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Knesset Should Reject Amendment to the Civil Wrongs Law

Letter from Human Rights Watch to Knesset Members

Human Rights Watch is extremely concerned about the proposed amendment to the Civil Wrongs (Liability of State) Law, 5712-1952 that you will be asked to vote on in a second and third reading on Wednesday, July 27. We urge you to reject this amendment in its current form, since it contravenes the State of Israel’s obligations under international law.

Human Rights Watch is extremely concerned about the proposed amendment to the Civil Wrongs (Liability of State) Law, 5712-1952 that you will be asked to vote on in a second and third reading on Wednesday, July 27. We urge you to reject this amendment in its current form, since it contravenes the State of Israel’s obligations under international law.

The Civil Wrongs Law details the situations in which the State of Israel cannot be sued for damages, such as for the death or injury of a person as a consequence of his military service or for damages arising from “war time actions” against the State of Israel. The Law was previously amended in 2002 to greatly limit the ability of Palestinians from the Occupied Palestinian Territories (OPT) from claiming damages. The law did this by expanding the definition of “war time action” to include “any action of combating terror, hostile actions, or insurrection, and also an action as stated that is intended to prevent terror and hostile acts and insurrection committed in circumstances of danger to life or limb.” The 2002 amendment also limited the scope of time for filing by allowing only sixty days from the date of the incident for the injured person to file a written notice of intent to make a claim and then a two-year period for filing an actual claim.

The proposed amendment would prohibit a national of an “enemy state,” a member of a “terrorist” organization or a person injured in a “conflict zone” from bringing a claim for compensation against the State of Israel in an Israeli court for harm inflicted by state agents. During hearings of the Knesset Constitution, Law and Justice Committee, which Human Rights Watch attended, the Ministries of Justice and Defense made clear their intent to use this bill to drastically limit the right of Palestinians from the OPT to sue the state for damages sustained at the hands of state agents since September 2000.

Israel has a legal duty to provide all those in its jurisdiction with an effective remedy, including the right to sue the State for compensation for harms committed by state agents. Access to an effective remedy is a cornerstone of the protection of human rights. Those who have been wronged must have a way of seeking justice, a key component of which is the ability to sue for compensation. Compensation claims also help protect against a situation of impunity whereby perpetrators know there will be no accountability for their wrongdoing.

Israel’s obligation to provide an effective remedy is enshrined in the international human rights treaties that it has ratified, including Article 2 of the International Covenant on Civil and Political Rights, Article 6 of the International Covenant for the Elimination of all Forms of Racial Discrimination, Article 14 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Article 39 of the Convention on the Rights of the Child.

The right to an effective remedy is also recognized under international humanitarian law (IHL), the body of law governing the conduct of armed forces during a belligerent occupation or armed conflict. The obligation can be found in Article 3 of the Hague Convention of 18 October 1907 concerning the Laws and Customs of War and Land (Convention No. IV of 1907), Article 91 of Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I), and Articles 68 and 75 of the Rome Statute of the International Criminal Court. While Israel has not ratified any of these conventions, the Israeli Supreme Court has ruled that the 1907 Hague Regulations are part of customary international law, and thus binding on all states, including those not party to the treaty.

There is a growing international consensus on the right to compensation for victims of serious violations of human rights or humanitarian law. This principle has been recently enunciated in the U.N. “Basic Principles and Guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law.” The principles, adopted in April 2005 by the U.N. Commission on Human Rights, are the result of 15 years of drafting, research, consultation and debate in the international community. They constitute an authoritative set of guidelines specifying that a victim’s right to a remedy includes compensation, which should “be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case.” According to the principles, these damages may include compensation for physical or mental harm; lost opportunities including employment, education and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage; cost required for legal or expert assistance, medicine and medical services; and psychological and social services.

One of the central problems with the current amendment arises from the fact that it gives sole discretion to the Ministry of Defense to determine when and where a “conflict zone” exists, and then excludes claims deemed to arise in a “conflict zone.” This determination is not governed by international humanitarian law standards for when the threshold of armed conflict has been crossed. Furthermore, the ministry is authorized to make this determination with no independent or judicial oversight and with no possibility for appeal from the determination. The minister of defense can make this determination even after a claimant has notified the state of his/her intention to file a civil claim. While the bill does contain some qualifying language for what constitutes a “conflict zone,” the term remains loosely defined and could be applied so broadly as to cover the majority of the actions of the Israeli security forces in the OPT, especially since the Government of Israel has repeatedly stated that since September 2000 it has been engaged in an armed conflict.

According to the analysis of Human Rights Watch and many international legal scholars, the situation in the OPT since September 2000 has often remained below the threshold of armed conflict. During non-armed conflict situations, Israeli security services are subject to standards of law enforcement, which impose stricter conditions for the use of lethal force than those applicable during armed conflict. These standards are laid out in the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the U.N. Code of Conduct for Law Enforcement Officials. Over 1,700 Palestinian deaths and thousands of injuries since September 2000 have occurred outside of combat situations, during policing operations (such as enforcement of curfews, administration of civilian checkpoints, and dispersion of demonstrations) or even when it is unclear why the security services were in the area at all. However, according to this bill, the minister of defense could broadly interpret “conflict zone” to include these types of policing operations and therefore exclude any consequent claims. The Ministry of Defense has previously mis-used concepts such as “military necessity” to justify violations of international humanitarian law –including mass house demolitions in Rafah and the building of Israeli settlements in the OPT. Therefore there is a credible reason to fear that the Ministry will also apply an overly broad definition of “conflict zone” in order to exempt Israel from any damage claims against its security services in the OPT.

While the bill does provide an exemption in cases where a court has convicted members of the security forces of a criminal offense (not including negligent offenses), the government’s extremely poor record of investigations and convictions since September 2000 means that this exemption would rarely, if ever, apply. Furthermore, civil claims should be completely independent of criminal investigations and should not be dependent on the findings of a court for criminal charges.

Indeed, the proposal of this bill comes at a particularly disturbing time, when the Israel Defense Forces (IDF) have adequately investigated very few Palestinian civilian deaths and injuries. Of the 1,700 non-conflict deaths and thousands of non-conflict injuries during this period, the IDF has investigated only 131 cases, and Israeli courts have convicted only seven IDF soldiers for criminal conduct, with sentences ranging from 2 – 20 months. As documented in our report, “Promoting Impunity: The Israeli Military’s Failure to Investigate Wrongdoing,” the IDF’s failure to investigate over 90% of the cases of deaths of civilians taking no part in hostilities has contributed to a culture of impunity among IDF soldiers.

In this climate, the threat of a civil suit remains one of the only levers of accountability against IDF abuses, and certainly the only potential remedy available for victims. Civil suits do not require action on the part of state officials in the same way that criminal investigations or indictments do. Victims of harm can file a suit even if the state has not taken any steps to investigate and bring wrongdoers to account. While civil remedies can include awards for damages and related expenses, they also serve as a deterrent from future wrongdoing.

The Israeli government claims that Palestinians from the OPT have filed over 400 claims in Israeli courts since September 2000, and that thousands more people have notified the state of their intent to file claims in Israeli courts. The government has argued that this number of claims places an undue burden on the state and on reservists who would have to testify. The government also has argued that such cases may require it to disclose classified military intelligence regarding the conduct of military operations. Inconvenience to state agencies and actors, however, is no justification for denying certain victims their rights under international law. Furthermore, claims for compensation raise no greater need for disclosure of sensitive information than already exist when courts investigate misconduct by the Israeli military. Israeli courts can determine on a case-by-case basis whether and how to disclose sensitive information in a manner that does not compromise national security.

When the current amendment comes before the Knesset we urge you to raise these concerns and to reject the current amendment.

Yours sincerely,

Sarah Leah Whitson

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