The draft law was accompanied an explanatory note from the Ministry of Justice that offers four basic arguments for adopting what it termed "legislation intervention to protect the State from these claims":
(1) Civil damage suits filed by Palestinians are crowding the court dockets. The Ministry of Justice memorandum notes that more than 4,000 suits have so far been filed against the State, of which 700 are pending before the courts.
(2) The state is expected to be obligated to pay large sums as a result of this type of tort suit.12 The memorandum notes, "The proposed law will bring about a significant reduction in the compensation sums which the State will be required to pay out in the context of tort claims of Palestinian residents of the areas."
(3) The courts face difficulty in locating evidence that would enable them to adjudicate the claims. The memorandum states, "In some of the cases, the State does not have even the `smallest lead' to examine the claims concerning its involvement in the alleged damage." For example, the memorandum continues, "The body-snatching from hospitals of Palestinian killed precluded the possibility of clarifying whether they were injured by IDF soldiers; some of the injuries were unbeknownst to the soldiers, and were therefore not investigated at all. In local hospitals, only partial records existed, and even those that do, they are not necessarily instructive as to the identity of the perpetrator. Even if the IDF possesses records regarding the event for which claims are brought, in most cases the records are not sufficient to be instructive in a conclusive fashion regarding the character of the event and its results."
(4) The agreements signed by Israel and the PLO justify "turning over a new leaf" with regard to paying compensation. "During a period of armed struggle between nations, every side must bear its damages and care for its injured," the memorandum states.
The reasons provided in the Ministry of Justice memorandum are well rebutted in the critique prepared by the Israeli organization HaMoked. After showing that the volume of civil suits is actually quite limited in comparison with the number of incidents that might have given rise to damage claims, HaMoked argues that "a financial liability, falling on the State according to the law," cannot provide the basis for retroactively negating fundamental rights.
HaMoked then points out that the paucity of pertinent evidence relating to adjudicating many of the complaints is in large part the result of the State's disregard of its duty to investigate possible human rights abuses promptly after they were committed by its forces. This problem was flagged early in the intifada by various human rights organizations, including Human Rights Watch/Middle East (then Middle East Watch).13 IDF regulations required investigations into fatalities, but not generally into incidents in which Palestinians were injured. By requiring the adjudicators to "consider, inter alia, the presence or absence" of official records such as complaints, disciplinary hearings, or lists of the injured (Article 5.D), the draft law would reward the state for negligent record-keeping and its failure to investigate incidents of violence.
The fourth argument, by stating that during a war each side "must bear its damages and care for its wounded," again draws on the combatant paradigm that Israeli courts have rejected thus far. Furthermore, the suggestion to transfer liability to the Palestinian Authority for Palestinians wrongfully injured or killed by Israeli forces has no basis in the agreements reached between Israel and the PLO, but rather is a unilateral move by Israel that would deprive Palestinians of their right to seek compensation.
12 See, e.g., Amy Dockser Marcus, "Lawsuits Related to Intifada Get Costly for Israel's Government," The Wall Street Journal, May 18, 1993.
13 Middle East Watch, The Israeli Army and the Intifada: Policies that Contribute to the Killings (New York: Human Rights Watch, 1989).