The Beersheva District Court accepted the State’s request and rejected outright a claim of damages filed by a Palestinian resident of the Al-Bureij refugee camp in Gaza against the State of Israel after he was allegedly injured by an IDF force without an operational justification.

The court ruled that under the Civil Damages Law, the state is not liable in tort for damage caused to a resident of an area outside of Israel, which the government declared by order “enemy territory” and that the said restriction is constitutional.

Although he admitted that “he had no knowledge or ability to know what the circumstances actually caused the shooting,” the Palestinian claimed in his claim that Israel had violated international humanitarian law, giving him the right to a personal claim for damages.

In a detailed and reasoned position that was filed by attorney Ofer Shoval of the Tel Aviv District Attorney’s Office, the state requested that the claim be rejected outright, since section 5B of the Civil Damages Law exempts the state from liability for damage caused to an enemy national or to a person who resides “Enemy territory”, a declaration that was made about four months before the alleged incident. The state further argued that in the Mustafa Dirani case, the Supreme Court adopted the rule from the common law that “the demand of an enemy is not examined” until hostilities cease.

In his response to the request, the plaintiff argued that the exception in section 5B of the law is unconstitutional and should be annulled, as the High Court of Justice ruled in 2006 that another exception set out in section 5C of that law – according to which the state is not liable in tort for damage caused in a zone of conflict – is unconstitutional and void. That section 5B is racist because it applies only to Palestinians, a claim that the court rejected by stating that it is “provocative and shameful” and that it is better not to argue.

Justice Friedlander noted in the judgment that he tends to determine that the Basic Law: Human Dignity and Liberty does not apply to enemy territory and does not grant enemy subjects constitutional rights. However, since the Supreme Court did not rule, it examined the constitutional violation of the Civil Damages Law in the Basic Law And determined that it is proportionate and meets the conditions of the limitation clause.

The Court also examined the reservation of “enemy territory” found in section 5b of the “zone of conflict” clause in section 5C and was disqualified by the Supreme Court, and held that there was no area under belligerent occupation as an “enemy territory” (like Gaza which is controlled by Hamas). The assumption is that the army acts as a police force, and its actions against the local population are not acts of war. On the other hand, in enemy territory, the sovereign is the enemy and it is strong that any action taken there is a war action.

Justice Friedlander ruled that damages allegedly caused to an enemy national and to a resident of an enemy territory are not suitable for clarification in tort claims. The presumption of such damages not caused by quasi-civil conduct, as a context of belligerent occupation, but in wartime actions. Their individual appearance as part of a civil legal process, including the question of whether they took part in hostilities, is likely to encounter structural problems and involve disproportionate costs.

He noted that, to the extent that there is an enemy subject that is not an enemy, who is injured by a criminal and severe criminal act of a soldier, and there is a legal possibility of compensating him without falling into any of the legal traps that involve the investigation of a tort claim by an enemy national for military action, more to compensate him in some way, without sheltering behind the restrictions.

The judge added that a sweeping rule of expropriation of the tortious cause is preferable, while at the same time there is an administrative channel that will allow for administrative compensation in appropriate and exceptional cases of “clear knowledge of a war crime” in which there is a violation of international humanitarian law.

(YWN Israel Desk – Jerusalem)