No Longer Willing to Foot the Bill for War Crimes and Negligence
The youngest among the dead was two-month old Dina Mattar. Eight other children and six adults died that night, 22 July 2002, along with Dina. Around 140 people were left maimed or injured. There was no warning except maybe for the sound of the F-16 flying over their apartment building but who among the dead and injured would have guessed at that time that the F-16 was coming to drop a one-ton bomb in their densely populated neighborhood in Gaza City? The Israeli “operation” to take out one man,
In rare form, the international community was quick to condemn Israel. The UN Secretary General stated that "Israel has the legal and moral responsibility to take all measures to avoid the loss of innocent life; it clearly failed to do so in using a missile against an apartment building."(1) The UN High Commissioner for Human Rights described the Israeli action as the “reckless killing of civilians” and noted that such is absolutely prohibited under international human rights and humanitarian law.(2) Avoiding any reference to legal obligations existing under international law, Israeli Foreign Minister Shimon Peres described the bombing as “a mistake” and regrettable.(3) Other Israeli government officials stated that the dropping of the bomb in suc4h a densely populated part of Gaza City was the result of an intelligence failure.(4)
Whether one characterizes the Israeli atrocity in Gaza City as a violation of human rights and humanitarian law, i.e., a war crime, or as ne gligence on the part of Israeli military intelligence, under international law compensation is owed to the victims and the families of the victims of the Israeli attack. Today, some Israeli government officials including the Minister of Defense would like to turn international law on its head however. They argue that the state of Israel can no longer foot the bill for its war crimes and negligence as the list of those Palestinians who would be entitled to compensation has grown astronomically since the start of the al-Aqsa Intifada in 2000. These government officials have submitted a bill in the Knesset that would deny Palestinian residents of the occupied Palestinian territories (“OPT”) compensation for all negligent acts and omissions including war crimes committed by Israeli occupation forces and other agents of the state of Israel in the OPT. If passed, the bill will have retroactive effect and will be applicable to all incidents occurring since 29 September 2000, the start of the second Palestinian uprising, in cases where witnesses have not yet offered testimony in Israeli courts.
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Israel Erects a Fence to Stop Visits to Palestinian Refugee Village of Miska The Israel Lands Administration (ILA) closed the school in the depopulated Palestinian village of Miska with a locked gate and fence on 15 June 2005. The ILA took the action after refugees from Miska began visiting the school which is the only standing remnant of their village. Refugees had even used the old school to stage a play called 'Memory' by Salman Natour, a work that deals with the memory of the Palestinian Nakba. When a journalist asked the ILA spokesperson to explain the extreme action, she responded that “inspectors of the ILA and Green Patrol noticed that there was an infiltration. The trespassers were not found and some of the equipment was removed. The supervisors closed the structure to prevent future trespassing.” The Palestinian inhabitants of Miska were expelled by units of the Alexandroni Brigade in April 1948 as part of a plan to clear out all Palestinian communities from the coastal area between Tel Aviv and Zikhron Ya'aqov south of Haifa before 15 May when the British Mandate came to an end and Israel unilaterally declared its establishment. The Jewish National Fund began to destroy the village in June 1948. In the upside world we are living in, observed Zochrot, an Israeli Jewish organization dedicated to raising awareness about the Nakba and Palestinian refugees, the residents born in this land become 'trespassers' and those who trespass their rights are 'inspectors'. For more information visit, www.zochrot.org. |
Only in 2002, the Israeli Knesset passed an amendment to its tort law which erected a number of legal barriers for Palestinians from the West Bank and Gaza Strip to obtaining compensation for the unlawful actions of Israeli soldiers. Prior to the 2002 Amendment, Israel’s tort law provided that the state of Israel and its agents may not be held civilly liable for injuries, deaths, or property damage occurring during “wartime actions.”(5) The 2002 Amendment expanded the definition of “wartime action” to include any action intended to “combat terror.” Virtually any Israeli military action occurring in the OPT could be considered aimed at combating terror by Israeli courts. Given the deference that Israeli courts have shown the military when the military has claimed that it was acting for “security reasons,” the likelihood of Palestinian victims of Israeli human rights abuses convincing an Israeli judge that an act of the Israeli military did not fall within the ambit of “combating terror” is very low. In addition to the expansion of the definition of “wartime action,” the 2002 Amendment created a number of procedural and evidentiary burdens that made it more difficult for Palestinians to successfully pursue a claim for compensation in Israeli courts.(6)
The latest amendment to Israel’s tort law proposed this year by the Minister of Defense and others goes even further by closing the door completely on compensation for human rights violations and negligent acts and omissions committed by the Israeli military and public officials against Palestinian civilians in the OPT. The proposed amendment provides that the state may not be held civilly liable for any injury it causes to a subject of an enemy state or to a person active in a terrorist organization. It also provides that the state may not be held civilly liable for any injury to a resident of a “conflict zone.”(7) Under the proposed amendment, the Minister of Defense has the sole discretion in determining which areas are deemed zones of conflict.
The idea behind the bill is that in a war situation each side should be responsible for damages and injuries to their own population regardless of who caused the damage or injuries. Thus, under this rationale, when Israel dropped the one-ton bomb in the densely populated neighborhood in Gaza City, the Palestinian Authority would be expected to pay compensation to the 140 Palestinian men, women and children who were maimed and injured and to the families of the 15 person who were killed in the attack. The Palestinian Authority would also be required to pay for the rebuilding of the destroyed apartment buildings and compensate families for any lost property.
| Israeli exceptionalism threatens the credibility of international legal institutions and the stature of international law. Victims of negligence and war crimes at the hands of the Israeli military and other public officials not only deserve their day in court, they are, under international law, entitled to it. |
Of course, the new amendment to Israel’s tort law is absolutely contrary to international law and the laws of all civilized nations. In fact, Article 3 of the Hague Convention of 1907 provides that a belligerent party is liable to pay compensation for its acts violating the laws of war involving any persons forming part of that party’s armed forces. Article 29 of the Fourth Geneva Convention of 1949 also guarantees the right to reparation. Various other international human rights and humanitarian instruments set out that the right to an effective legal remedy is a human right.(8) Ironically enough, Israel has been one of the strongest proponents of seeking compensation for victims of war crimes from perpetrators of those crimes. For years, Israeli practice has been to hold the Palestinian Authority accountable in Israeli courts for deaths and injuries to Israeli citizens committed by Palestinian militants. Israel has been able to secure millions of dollars of compensation to its citizens by seizing tax revenue belonging to the Palestinian Authority.
The new proposed amendment also infringes Israel’s Basic Law on Human Dignity and Liberty since it blocks civil actions based solely on the nationality of the plaintiff and his/her place of residence rather than on the quality of his/her claim. The discriminatory intent and effect is most apparent when one considers that under the proposed amendment Israeli settlers residing in the West Bank or the Gaza Strip are excluded from the legislation’s reach. This is because the proposed amendment would apply only to “enemies” of Israel. Thus, for example, if a stray bullet from Israeli occupation forces in the West Bank hit an innocent civilian, the determining factor on whether the injured would be able to obtain compensation from the State of Israel would depend on his/her nationality.
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No One is Illegal – Week-long March for Refugee Rights in Canada After years of fighting for status and struggling against unjust detention and deportation practices, self-organized committees of immigrants and refugees, and their allies, united on a campaign called Solidarity Across Borders. On 18 June 2005 they began a week-long trek, walking from Montreal to Ottawa, to force the Canadian Minister of Citizenship and Immigration to realize the urgency of their demands. The four basic demands of the Solidarity Across Borders network are: the regularization of all non-status people in Canada; an end to deportations; an end to detentions; and the abolition of security certificates. Lack of status, deportations, detentions, and security certificates all contribute to making migrants vulnerable to exploitation, poverty, insecurity and indignities that no one should suffer. In the current political context, as Canada rushes to harmonize its border policies with the United States and create a unified "Fortress North America" in the context of the so-called "war on terror", the situation of immigrants and refugees is worsening. Every day, thousands of migrants and their families struggle against the uncertainties created by the racist and anti-poor processes of criminalization carried out by Immigration Canada. They are forced underground; threatened with detention or with deportation to often desperate situations; and subjected to discriminatory legal standards which fall far short even of international human rights standards. The migrants leading the march are simply demanding their basic rights to a secure life, dignity and a future. For more information see, www.solidarityacrossborders.org. For more on the situation of refugees, including Palestinian refugees, in Canada see, 'Canada Wages War on Refugees: Palestinian Refugees Fight Back,” Majdal 23. |
Besides being against international law, Israeli practice and constitutional principles, the law defies logic and creates a disincentive for the stronger party in a conflict to refrain from indiscriminately bombing the weaker side and causing unnecessary loss of life and destruction of property.
Israeli law professors and legal scholars have been vocal in their opposition to the proposed amendment. During discussion of the bill before the Knesset Constitution and Law Committee on June 15, 2005, virtually all those members of the public present arguing against passage of the bill agreed that it is discriminatory, contrary to democratic values, and violative of constitutional principles contained in Israel’s Basic Laws. Some also argued that it shows a lack of confidence in the Israeli judiciary’s ability to adjudicate compensation cases from the OPT. None of the legal scholars present could think of any other country in the world that had enacted a comparable exception to their tort law.
While the nations of the world continue to tiptoe around the Israel-Palestine conflict afraid to disturb the possibility of a final agreement being reached sometime soon, Palestinian homes continue to be bulldozed, land continues to be expropriated, settlements continue to grow, the Separation Wall continues to be built within the occupied territories contrary to the decision of the International Court of Justice, and Palestinians continue to be injured and killed by Israeli occupation forces. And now, if this new Israeli bill passes, those Palestinians who have suffered at the hands of the Israeli military, which stands today mainly to defend its illegal occupation, will be denied their international right to compensation for their injuries. Since international forums have not been willing to take up the claims of Palestinian victims of Israeli human rights abuses, the amendment leaves Palestinians inside the OPT without any effective legal redress for their injuries.
The international community and persons of conscience must not let this latest example of Israel trying to except itself from the norms of international law go unnoticed. Israeli exceptionalism threatens the credibility of international legal institutions and the stature of international law. Victims of negligence and war crimes at the hands of the Israeli military and other public officials not only deserve their day in court, they are, under international law, entitled to it.
Zaha Hassan is a human rights lawyer and co-chair of the US Campaign to End the Israeli Occupation based in Washington, D.C. (www.endtheoccupation.org). She currently resides in the San Francisco Bay Area. Zaha Hassan may be reached at [email protected].
Hussein Abu Hussein is an Israeli human rights lawyer, authorm and chair of Ittijah, Union of Arab Community Based Organizations in Israel. He resides in Um Al Fahm, Israel. Hussein Abu Hussein may be reached at [email protected].
Endnotes
(1) BBC News World
Edition Online, World Condemns Gaza Attack, 23 July 2002, available
at http://news.bbc.co.uk/2/hi/middle_east/2146604.stm.
(2) Ibid.
(3) BBC News World
Edition Online, Peres Regrets Gaza Bombing Mistake, 24 July 2002
http://news.bbc.co.uk/2/hi/middle_east/2148548.stm.
(4) Ibid.
(5) Torts Law (State
Liability) 5712-1952, Sefer HaChukim 5712 (1952), p. 339.
(6) These burdens
included a shortening of the limitations period and disallowing
presumptions favoring the Plaintiff such as that represented in the
legal doctrine of res ipsa loquitor.
(7) For an English
translation of the Knesset bill see, HaMoked: Center for the
Defense of the Individual website:
www.hamoked.org.il/items/7601_eng.pdf.
(8) See, e.g., Article
8 of the Universal Declaration of Human Rights: “Everyone has the
right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him by the
constitution or by law”; Article 2(3) of the International Covenant
on Civil and Political Rights of 1966: “Each state party to the
present convention undertakes—(a) to ensure that any person whose
rights or freedoms as herein recognized are violated shall have an
effective remedy notwithstanding that the violation has been
committed by persons acting in an official capacity”; Article 6 of
the International Covenant on the Elimination of All Forms of
Racial Discrimination of 1965: “States parties shall assure to
everyone within their jurisdiction…the right to seek from such
tribunals just and adequate reparation or satisfaction for any
damage suffered…”