Damages for Failure to Protect Civilians in Occupied Territories from Vigilante Reprisals

The case involves a claim by the dependents and estate of Na`im Mahmoud al-Madhoun against the State of Israel for failing to curb disturbances that broke out following the murder of a settler by terrorists in the Gaza Strip. The Court held that the State had breached its obligation to impose law and order and, therefore, that it is financially liable for the consequences of the shooting incident that led to the death of al-Madhoun.

On March 8, 1993, the deceased, Na`im Mahmoud al-Madhoun, a 22-year-old resident of the Jabaliya refugee district was returning from his job in Israel when he encountered a crowd of settlers, who were enraged by the murder that morning of Uri Magidish, a Jewish greenhouse owner killed by his workers. In protest against the killing, the throng blocked the main road leading from the Erez checkpoint to Gaza, causing a traffic jam. Al-Madhoud and the other workers then left the cars they were traveling in and began to proceed on foot. One of the settlers fired a bullet, killing al-Madhoun. The State subsequently initiated a criminal investigation of the incident, but no criminal charges were ever brought against any of the settlers because of 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 it liable to the petitioners and, therefore, the claim against it should be dismissed.

Jerusalem Magistrate Court Judge, Raphael Yaakobi, found a causal connection between the Israeli army’s inadequate preparation for the settlers' demonstration, which preceded the shooting, and the incident in which al-Madhoun was killed. Allocating a jeep with three soldiers to impose law and order was a too limited measure, which, in fact, failed to prevent the escalation of the situation and the shooting.
Moreover, the key failure of the State was its failure to anticipate such an incident. Judge Yaakobi also found the respondent’s argument that the shooting was justified under the circumstances as “exacerbates, to a certain degree, the impression of its shortcoming prior to the incident, which did not prevent matters from reaching a state where firing a shot became necessary.”
To bolster its remarks, the Court cited a similar case (6970/92 Abu Samra v. State of Israel) involving damages caused by vigilante Jewish settlers, primarily to the property of Arab residents, in the wake of the killing of a Jew in 1992 (roughly a year before the incident in question). The Supreme Court noted in that matter that the incident “took place during a tense period and in a very sensitive region,” and that such a tragic event “created the risk of a flare-up on both sides of the divide.” In that case, there was no disagreement that the respondent had both a  general and an actual duty to protect the petitioners given the circumstances in question (although in the earlier case, it was not proven that this duty had been violated).

Accordingly, the State was obligated to compensate the petitioners in full for the damages suffered because it had breached its legal duty to protect them, as well as by virtue of the causal connection cited by Judge Yaakobi.

The incident relevant to this case took place in 1993, more than ten years before the Israeli Disengagement Plan. Therefore, it is appropriate to emphasize the obligation of the occupying power to enforce law and order in the occupied territories, and to protect the lives of the inhabitants from terrorist attacks and disturbances, even when the source of danger is not the army. This is consistent with the model of negative and positive obligations established in HCJ 4764/04 Physicians for Human Rights v. Commander of IDF Forces in Gaza. It is also in keeping with case law and international literature on the obligation to take positive steps to safeguard human rights, as set forth in the International Convention for Civil and Political Rights and the European Convention for Human Rights, among others.

* The views expressed in this article are not necessarily those of the Israel Democracy Institute.

1. Civil Case 4785/00 (Jerusalem Magistrates Court) the estate of Na`im Mahmoud al-Madhoun v. State of Israel - Ministry of Defense. <link to Hebrew version>