Palestinians win legal right to sue Israel for damages

The Israeli Supreme Court have overturned part of a blanket ban laid down by the Knesset that banned Palestinians from seeking compensation for harm done to them by the IDF.

The Knesset approved the amendment in July 2005 but it was dismissed as unlawful yesterday by the recently retired court chairman Aharon Barak, opening the way for at least some law suits from Palestinians although they would still mostly be "based on technicalities".

Although the amendment does not go far enough it was welcomed by Israeli Human Rights groups. The idea that the Israelis should be allowed to act in any way they see fit in the occupied territories free from any notion of legal accountability was always an obscenity.

But right-wing Knesset members queued up to denounce the ruling and hinted at attempts to reintroduce the legislation through the Knesset. Attorney Yossi Fuchs, a member of the right-wing "Land of Israel Legal Forum" said: "The ruling is a parting gift from Aharon Barak to Palestinian Prime Minister Ismail Haniyeh, a gift that will buy Barak a respected status in the eyes of the international legal community at the expense of the security of Israel's citizens."

But despite this expansive condemnation, the practical application of the court's decision could be limited. Yehev Zekel, of the Israeli human rights group B'tselem, said the ruling was welcome but would not lead to a rush of claims for cases in which people or property had been harmed by Israeli military operations.

The ruling did not cancel the exclusion "of members of terrorist organisations" from making claims even if they were not involved at the time of the damage. And the state would still be able to argue that it was not liable in cases where civilians were victims of "acts of war".

In practice, this meant civilians harmed during incursions to detain wanted militants for example, would mostly find it difficult or impossible to prove their case. "The applicant may just be lucky and find a judge who is sympathetic," Mr Zekel said. He added that it might make suits easier in cases in which Palestinians were beaten at checkpoints, for example, or had their freedom of movement unduly restricted at great personal loss, and in which the state would find it hard to prove that "acts of war" were involved.

Barak has also handed down his final judgement on Israel's controversial policy of targeted killings, which many in the international community regard as illegal.

The three-justice panel unanimously ruled that "it cannot be determined in advance that every targeted killing is prohibited according to customary international law."

The court said each targeted killing must be evaluated individually on the basis of the relevant considerations.

Most importantly, in making this ruling the three man panel stated that the conflict between Israel and the Palestinian terrorist organisations has the characteristics of armed international conflict, and therefore is subject to international law.

Israel has long argued that the Geneva Conventions do not apply to this conflict in an attempt to circumnavigate Article 49 of the Convention which expressly forbids moving parts of your civilian population into territory that you occupy. With this ruling the Israeli Supreme Court appear to undermine the argument that Geneva does not apply, an argument long ago dismissed as invalid by the international community and the UN.

This ruling has taken five long years to be arrived at and many have complained that the Supreme Court was deliberately moving at a snail's pace on this issue.

According to the ruling, terrorist operatives are not legally defined as combatants and therefore must be considered civilians, but are nonetheless not afforded the same protections granted to innocent civilians under international law.

However, much as people will talk of this ruling as it relates to targeted killings, I think the far more significant portion of it is an Israeli Supreme Court recognising the conflict as an armed international conflict and stating categorically that the laws of war apply.

If the laws of war apply, then Geneva applies. If Geneva applies, then the Israeli Supreme Court has just recognised all Israeli settlements in Palestinian territories as illegal under international law.

Now that's something.

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tag: Israel, Palestine, Aharon Barak, targeted killings, IDF, Geneva Conventions, illegal