Jerusalem, January 1998
Proposed Law Concerning Suits
Arising from Security Force Activities
in Judea, Samaria and the Gaza Strip, 1997
Ministry of Justice
The Ministry of Justice of the State of Israel has received many inquiries
regarding the Government Bill: Law Concerning Suits Arising from Security
Force Activities in Judea, Samaria and the Gaza Strip, 1997. As a result,
the Ministry has produced the following as a fact sheet, regarding the
main provisions of the proposed law and the status of these provisions
under international law:
1. Since the beginning of the "intifada", thousands of suits have been
brought by residents of the West Bank and Gaza, before the Israeli courts
and the Israeli Ministry of Defence (approximately 500 suits a year). The
claimants have applied for compensation for damage allegedly caused by
Israel's security forces, during the period of the "intifada". The
proposed law is intended to regulate the handling of these claims and not
to obstruct or undermine them. Difficulties in handling such claims
existed before the proposed law and rather than perpetuating the
difficulties, the proposed law aims to provide legislative solutions.
2. The proposed law does not turn the granting of compensation from a
right into an act of charity, but rather the other way around. Under the
Civil Wrongs Law (the Responsibility of the State) 1952, acts carried out
by the Israeli security forces, in the framework of "combatant
activities", bear no civil liability. Consequently, a court can determine
that certain activities of Israel Defence Forces are "combatant
activities", and the State is thus immune from all tortious liability. The
proposed law however, provides that the State may be liable to pay
compensation for damage caused by members of the security forces, in
certain cases, while still regarding the acts as combatant activities.
3. It is important to bear in mind, that the "intifada" was a violent
struggle, which included deliberate injuries, caused by the local
population, to Israeli citizens and soldiers. Day to day activities by the
Israeli defence forces were often carried out in difficult and hazardous
circumstances, which frequently placed the Israeli soldiers in life
threatening situations. For this reason it is justifiable and important as
a matter of both principle and law, to regard their activities as
"combatant activities".
4. It should be stressed that the immunity from civil liability applies
only when the IDF activities were in the nature of military operations and
were carried out in circumstances of danger to life or limb, and not as
some have argued, to "all acts designed to safeguard security". In any
event, under the proposed law, the State may be liable for the payment of
damages under certain circumstances, even if the incident is considered
"combatant activity".
5, The proposed law establishes, that notwithstanding the immunity from
civil liability for damage caused by "combatant activity", the court may
determine that the plaintiff should receive compensation, if it has
determined that the circumstances of the case contain justified
humanitarian considerations. The proposed law does not therefore provide a
new defence for the State, but rather clarifies and delimits the extent of
the immunity that exists under the current law.
6. Additionally, where a member of the security forces is convicted of
maliciously inflicting the damage complained of, his actions will not be
considered "combatant activity", and consequently the State will not be
immune from civil liability.
7. The complex reality which the "intifada" imposed on the Israel Defence
Forces gave rise to many difficulties in the spheres of evidence and legal
procedure, and in the spheres of determining liability for an incident,
estimating damages, examining the facts and circumstances of the incident,
etc. This, all the more so after the withdrawal of the IDF from parts of
the territories, which have since become inaccessible to them, and after
the transfer of authority to the Palestinian Council.
8. As a consequence of the above, the collecting of evidence and
information is at least as difficult for the Israeli authorities as it is
for the plaintiffs. This fact has led to many false claims and attempts of
fraud by many "plaintiffs". In an attempt to remedy this situation,
section 9(a) of the proposed law removed the possibility which exists in
the Torts Ordinance, by which the burden of proof can in certain
circumstances be reversed. Section 9(a) is intended to eliminate the
bringing of fraudulent claims and the abuse of the provision in the
Ordinance.
9. The proposed law attempts to strike a balance between preventing the
loss of substantial resources due to fraudulent suits by those involved in
hostilities against Israel, and the need to enable those who were not
taking part in violence and yet suffered damage as a result of the actions
of the security forces, to receive just compensation.
10. The proposed law proposes that a claim may also be exempt from civil
liability in three instances: where the alleged damage was sustained as a
result of "serious hostile activity" (a specific definition), carried out
by the plaintiff himself against the security forces or civilians; where
the plaintiff has been convicted of severe terrorist acts; or where the
State was not given suitable opportunity to defend itself against the
claim, due to a violation on the part of the Palestinian Authority of the
Interim Agreement regarding legal cooperation. It should be noted, that
even if the plaintiff is involved in serious hostile activities, the court
may use its discretion and reject only part of the claim.
11. There is no distinction in the proposed law, as some have claimed,
between Israeli citizens, tourists or any others. The proposed law refers
to an injured party as "in individual who suffered damages as a result of
an act carried out in the area (Judea/Samaria and Gaza), by the IDF,
without distinction of nationality, religion or any other characteristic."
Naturally, the great majority of those injured by the activities of the
security forces are Palestinians. It must be accepted however, that as a
rule, the activities of the security forces were reactions to threats upon
their lives by Palestinians taking part in violent activities and
terrorism.
12. Whilst it is true that the provisions of the proposed law have
retroactive force, it is not true that any substantive harm is caused to
the individual thereby. It cannot be seriously argued that any individual
would have acted in a different way, had he known that the provisions of
this Act might apply to him or to any subsequent suit brought by him.
Additionally, there is no retroactive application to cases which have
already been decided by the court.
13. It is also true that the proposed law provides a statute of limitation
of only one year, with the possibility of an extension by an additional
year by the court. In the light of the difficulties in collecting
evidence, the provision simply enables the plaintiff, the State and the
court to be provided with better tools with regard to the collection and
documentation of evidence and testimony. It should also be noted that the
reduction in the prescription period is consistent with proposals which
are currently being considered for reducing the prescription period for
civil claims, generally.
14. Additionally, under the provisions of the proposed law, the limitation
period will begin from the date of its enactment and not from the date of
the incident itself. Thus, an individual injured five years before the
enactment of the law, will be able to file his claim within a year (or
two) of the Act coming into force. This applies up to a maximum of seven
years from the date of the incident, which is the standard period of
limitation.
15. Regarding the international legal aspects of the proposed law, Article
3 of the 1907 Hague Convention IV, according to which a belligerent party
may be required to pay compensation where the Regulations are violated,
does not apply to the present situation. This is the case, since not only
are activities for restoring and ensuring public order and security not
considered violations of the Regulations but they are in fact expressly
provided for by them (Regulation 43).
16. It is also important to note, that Article 5 of the Geneva Convention
IV, provides that where a protected person is suspected of or engaged in
activities hostile to the security of the State, such a person shall not
be entitled to claim such rights and privileges as provided for under the
Convention. Nevertheless, as has been stated above, where an individual
who was not involved in such hostile activities suffered damage, he may be
entitled to compensation from the State, in compliance with Article
2(3)(a) of the International Covenant on Civil and Political Rights.
17. Additionally, in contrast to other practices which exist in the laws
of nations, the approach of the State of Israel since 1967 has been to
guarantee inhabitants who are under military rule, access to its own
courts (both civil and High Court of Justice), enabling them to challenge
the State and its agents in these courts.
18. The above Bill is currently before the Knesset Constitution, Law and
Justice Committee and will be brought before the Knesset for the second
and third readings after it has been thoroughly and carefully considered
by the Committee.