The proposed bill should be abandoned because it violates international human rights standards in several ways. First, it undermines the basic right of victims of human rights abuses to seek fair compensation, a right that is enshrined in various instruments. The International Covenant on Civil and Political Rights, which Israel ratified in 1991, requires States Parties to ensure that victims of human rights abuses have "an effective remedy" (Article 2.3.a). The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by Israel in 1991, states in Article 14, that, under all circumstances,
each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.
According to the general principles proposed by the U.N. Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities,
1. Under international law, the violation of any right gives rise to a right of reparation for the victim. Particular attention must be paid to gross violations of human rights and fundamental freedoms, which include...summary or arbitrary executions; torture and cruel, inhuman or degrading treatment or punishment....
2. Every State has a duty to make reparation in case of a breach of the obligation under international law to respect and to ensure respect for human rights and fundamental freedoms....
3. Reparation for human rights violations has the purpose of relieving the suffering of and affording justice to victims by removing or redressing to the extent possible the consequences of the wrongful acts and by preventing and deterring violations.
4. Reparation should respond to the needs and wishes of the victims. It shall be proportionate to the gravity of the violations and the resulting harm and shall include: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.3
The proposed law is blatantly discriminatory in that it applies to Palestinians but not to Israeli citizens or permanent residents or tourists (Article 2.C). Thus, if two bystanders at a demonstration, one a foreign tourist and the other a West Bank Palestinian, were wounded by reckless fire by an Israeli soldier, the foreign tourist could sue for damagesin an Israeli court while the Palestinian could, at best, apply for discretionary compensation from the new committee. Such a distinction violates the prohibition on discrimination in international human rights law.4
The proposed law disqualifies potential damage claims by Palestinians in several ways. It authorizes the committee to exclude any claimant who was at any time convicted of "terrorist activity" or against whom there exists "evidence" of such activity (Article 5.B.2). The law would thus retroactively add a punishment to those with prior convictions, stripping them of their right to redress for state abuses. The International Covenant on Civil and Political Rights, in Article 15.1, forbids punishment that is retroactive: "Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offense was committed." In the case of persons who have not been convicted but against whom "evidence" allegedly exists of "terrorist activity," the proposed law would punish them on the basis of "evidence" that presumably would remain secret and that they would be unable to challenge in court. In either case, the alleged "terrorist activity" need not bear any connection to the incident in which the would-be plaintiff suffered harm and for which he or she should be entitled to seek compensation.
The proposed law would also narrow the range of acts for which compensation may be sought so as to disqualify many victims of wrongful injury from seeking damages. Under its terms, the claimant would be required to prove either that (1) the damage was caused outside of operational activity in fighting or preventing terror, or other activity in which the security forces faced a risk of death or bodily injury; or (2) the damage resulted from an act that was both "in substantial deviation and knowingly" from the instructions applicable to the security forces (Article 5.A.1 and 5.A.2).
The burden of proof that these conditions impose on many victims is extremely high. Soldiers can plausibly argue that they were at some degree of risk of bodily injury during most actions they initiated. As B'Tselem has pointed out, an innocent passerby who was injured by indiscriminate gunfire during a demonstration would be ineligible for compensation if the security forces could show that they faced some risk of injury-unless the injured party can prove he or she was injured as a result of an act that was "in substantial deviation and knowingly" from the instructions applicable to the security forces.
The "substantial deviation and knowingly" standard also subtly absolves the government for accountability for authorized abuse by limiting the right to seek compensation to situations in which a soldier substantially and knowingly deviated from his instructions. That is, the law would seem to exclude from compensation acts that were wrongful but not explicitly prohibited, or where instructions were not clear and specific (the deviation must be "substantial"), or where training and discipline of soldiers were inadequate so that instructions were violated but not "knowingly." Thus the proposed legislation would reward the security forces for laxness in the discipline and training of troops, and would remove an incentive not to issue overtly abusive instructions.
If the claimant successfully proves that one of the above conditions were met, the committee may still deny compensation if the victim was injured in the course of conducting "hostile activity against the security forces or against the civilian population" (Article 5.B.1). "Hostile activity" is not defined in the draft law, but the Ministry of Justice's memorandum suggests that it refers to any action "against the security forces or against a civilian population." The memorandum continues:
The reason for this is that eligibility for compensation can be justified for a person who had no part in the very occurrence of the event of the damage. A person who acted against IDF [Israel Defense Force] forces or against a civilian population and was thereby injured, loses his right, based, as stated, in humanitarian reasons, to eligibility for payment.
Thus, the provision on "hostile activity" in the draft law erases the duty of proportionality in the use of force.5 The committee may deny compensation to an adolescent who helped to set up a stone barricade on a street and who was wounded by live ammunition, even if his being shot is determined to have been a vastly disproportionate response to his act.
The proposed law defines security forces as "the Israeli Defense Forces, Israel Police, or other State security forces, including anyone who acted on their behalf." This would appear to include the General Security Service, or Shin Bet, the agency most involved in the mistreatment and torture of security suspects under interrogation.6 However, the draft law, while rendering convicted and suspected "terrorists" ineligible for compensation, makes an exception for persons who, at the time of injury, were in legal custody (Article 5.B.2). However, such persons would still have to prove that the injury meets the conditions stipulated in Article 5.A.1 and 2 (see above). At press time, it was unclear whether the draft law would exclude from tort claims injuries inflicted during interrogation.
Payment will not be granted, under the draft law, unless the injury caused a permanent functional disability of at least 25 percent (Article 5.C). This cutoff violates the principle that all victims of human rights abuses - and not just those whose injury exceeds a certain level - are entitled to compensation. According to the general principles proposed by the U.N. Special Rapporteur, "Under international law, the violation of any right gives rise to a right of reparation for the victim....Reparation....shall be proportionate to the gravity of the violations and the resulting harm...."7 [Emphasis added]
3 Final report of Theo Van Boven, Special Rapporteur of the U.N. Commission on Human Rights' Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/1993/8, 2 July 1993.
4 See, e.g., the International Covenant on Civil and Political Rights, Articles 2 and 26.
5 The companion principles of proportionality and necessity underlie the written open-fire orders issued to Israeli soldiers in the West Bank and Gaza Strip (see below), and are codified in international standards. The preeminent codification is the 1979 U.N. Code of Conduct for Law Enforcement Officials. Article 3 provides: "Law enforcement officials may use force only when strictly necessary to the extent required for the performance of their duty." The official commentary to the Code elaborates: "The use of firearms is considered an extreme measure....In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender."
6 Human Rights Watch/Middle East, Torture and Ill-Treatment: Israel's Interrogation of Palestinians from the Occupied Territories (New York: Human Rights Watch, 1994).