Israeli Human Rights organizations expressed concern that the proposed amendment to the Civil Torts (Liability of the State) Law, that was discussed by the Knesset Constitution, Law and Justice Committee, contravenes the law and will cause, if enacted, sweeping violations of Palestinian rights who have suffered injuries at the hand of the Israeli security forces. The detailed statement of opinion was written by Attorneys Yossi Wolfson, Gil Gan-Mor, and Hava Matras-Irron from HaMoked, in partnership with ACRI`s Chief Legal Counsel, Dan Yakir, and distributed to the members of the committee. The statement of opinion was not only distributed to members of the committee, but also to other Knesset members in the name of the following Israeli human rights organizations: Hamoked – Center for the Defense of the Individual, ACRI – The Association for Civil Rights in Israel, B’Tselem – The Israel Information Center for Human Rights, Adalah – The Legal Center for Arab Minority Rights, Physicians for Human Rights – Israel and The Public Committee Against Torture in Israel (PCATI).
The fifth amendment to the Civil Torts (Liability of the State) Law, which is currently under discussion, is designed to exonerate Israel from any responsibility for injury caused to any citizen of an enemy state, or resident of hostile territory. If the amendment is enacted, the state will no longer be liable to pay damages for injuries caused to the residents of the hostile territory (except in a few exceptional cases), whether it occurs in the area itself or outside its borders. The opinion also makes clear that already, according the law in its current form, Palestinians are unable to sue the state for injuries that resulted from offensive military action. Since the fourth amendment to the law in 2002, the definition of offensive military action has been extremely broad, and includes any action taken to fight against terrorism, hostile act or uprising, and any action taken to avert these acts. Up to this point it has been possible, subject to the severe restrictions of this amendment, to sue for damages that occurred as a result of looting, negligent procedures, opening fire when no danger is posed to soldiers, humiliating behavior at checkpoints, physical violence, and more. The fifth amendment to the law, if enacted, will prevent, almost totally, the ability of Palestinians to sue the state for damages for acts that the state itself recognizes as abusive, or as being in contravention of the law, and to which it has repeatedly stated its abhorrence of. The amendment does not even take into account the plight of children or the aged who are injured during military operations, despite the fact that it is clear that they have taken no part in the conflict.
The human rights organizations also emphasize that if the amendment is authorized it would in effect mean the total negation of all entitlement to human rights for the residents of the West Bank and Gaza Strip. Any right that has no course for redress in the event that it is violated cannot be considered a right at all, but rather empty words. The statement goes on to say that it is not enough that individuals will be stripped of all rights, but the suggested amendment would also create a situation of severe discrimination in which legal redress is blocked on the basis of a claimant’s identity (as a subject of a hostile state or resident of hostile territory), and not on the basis of the claim itself. This represents a severe violation of the right to equality and dignity.
The authors of the opinion further clarify that international law states that a situation of conflict places obligatory codes of behavior on the military forces vis-à-vis the citizens of the hostile state. Any violation of these codes of behavior must be covered by financial remuneration for the damage caused. The aim of the law is to minimize the impact of the armed conflict on the civilian population. Thus the residents of the area are defined as “protected persons”, and as such, are subject to the obligatory protection of the two parties in conflict. The proposed amendment to the law, in practice, transforms international law and redefines “protected persons” who are entitled to special protections, to “residents of hostile territory”, making them susceptible to gratuitous injury as a direct result of their ineligibility to the right to compensation.
The statement further notes that the clash between existing international law and the proposed amendment is liable to result in a series of claims that cannot be heard by the Israeli court system. The claims will therefore be submitted to courts in foreign countries. The fact that the claim cannot be heard in an Israeli court means that that the State of Israel will be unable to testify in the foreign court because the claim was submitted in a forum non-convenient.
In conclusion, the draftees of the statement of the opinion make clear that the amendment in question is illegal and unnecessary, and will turn Israel into a pariah in the international community. Therefore the proposal should be withdrawn from the Knesset agenda to avoid a stain on the legal books through the introduction of such an illegitimate legal arrangement.
last updated : 31/05/05
