Legislation would bar most Palestinians from suing state.
By DAN IZENBERGsinai deutch 224.88(photo credit: Courtesy)
Prof. Sinai Deutch of the Netanya Academic College on Wednesday blasted human rights organizations who criticized the justice minister for drafting legislation essentially barring Palestinians from suing the state for damages caused by security forces since the beginning of the second intifada.
The Knesset passed the bill in first reading on Tuesday, even though a panel of nine High Court justices unanimously declared a similar law unconstitutional after the legislature approved it in final reading on July 27, 2005.
Nine NGOs petitioned the High Court of Justice against the 2005 law, charging that it violated international law and Israeli constitutional law. On December 12, 2006, the court upheld the petition, ruling that the law did not differentiate between Palestinian injuries suffered during acts of warfare between the IDF and terrorists and those sustained by civilians in the conflict zone who had nothing to do with war operations.
Two months after the court rejected the law, Prime Minister Ehud Olmert appointed Daniel Friedmann as justice minister. On June 4, 2007, Friedmann ordered ministry attorneys to prepare a new bill after the Ministerial Legislation Committee rejected a private members' bill submitted by Likud MK Michael Eitan to re-instate the government's rejected legislation.
During that meeting, Friedmann said the High Court decision had caused harm to the state and that the law that the court rejected had been carefully worded by the attorney-general and the State Attorney's Office in a way that was "more than proportional." He said there weren't many examples of a nation paying damages to another while they were at war.
The new bill changes the definition of "an act of warfare" to absolve the state from paying damages to Palestinians killed or wounded by soldiers even when the lives of the soldiers were not threatened. According to the current law, an act of war is defined as "any action involving fighting against terrorism, acts of belligerency or uprising, as well as any action to prevent terrorism, acts of belligerency or uprising in circumstances that threaten [the soldier's] life or limb."
The new legislation deletes the words "in circumstances that threaten life or limb."
According to another proposed amendment to the current law, as long as the defense minister declares in writing that at a specific time and a specific area of the territories acts of warfare were taking place, the presumption will be that anyone killed or wounded in that area and at that time by the IDF was harmed as a result of an act of warfare.
The burden of proof would be on the plaintiff to prove that the injury he suffered was not sustained in an act of warfare.
The bill would be effective retroactively to the beginning of the second intifada in late 2000. Any lawsuit filed since then that has not reached the stage in court of hearing testimony by witnesses would be nullified.
The Association for Civil Rights in Israel wrote, "There is no escape from saying this at the outset: This bill is revolting. Why does the state wish to overturn the High Court ruling? Is the aim to grant the executive and the security forces a status above the law and free them from the scrutiny of the courts and responsibility for their actions, or is the aim to take an antagonistic approach to the [High] Court, provoke it and challenge its authority? Neither aim contradicts the other. What they share is that both block judicial review of violations of human rights perpetrated by the government."
