District Court Approves Serving Civil Claims to Terrorists CA [Civil Appeal] 3426/09 [03.01.2010]

On 3 January 2010, Judge Moussia Arad, the President of the Jerusalem District Court, issued a decision that the serving of civil claims to senior representatives of terrorist Palestinian organizations detained in Israel meets the requirements of Israeli law.[1] In its decision, the Court did not address the questions of the “legal personality” of the organizations (i.e., their capacity to participate in legal proceedings) and the Court’s ability to conduct civil trials against them.

In this article, we present a brief summary and discussion of this decision as part of Terrorism and Democracy’s ongoing coverage of relevant judicial decisions.

The joint appeal challenged two decisions issued by the Registrar of the District Court of Jerusalem which appertained to two civil claims brought by Israel citizens against the Hamas and Islamic Jihad, seeking compensation for damages caused by terrorist attacks. Before legal proceedings can be initiated, a civil claim must be served on the respondent in accordance with the provision of Israel’s Civil Procedure Law. The claimants have sought in this regard the Court’s permission to serve the claims on senior representatives of the two aforementioned terror organizations that are detained in Israel – i.e. to regard the serving of the claim to the detainees as compatible with the service requirements of Israeli law that permit the delivery of a claim against an organization to an agent or representative of the organization.[2] The Registrar rejected both request; hence, the appeal to the President of the District Court. 

In the first case, the plaintiffs requested to serve a civil claim against the Islamic Jihad to Basam Sa'adi who, according to expert opinion, had been a leader of the Islamic Jihad organization in Northern Samaria. He was a member of the organization's political leadership in the West Bank from 1995 to 2003. While detained in Israel, Sa'adi signed the Palestinian "National Reconciliation Document" on behalf of the Islamic Jihad (arguably, such an act requires the approval of the organization's leadership outside Israel). He currently remains detained in Israel.

In the second case, the plaintiffs requested to serve a civil claim against Hamas on Khaled Abu Arafa who, according to expert opinion, is the Minister of State for Jerusalem Affairs in the Hamas government. Although Abu Arafa lives in East Jerusalem, he maintains direct and intensive contact with the Hamas leadership and, thus, the claim states, has the ability to bring the claim to the attention of the Hamas leadership.

In her decision, Judge Arad accepted the appeal in both cases, since the plaintiffs served the civil claims in accordance with Regulation 482 of the Civil Procedure Law Regulations 5744-1984.  Judge Arad based her decision on the article of the regulation that requires that the respondent be notified about the filing of the claim against him.

Judge Arad’s decision held that the location of the Islamic Jihad and Hamas organizations outside of Israel's territory. Still service on the organizations, with representatives within Israel, would lead necessarily to the dissemination of knowledge of the submission of these legal claims to all levels of leadership. Judge Arad also noted that her conclusion is underpinned by the need to prevent situations in which murderous terrorist organizations are able to evade civil proceedings. 

Judge Arad emphasized that her decision relates only to the question of the proper serving of a civil claim, and that complementary questions regarding the legal nature of such terrorist organizations and the ability to conduct legal proceedings against them would have to be decided at trial.

By employing  a wide interpretation of the regulation concerning the serving of civil claims, Judge Arad has allowed the civil claims in question - representing a new legal counter-terrorism strategy - to move forward.  However, the plaintiffs must still overcome many obstacles:  following Judge Arad's ruling, the trial judge is given the responsibility for determining the legal nature of terrorist organizations located outside of Israel. Furthermore, as illustrated by a recent decision in the District Court in Nazareth,[3]  it may be difficult to establish the actual connection between terrorist organizations and specific terrorist attacks. Finally, the prospects of collect monetary compensation, at the end of this process, appears very small.

1. CA [Civil Appeal] 3426/09 Raizel v. The Islamic Jihad Organization (3.1.09) <Hebrew>
   
   
2. Regulation 482 of the Civil Procedure Law Regulations: 5744-1984 <Hebrew>
   
   
3. C 1214/04 Sula Gaon v. Palestinian Authority <Hebrew>. For a discussion of this case, see the twelfth issue of the IDI's Terrorism and Democracy Newsletter.