www.tipp.co.il

10.07.2022

The Supreme Court rejected the claim of a Palestinian teenager who was shot in Gaza

עיתון בין אויבים

A newspaper among enemies

The Supreme Court clarified the difference between a conflict zone and a hostile area and a war zone and clarified in rejecting the teenager's appeal why the Supreme Court previously repealed a Knesset law (Amendment 7), while now it adopts the law that replaced the repealed law (Amendment 8)

Atiyah Nabhin was shot in the Gaza Strip when he was 17, by the IDF in an incident that Israel defined as war activity. Following his severe injury in 2014, he was left permanently paralyzed in all four limbs. He demanded that the State of Israel compensate him. The Be'er Sheva District Court dismissed his claim, and the boy, now an adult, appealed to the Supreme Court. In his appeal, the boy stated that "treating all residents of Gaza as enemy nationals, promotes an improper purpose, because it is based on a racist doctrine, the doctrine of 'enemy nationals,' which denies basic rights on the basis of national, ethnic or territorial affiliation."
The Civil Torts Act of 1952 sets out two conditions under which a person may not be compensated. One, "The state is not liable for damages for an act committed by an Israel Defense Forces war operation" And the second: (not to be compensated) "A citizen of a state who is an enemy or a non-Israeli citizen, who is a resident of a territory outside Israel that the government has declared, by order, as enemy territory, unless he is lawfully residing in Israel"
The law therefore does not pay compensation to a foreign national injured in an act of war in a war zone.
The teenager's appeal caused a stir on the Israeli left, and in the Palestinian Authority, as the Supreme Court had previously repealed a Knesset law, Amendment 7 to the Torts Law, Therefore, it was expected in the eyes of the Palestinian Authority leadership that the Supreme Court could not reject the appeal, when it rejected the law that allegedly limited the ability of Palestinians in Gaza to sue Israel.
But the Supreme Court did not reject the Torts Act enacted in 1952, nor all its amendments in general, when it rejected Amendment 7. He rejected the said amendment only, and he justified the rejection. The Supreme Court's reasoning when it rejected Amendment 7 was that the Knesset was using it to expand the definition of a war zone, and it was replacing it with the expression 'conflict zone'. The Supreme Court then ruled that the amendment, and the new definition, should be repealed, and dismissed it outright.

The Knesset accepted the criticism of the Supreme Court, and it repealed Amendment 7 to the law, and in its place it enacted Amendment 8.

Amendment 8 stipulates that the state will argue (as the case may be) before the court regarding a war zone, and the court may reject or accept its claim. In the case of the teenager under Amendment 8, the Supreme Court accepted the state's claims that the action taken while the boy was injured was a war action, which took place in a war zone, where the victim is a citizen of Gaza, which Hamas took over, and which Israel disengaged from and declared a hostile area.
It remains for the court to determine the racist allegation made by the boy, and whether the law and its new amendment do not violate the Human Dignity and Liberty Act. The Supreme Court rejected the claim, stating that the Basic Law of Human Dignity and Liberty is defined for the citizens of Israel and its sovereign territory.