.”
The Supreme Court’s ruling in Nabaheen also contradicts established legal precedent of the Court. Following a petition by Adalah, the Supreme Court decided in a unanimous ruling delivered by nine justices in 2006, that the State of Israel cannot exempt itself from paying compensation to Palestinians in the West Bank who have been harmed by the Israeli military, invalidating a provision of a recent amendment to the Civil Wrongs (Liability of the State) Law. (See HCJ 8276/05, Adalah, et. al. v. The Minister of Defense, et. al.) Adalah and Al Mezan will file a request for a second hearing to the Supreme Court.
Case Citation: Civil Appeal 993/19 Anonymous [Nabaheen] v. Israeli Defense Ministry
Related Press Releases and Reports:
Israel gives itself immunity from all damage claims filed by Gazans harmed by Israeli troops; Adalah, Al Mezan appeal to Supreme Court 10 February 2019
Israeli court: State isn't liable for damages for severely wounding Gaza boy in 2014; new law grants comprehensive immunity to Israeli military in Gaza 15 November 2018
Read Adalah’s Report: “Challenging the Israeli attorney general’s conception of sovereignty: The issue of jurisdiction concerning the ‘Situation of Palestine’ before the International Criminal Court,” June 2020
Read Adalah’s 2013 position paper: “Obstacles for Palestinians in Seeking Civil Remedies for Damages before Israeli Courts”
