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G.J. Bachar; Access Denied – Using Procedure to Restrict Tort Litigation: The Israeli-Palestinian Experience, Chicago-Kent Law Review, Vol. 92 (3)





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Since the beginning of Israel’s occupation of the Palestinian Territories, Palestinians have been allowed to petition Israel’s courts to challenge actions of the military regime. However, this legal venue has been restricted over the years, importantly by amending Israel’s Civil Wrongs (Liability of the State) Law, 5712-1952 which exempts Israel’s liability for acts performed through “Combat Action,” – a term which has been significantly expanded in time.[1] Moreover, since the early 2000s, Israel has used a host of procedural barriers limiting Palestinians ability to bring civil lawsuits to Israeli courts. In this article, these barriers are divided into three main categories: financial (conditioning litigation upon the provision of a bond that secures payment of litigation expenses to the State should it prevail), physical (bringing a claim requires entrance into Israel while Israel routinely denies Palestinians a permit to do so), and time/space-related (reducing the statute of limitations period on Claims and adjudicating claims in courts that are unsympathetic towards Palestinian plaintiffs). Collected data show that this has resulted in a steadily decline of the number of Palestinian claims.

The author explains that these procedural restrictions constitute threefold breaches of the Palestinians’ right to access to civil justice. Firstly, the most obvious infringement concerns the denial of the right to compensation –a property right- afforded by the law of torts. But the author stresses that the full impact of these procedural restrictions stretches further. The barriers are also discriminating towards the Palestinians as a group, which infringes on their human dignity enshrined in Israel’s Basic Law and that has been understood to include a right not to suffer discrimination. Lastly, restricting access to the civil courts prvents Palestinians from benefitting from the wider goals they serve: beyond enabling violations to be recognized and redressed, civil courts are a venue for vindicating rights of action, and for compelling transparency and accountability.

[1] For the 8th amendment of the Civil Wrongs (Liability of the State) Law, 5712 (1952) with Amendments of 2012 click here. More on this issue can be found here and here.

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