oPt + 1 more

Israeli government attempts to deny Palestinians the right to seek compensation

Ref: 68/2005

The latest step by Israel to ensure that the Israeli Occupation Forces (IOF) can act with impunity and without respect to international law obligations is currently before Knesset Law Committee. The proposed amendment to Israel's tort law is blatant attempt to deny all Palestinians even the right to seek compensation before Israeli courts for violations of human rights committed by the IOF in the Occupied Palestinian Territory (OPT).

PCHR is deeply concerned by proposed amendments to Israel's tort law (Civil Wrongs (Liability of State) Regulations) which has already passed its first reading and is currently before the Knesset Law Committee. If passed by the Knesset, the proposed amendment will make it all but impossible for Palestinians residents in the OPT suffering under Israeli occupation (excluding occupied East Jerusalem which Israel illegally annexed in 1967) to seek redress for violations of their fundamental rights at the hands of the IOF.

In recent years Israel has already severely limited the ability of Palestinians to seek compensation in Israeli courts against the IOF for damages including death, injury and property destruction. In the most recent amendment in July 2002, the Israeli government ensured that compensation claims were out of reach for most Palestinians who had suffered damages through an expanded definition of "combat activity" and imposing a strict statute of limitations period (two years) and other procedural limitations. The amendment created a regime where Palestinians could not claim compensation from Israel for damages sustained through "any action of combating terror, hostile actions, or insurrections, and also an action as stated that is intended to prevent terror and hostile acts and insurrection committed in circumstances of danger to life or limb". This definition was applied to encompass most actions carried out by the IOF throughout the Gaza Strip and West Bank territory and in practice severely limited the right of Palestinians to justice.

The latest amendment, if accepted, will ensure that the limited number of Palestinians who currently have the right to claim compensation will be denied access. With retroactive effect dating back to the beginning of the current Intifada, the proposed amendment exempts the IOF from any damage it caused to a resident of a conflict area, whether inside or outside that area (the amendment proposes that the exemption be for any act that took place in the context of a conflict or a result of a conflict or any act that took place in a conflict zone). A conflict zone is any area outside the territory of Israel which has been declared so by the Minister of Defence according to article 5(c).

The proposed amendment is discriminatory in that it applies to residents of a conflict area rather than based on the circumstances of the case.

In an attempt to cover up the outright denial of the right to claim compensation to Palestinians as a whole, the proposed amendment sets out a series of carefully worded exceptions:

1. The Minister of Defence will form a Committee to propose exceptional amounts of money in exceptional cases. This is the only criteria laid down for this exclusion and is carefully drafted to ensure that no liability is admitted, such awards are outside of any legal framework related to compensation and there is no avenue for appeal. It is hard to imagine what category of cases will fall within this exception and what justice could be awarded to any victims who are regarded as 'exceptional'.

2. The amendment does not apply when the damage was caused by a member of the IOF if they have been convicted by an Israeli Court of an offence. It has been well documented that the Israeli courts have granted almost blanket immunity to the limited number of soldiers who have been charged with offences.

3. A claim related to damage incurred to prisoners or detainees of the IOF.

4. A claim related to actions of the Civil Administration in the Gaza Strip or West Bank territory

5. An accident or property damage involving a vehicle of the Israeli military except when the vehicle is conducting what is ambiguously called 'field work'.

The amendment violates Israeli's obligations under international customary and treaty law. In international law, including during occupation, States bear responsibility for their actions that violate human rights. For example, Article 3 of the Hague Regulations of 1907 provides that: "A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces".

The justification provided to the proposed amendment by Israel lawmakers states that "even at a practical level, claims against the State raise a difficult problem related to evidence" and "In light of the huge number of incidents and military operations that occurred in the context of the confrontation, it seems extremely difficult for the State to check the responsibilities for acts, the amount of damage and claims related to the involvement of security forces in the concerned incidents or military operations". It seems extraordinary that Israel justifies its latest attempts to deny Palestinians access to justice by the practicalities of administering their belligerent occupation of Palestine. As an Occupying Power, Israel has clear responsibilities under international law for the Palestinian people.

Further, the result of broadening the exclusion for the right to seek compensation in Israel for almost all Palestinians will be that access to justice will be sought in the international fora. With foreign governments increasingly willing to recognise universal jurisdiction claims, the result will be Israeli soldiers and Israel itself on trial in foreign courts.

PCHR calls upon the international community to act to ensure that the latest attempt by the Israelis to deny Palestinians the right to seek compensation for damages is not implemented:

1. Foreign governments must condemn the proposed amendment and pressure the Israeli government both publicly and privately to act in accordance with its obligations under international law.

2. The United Nations General Assembly and other UN bodies should investigate the proposed amendment and adopt a resolution and/or take other measures condemning Israel's attempt to deny Palestinian's the right to seek a remedy for their damages as illegal.

3. Palestinian and Israeli non-Government organisations together with international civil society must take action in the form of campaigns to international organisations and the media to exert pressure on the Israeli Knesset not to pass the proposed amendments. Write letters to Michael Eitin, Chairman of the Knesset Law Committee who are currently debating the law (Fax: +97 2 6496404 or email: meitan@knesset.gov.il).

For more information please call PCHR's Office in Gaza City: +972 8 2824776 -- 2825893.*
*Office Hours are between 08:00 -- 16:00 hours (05:00 GMT -- 13:00 GMT) Sun -- Thurs.

Palestinian Centre for Human Rights
29 Omer El Mukhtar St., El Remal, PO Box 1328 Gaza, Gaza Strip tel/fax: +972 (0)8 282 4776 -- 282 5893
email: pchr@pchrgaza.org website: www.pchrgaza.org