According to international law, persons residing in an area under belligerent occupation are subject to the local courts, which had existed in the area prior to the occupation, and to military courts founded by the military commander. On the other hand, the military commander and any forces operating under his authority are not subject to these courts.
Additionally, according to international law, the military commander and the forces operating under his authority are not required to compensate the residents of the area for damages they suffer, unless international law specifically dictates so.
Despite this, residents of Judea & Samaria who claim they have suffered damages due to actions taken by Israeli forces, have two main options for receiving compensation for such damages:
The first option, by filing a civil suit in the Israeli courts. This option exists based on a clear and public policy not to prevent the residents of Judea & Samaria from receiving compensation, for actions taken by the military commander in his capacity as the sovereign, in Judea & Samaria. Over the years, the residents of Judea & Samaria have filed many such civil suits in the Israeli courts, and have been compensated according to each suits circumstances.
The second option, by way of filing a claim with a unique institution founded in 1968. Upon the military commander’s assumption of control in Judea & Samaria, despite the military commander’s immunity, he signed the “Claims Order” (Claims Order (Judea & Samaria) (No. 271) of 1968). The order authorized the Claims Staff Officer in the Civil Administration, to compensate claimants who file claims in accordance with the order’s conditions.
In addition to the two aforementioned options, the Ministry of Defense has a committee, which is authorized to compensate beyond the letter of the law in certain unique and special humanitarian circumstances.
This summation will focus on the conditions delineated by the Claims Order, for receiving compensation by its force.
The Claims Order
The Claims Staff Officer was authorized, to rule on claims filed for damages allegedly caused by Israeli forces or their emissaries in Judea & Samaria.
The Claims Order sets certain conditions a claimant must fulfill, before the Claims Staff Officer may compensate for such damages:
Firstly, persons claiming they had been damaged by Israeli forces, must submit a written notice to the Claim Staff Officer within 60 days of the damage or if prevented from filing such notice, within 30 days of the end of such prevention. If the person damaged died prior to the submission of such notice, but before the time allotted for filing a notice passed, his inheritors or his estate have 60 days, beginning with the death, to file a notice.
After filing a notice, a claim describing the circumstances of the damage, the type of damage and the compensation requested must be submitted, within two years of the damage. In certain cases, the Claims Staff Officer may allow a claim be submitted even after these deadlines.
Secondly, the order sets a negative requirement. Compensation will not be paid if the area’s military commander states in a signed declaration, that the damage occurred due to “military action undertaken for a military purpose”; for damages occurring prior to June 28th 1967; to a claimant who is a member of an illegal organization or to a person damaged while acting on orders or on behalf of en enemy state etc.
The “Military Action Undertaken for a Military Purpose” Exception
As previously mentioned, the Claim Order states that one cannot receive compensation by force of the order, if the area’s military commander states in a signed declaration, that the damage occurred due to “military action undertaken for a military purpose”. According to article 2(d) of the order such a declaration is conclusive proof of what is written in it. Since the military commander created this option for compensation, he does not need to offer compensation in the cases where doing so is against his judgment, in cases where the damage occurred due to absolute military needs.
In many cases, such a declaration is issued only after a claim is submitted. In certain cases, when a claim is submitted, the military commander will review the circumstances of the claim in depth, and if he determines the damage occurred due to “military action undertaken for a military purpose” he will issue a declaration to that effect. The issuance of such a declaration results in the rejection of the claim.
The Appeals Committee Order (Judea & Samaria) (No. 172) of 1967, created the Appeals Committee which presides in the Ofer Military camp.
Article 8 of the Claims Order, authorizes the Appeals Committee to hear appeals against decisions made by the Claims Staff Officer. If the Claims Staff Officer rejects a claim, the claimant may file an appeal with the Appeals Committee requesting the overturn of the Staff Officer’s decision.
The Appeals Committee is not authorized to review a decision made by the military commander whether or not to issue a declaration stating, that the damage occurred due to “military action undertaken for a military purpose”.
However, this does not prevent one from filing a civil claim in an Israeli court or from filing a petition to the Israeli High Court of Justice to request the revocation of such a declaration (however the HCJ does not easily acquiesce to such a request, see HCJ 5473/13 Fares v. State of Israel).