A 17-year-old Palestinian who became a quadriplegic after being wounded by IDF fire is posing the first challenge to the Law to Bypass the High Court that was passed by the Knesset four years ago. If the Be’er Sheva District Court accepts the state’s position that his suit for damages should be rejected, his lawyer will appeal the ruling to the Supreme Court. Then the justices will have to address for the first time the legality of the amendment to the Civil Damages Law that the Knesset passed in 2012, seven years after they nullified a similar amendment to the same law.
Atiya Nabahin’s family lived east of the Al-Bureij refugee camp on farmland it has owned and worked for decades, close to the Green Line. On November 16, 2014, his birthday, Nabahin was shot in the neck by soldiers as he returned home from school. No armed clash was occurring at that time and place between Palestinians and the IDF.
For six months, Nabahin received medical treatment in Israel (paid for by the Palestinian Authority), after it was determined that he had been permanently paralyzed from the neck down. His father Fathi, 59, stayed with him throughout that time, and was taught at ALYN Hospital about how to care for his son, who is now completely dependent on his family members. The family cannot afford to hire outside help. It must shoulder the emotional, physical and financial burden of Atiya’s care alone.
When Atiya Nabahin and his father were in Soroka Hospital in early 2015, the Gazan human rights organization Mizan put them in touch with lawyer Mohammed Jabarin, who later filed the civil suit against the state. Ofer Shoval, deputy Tel Aviv district attorney, sought to have the claim rejected because Nabahin “is a resident of an area outside of Israel that the government has officially declared to be enemy territory,” and because “the law explicitly states that the state is not responsible for damages in these circumstances.”
A month ago, Jabarin and attorney Nadeem Shehadeh from Adalah – The Legal Center for Arab Minority Rights in Israel co-wrote a response to Shoval, saying that the law upon which the state is seeking to have the suit dismissed amounts to a direct challenge to the Supreme Court’s authority.
Since the late 1990s, and more so after the outbreak of the second intifada, successive Israeli governments have tried to limit Palestinians’ ability to sue the state when they are hurt by IDF actions. In 2002, an amendment to the Civil Damages Law was enacted, which introduced many hurdles in the process for Palestinians wishing to sue for damages. In 2005, another amendment (7) was passed, which denied residents of the occupied territories, “subjects of enemy states and active members of terrorist organizations” the right to sue for damages caused them outside the framework of combat operations (with minor exceptions). The amendment also stipulated that “the state is not response for damages caused in the conflict zone due to actions by the security forces” and authorized the defense minister to determine, even retroactively, what qualifies as a “conflict zone.”
Challenges from human rights NGOs
Nine Israeli and Palestinian human rights organizations petitioned against the amendment and in December 2006 a nine-justice panel of the High Court, headed by then-court President Aharon Barak, ruled that the clause in question granted sweeping immunity to the state, “with the improper aim of exempting the state from all responsibility for damages in conflict zones … in relation to wide categories of actions that are not combat actions even in the broadest definition of that term. What this means is that many injured persons who were not involved in any hostile activity, and who were not hurt incidentally during actions by security forces meant to address any sort of hostile activity, are left without remedy for the harm to their life and their property.”
The judges ruled that the key clause of the amendment (No. 7, Section 5c), which included the definition of conflict zones, shall be nullified because it violated the Basic Law: Human Dignity and Freedom. However, the court did not strike down Section 5b, regarding the identity of the casualties, but it did say that this section could be discussed in specific cases.
Immediately after the ruling was handed down, the government began working to have the amendment restored, indirectly. Amendment 8 was passed in 2012, and this time there was no High Court petition, even though it was even more sweeping than Amendment 7. In the new amendment, the definition of military activity as “being done in circumstances of mortal or physical danger” was expanded to “actions of a combat nature, considering the entirety of the circumstances, including the objective of the operation, its geographical location and the threat to the force carrying it out.” In other words, the state needn’t make the claim that soldiers were in any danger in order to justify its request to reject a suit for damages.
Additionally, to evade the definition of a “conflict zone” that was nullified by the High Court’s order, Amendment 8 added the following words to the part concerning the identity of the injured party who is not authorized to sue (the subject of an enemy country, etc.): “or one who is not an Israeli citizen, who is resident of an area outside of Israel that the government has declared, by order, as enemy territory.” In other words: Instead of a “conflict zone,” the new amendment refers to “enemy territory.”
In October 2014, the government issued an order declaring Gaza enemy territory. The order was applied retroactively, beginning July 7, 2014 (just before the start of Operation Protective Edge in Gaza).
Nabahin’s lawyers believe his severe injury falls exactly in that place where the High Court justices, in their 2006 ruling, sought to prevent the state from being able to evade responsibility: the seemingly unjustified injuring by soldiers, the state’s emissaries, of a person who was not involved in any hostilities and at a time and place where no hostile activity was occurring. In their letter, Jabarin and Shehadeh wrote:
“The state is effectively being given total immunity, meaning it is exempt from responsibility for damages in relation to many areas of activity that do not qualify as combat activity, even in the broad and inherently problematic definition, given to this concept in the law. Thus many victims find themselves without recourse. … In this way [the state] is not trying to adapt the laws on damages to a war situation, but rather to deny the applicability of these laws to many actions that are not combat-related…”
The attorneys – and their permanently paralyzed client – are now waiting for the state’s response to their objection.
