New law would bar Palestinians from claiming compensation from Israel
Palestine, Analysis, 9/26/1997

It was one of those days of tight closure which Israel imposed on the Occupied Territories and on the Palestinian National Authority areas after the violent clashes that broke out in September 1996 following Israel's decision to open the tunnel underneath the Al Aqsa Mosque in the Old City of Jerusalem. Movement not only between Israel and the PNA areas or the Occupied Territories was banned but also within the Palestinian areas themselves. During that day, the family of Mohammed Sarahin from the village of Beit Ula near Hebron on the West Bank rushed their way to Hadassah Hospital in West Jerusalem to treat their two year old child, who was born with leukemia.

Abiding by instructions of their Israeli doctor, the family decided to rush the child to hospital soon after they noticed he had a fever. Their supposedly one-hour trip to Jerusalem lasted more than three hours when soldiers manning the roadblocks down the road between Hebron and Jerusalem delayed their vehicle for at least two hours. In vain, the man tried to explain to soldiers how important the time factor was for him. It did not help and the child was declared dead upon arrival to the hospital.

Yet, as if the tragedy of the Sarahin family was not enough, Israel introduced a few months ago a new law that was adopted by the Israeli government and is currently awaiting ratification by the Israeli Knesset in the third and last reading after it had already been passed in the first and second readings. The law bans thousands of Palestinians, and the Sarahin family among them, from filing compensation suits with the Israeli courts of law for damage or injuries caused to them by the Israeli troops. Once the bill is passed by the Israeli Knesset, the only means left for the Palestinians to fight is the Israeli High Court, which will have to decide whether introducing the bill is constitutional and acceptable from a legal point of view.

For Palestinians in general, the question of compensation for losses inflicted by the Israeli army is not a question of financial support to families. They see in it a means to extract from Israel admission of responsibility for injustice it has caused them throughout the years of the military occupation since June 1967 in general and since the outbreak of the Palestinian uprising against Israel in December 1987 in particular. The new law was introduced mainly to deny Palestinians killed or wounded during the intifada, Arabic for uprising, access to Israeli courts where they would claim compensation for their casualties.
On the other hand, Israel seems to be very adamant about not allowing Palestinians the right to demand compensation for the intifada period, out of fear of setting a legal precedent that would give chance to thousands of Palestinians evicted from their homeland in 1948 to demand compensation too, though their right to compensation, or to return, had been repeatedly affirmed by various United Nations resolutions.

In so doing, the Israeli government insists on considering Palestinians killed or injured in the course of the Palestinian intifada as victims of acts of war, who are not eligible for compensation. Yet, it does not recognize the status of Palestinians who fought the Israeli army as prisoners of war. That is why Israel so far keeps thousands of Palestinian prisoners in its own jails and has failed to release them even though it signed the interim peace accords with the Palestine Liberation Organization.

During the deliberations that accompanied the preparations for this law in the former Israeli government under Yitzhak Rabin, the ex-prime minister, his attorney general Michael Ben Yair and his minister of justice, David Libai, were searching for a formula that would bypass the Israeli law and find legal foundations for denying the Palestinians their right to demand compensation. Rabin was furious at the figures presented to him by both the defence ministry and the attorney general's office about thousands of compensation claims filed by Palestinians. His assassination did not bring the issue to an end, and Shimon Peres who took over after Rabin sounded more ruthless and wanted to go ahead with the planned bill faster than before.

"It is not a legal question but a political-national one," Peres told Ben Yair during one of those deliberations. "In my capacity as the head of the political echelon, I can tell you it is inconceivable for us to pay compensation for an intifada that was imposed on us. They revolted against us to uproot the state. There hasn't been a nation in the world that had paid compensation under such circumstances and there is no reason for us to do otherwise," said Peres. He added that Israel has not demanded compensation from the Palestinians for those Israelis who were killed or wounded during acts of hostilities between the two sides and would expect the Palestinians to follow suit. "What about our killed and wounded? Who is going to repatriate them? Should reciprocity be applied, I would be ready to consider paying compensation, otherwise, each party should bear its own responsibilities," said Peres.

Then Minister of Finance Abraham Shohat approved of what Peres said and even added that there were no grounds whatsoever for Israel to repatriate Palestinian victims of the uprising once the authority in the territories has been handed over to the PNA, which has become responsible for the Palestinians who live in the areas vacated by the Israeli troops. Said Shohat: "The intifada was part of the armed struggle that the PLO had launched against Israel and therefore, whoever had suffered damage, even by accidental means, is exactly like whoever suffers damage in a state of war."

But Peres and Shohat have seemingly forgotten the fact that Israeli troops which conquered the West Bank and the Gaza Strip had done so by means of military power and were not invited by the Palestinians to do so. In other words the Israeli troops were the occupiers. No occupier has proved it was eligible to be repatriated for casualties it suffered in the course of occupying the land of another nation.

The debate that followed the presentation of the bill had involved legal, moral and ethical arguments not only among the Palestinians but also among a number of Israeli bodies that advocate human and civil rights. Professor Uriel Proccacia, dean of the faculty of law at the Hebrew University in West Jerusalem, openly admits the new bill is "unconstitutional, corrupt and lacks any substance." He said the bill uses "deceptive techniques where it does not say that the state can shoot Palestinians but it still avoids claiming responsibility once the shooting is done and Palestinians are either killed or wounded." Eitan Felner, executive director of B'tzelem, an Israeli organization that monitors human rights violations by Israel in the Occupied Territories, said the bill "is one of the greatest injustices done in 30 years of occupation." He added the bill is a flagrant attempt by Israel to escape responsibility for its killing and injuring of Palestinians and that it forms an obstacle on the road to achieve coexistence between the Palestinian people and the Israelis.

The new bill expands, in a very artificial way, the definition of "combatant activity" and exempts the Israeli government from liability for the vast majority of the activities of the Israeli army and its various security branches in the Occupied Territories. It gives only one exception to this exemption: when an Israeli soldier, or any other security man, was convicted of "intentional infliction of the injury that was the subject of the claim." Therefore, the failure to indict, in the past and in the future, Israeli soldiers or others will of course exempt the Israeli authorities from paying compensation.

The draft law enables the Israeli courts to deny an injured party, convicted in the past of "committing a serious act of terror" the right to compensation, even if there is no connection between the conviction and the injury that is the basis of the claim. In other words, Israel is introducing a law which leaves room to punish a person twice for the same act, something that contradicts the basis principles of penalty law.

In proposing the bill, the Israeli government seeks to place the burden of proof always on the plaintiff, even where the facts are not at his disposal, such as the type of weapons fired, or the directives given to the soldiers that fired. The bill as such offers a negative incentive to the Israeli army and makes negligent investigations expedient, because without the detailed findings of an investigation, the facts will not be available to the plaintiff.

Advocate Hala Khoury of the Center for the Defence of the Individual in East Jerusalem said the most serious part of the bill is the fact that it gives moral support for the Israeli soldiers who would feel free to open fire at Palestinians without the fear of being indicted as long as the compensation principle is denied by the Israeli government from the beginning. Said Hala Khoury: "It is near impossible for the Palestinian plaintiff to provide evidence to the Israeli court that he was shot by Israeli soldiers because all data relevant to operational activities of the Israeli army is kept with the Israeli military command where nobody can be sure that the daily log of events would include details of that specific shooting incident in which the plaintiff was wounded."

Besides, she said, how would the Palestinian plaintiff provide ballistic evidence when it is totally inconceivable to suggest that the Israeli army would be ready to hand over weapons of its own soldiers to the PNA for ballistic tests to establish whether the plaintiff was wounded by those soldiers or not. Moreover, she went on, the daily log of operational activities, if obtained by the Palestinians (and this is very rare in itself), would be first subject to military censorship where names of operatives are deleted and who knows, perhaps some information that might end up being vital for the investigation is also omitted, deliberately on unintentionally, thus derailing the investigation.

The bill limits the period of time in which a suit for damages must be filed to one year, instead of the seven years under the existing law. Because of the extensive duration of investigations and the delay in submitting the conclusions to the attorneys of the plaintiffs, filing of claims would become extremely difficult, if not impossible. Besides, legal proceedings against the relevant soldier are almost never concluded within a year. The result is clear: a long delay in the investigation or prosecution exempts the Israeli authorities from liability.

The law stipulates that a person whose degree of permanent medical disability does not exceed ten percent is not entitled to compensation. The compensation available to a person whose degree of permanent medical disability exceeds ten percent shall be based on the average salary in the area of the residence of the injured person, and thus will be significantly lower than that available today in Israel where compensation is based on actual figures. The average income of a Palestinian in the Occupied Territories or in the PNA areas is no more than US $300, while in Israel it is over US $1,500. Therefore, for the sake of simple calculation, a twenty year old Palestinian youth whose medical disability is confirmed one hundred percent is eligible for payment of one percent of the average income for each percent of his disability multiplied by the number of months until he is 65 years old. Applying the same rule to Israelis, a huge difference can be seen in which the Palestinian receives a sum of US$162,000 while an Israeli who goes through similar circumstances receives a sum of US $810,000. Moreover, if the Palestinian plaintiff is a talented person who earns far more than the average income in the PNA, he would still be paid based on the average income regardless of what his salary is. A surgeon who makes for instance some US $10,000 a month and is shot and maimed in the hand and his disability is confirmed would be paid as if his monthly income does not exceed the US $300 average as noted.

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