At the conclusion of eight years of legal proceedings, a claim of damages against the State of Israel regarding the killing of Palestinian policeman in an IDF military operation in Judea and Samaria in 2002, was dismissed. The judgment of the Court accepted the State’s position that the events were part of a “combat activity”, inter alia, in view of the Palestinian Police’s military organization and its involvement in terrorism, at the time. The Court also imposed legal expenses on the plaintiffs’ for the State for the amount of 250,000 NIS. In effect, the judgment further confirms the broad discretion given to the State in decisions relating to carrying out combat activities and the scope of the exemption from civil liability in relation to such actions.
On 24/10/2013 a judgment was issued by the Jerusalem District Court dismissing a civil lawsuit filed in respect of the killing of Palestinian policemen by IDF fire (File no. 25563-07-12 Eshtiyeh v. the State of Israel). The claim was rejected on its merits in light of the provisions of the Torts (State Liability) Law, 5712-1952, which exempts the State from civil liability for an act done in relation to a “combat activity” of the military, and the assertion that the limitation period of the plaintiffs’ causes of action has passed in accordance with this law.
The suit was for a claim of damages against the State of Israel by the families of seven Palestinian policemen who were killed as a result of an IDF military operation that took place on the night of 20/02/2002. During the operation Palestinian police checkpoints and positions in Judea and Samaria were attacked by the IDF , following a terrorist attack perpetrated against IDF soldiers at a checkpoint near Ein Arik that occurred a short period of time before the operation and resulted in the death of six Israeli soldiers.
The claim was filed by the families three years after the incident following the publication of an account of the incident based on the testimony of soldiers who participated in the operation, obtained by Israeli “Breaking the Silence” organization, which described the action as a revenge attack that killed the Palestinian policemen arbitrarily and unjustifiably.
The legal proceedings continued for over eight years and involved a number of Courts in the country and a number of incidental legal procedures to the main suit, most on the request of the plaintiffs. In the framework of the proceedings, a reserve IDF officer who took part in the operation, two Palestinian policemen who were present at the time of the attack on the checkpoint and members of the families of the Palestinian policemen who were killed testified on behalf of the plaintiffs. Three IDF officers who participated in the operation testified on behalf of the State.
The judgment of the District Court dismissed the claim and fully accepted the State’s position regarding the events in question. In doing so, the Court found that the events relating to the operation constituted a “combat activity”, since the checkpoints were manned by armed combatants who were organized in a military manner and, the decision to attack the said checkpoint was part of a broader military operation which even required air assistance, all of which took place in a hostile and dangerous territory against an organization that intelligence information had established was aiding and abetting to directly carry out terrorism against the State of Israel and its citizens.
The Court further held that tort claims could not be brought concerning policy decisions of the State and the IDF regarding activities against its enemies in accordance with its natural right to self defense, and that there is no requirement for the State to prove the reasonableness of its actions. The Court was, nevertheless, satisfied that sufficient evidence was provided to establish that the military action was undertaken on the basis of intelligence information.
In the end, the Court ruled that legal expenses should be paid to the State to the total amount of 250,000 NIS (30,000 NIS to be paid by each of the seven groups of plaintiffs and an additional 40,000 NIS for the Court fees), due to the fact that proceedings dragged on for an extended period of time, often due to the failures of the plaintiffs and their management of the claim. The Court gave additional weight on this matter to the fact that the petitioners, in the claim forms, used language such as “slaughter” and “murder”, which were found to be without any factual basis and were firmly rejected by the court in its ruling.
In conclusion, the case represents an important ruling which, together with a series of recent similar decisions, establishes that the State will not be liable in tort for combat activities of the IDF, and that wide discretion is given to the State’s and the military’s decision making when carrying out combat activities against organizations and individuals that operate directly to promote and carry out terrorist attacks against the State of Israel and its citizens.