July 1997 Vol. 9, No. 6 (E)
ISRAEL
LEGISLATING IMPUNITY
The Draft Law to Halt Palestinian Tort Claims
INTRODUCTION 2
BROAD IMMUNITY FOR INTIFADA-ERA ABUSES 3
REDEFINING "COMBATANT ACTIVITY" TO SHIELD SECURITY FORCES FROM LIABILITY 5
THE GOVERNMENT'S JUSTIFICATIONS FOR CURTAILING TORT LIABILITY 6
NO EXPLICIT RIGHT FOR THE CLAIMANT TO TESTIFY, PRODUCE WITNESSES,
OR APPEAL THE DECISION 7
Israel's Ministry of Justice has drafted a law that would exempt the State of Israel and its security forces from tort liability for the wrongful bodily injury and killing of Palestinians during the period of the intifada. Human Rights Watch calls for the withdrawal of the draft because it would drastically curtail the right of victims of human rights abuses committed by state agents to seek and obtain compensation. And by stripping Israeli civil courts of jurisdiction over these complaints, it would weaken one of the few existing mechanisms for accountability for the conduct of Israeli security forces toward Palestinians, and remove a deterrent against the commission of abuses in the future.
The draft Law Concerning Handling of Suits Arising from Security Force Activities in Judea, Samaria and the Gaza Strip (Exemption from Liability and Granting of Payment), 1997 was presented for public comment by the Ministry of Justice in March. The government now intends to submit the draft law for approval by the Knesset, Israel's parliament, before the end of the current session, which ends August 2, according to the June 26 issue of the Israeli daily Haaretz.
This report touches on only some of the problematic areas of the draft legislation. More thorough critiques, on which this report draws heavily, have been prepared by the Israeli human rights organizations B'Tselem/Israeli Information Center for Human Rights in the Occupied Territories and HaMoked/Center for the Defence of the Individual.1 The excerpts below of the draft law and the accompanying Ministry of Justice memorandum are taken from the English-language translations contained in the critique prepared by B'Tselem.
If the law is adopted, West Bank and Gaza Palestinians would no longer be able to seek in Israeli courts compensation from Israeli security forces or from the State for bodily damage or death that occurred between December 8, 1987, when the intifada broke out, and September 13, 1993, the date of the signing of the Israeli-PLO Declaration of Principles.2 For incidents during that period, plaintiffs would have to re-direct their search for compensation to a new committee whose members are to be appointed by the Minister of Defense (Article 4.A). The committee would be authorized to grant, "out of humanitarian considerations," monetary payment to an injured party or his dependents, or to the survivors of someone wrongfully killed (Article 3). Granting compensation would thus become a largely discretionary form of charity, rather than fulfillment of the state's obligation as specified in international law.
This procedure would apply both to new claimants as well as to plaintiffs whose suits are already pending before Israeli courts. In other words, cases currently being heard would be halted (Article 13); it would then be the plaintiff's responsibility to file an application for compensation before the new committee.
Some 1,000 Palestinians were killed, and approximately 18,000 were injured by Israeli security forces during the intifada, according to Israeli army records cited in the Ministry of Justice memorandum; human rights organizations say that the figures are higher, especially with regard to the number of injuries.
The committee would be entitled to deny compensation to plaintiffs in a wide range of circumstances. When paid, compensation amounts would be predetermined by a table appended to the law. The table specifies amounts that are less than the amounts the Israeli courts are currently awarding in settlements, and in some cases, less than the medical bills the victim can be expected to have incurred. For example, an unmarried twenty-two-year-old with a 50 percent permanent disability would receive a lump sum payment of 111,000 New Israeli Shekels (US $31,429 at current rates). Compensation for the wrongful death of a married person between the ages of eighteen and forty is to be 153,000 NIS (US $43,714), with an additional 1,100 NIS ($314) for each child annually until the child reaches the age of eighteen, "so long as the amount of the addition for children does not exceed 38,000 NIS ($10,857)."
1 The undated critique that was prepared by HaMoked and co-signed by six Israeli human rights organizations can be obtained from HaMoked at 4 Abu Obeida Street, Jerusalem 97200, fax 972(2)627-6317. A critique prepared by B'Tselem can be obtained from B'Tselem at 43 Emek Refaim St. (Second floor), Jerusalem 93141, fax 972(2)561-0756, e-mail Btselem@actcom.co.il.
2 The essence of the draft law is contained in Article 2.a: "The State is not liable in tort for bodily damage caused as result of an act carried out in the region by the security forces during the proscribed period." The same article exempts state agents from tort liability. In Article 1, bodily damage is defined as "death, sickness, injury or a physical, mental or psychological defect." An exception is made for suits for automobile accidents, "except if the accident occurred in connection to a hostile activity by the injured party against the security forces or against the civilian population" (Article 2.B).