In 2005 an amendment was made to the Law of Civil Wrongs (torts) with regard to the liability of the State of Israel arising from the activities of its security forces in the territories of Judaea, Samaria and the Gaza Strip. Section 5C which was introduced by the amendment, increased the scope of the state’s exemption from liability, which was previously limited to combatant activities, to any activity (subject to some exceptions) taking place in a ‘conflict zone’. The Minister of Defense was authorized to determine which areas would constitute ‘conflict zones’ and to do so retroactively. He exercised this power on a large-scale basis. The petitioners attacked the constitutionality of this amendment.

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In this decision the High Court of Justice ruled 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.

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