Under the proposed law, claimants would still have recourse to Israeli courts for incidents that occurred after September 13, 1993. However, the law would revise and broaden the definition of "combatant activity" to carve out from tort liability a broad range of incidents in which security forces unlawfully killed or injured Palestinians. Under Article 5 of the Civil Torts Law of 1952, the state is exempt from liability for damages due to "combatant activity of the Israeli Defense Forces."
The draft law proposes to classify as combatant activity, for the purposes of Article 5 of the Civil Torts Law, "any operational activity of fighting against terror, and any other operational activity undertaken by the security forces in circumstances entailing risk of death or bodily injury by the security forces...unless a person was convicted at law of causing the injury which is the subject of the suit" (Article 11).8 In so doing, the law rejects a series of Israeli court decisions that place intifada-related incidents within the paradigm of police law-enforcement activity rather than of armed combat. It also goes against public statements by Israeli officials concerning the applicable paradigm of Israelisecurity force operations when confronting intifada-like situations. For example, then-deputy IDF Judge Advocate General Col. David Yahav was quoted in The New York Times as saying, "Our open-fire regulations follow the same legal principles that govern the police in Israel and in Western countries where there is no war."9 In an affidavit submitted to the Israeli Supreme Court, then-Deputy Chief-of-Staff Gen. Ehud Barak stated that the rules of engagement were based on the view that "opening fire shall be justified according to the general principles of the Penal Law."10 Under the orders issued to soldiers patrolling in the Gaza Strip and West Bank, firearms are not to be used except to avert a life-threatening danger to a person or, under restricted circumstances, at the legs of a fleeing suspect who has ignored warnings to halt.
Israel's Supreme Court has ruled that "combatant activity" should be interpreted narrowly for the purpose of exemptions from liability: "Only genuine combatant activity, in its narrow and simple sense, such as engaging forces in battle, military attack, exchange of fire, explosions and the like, in which is manifested the special nature with its risks, and particularly the implications with its results - it is to these that Article 5 refer."11 Israeli civil courts hearing suits for compensation have affirmed this definition, rejecting arguments that the government was not liable on the grounds that the incident in question was an act of war. For example, in 1992, Judge Gideon Ginat rejected the "act of war" defense when he awarded damages to a Palestinian who was disabled and to the survivors of another man who was killed, when Israeli soldiers shot at them during a chase in 1988 (civil case 273/89 and 334/89). Judge Ginat wrote, "The body of evidence suggests that we are speaking about an act that is akin to a police operation, not an act of war. I am not oblivious to the circumstances, well known to all, under which the security forces operate in Samaria [the northern West Bank]....Yet keeping these circumstances in mind, I cannot rule that any attempt by the security forces to arrest suspects in the area [the occupied territories] is an act of war. Even the actions of the security authorities with respect to suspects from the area after they are arrested (i.e., the fact that they are interrogated and then brought to face criminal charges) indicates that my conclusion is in fact the correct one."
The government, if it is successful in legislating a more encompassing definition of combat for the purpose of tort claims, would effectively reverse those court rulings and, both henceforth and retroactively, strip the right of Palestinians to seek compensation for injuries that occurred in a wide range of conflictual situations.
8 That is, the act will be protected as combat activity unless it resulted in the criminal prosecution and conviction of the state agents responsible for carrying it out.
9 Joel Greenberg, "Israelis Debate Army's Rights Record in Uprising," The New York Times, May 24, 1993.
10 Yoav Hass v. Minister of Defense et al., HCJ 873/89.
11 Civil Petition 623/83, Asher Levi v. State of Israel, P.D. 40(7) 477.