Jerusalem, January 1998

Proposed Law Concerning Suits Arising from Security Force Activities in Judea, Samaria and the Gaza Strip, 1997

Ministry of Justice

The Ministry of Justice of the State of Israel has received many inquiries regarding the Government Bill: Law Concerning Suits Arising from Security Force Activities in Judea, Samaria and the Gaza Strip, 1997. As a result, the Ministry has produced the following as a fact sheet, regarding the main provisions of the proposed law and the status of these provisions under international law:

1. Since the beginning of the "intifada", thousands of suits have been brought by residents of the West Bank and Gaza, before the Israeli courts and the Israeli Ministry of Defence (approximately 500 suits a year). The claimants have applied for compensation for damage allegedly caused by Israel’s security forces, during the period of the "intifada". The proposed law is intended to regulate the handling of these claims and not to obstruct or undermine them. Difficulties in handling such claims existed before the proposed law and rather than perpetuating the difficulties, the proposed law aims to provide legislative solutions.

2. The proposed law does not turn the granting of compensation from a right into an act of charity, but rather the other way around. Under the Civil Wrongs Law (the Responsibility of the State) 1952, acts carried out by the Israeli security forces, in the framework of "combatant activities", bear no civil liability. Consequently, a court can determine that certain activities of Israel Defence Forces are "combatant activities", and the State is thus immune from all tortious liability. The proposed law however, provides that the State may be liable to pay compensation for damage caused by members of the security forces, in certain cases, while still regarding the acts as combatant activities.

3. It is important to bear in mind, that the "intifada" was a violent struggle, which included deliberate injuries, caused by the local population, to Israeli citizens and soldiers. Day to day activities by the Israeli defence forces were often carried out in difficult and hazardous circumstances, which frequently placed the Israeli soldiers in life threatening situations. For this reason it is justifiable and important as a matter of both principle and law, to regard their activities as "combatant activities".

4. It should be stressed that the immunity from civil liability applies only when the IDF activities were in the nature of military operations and were carried out in circumstances of danger to life or limb, and not as some have argued, to "all acts designed to safeguard security". In any event, under the proposed law, the State may be liable for the payment of damages under certain circumstances, even if the incident is considered "combatant activity".

5, The proposed law establishes, that notwithstanding the immunity from civil liability for damage caused by "combatant activity", the court may determine that the plaintiff should receive compensation, if it has determined that the circumstances of the case contain justified humanitarian considerations. The proposed law does not therefore provide a new defence for the State, but rather clarifies and delimits the extent of the immunity that exists under the current law.

6. Additionally, where a member of the security forces is convicted of maliciously inflicting the damage complained of, his actions will not be considered "combatant activity", and consequently the State will not be immune from civil liability.

7. The complex reality which the "intifada" imposed on the Israel Defence Forces gave rise to many difficulties in the spheres of evidence and legal procedure, and in the spheres of determining liability for an incident, estimating damages, examining the facts and circumstances of the incident, etc. This, all the more so after the withdrawal of the IDF from parts of the territories, which have since become inaccessible to them, and after the transfer of authority to the Palestinian Council.

8. As a consequence of the above, the collecting of evidence and information is at least as difficult for the Israeli authorities as it is for the plaintiffs. This fact has led to many false claims and attempts of fraud by many "plaintiffs". In an attempt to remedy this situation, section 9(a) of the proposed law removed the possibility which exists in the Torts Ordinance, by which the burden of proof can in certain circumstances be reversed. Section 9(a) is intended to eliminate the bringing of fraudulent claims and the abuse of the provision in the Ordinance.

9. The proposed law attempts to strike a balance between preventing the loss of substantial resources due to fraudulent suits by those involved in hostilities against Israel, and the need to enable those who were not taking part in violence and yet suffered damage as a result of the actions of the security forces, to receive just compensation.

10. The proposed law proposes that a claim may also be exempt from civil liability in three instances: where the alleged damage was sustained as a result of "serious hostile activity" (a specific definition), carried out by the plaintiff himself against the security forces or civilians; where the plaintiff has been convicted of severe terrorist acts; or where the State was not given suitable opportunity to defend itself against the claim, due to a violation on the part of the Palestinian Authority of the Interim Agreement regarding legal cooperation. It should be noted, that even if the plaintiff is involved in serious hostile activities, the court may use its discretion and reject only part of the claim.

11. There is no distinction in the proposed law, as some have claimed, between Israeli citizens, tourists or any others. The proposed law refers to an injured party as "in individual who suffered damages as a result of an act carried out in the area (Judea/Samaria and Gaza), by the IDF, without distinction of nationality, religion or any other characteristic." Naturally, the great majority of those injured by the activities of the security forces are Palestinians. It must be accepted however, that as a rule, the activities of the security forces were reactions to threats upon their lives by Palestinians taking part in violent activities and terrorism.

12. Whilst it is true that the provisions of the proposed law have retroactive force, it is not true that any substantive harm is caused to the individual thereby. It cannot be seriously argued that any individual would have acted in a different way, had he known that the provisions of this Act might apply to him or to any subsequent suit brought by him. Additionally, there is no retroactive application to cases which have already been decided by the court.

13. It is also true that the proposed law provides a statute of limitation of only one year, with the possibility of an extension by an additional year by the court. In the light of the difficulties in collecting evidence, the provision simply enables the plaintiff, the State and the court to be provided with better tools with regard to the collection and documentation of evidence and testimony. It should also be noted that the reduction in the prescription period is consistent with proposals which are currently being considered for reducing the prescription period for civil claims, generally.

14. Additionally, under the provisions of the proposed law, the limitation period will begin from the date of its enactment and not from the date of the incident itself. Thus, an individual injured five years before the enactment of the law, will be able to file his claim within a year (or two) of the Act coming into force. This applies up to a maximum of seven years from the date of the incident, which is the standard period of limitation.

15. Regarding the international legal aspects of the proposed law, Article 3 of the 1907 Hague Convention IV, according to which a belligerent party may be required to pay compensation where the Regulations are violated, does not apply to the present situation. This is the case, since not only are activities for restoring and ensuring public order and security not considered violations of the Regulations but they are in fact expressly provided for by them (Regulation 43).

16. It is also important to note, that Article 5 of the Geneva Convention IV, provides that where a protected person is suspected of or engaged in activities hostile to the security of the State, such a person shall not be entitled to claim such rights and privileges as provided for under the Convention. Nevertheless, as has been stated above, where an individual who was not involved in such hostile activities suffered damage, he may be entitled to compensation from the State, in compliance with Article 2(3)(a) of the International Covenant on Civil and Political Rights.

17. Additionally, in contrast to other practices which exist in the laws of nations, the approach of the State of Israel since 1967 has been to guarantee inhabitants who are under military rule, access to its own courts (both civil and High Court of Justice), enabling them to challenge the State and its agents in these courts.

18. The above Bill is currently before the Knesset Constitution, Law and Justice Committee and will be brought before the Knesset for the second and third readings after it has been thoroughly and carefully considered by the Committee.