Who is Responsible for Damages to Civilians Caused by Vigilante Reprisals in the Aftermath of Terror Attacks? CA [Civil Appeal] (Jerusalem District Court) 3298/09 [3/01/2010]

In a recent decision issued by the District Court in Jerusalem, the Court rejected an appeal submitted by the State against a lower court decision to hold it responsible for not preventing the death of a Palestinian from Gaza. This ruling was based upon the finding that the State failed to curb disturbances that broke out following the murder of a Gaza Strip settler by terrorists.[1]

The IDI's Terrorism and Democracy Newsletter presents a short summary of the decision as part of its coverage of this case.

On 8 March 1993, Na`im Mahmoud al-Madhoun, a 22-year-old resident of the Jabaliya refugee district in Gaza was returning from his job in Israel when he encountered a crowd of settlers. The settlers were enraged by the murder of Uri Magidish, a Jewish greenhouse owner, by his laborers that morning. In protest to the killing, the settlers blocked the main road leading from the Erez checkpoint to Gaza, causing a traffic jam. After Al-Madhoud and the other workers got out of the cars and began walking towards the checkpoint, one of the settlers opened fire, killing al-Madhoun. The State subsequently initiated a criminal investigation of the incident, but no criminal charges were brought against any of the settlers due to a lack of evidence.

The dependents of the deceased brought a civil claim against the State on their own behalf and on behalf of his estate. The State argued that the circumstances leading to the incident did not render the State itself liable and, therefore, the claim against it should be dismissed.

In its decision issued on 5 November 2008,[2]  the Jerusalem Magistrate Court established a causal connection between the Israeli army’s inadequate preparation for the settlers' demonstration, which preceded the shooting, and the killing of al-Madhoun. The State was ordered to compensate the petitioners.

In its appeal, the State claimed that the security forces could not have anticipated the eruption of violent clashes on that day, and that the violence was initiated by the Palestinians, who began throwing rocks and stones, and not by the Israelis. Moreover, the State claimed that no direct link was established between the terrorist victim’s funeral and the settlers’ riots, and that the Court should not consider the settlers as a "goring ox" that must be approached with caution. The State also claimed that al-Madhoun took a risk by joining the Palestinian crowd during the clashes, and that placing responsibility on the State would excessively broaden the State's precautionary obligations.

The respondents, on the other hand, claimed that the event could be foreseen in light of the circumstances and that the State should have known that following the murder of Magidish, there would be considerable potential for violent clashes between the settlers and the Palestinians. Moreover, even after the clashes began, the security services' response was inappropriate and insufficient.

The court began its deliberation by addressing two preliminary issues. First, the Court specifically ruled that the implications of the decision are limited only to the events of 8 March 1993 and, therefore, would not affect other cases in which it is established that the State acted appropriately or that the criminal events could not have been anticipated. Second, the Court expressed its view that the question of who initiated the violent clashes that resulted in the death of al-Madhoun is irrelevant, and that the State should have anticipated the eruption of clashes at such a crucial crossing point traversed by both settlers and Palestinians.

According to the Court, the main question in this case is whether or not the security services should have anticipated the violent clashes between the settlers and the Palestinians in the vicinity of the Erez Crossing Point and prepared for such events. Much like the previous decision by the Magistrates Court, the Court answered these questions in the affirmative: the security forces should have anticipated a violent incident in the wake of the terrorist attack, and the State was negligent by failing to station soldiers at a location where both settlers and Palestinians gather and to respond appropriately to the events.

The Court also determined that the State failed to prove that Al-Madhoun was other than a laborer on his way home, who had the misfortune of being at the wrong place at the wrong time.

The decision of the District Court to reject the State's appeal affirms a positive obligation on the part of the State to adopt reasonable public safety arrangements in anticipation of the aftermath of terrorist attacks. Still, the decision has to be understood in light of the circumstances – a volatile period in the Gaza Strip. It is also clear that the Court strived to limit the scope of the decision as much as possible, as to tailor it to the particular facts of the case.

1. CA [Civil Appeal] State of Israel –  Ministry of Defense v. the Estate of Na`im Mahmoud al-Madhoun <Hebrew>
   
   
2. C 4785/00 (Jerusalem Magistrates Court), The Estate of Na`im Mahmoud al-Madhoun v. State of Israel - Ministry of Defense <Hebrew>. For a further discussion see the second issue of The Terrorism and Democracy Newsletter.