Weekend Argus (Saturday Edition)

Supreme Court’s double standard on liability unfair to Palestinia­ns

- HAIM ABRAHAM Abraham is a lecturer in Law Faculty of Laws, UCL. His article was first published on theconvers­ation.com

ONE of the most basic and intuitive features expected of any legal system is to treat similar cases in a similar way.

Sadly, when it comes to the law of negligence, Israel is not consistent in its treatment of Palestinia­ns and other (often Jewish) citizens.

In the recent case of Plonim v The Palestinia­n Authority that was handed down by the Supreme Court of Israel – its highest court – this liability gap was further widened.

The court ordered the Palestinia­n Authority to compensate Israeli victims of terrorist activities, due to the fact that the Palestinia­n Authority provides support payments for individual­s that Israel convicts of security offences.

This ruling, which comes at a time of growing tensions and clashes between Israel and Palestine, is a step further in creating a liability regime of total liability of Palestine towards Israel. Israel, meanwhile, enjoys a near blanket immunity from liability towards Palestinia­ns.

In the past 40 years, Israel has increasing­ly expanded its immunity from liability through legislatio­n and court rulings, grounding a principle that it is not liable for any death, injuries or property damage it inflicts while engaging in combatant and counter-terrorist activities.

This immunity regime exists in other jurisdicti­ons as well, such as Australia, Canada, the US and England and Wales. But what is unique and troubling is that alongside the ever-expansive immunity Israel grants itself, its courts are constantly increasing the scope of the Palestinia­n Authority’s liability.

For example, in 2017, the Supreme Court ordered the Palestinia­n Authority to pay damages to the estate of Amos Mentin, a telecommun­ications employee who was shot and killed by a 15-year-old Palestinia­n. The Palestinia­n Authority didn’t order the boy to commit this act of terrorism, nor did it supply the boy with the gun, or plan.

Why was it held liable? Because it

operated a training camp in which the boy may have received some military training and – although no clear proof was provided – anti-Israel content was delivered as part of the training.

The Palestinia­n Authority refused to supply evidence of the content of the delivered lectures, and consequent­ly the court inferred that the talks were in fact encouragin­g terrorist activities.

To date, Israel has not been held liable for any terrorist activities that its civilian population engages in against Palestinia­ns – even though 17-year-olds can undertake a weeklong military training aimed at readying young people for the Israel Defence Forces (IDF). Conscripti­on

to the military is mandatory for a duration of at least two years to the majority of 18-year-olds.

In the Plonim ruling, the Supreme Court went a step further. One could accept the Mentin ruling as a failure of the burden of proof, which led to the conclusion that the Palestinia­n Authority encouraged terrorist activities. This conclusion is strenuous and technical, yet plausible. The Plonim conclusion­s are challengin­g and do not seem to share a similar plausibili­ty.

Here, the estates of several individual­s, who were killed in different terrorist activities, appealed a Jerusalem District Court decision to dismiss their claims for compensati­on. The

claim had been against the Palestinia­n Authority for liability for Hamas’s terrorist activities that resulted in the deaths of the appellants’ relatives. The Supreme Court accepted the appeals and overturned the district court’s ruling.

The crux of the Supreme Court majority’s decision lies in the fact that the Palestinia­n Authority provides support payments to convicted terrorists and their families. The court views these payments as proof that the Palestinia­n Authority ratifies, condones and incentivis­es such terrorist activities.

Under Israel’s law of negligence, it is possible to order an award of compensati­on against a person who didn’t cause an injury, but merely ratified the actions that caused it in retrospect.

The court’s conclusion­s in this case are a significan­t expansion of liability. The Palestinia­n Authority was not held liable for actively participat­ing in the terrorist activities that resulted in the deaths of the appellants’ relatives. Nor was it held liable for providing the means, training, tools or funding for such activities to take place. Rather, it was held liable for providing payments that are deemed to communicat­e the message that these terrorist activities are legitimate. That’s it.

The court does not find the payments to be a way for the Palestinia­n Authority to claim “ownership” over the acts, as if they were done on its behalf. Instead, the payments are the equivalent of a statement of support for them.

The ruling also raises questions. If, for example, the Palestinia­n Authority were to post a message of support for the family of a convicted terrorist, would that also makes it possible for Israel to order it to compensate the victims of the terrorist attack, as the post ratifies the actions? That seems to be possible according to the Plonim case.

More importantl­y, if support payments made after the terrorist activities have taken place are sufficient to establish approval, then when security forces are standing idly by without stopping terrorist activities, that too should be considered as ratificati­on.

Yet when Israeli settlers engaged in terrorist activities against Palestinia­n civilians under such circumstan­ces, the courts didn’t hold Israel liable to pay for the damage caused.

It seems that there are two laws of negligence: one that applies to Israel and Israelis, and another that applies to Palestine and Palestinia­ns. Whether a person who was injured during terrorist activities will be able to obtain compensati­on for their injuries becomes a question of national identity instead of being a question of law.

 ?? REUTERS ?? PALESTINIA­NS weep after what medics said was an Israeli shell that hit a UN-run school sheltering Palestinia­n refugees in the Gaza Strip on July 24, 2014. Who is liable for deaths and damage during conflict between Israelis and Palestinia­ns, asks the writer. |
REUTERS PALESTINIA­NS weep after what medics said was an Israeli shell that hit a UN-run school sheltering Palestinia­n refugees in the Gaza Strip on July 24, 2014. Who is liable for deaths and damage during conflict between Israelis and Palestinia­ns, asks the writer. |

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