Definition of "Combat Action" in Civil Tort Law (Liability of the State) – Amendment Bill (No. 8)

The Israeli Knesset's Constitution, Law, and Justice Committee recently held a discussion about a bill amending the Israeli Civil Tort Law (Liability of the State).[1]  The governmental bill attempts, inter alia, to modify the definition of "combat action" as specified in the Law in a way that would exclude from the scope of the Law counter-terrorism operations conducted by the Israeli Defense Forces outside the territory of Israel. It also proposes that Israeli courts be required to decide on questions involving combat action immunity in tort claims brought against the Israel Defense Forces as a preliminary matter.

In this article, we discuss the proposed amendments to the Law and their relationship to Israel's counter-terrorism efforts.

The purpose of the Israeli Civil Tort Law (Liability of the State) 5712-1952 (hereinafter: The Law) is to enable compensation claims against the State for any wrongful acts that its agents have committed. Article 5 of the Law limits such claims by stating that:  "The State is not Liable in Tort for an Act performed through a combat action of the Israel Defense Forces."

The Israeli Supreme Court has already ruled that the term "combat action" should be narrowly interpreted and that police-like activities and combat actions undertaken by the Israeli Defense Forces in the Gaza Strip and the West Bank must be distinguished.[2]   While the first class of activities will generally generate liability, the second category of actions will not. Still, the Court held that the matter should be decided on a case-by-case basis, and that actions directed against terrorist organizations and activists could amount to combat actions in certain cases in which the operations in question involve high levels of risk.

As a result of this ruling, the Knesset enacted Amendment (No. 4) to the Law on 24 July 2002. The amendment refined the definition of combat action to include actions against terrorist organizations – "including any action conducted to combat terrorism, hostile actions, or insurrection, and also any action whose stated aim is to prevent terrorism, hostile actions, or insurrection committed in circumstances of danger to life or limb." The  amendment also added a new article, article 5A, which set special procedural arrangements for compensation claims arising from actions by the Israeli Defense Forces in the Gaza Strip and the West Bank. These procedural arrangements include, inter alia, the submission of a notice of claim within 60 days from the date of the incident, and the reduction of the limitations period of such tort claims from seven to two years.

In July 2005, the Knesset enacted Amendment (No. 7), which added two new articles to the Law – articles 5B and 5C. Article 5B provides that the State is not liable for injury sustained by an enemy state national, by a person who is an active member of a terrorist organization, or by a person who is injured while acting as an agent of one of the aforementioned enemy entities. Article 5C deals with claims of residents of "conflict zones"[3]  (areas outside Israel that are designated by the Israeli Defense Ministry as areas in which active combat occurred), and provides that the State will not be liable for any action taken by the defense forces within such conflict zones.

In December 2006, the Israeli High Court of Justice (HCJ) published its decision in a petition challenging the constitutionality of article 5C (the Adalah Case).[4]  The HCJ declared that this article, which creates sweeping immunity from liability for any actions undertaken by the defense forces within conflict zones, is unconstitutional as it contradicts the Basic Law: Human Dignity and Liberty. According to the Court, the State should not be released from liability in specific cases that do not amount to combat actions and, therefore, it declared article 5C null and void.

In response to the HCJ decision in the Adalah Case, the government drafted an amendment to the Law, Amendment (No. 8). This bill proposes the following changes: the deletion of article 5C in accordance with the HCJ ruling in the Adalah Case; the modification of the "combat action" definition; the requirement that courts decide on combat action immunity claims as a preliminary plea; the expansion of the exemption of article 5B to apply to residents of enemy territory as well; the assessment of compensation according to the standards applicable in the place of residence of the plaintiff; the decision that all claims against the Israel Defense Forces in the Gaza Strip and the West Bank be conducted only in the District of Jerusalem Courts.

On 14 September 2009, the Knesset's Constitution, Law, and Justice Committee (hereinafter: "the Committee") conducted an initial discussion of the bill as part of the second and third readings of the prepetition.[5]  In the meeting, government officials presented the bill's amendments to the committee. Prior to the meeting, the Association for Civil Rights in Israel, Adalah, and the Center for the Defense of the Individual issued a position paper calling for the complete rejection of the bill since it constitutes a "sweeping denial of state liability." [6] The following meeting was scheduled for 19 October 2009. [7]

Definition of "combat action" – This amendment proposes two main changes in the existing Law.[8]  It creates two different definitions for combat actions: in article 1, a more narrow definition, which would apply to actions within Israel's territory, and in article 5A, a broader definition, which would apply to actions within an enemy state or a conflict zone. According to the more narrow definition, a combat action includes "any action undertaken to combat terrorism, hostile actions, or insurrection." According to the broader definition, a combat action also includes any action conducted under circumstances of danger to life or limb, whose stated aim is to prevent terrorism, hostile actions, or insurrection.

According to the explanatory notes appended to the bill, the underlying reason for the different definitions is based on the notion that the nature of preventive operations, which take place outside the State's territory and especially within enemy states or conflict zones, are likely to be combat actions. Within Israel's territory, on the other hand, the nature of the counter-terrorism preventive actions must be examined on a case-by-case basis in order to decide if the action in question is police activity or combat action.

Combat action argument as a preliminary plea – This amendment provides that whenever the State wishes to argue that a tort claim brought against it should be dismissed on the grounds of the immunity granted to it by the Law (i.e., combat action immunity), the court would have to decide the matter as a preliminary issue upon the request of the Attorney General. If the court finds that the relevant actions constitute combat actions, the claim will be dismissed.

According to the explanatory notes and the oral explanations of the representative of the Ministry of Justice before the Committee, the reason for this proposed amendment is that combat action immunity arguments should be decided as soon as possible in order to avoid unnecessarily hearing cases in which state liability cannot be established.

It should be noted that during the Committee discussion, the Committee Chairperson, MK David Rotem (Israel Beytenu), expressed the view that due to efficiency considerations, it may be undesirable to insist that the Attorney General file a request, and that in every case in which the State wishes to raise a claim for exemption of combat action, the claim should always be determined as a preliminary issue by the court. Consequently, the Chairperson asked the Ministry of Justice to reconsider that amendment at the next meeting.

The expansion of article 5B to include residents of enemy territory – According to article 5B(1), the State is exempt from liability for damages caused to a resident of an enemy state, an activist or a member of a terrorist organization, or someone who acted on behalf of an enemy entity.[9]  The amendment seeks to include persons who are residents of an area that has been declared "enemy territory" by the Minister of Defense. [10]

The direct aim of this amendment is to enable the Minister of Defense to grant the State exemption with regard to claims brought by residents of the Gaza Strip for events that took place after Israel's disengagement from Gaza in September 2005 (the amendment is designed to apply retroactively to 2005). 

The assessment of compensation according to the plaintiff’s place of residence – The amendment suggests adding a new article to the Law, article 5B(1). According to this article, in tort claims by a plaintiff, who is not an Israeli citizen or resident, and in which the court finds that the State is not exempt from liability for combat action, the assessment of the level of compensation should be based on the plaintiff's place of residence.

During the Committee discussion, this issue raised some questions regarding the meaning of article 5B(1). At the meeting, the representative of the Ministry of Justice declared that the article is designed to ensure that the amount of compensation due would be assessed according to the types of coverable damages recognized by the legal system in force in the area of the plaintiff's residency. This would require the parties to the trial to substantiate the claim according to appropriate legal standards.

Venue restrictions – The amendment proposes adding article 5B(2) to the Law. This article provides that the District of Jerusalem Courts are solely authorized to rule in cases of tort claims under articles 5A and 5B. According to the explanatory notes to the bill and to the statements of the representative of the Ministry of Justice at the meeting held before the Committee, the underlying considerations of the venue restrictions are the efficiency and the consistency of the rulings.

The deletion of article 5C – This amendment implements the HCJ ruling in the Adalah Case, which declared article 5C unconstitutional and, therefore, void. This bill seeks to remove this article from the law books.

This bill is a direct continuation of Amendment (No.  7), which was partially rejected by the HCJ as unconstitutional. It constitutes the continued political and legal struggle within Israel concerning the question of how to balance human rights, security, and other public interests. 

Although the draft bill pays lip service to the Supreme Court's judgment in the Adalah Case, (by removing article 5C from the law books in accordance with the Court’s ruling that it is unconstitutional), in effect, the bill attempts to reverse the ruling of the Court, replacing case-by-case analysis of military action with the use of sweeping exemption categories. With regard to the definition of combat actions offered by Amendment (No. 8), it appears that the assumption that all IDF counter-terrorism actions committed outside the territory of the State, and especially in the West Bank, are combat actions cannot be sustained. As relevant case law of Israeli courts clearly demonstrates, many counter-terrorism acts undertaken by the Israeli Defense Forces in the West Bank could be categorized as police activities and not combat actions. While actions carried out in the Gaza Strip are more likely to generate combat action immunity, even there a sweeping approach does not seem to reflect an adequate balance, and the Supreme Court's analysis in the Adalah Case –  that the State cannot invoke reasons of procedural expediency to limit basic human rights – appears to be valid with regard to claims brought by Gaza residents as well.

It should be noted that the Committee discussions have not yet been concluded, and it is likely that some of the bill's key articles will be revised before the Committee approves the bill, if it approves it, and hands it over to the Knesset for the second and third readings.

1. Israeli Civil Tort Law (Liability of the State) (8th amendment) 5768-2008.
   
   
2. CA [Civil Appeal] 5964/92 Beni Uda v. State of Israel.
   
   
3. The article allows the Minister of Defense to retroactively declare certain area as conflict zones dating from the beginning of the Second Intifada (September 2000).
   
   
4. HCJ 8276/05 Adalah v. Government of Israel, 12/12/06 unofficial translation (hereinafter: "the Adalah Case")
   
   
5. See the Protocol of the Discussion (Hebrew)
   
   
6. Proposed Civil Torts Law (Liability of the State) Amendment (No. 8), 5768-2008. Position Paper, July 2008.
   
   
7. The protocol of that meeting is yet to be published
   
   
8. Articles 1 and 5 of the Law.
   
   
9. This is the situation according the Law unless the damage to that person was caused during a legal stay in the territory of Israel or while under Israeli custody.
   
   
10. The Minister of Defense may retroactively declare an area "enemy territory."