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Sever Plocker

Intifada law controversy

Did High Court overstep its authority with compensation ruling?

Published: 12.13.06, 22:10 / Israel Opinion

The Israeli Supreme Court, in its capacity as the High Court of Justice, decided to overturn the so called "Intifada law" that prevented Palestinian residents living in the Territories from demanding compensation from the Israeli government for damages incurred during IDF operations there.

The ruling, which was passed unanimously by a panel of nine judges, sparked controversy in both left and right wing camps and once again brought to light the relationship between the State's legislature legislative and judiciary systems.

High Court's Decision

PA residents eligible for compensation / Aviram Zino

Court partially approves petition filed by nine human rights groups demanding cancellation of legislation that prevents Palestinians from claiming compensation from Israel following IDF operations in Authority; judges reject eligibility for compensation to citizens of enemy states, terrorists

Full Story

Despite the controversy, the practical significance of the ruling is very limited; it has no far-reaching security or legal implications and only applies to isolated cases. The state of the majority of Palestinians after the High Court ruling will be no different to what it was before the ruling.

What it's all about?

What is the ruling really about? Let's say an IDF tank hit a Palestinian pedestrian on a street in Jenin outside of any military context, but rather, because the tank driver lost control of the vehicle or because the tank driver acted against explicit IDF orders. Even according to existing legislation, the pedestrian could have sued the State for damages, although the complainant would have had to exhibit proof.

Alternately, when IDF forces accidentally killed Palestinians in the shelling of Beit Hanoun - the victims had no cause to sue the State for damages, as the incident occurred within the context of the military operation.

So what has changed after the High Court ruling? In a number of incidents within the "grey area," which cannot be clearly defined as falling within the context of the war on terror, residents of the Palestinian territories can now petition the Israeli court for damages – and hope that the court will be convinced that the damages were in fact inflicted in a non-combatant context, or in defiance of explicit IDF orders.

The right to sue for such damages was prevented in one of the "Intifada law" clauses, and this overwhelming preclusion was unnecessary to begin with.

After all, no court of law would have granted damages to a person whose house was destroyed during "Operation Defensive Shield" for example, or to a person whose vehicle was damaged in the pursuit of a terror cell. An iron rule of warfare is that compensation is not made for damages incurred during wartime.

Despite more than 550 Palestinians who have sued for damages against the State of Israel, the amendment by the High Court will not create a surge of rulings in their favor and will not obligate the State to pay hundreds of millions of shekels.

It is reasonable to assume that the lion's share of the claims will be rejected even now, just as they would have been by the High Court's recent ruling: The only difference may be in arguing the nature of the rejection. The isolated cases that will be approved would probably have warranted the court's attentive ear due to humanitarian reasons anyway.

The meagerness of the High Court's practical solution only sharpens the question of whether the High Court ruling didn’t overstep its authority as a ruling body, and whether it opted to clash with the Knesset to prove its superiority in the name of lofty legal principles.

Because instead of a ruling that challenges the Knesset and partially annuls its legislation, the High Court could have sufficed with an appeal to the Ministry of Justice to quickly amend the existing law - an amendment that would not have affected in any way Israel's right to conduct its war against terror in the Territories.

Even the High Court can sometimes be expected to demonstrate restraint, which is an indication of power rather than weakness, and which has the power to establish the rule of law in Israel more so than controversial rulings that only add fuel to the fire.

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