Israel’s Civil Wrongs (Responsibility of the State) Law is the paramount law for obtaining compensation for civil torts in Israeli courts. The principle tenet of the Civil Wrongs Law is that ‘the state is not civilly liable for injury sustained by a subject of a state that is an enemy, or to a person who is active in a terrorist organization, or to a person who was injured at a time that he was acting as an agent of such organization, or on its behalf, except for [certain limited exceptions]’. The law was adopted by the Knesset in 1952 and since then has been amended eight times. Click here for an English translation of the 1952 Law including the 7th amendment. Taken together, the amendments have steadily expanded the circumstances in which the State will not be liable for its actions while at the same restricting, by procedural and other requirements, the circumstances in which compensation claims can be brought.
In 2005 the 7th Amendment of the Civil Wrongs Law became the subject of a petition for nullification by a group of Palestinian and Israeli Human Rights organizations, for precluding in a sweeping manner virtually any possibility of being awarded compensation for serious human rights violations. Its Section 5C provided that the state was not civilly liable for acts performed by security forces either through wartime action or in a conflict zone. The Israeli minister of defense was competent to indicate a conflict zone, even retroactively.
The Israeli High Court found in favor of the petitioners, holding that:
Section 5C of the Torts (State Liability) Law, which was introduced by the 2005 amendment, is unconstitutional. It releases the state from liability for tortious acts that are in no way related to ‘combatant activities’ no matter how broadly the term is defined. The proper approach is to consider each claim on a case by case basis, in order to determine whether the damage is the result of combatant activities or not.
(See Adalah et al v. Minister of Defense et al HCJ 8276/05 – under Cases in this section)
In 2007 HaMoked Centre for the Defense of the Individual published a ‘Position Paper‘ drawing attention to a Memorandum proposing an 8th amendment. HaMoked claimed that the intended amendment was merely an attempt to reinstate the very provision that was ruled to be unconstitutional in the 7th amendment, only worded differently. Indeed they saw it as an attempt ‘to pass a law in the Knesset whose illegality is conspicuous on its face, in order to stage a frontal challenge of the Supreme Court’s authority’. The amendment applies retroactively to injuries caused since 2000 and prevents residents of the Occupied Territories from filing tort claims against the State even in cases in which damage was incurred irrespective of acts of war.
The 8th amendment was adopted in 2012. The Al-Mezan Centre for Human Rights published a condemnation of this amendment for further reducing the alredy minimal chance for Palestinians to seek civil reparations in Israeli courts. In particular, the Section 1 definition of ‘Wartime Action” has been changed to remove the requirement of ‘danger to life and limb’ of IDF personnel. Instead, wartime action may be defined in terms of the nature, purpose or location of the action, or by present danger to the Israeli forces. Section 5a, as amended, exempts Israel from compensating persons who are non-residents of Israel or residents of ‘enemy entities’ for damages caused by IDF operations. The Gaza Strip having frequently been declared an ‘enemy entity’, this amendment provides sufficient grounds for any court to dismiss all torts cases filed by Palestinian residents of Gaza. The amendments apply retroactively to all cases from 12 May 2005, which means that cases that are pending within the Israeli justice system can be dismissed.