Prof. Mordechai Kremnitzer and Roy Konfino respond to a bill that in practice exempts the State of Israel from compensating Palestinians who live in the occupied territories for any damages the State may have caused them as part of the war on terror.
On Tuesday, June 10th, a government sponsored bill, which in practice exempts the State of Israel from compensating Palestinians who live in the occupied territories for any damages the State may have caused them as part of the war on terror, passed the first stage of legislation. This bill is undesirable for several reasons: First, it bars the possibility of claiming damages for many Palestinians who have been hurt through no fault of their own. A panel of nine Supreme Court justices unanimously held that similar piece of legislation was disproportionate, and therefore invalid. Moreover, the bill abolishes the concept of "reasonability" as a basis for tort law with regards to anti-terrorist activity in the occupied territories, and therefore encourages the use of unreasonable and dangerous measures; finally, the legal changes are intended to apply retroactively, going back to the year 2000 (i.e. the beginning of the Second Intifada)
This bill is another stage in the legal discourse regarding Palestinians' ability to file damage claims. Originally, the State was not held liable for damages it or its agents caused in the context of an "act of war". The term "act of war" was interpreted narrowly by the Supreme Court, and it was decided that not every action taken by security forces in the occupied territories fell into this category. This enabled many Palestinians who suffered damaged as part of the war on terror to file claims against the State of Israel. Since the outbreak of the Second Intifada, the Knesset has systematically tried to limit Palestinians' right to legal claims. For example, a number of pieces of legislation set very harsh procedural restrictions on the filing of claims (e.g., a two-year limitation period as opposed to seven years under ordinary circumstances). In addition, claims by persons belonging to enemy states or organizations were prohibited. Thus an almost all-inclusive immunity was granted to the State for damages inflicted since the outbreak of the Second Intifada.
In December 2006 a panel of nine Supreme Court justices unanimously held that a piece of legislation which completely denied residents of the occupied territories the right to file damage claims, was disproportionate and therefore invalid. The new governmentally sponsored bill, proposed by Justice Minister Prof. Daniel Freidman, attempts to bypass this supreme court ruling—instead of completely denying the possibility of Palestinians' claims, the bill broadens the definition of an "act of war" to include any act against terrorists in the occupied territories, thus denying most Palestinian claims. The bill denies the possibility of filing any claim, even claims by innocent Palestinians, who were harmed through no fault of there own.
Another point which should be emphasized is that the bill essentially abolishes the concept of "reasonability" as a basis for tort law in the occupied territories. As a rule, in order to prove a negligence claim, the plaintiff must show that the defendant acted "unreasonably"—in the context of the war on terror, for example, one must show that the state took measures which were dangerous to civilians in order to apprehend a suspect, despite the possibility of using less dangerous methods. The danger in relinquishing the demand for "reasonability" is that it may lead to unreasonable and perilous acts by security forces—if there is no demand to act reasonably, it is safe to assume that security forces will do everything possible to complete their mission, without taking into account damages that may be caused to civilians. The only way to ensure reasonable action is to enforce a legal system based on reasonability.
In conclusion, the new bill denies all Palestinians in the territories the possibility of filing a claim against the State for damages which were caused in the context of the war on terror. The bill thus bypasses the Supreme Court ruling on the subject and rebuffs any chance of Palestinians (including innocent ones) being compensated for damages caused to them by the State. Moreover, the bill annuls the requirement of reasonability in the context of tort law—and such a decision can increase the harm caused to the civilian population in the occupied territories.