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Towards Winning
Recognition for Palestinian Victims of Terror
Only a few
victims discussed in this report have taken legal action in order to gain
compensation from the Israeli government as victims of terrorist attacks
perpetrated by militant Jews. Many of them are too poor to hire legal
representation. Even if they could afford it, other Palestinian victims
think that legal representation would not make a difference in any event.
Manal Diab and the two Khouri
sisters were exceptional in this regard. Despite, or perhaps because of,
the trauma that they suffered as innocent victims in the three bombing
attacks on their apartment in West Jerusalem, they decided to take legal
action. According to Ms. Diab, the fact that their apartment had
been attacked on more than one occasion was too much. She and the Khouris
were concerned that if they had kept quiet, the underlying issues involved
in the case would not have been addressed. They therefore decided to talk
publicly about their situation.54
In addition to the routine
criminal investigation by the local authorities, the women felt that the
State of Israel had an obligation to recognize them as victims of
terrorist attacks in the same way that the State recognizes Jews as
victims of terrorist attacks perpetrated by Palestinians. Historically,
the State of Israel has given recognition only to victims of terrorist
attacks that have been seen to be hostile to Israel. With a few
exceptions, the vast majority of such victims have been Jewish. Gaining
official recognition as a terror victim is important because the
recognition entitles the victim to compensation for more than merely
hospital bills and missed days of work. It also entitles the victim to
compensation for property damages as well as for bodily injuries.
A. Recent Legal
Developments Relating to Israel’s Compensation Laws
Ms. Diab and the Khouris hired
an attorney, Yousef Jabareen, who works with the Association for Civil
Rights in Israel. Mr. Jabareen, also a Palestinian citizen of Israel,
initially had difficulty deciding on the most effective way to approach
this case from a legal point of view. According to Mr. Jabareen, there
were three components of this case on which he could potentially base his
legal argument.
The first
component addressed the fact that the police failed to provide the same
degree of protection for the three Palestinian women in West Jerusalem as
they do for Jewish settlers in East Jerusalem. However, Mr. Jabareen did
not want to make this comparison, since most of the settlers live in East
Jerusalem for political and ideological reasons; whereas, these three
women wanted to live in West Jerusalem only for convenience and other
social reasons.
A
second component of the case on which Mr. Jabareen considered building a
legal argument addressed the right of Palestinians to live in a Jewish
neighborhood. However, because Israel does not have a Fair Housing Act
such as the one in the United States, there existed no firm legal ground
on which to make this argument. Mr. Jabareen also contemplated trying to
make an argument based on the general principle of equality. However, this
line of argument also would have run into problems since the apartment
building was privately owned.
A third component of the case
– the component on which Mr. Jabareen ultimately decided to focus –
addressed the issue of compensation. Under two Israeli laws – the Property
Tax and Compensation Fund Law (1961) and the Victims of Hostile Action Law
(1970) – terror victims of “hostile acts against Israel” are entitled to
governmental compensation.55 The two compensation laws were intended to
compensate victims for bodily injuries suffered in terrorist attacks and
for property damages resulting from such attacks. Mr. Jabareen proposed
that this case clearly involved victims whose property had been damaged
because of terrorist attacks.
Based on this third component,
Mr. Jabareen made a legal argument on two fronts. In an interview with the
PHRMG, he explained the two bases of his argument:
“On one front, I contended
that, because these women were Israeli citizens, the attacks against them
should be considered an attack against Israel. I also argued that such an
attack on Israeli citizens could be construed as being an attack against
Israel because it undermines both the rule of law and majority-minority
relations in Israel. Furthermore, I suggested that it would be unfair not
to award compensation to Arab citizens, given that more than 70% of the
Property Tax Compensation Fund is financed by taxes on Arab private lands
in Israel and in East Jerusalem. The tax itself is assessed on the basis
of private lands, most of which is owned by Arabs.
“On another front, I argued
that the intention of the compensation laws was to provide material
compensation to victims who were attacked solely because of their
particular nationality. These women were not attacked because they did
something wrong, or because there was a personal dispute between them and
other parties. On the contrary, they were attacked merely because of their
nationality – because they were Arab.”56
With this legal approach, Mr.
Jabareen submitted a claim to the Property Tax and Compensation Fund. The
Property Tax and Compensation Fund rejected his claim without explanation
on May 6, 1998, noting only that “[i]n this case we are not dealing with
damages caused by acts of war or by acts hostile to Israel.”57 Following
the rejection of Mr. Jabareen’s claim, correspondence occurred between Mr.
Jabareen and the representative of the Property Tax and Compensation Fund.
In the correspondence, the representative of the fund re-iterated that “it
is clear beyond reasonable doubt that the arsons were committed against a
background not included in the law.” 58
After the Property Tax and
Compensation Fund rejected his claim, Mr. Jabareen appealed to the
Jerusalem District Appeals Committee. The first session of the appeals
proceedings was held on September 15, 1998. A second session followed on
October 29, 1998. In the appeal proceeding, Mr. Jabareen argued that the
State of Israel discriminates against its Arab citizens because the state
does not apply the laws equally to both Jewish and Arab citizens. Mr.
Jabareen pointed out that every Jew in Israel who is attacked because he
is a Jew is automatically entitled to compensation from the State, while
an Arab who is attacked because he is an Arab is not entitled to
compensation, even if he is a citizen of the State. In fact, an Arab is
entitled to compensation only if the assailant mistakes him for a Jew.
In the brief he submitted to
the Jerusalem District Appeals Committee, Mr. Jabareen contended:
The attacks . . . are
extreme acts of terrorism, perpetrated out of racist-nationalist motives,
and were aimed at the three young women for no reason except their being
Arabs. The goal of these attacks was to frighten and harm the Arab tenants
so as to force them to leave the neighborhood of Musrara, so that it might
remain “Arab-free.” Nationalist attacks of this sort, whether aimed at
Jews for being Jews, or Arabs for being Arabs, subvert the state’s
democratic character and injure the basic
values of our covernment and the vulnerable fabric of Jewish-Arab
coexistence in Israel – and as such are actions hostile to Israel.59
Mr. Jabareen suggested further
that the attacks could be seen as hostile to Israel and that, therefore,
the victims – who are all Israeli citizens – possess “the right to be
compensated from the public fund which consists of taxes they join in
paying.”60
To counter this argument, the
legal representative of the Property Tax and Compensation Fund argued that
the attacks on the women were not necessarily motivated by racist
nationalist politics. Noting that the police investigations were still
underway and that the identities of the arsonists were still uncertain, he
suggested that there might have been “several possible motives, including
a simple criminal motive, or one of religious extremism.”61 The
representative contended further that even if the motives derived from
racist nationalist politics, the Compensation and Property Tax Fund Law
did not cover the crime. In his view, the law was designed to cover only
terrorist attacks that threatened either Israel’s sovereignty or Israel’s
Jewish citizens.62
The Jerusalem District Appeals
Committee ultimately agreed with the Property Tax and Compensation Fund’s
interpretation of the law, noting that “nothing was adduced that could tip
the balance to the appealer’s version, as though the damage to property
was conceived as a ‘hostile act’ to the State of Israel, as would be
necessary to base a claim for compensation, according to the definition of
‘belligerent damage’ in the law.”63
However, the Jerusalem
District Appeals Committee accepted Mr. Jabareen’s version of the facts,
finding that the attacks on the Arab women were clearly motivated by
racist nationalist politics and were intended to force the women to leave
the Jewish neighborhood. The committee determined that the only cause of
the attacks was “racist hate.”64
With this important
acknowledgement of his version of the facts, Mr. Jabareen then appealed to
the Jerusalem District Court. In the brief he submitted to the Jerusalem
District Court, Mr. Jabareen set forth his view of the fundamental legal
question raised by the case:
Is a terrorist attack aimed at
Arab citizens of the State of Israel to be considered a hostile action
against Israel, which qualifies the victims of the attack to be
compensated for damage to their property, as necessarily follows from the
Property Tax and Compensation Fund Law 5721-1961?65
Rather than having to decide
the case, the Jerusalem District Court found that it did not have to issue
a judgement after a compromise agreement was reached between the relevant
parties.
The compromise agreement
followed a series of contacts that took place between representatives of
the Property Tax and Compensation Fund, the National Insurance
Instititute, and the Ministry of Internal Security. Following the series
of contacts, the legal adviser to the Israeli Attorney General determined
that the law of compensation in its current reading does not cover
terrorist attacks against Arab citizens of Israel or Arab residents of
Jerusalem. However, the Attorney General made clear that Arab nationals
deserve equal treatment before the law, including receiving equal
compensation as terror victims. The compromise agreement which was reached
was intended to promote just that goal.
B. Building on a Legal
Victory
The compromise agreement
constitutes an important step in securing equal treatment before the law
for all Israeli citizens and Jerusalem residents. The compromise agreement
mandates three important measures, which should permit at least some Arab
victims of terrorist attacks perpetrated by militant Jews to recover
compensation from the Israeli government.
Firstly, the compromise
agreement requires the Israeli government to pay immediate compensation to
the three Palestininan women whose apartment was attacked as soon as the
damage to their propety is assessed.
This measure marks the first time that Israel will pay compensation to
Palestinian citizens who have been terrorized by militant Jews.66
Secondly, the compromise
agreement requires that a solution be devised for similar cases involving
Palestinian terror victims. To achieve this goal, a special governmental
committee charged with reviewing claims submitted by Palestinian terror
victims is to be established. The special committee is to be vested with
the power to grant or deny compensation to Palestinian victims of
terrorist attacks.67
Thirdly, the compromise
agreement calls on the Israeli Knesset to revise the language of Israel’s
compensation laws, upon further examination by the Vice Attorney General.
The revised versions of the compensation laws should make it possible for
all victims of terrorism to recover compensation, regardless of
nationality.68
As already mentioned, the
PHRMG applauds these recent developments. Indeed, it is a testament to the
courage of the three Palestinian women and their lawyer that these
advances were made. Now it should be possible for Palestinian citizens of
Israel and Palestinian residents of East Jerusalem to recover compensation
as victims of violent attacks perpetrated by militant Jews. Without doubt,
such victims will be in a better position to pursue claims for
compensation as victims of terrorism than they were in before the
compromise agreement was reached.
Furthermore, the State of
Israel has admitted that the current situation discriminates against
Palestinian citizens of Israel and Palestinian residents of Jerusalem.
With that admission, the current situation has already begun to be
remedied. On December 1, 1999, the Israeli Knesset voted in favor of a
bill presented by MK Hussniya Jabara of Meretz that would provide equal
compensation for all victims of terror, regardless of nationality. The
bill has already passed its first reading, but it needs to pass two more
readings before it becomes law.69
Still, some problems with the
legal situation may continue to persist. Foremost among them is the fact
that the current compromise agreement does not reach Palestinian victims
who are residents of the West Bank and the Gaza Strip, since Mr.
Jabareen’s groundbreaking lawsuit involved only Palestinian citizens of
Israel. This is the case even though most Palestinians live in the West
Bank and the Gaza Strip and even though many of the attacks against
Palestinians will continue to occur in places that continue to be ruled by
Israel. Indeed, at least one or two of the stabbing attacks documented in
this report were carried out against West Bank residents in
Israeli-controlled Jerusalem. Nasser Bsharat, for example, who is a
resident of the West Bank village of Jaba’, will not be able to recover
compensation from the Israeli government, even though he was attacked in
West Jerusalem.
Another major problem with the
legal situation is that it may continue to be difficult for Palestinian
terror victims to prove that they are indeed victims of terrorist attacks
as opposed to other kinds of attacks. This problem will continue to
surface, especially if the Israeli police authorities continue to fail to
apprehend and to prosecute militant Jews suspected of carrying out
terrorist attacks against Palestinians. Indeed, the Israeli authorities
often claim, despite overwhelming evidence to the contrary, that
Palestinian terror victims are simply victims of Arab-on-Arab violence or
even of ordinary violent crimes. Indeed, such claims were raised
originally by the Israeli police and later by the Israeli legal
representative of the Property Tax and Compensation Fund with respect to
the case involving the the three Palestinian women. Similar claims were
also raised in the case involving Raja Abd al-Rahman.
In order
for all Palestinian terror victims to recover compensation from the
Israeli government, the negative aspects of the current legal situation
will have to be addressed, even though a key compromise agreement was
reached.
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