Israel Matzav

'Palestinians' to file lawsuits against Israel

Under international law, a sovereign may not be sued without its consent. In the United States, for example, what allows Americans to sue the United States government in limited circumstances is something called the Federal Torts Claims Act. Here in Israel, our Leftist Supreme Court has ruled in the past that the government is vulnerable to lawsuits by 'Palestinians' who are injured in counter-terrorism activity. However, in Israel the Knesset is supreme to the other branches of government and the Knesset has limited and may further limit 'Palestinians' abilities to sue the government of Israel for damages sustained in counter-terrorism activities. Additionally, we have no rule here - as there is in the United States - against ex-post facto laws (i.e. laws that apply retroactively). With those points in mind, we examine the question of 'Palestinian' lawsuits against Israel arising out of Operation Cast Lead.

The Israeli defence ministry’s prosecution department has received about 1,500 notices of future civil lawsuits against the Israeli Defence Forces (IDF) over damage caused to Palestinians and their property, and loss of earning capacity during Operation Cast Lead, Israel’s codename for its three-week attack on the coastal territory.

Israel is expected counter-argue that it was fighting on foreign territory and so it bears no legal responsibility for the aftermath of its intensive bombing campaign.

However, under international law Gaza is still considered occupied by Israel as the Israeli authorities continue to control the territory’s borders, airspace, coastline, population registration, and electricity and water supplies.

The IDF has also established wide buffer zones within Gaza’s borders and forbidden Palestinian farmers from approaching their agricultural lands situated within the buffer areas. A number of Palestinians have been shot dead or wounded for entering the zones.

Furthermore, the Israeli navy prevents Palestinian fishermen from pursuing their livelihoods along Gaza’s coastline by limiting fishing to a three nautical- mile zone out to sea. Several fishermen have been killed, many more wounded, and dozens of boats have been shot at or destroyed for going beyond the zone.

The claim that Israel controls Gaza is actually incorrect under international law (Hat Tip: Daled Amos).

There is no legal basis for maintaining that Gaza is occupied territory. The Fourth Geneva Convention refers to territory as occupied where the territory is of another “High Contracting Party” (i.e., a state party to the convention) and the occupier “exercises the functions of government” in the occupied territory. Yet, the Gaza Strip is not territory of another state party to the convention – Egypt, which previously controlled Gaza, is a party to the convention, but Gaza was never Egyptian territory. And Israel does not exercise the functions of government – or, indeed, any significant functions - in the territory. It is clear to all that the elected Hamas government is the de facto sovereign of the Gaza Strip and does not take direction from Israel, or any other state.

Military superiority over a neighbor does not itself constitute occupation. If it did, the U.S. would have to be considered the occupier of Mexico and Canada, Egypt the occupier of Libya, Iran the occupier of Afghanistan, and Russia the occupier of Latvia.

If Israel were indeed properly considered an occupier, under Article 43 of the regulations attached to the Fourth Hague Convention of 1907, Israel would be required to take “all the measures in [its] power to restore, and ensure, as far as possible, public order and safety.” Thus, those who contend that Israel is in legal occupation of Gaza must also support and even demand Israeli military operations in order to disarm Palestinian terror groups and militias.

Will that be the end of those claims? In some cases, in Israeli courts, yes. But others may get through. For those cases, the Knesset is working on legislation that will limit the government's exposure.

Of course, several European countries have also threatened to arrest IDF officers who enter those countries. Israel has no control over those arrests, and has advised many IDF officers not to travel.

Finally, the damage that the Goldstone Report has inflicted on Israel cannot be measured in dollars alone.

Read the whole thing.

The picture at the top of this post is Anas Naim. Hamas listed him as a 'civilian' casualty.

posted by Carl in Jerusalem @ 7:09 PM