Israeli High Court of Justice Issues Order Nisi Concerning Racist Amendment of Law Preventing Palestinian Residents of the Occupied Territories from Filing Claims for Damages Inflicted by the Israeli Security Forces
On 13 July 2006, the Israeli High Court of Justice held a hearing on a petition filed by nine human rights organizations from Israel and the Occupied Palestinian Territories (OPTs), demanding that the Court declare void the amendments to the Civil Wrongs (Liability of the State) Law. The Law prevents Palestinians from seeking compensation from the State of Israel for damages inflicted by the Israeli security forces, even those inflicted outside of the context of a military operation. Together with the petition, the organizations filed a motion for an interim order.
The petition was submitted on 1 September 2005 by Adalah, HaMoked and ACRI, in their own names and in the names of Al-Haq (West Bank), The Palestinian Center for Human Rights(Gaza), B'Tselem, Physicians For Human Rights, The Public Committee Against Torture in Israel, and Rabbis for Human Rights, by Adalah Attorneys Hassan Jabareen and Orna Kohn, HaMoked Attorney Gil Gan-Mor, and ACRI Attorney Dan Yakir.
The petition was heard before Justices Ayala Procaccia, Esther Hayut and Dvora Berliner. During the hearing, the Supreme Court issued an order nisi, ordering the state to show cause within forty days why the new amendments should not be declared void. The Court also ordered the petitioners and the state to send to the Court within fifteen days the text of an agreement reached between the parties concerning an interim order, or the Court will rule on the motion to issue an interim order filed by the petitioners. The Court also decided that a further hearing of the petition would be held on 30 August 2006 before an expanded panel of Justices led by Chief Justice Aharon Barak.
These latest amendments to the Civil Wrongs Law, which was passed by the Knesset at the end of July 2005, deny residents of the OPTs, citizens of “Enemy States” and activists or members of “Terrorist Organization” the right to compensation for damages caused to them by the Israeli security forces, even those damages caused to them outside of the context of a military operation (with some minor exceptions).
The amended law grants the Minister of Defense the authority to proclaim any area outside of the State of Israel a “Conflict Zone”, even if no war-related activity has taken place there. This proclamation denies those who sustain injury within the area the right to seek compensation from Israeli courts. The Law operates retroactively in cases of damages sustained since 29 September 2000, the date of the outbreak of the Second Intifada, and for claims already pending before the courts.
In the petition, the organizations emphasized that the Law grossly violates the fundamental principles of international humanitarian law and international human rights law, which apply in the OPTs. It also breaches basic rights in contravention of Israel's Basic Law: Human Dignity and Liberty, and is therefore unconstitutional. The petitioners further argued that the Law sends out a dangerous and extreme message that the lives and rights of those injured in a “Conflict Zone” have no value, as the courts will not come to their aid, and those who caused their injuries will face no punishment. As a result, the Law is both immoral and racist. The petitioners also argued that the articles of the Law de facto terminate monitoring of the Israeli military's activities in the OPTs, discourage investigations and bringing those responsible for cases of death or injury before the courts, including in cases in which damages were caused by the random or deliberate opening of fire, torture and abuse, and looting and theft of civilian property. The Law thus violates the fundamental rights to life, bodily integrity, equality, dignity and property, as well as the constitutional right of access to the courts.
The petition stressed that the violations entailed by the law are gross, as they deny in a sweeping manner the awarding of any remedy for the breach of fundamental rights, and that this denial is tantamount to a denial of the rights themselves.
The petitioners asked the High Court of Justice to establish that the Basic Law: Human Dignity and Liberty applies to all residents of the area under effective Israeli control. The Court has recently established, in its decision regarding the Israeli government's “Disengagement Plan” from the Gaza Strip that the Basic Law applies to Israeli settlers living in the OPTs. Therefore, a decision that the Basic Law does not apply to Palestinians in the OPTs would create a constitutional regime of "apartheid."
The petitioning organizations also dealt with one of the central claims put forward by the initiators of the Law, that each party must bear the costs for its own damages: the State of Israel bears the costs of damages sustained by its citizens, and the Palestinians will carry the burden for damages incurred by Palestinians. The petitioners contended that this sweeping principle not only has no basis in international law, but also relies on the assumption of equivalence in power between the Israelis and Palestinians, as two independent states, or at least two political entities, with no relationship of domination and subordination. This logic, however, ignores the clear and obvious reality that the relationship between the two sides is that of an occupying power and a protected population under occupation, and that the occupying power is obliged to apply the norms of international humanitarian law and international human rights law, and afford protection to the civilians in the occupied territory.
H.C. 8276/05, Adalah, et. al. v. The Minister of Defense, et. al. (case pending)
