Practice Relating to Rule 150. Reparation
In its judgment in the Beit Sourik Village Council case in 2004, Israel’s High Court of Justice stated:
32. Petitioners’ second argument is that the construction of the Fence in the area is based, in large part, on the seizure of land privately owned by local inhabitants, that this seizure is illegal, and that therefore the military commander’s authority has no[t] to construct the obstacle … our opinion is that the military commander is authorized – by the international law applicable to an area under belligerent occupation – to take possession of land, if this is necessary for the needs of the army. See articles 23(g) and 52 of the Hague Convention; article 53 of the Fourth Geneva Convention. He must, of course, provide compensation for his use of the land.
83. During the hearings, we asked respondent whether it would be possible to compensate petitioners by offering them other lands in exchange for the lands that were taken to build the Fence and the lands that they will be separated from. We did not receive a satisfactory answer. This petition concerns farmers that make their living from the land. Taking petitioners’ lands obligates the respondent, under the circumstances, to attempt to find other lands in exchange for the lands taken from the petitioners. Monetary compensation may only be offered if there are no substitute lands.
In its decision in the State of Israel v. Mustafa Dirani case in 2005, the District Court of Tel Aviv stated:
43. Plaintiff’s counsel argues in his brief that international conventions to which Israel is party require that monetary compensation be paid for violation of fundamental rights, in general, and torture during interrogation, in particular. For example, article 3 of the Hague Regulations of 1907, attached to the Hague Convention on the Laws and Customs of War on Land of 1907, states: “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” Article 23(h) of the Hague Regulations prohibits parties to the Convention “to declare abolished, suspended or inadmissible in a court of law the rights and actions of nationals of the hostile party.”
A similar provision appears in article 91 of the First Protocol Additional to the Geneva Conventions, of 1977, which relates to the Fourth Geneva Convention of 1949 (which was ratified by Israel in 1951), while article 3(1) and articles 27 and 31 of the said Convention prohibit acts of violence and torture against enemy personnel. Article 75(2) of the First Protocol prohibits torture and outrages upon personal dignity (regarding the illegality of torture used during interrogation, see HCJ 5100/04, The Public Committee Against Torture v. Government of Israel, P. D. 53 (4) 817).
Article 8 of the Universal Declaration of Human Rights, of 1948, which prohibits, in article 5, torture and cruel, inhuman, and degrading treatment, states: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitute or by law” (see Y. Dinstein, Non-State International Law (1979) 196–197). The Universal Declaration, supra, is recognized in Israel as part of binding customary law (see HCJ 103/67, The American-European Beth-El Mission v. Minister of Welfare, P. D. 21 (2) 325, 333).
The prohibition on torture appears also in article 7 of the International Covenant on Civil and Political rights, of 1966, which was ratified by Israel (31 Treaty Instruments 1040, p. 169), and is also recognized in Israel as part of international customary law (see HCJ 103/67, The American-European Beth-El Mission, supra, 325). Article 3 of the Covenant states:
Each State Party to the present Covenant 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;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities… and to develop the possibilities of judicial remedy.
(c) To ensure that the competent authorities shall enforce such remedies when granted.
The UN Human Rights Committee stated, in section 16 of its report of 29 April 2004 regarding the obligation of states to provide a remedy where rights protected in the Covenant on Civil and Political Rights are violated, that the states must grant suitable compensation and also must prosecute the persons responsible for violation of the rights. However, section 10 of the Committee’s report indicates that the aforesaid right of states who are party to the Covenant is limited to persons found in the jurisdiction of the state, or in areas under the state’s effective control, which is not the situation in our case. Section 10 states:
States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party even if not situated within the territory of the State Party. As indicated in General comment 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power of effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.
44. As stated by Dinstein in his treatise Laws of War (at p. 267): “The principle of compensation may be viewed as relating to breach of any of the laws of war.” However, Prof. Dinstein also states in this context (at p. 268): “In practice, it is necessary, however, to take into account that so long as war is being conducted, there is no practical opportunity to investigate international monetary claims between the hostile sides.” In other words, the conventions state the right of a person injured by enemy forces to sue for compensation for violation of his rights protected in a convention, but this does not mean that he may do so prior to the end of the state of war.
Furthermore, not all the provisions of international law specified above necessarily reflect international customary law. With respect to those that reflect international customary law, they cannot prevail over Israel[i] domestic law. Israel is obliged, in accord with the conventions to which it is party, to enable a person whose protected rights are violated to sue for compensation for their violation. However, this right is not available to a resident of an enemy state if, under Israeli domestic law, he is denied that right. In addition, as stated above, international law itself recognizes the right of a state to prohibit transmission of property or money to a resident of an enemy state, as the Trading with the Enemy Ordinance, of 1939, provides. Therefore, even if the plaintiff is entitled to continue to conduct his claim for compensation, he will not be entitled to receive the compensation award as long as the state of war with Lebanon continues; rather, receipt of the award is subject to the provisions of the Trading with the Enemy Ordinance.
The question of filing of a civil suit by an “enemy” is a special question, which the general provisions of international conventions are not necessarily intended to regulate. Anglo-American law denies a resident of an enemy state the right to file a civil suit while a state of war exists, and it does not appear that the conventions that regulate in a general manner the protection of human rights intended to nullify this domestic law. As explained above, there is support for the opinion that this rule of Anglo-American law does not contradict international law (see sections 28 and 31 above). It may be that international customary law, and not only treaty-based law, requires all states to enable a person whose fundamental rights have been violated to sue and receive a remedy for that violation. But the question if this rule applies also to an “enemy” or a member of a terrorist organization operating against the state in which his rights were violated has not been resolved in international treaty-based or customary law. This is the question that is to be decided in this application, and its resolution is determined by Israeli law.
56. Taking into account all of the above, it appears to me that, in the present case, the proper balance between violation of fundamental rights protected in the Basic Law: Human Dignity and Liberty and the goal of preventing assistance to the enemy will be achieved by means of the arrangement established in the Trading with the Enemy Ordinance. This ordinance prevents – on the one hand – transmission of money awarded to a resident of an enemy state during the time of a state of war and – on the other hand – creates a mechanism for protecting the assets of a resident of an enemy state until the end of the state of war. This mechanism will achieve in the present case the proper objective of preventing assistance to the enemy, and it does not necessarily violate the residents of the enemy state’s right of access to courts of law, which is a fundamental right of the first degree, there being no provision of Israeli law, by statute or in the common law, that denies this right. It should be mentioned that Canadian courts have also taken the middle road in problematic cases, enabling the resident of an enemy state to continue the civil action he filed, but ordering that the money that might be awarded him are not to be handed over until the war ends (see section 33 above).
In its judgment in the Adalah v. Government of Israel case in 2006, Israel’s High Court of Justice stated:
Section 5C of Amendment No. 7 negates the tort liability of the State for every tort claim that was filed relating to an incident that took place in a “zone of conflict.” The State’s response indicates that, following enactment of Amendment No. 7, extensive areas in Judea, Samaria, and the Gaza Strip were declared zones of conflict, and for prolonged periods of time. The region was divided into a number of large areas. Sometimes, one area encompasses whole cities or a number of villages and communities. According to the criteria established in this matter, a terrorist act occurring in one place inside a certain area is sufficient to declare the whole area a zone of conflict, and this for a number of days. In these circumstances, the infringement of human rights resulting from negating State liability under section 5C is great. We must remember that the territory of Judea and Samaria, and until August 2005 also the territory of the Gaza Strip, have been under belligerent occupation for close to forty years. In this framework, Israeli security forces remain in the region permanently and in large numbers. Residents of the region come in close, regular, daily contact with them in their coming and going, on their way to work and school, at inspection points at checkpoints inside the region and at crossing to and from Israel. Security forces maintain a permanent and continuing presence in the region. They are spread out and act in the region both in combat missions and in policing actions; both in areas in which there is hostile terrorist activity, and in quiet areas; both in times of conflict and in times of relative calm. In these circumstances, sweeping immunity of this kind given to the state under section 5C of Amendment No. 7 is the equivalent of a grant of exemption to the State from tort liability in broad areas of action that are not war actions also under the broad definition of that expression. It would leave many injured persons, who are not involved in any hostile activity whatsoever, and who are not injured incidental to actions of security forces intended to cope with hostile activity, without relief for injury to their life, body, and property. This sweeping infringement of rights is not necessary to achieve the purposes underlying section 5C of Amendment No. 7. Negation of State liability given in section 5C does not “adapt the tort law to the war situation.” It removes from the application of the tort law many actions that are not war actions. It is not consistent with the obligation of Israel, as the holder of Judea, Samaria, and the Gaza Strip in belligerent occupation. This occupation imposes on the State special obligations under international humanitarian law, which are not consistent with sweeping release from all tort liability. We do not take any position – because the matter did not arise before us – with respect to changes that may result from the Oslo agreements (see
Gaza Coast Regional Council
, pp. 523–524; HCJ 7015/02, Ajuri v. Commander of IDF Forces in the West Bank
, P. D. 56 (6) 352, 364). Of course, we do not make any determination regarding the legal status of the Gaza Strip following the disengagement. Even if Israel’s belligerent occupation ended as the State argues, there is no justification in sweeping release from tort liability.
In its judgment in the A. v. State of Israel case (No 3), in 2009, which addressed the question of whether targeted killings constitute “wartime action” that is exempt from tort liability under Israeli law, the Haifa District Court stated:
When a certain action comes within the definition of “wartime action,” the state is granted an exemption from tort liability for any damages resulting from the incident, inasmuch as the Civil Wrongs Law [Liability of the State Law, 5712 (1952)] exempts the state, in section 5, from liability for damages caused as a result of an act performed through a “wartime action” of the IDF [Israel Defense Forces]. An understanding of the foundation of the exemption indicates that the ordinary tort laws, which deal with the apportionment of risks for actions that harm the daily lives of a person in his state, are not the appropriate laws for arranging the special and atypical risks resulting from a situation of wartime actions (see C.A. 5964/92, Bani Odeh v. State of Israel
P. D. 56 (4) 1).
In 1998, during a debate in the Fifth Committee of the UN General Assembly in which several States had referred to a resolution of the General Assembly and stated that Israel was obliged to pay the costs resulting from its attack on the UNIFIL compound at Qana, Israel replied: “Defensive military operations against terrorists who had shamelessly used a UNIFIL outpost as cover for their provocative attacks had been, and continued to be, justified and necessary.”