The first post in this series detailed the World Central Kitchen strike and calls for an independent investigation and criminal accountability. This post focuses on the specific remedies, or lack thereof, available to strike victims and those living in Gaza as well.
First, what has Israel done so far? An IDF spokesperson said the conclusions of the initial attack investigation show Israel's “humility to admit mistakes, courage to make amends, and determination to learn from them.” he suggested. But so far, the amendments have been limited to apologies, expressions of regret, recognition of the damage caused, and some reforms to prevent such incidents from happening again. However, Israel has not made a public offer of individual compensation, despite requests from interested countries such as Australia and Poland. In light of this lack of action, this post explores avenues for personal reparation, including tort liability, UN claims registration, ex-gratia, and condolence payments.
tort liability
Given the numerous misrepresentations that resulted in the World Central Kitchen convoy being misidentified as a legitimate target, the families of the victims may pursue civil litigation as a path to accountability and personal compensation. Or? The Civil Torts (State Liability) Act of 1952, similar to the US Federal Tort Claims Act, waives immunity for the State of Israel from tort liability. For some Palestinian civilians in the West Bank and Gaza, receiving compensation for significant damage caused by Israeli forces was once a viable path, with the equivalent of $94 million paid out between 1988 and 2014. I was disappointed. However, Israel, like many other countries, including the United States, has a combatant activity exception to state tort liability. Initially, most Israeli judges interpreted this exception narrowly to relate only to IDF actions that appeared to be traditional combatant activity, but some judges interpreted it more broadly, and considered what facts This led to ambiguity as to whether a pattern qualifies as an exception. A 2002 Israeli Supreme Court case attempted to resolve this confusion by creating a test for the combatant activity exception, asking lower courts to consider: the specific risk to the military; , the weapons used, the purpose, location, and duration of the activity, and what forces were involved in the alleged negligent act. Shortly thereafter, Israel's parliament amended the Civil Torts Law, rejecting this test and expanding the exception for combatant activity to include a broader range of actions, including combating and interdiction against terrorism, hostilities, and insurrection. Expanded to include counter-terrorism and police operations.
With respect to the World Central Kitchen case in particular, even if potential plaintiffs were able to demonstrate that the IDF's actions met the relevant liability standards, the case would fall within the scope of the current combatant activity exception; It probably falls squarely under both narrow interpretations of the pre-amendment exception. Israeli Defense Forces drone operators used traditional military weapons to kill suspected Hamas fighters who commandeered a support convoy during the ongoing armed conflict.
The expansion of exceptions and the narrowing of avenues for claiming responsibility are equally important, as they speak to many of the other harmful acts inflicted on civilians by the IDF during this conflict. Thus, a narrow interpretation of the combatant activity exception, even though some of the other 192 aid workers in Gaza died during the conflict, and many others allege they harmed civilians. Additional amendments to the Civil Misconduct Act of 1952 include the following exemptions: A claim for damages “continued in a conflict area due to actions by security forces.” Elimination of Gaza residents by designating Gaza as enemy territory. And the combined impact of procedural hurdles, high legal costs and bonds, and denial of entry permits makes recovery virtually impossible.
Some scholars, such as Rebecca Krotoff and Haim Abraham, argue that states should be prepared for war torts, and scholars such as Yaara Mordecai argue that some of Israel's other state immunity exceptions should be similar. However, I do not expect these things to happen. In the short term, discussions with Israel (or any other nation) will gain significant traction. States justify the liability exception based on concerns that litigation risk will unduly deter the military. Misunderstandings between the types of mutual risks that arise in armed conflict and tort law. Concern that the enemy (here Hamas) will facilitate legislation to further its political goals through legal mechanisms. and unwilling to provide economic benefits to the enemy. Furthermore, it is worth noting that there is no expectation of reciprocity in this conflict. Hamas does not intend to compensate or even acknowledge the illegality of its intentional (much less unintentional) killings of civilians. Although the laws of war are not rooted in reciprocity, states may have extended legal obligations, especially if they do not seek to win over those affected by conflict and are not afforded similar improvements in treatment. They are often reluctant to do so. population.
Payment of condolence money and condolence money
In the absence of tort remedies, some countries, such as the United States, may instead provide ex-gratia or condolence payments to civilians who have suffered damage inflicted by U.S. forces during armed conflicts. As I wrote in a previous post, condolence money is a voluntary payment given “in accordance with local custom as an expression of sympathy to the victim or her family.” Condolence payments are understood a little more broadly, as they are “paid to express sympathy and provide urgent humanitarian relief” to individual victims or the communities involved. Neither form of payment admits fault or any kind of moral or legal liability. These differ from restitution and tort payments in that they are not designed to explicitly compensate someone for their losses.
So far, no evidence has been found that Israel has paid solatium or condolence money to Palestinians, and there is certainly no formal policy or practice to do so. Although the United Nations compensated the United Nations for damage it caused to its buildings during Operation Cast Lead in 2009, the payments did not go toward personal compensation for casualties of UN staff and Palestinian civilians related to attacks on UN buildings. was not included. This absence is consistent with Israel's insistence that reparations should be paid at the end of the conflict as part of the political process, but does not necessarily explain the lack of lump sum payments to the six victims of the World Central Kitchen strike. It's not fully explained. A person from a neutral country. It is at least conceivable that Israel would have offered compensation if all the victims were from neutral countries, but the aid drivers' Gazan citizenship complicates matters. If Israel compensated the family of another aid worker and excluded his family, Palestinians (and This will only exacerbate existing anger among those who are sympathetic to them. But his inclusion would raise uncomfortable questions about why he was included and why tens of thousands of other alleged Palestinian civilian victims were not included. So unlike the US attack in Kabul, where the US finally surrendered after long deliberation and paid reparations to the families of the aid workers it attacked, I would be surprised to see it here.
UN Damages Registry
If there is no wrongdoing and no condolence or gratuity payments, what happens to other forms of collective claims resolution systems? Can the existing UN Damages Registry provide a path to compensation? First things first. So, what is the United Nations Damages Registry and how did it come into existence? In 2002, Israel built a barrier in the West Bank in response to an increase in suicide bombings. In 2004, the International Court of Justice issued an advisory opinion on the legal impact of the wall in the Occupied Palestinian Territories, finding that the wall violates international law and, inter alia, Ordered compensation for related damages to the people. East Jerusalem. Although this judgment is not as binding as the ICJ judgment, in 2007 the United Nations General Assembly passed a resolution requiring the Secretary-General to compile a record of damages related to the wall. Since then, the United Nations Registry of Reparations for Damages (UNRoD), managed by board members chosen for their “independence, impartiality, objectivity” and expertise, has collected Palestinian claims. UNRoD regulations recognize six categories of claims, including agriculture, commerce, housing, employment, access to services, and public resources. According to the commission's report, these categories have not been expanded to include broader harms caused by the wall, such as injuries and deaths resulting from wall protests.
To be clear, the Registry is merely a technical fact-finding process and is not a compensation commission. The United Nations resolution created the register to “serve as a record in the form of a document.” Therefore, at present, UNRoD has determined that the claim is eligible, including the suitability of jurisdiction, the materiality of the damages claimed, the establishment of a causal link between the damage and the construction of the wall, and the prima facie establishment of the claim. We only judge whether the standards are met. As of 2019, UNRoD had received approximately 70,000 claims and reviewed approximately half of them.
For civilian victims of the Israel-Hamas war to receive compensation through UNRoD, the UN General Assembly must adopt three important reforms. First, the agency's jurisdiction needs to be significantly expanded. UNRoD currently does not compensate for losses related to what it more commonly considers occupation or the existing Israeli-Hamas conflict. Second, the General Assembly must also meaningfully expand its functional mandate by allowing a process to ascertain the facts and assess the amount of damages claimed. Third, it extends the registration of non-material losses, such as personal bodily harm, such as injury or death. An even bigger barrier is funding. Without a legal requirement for insurance payments (and perhaps even if there is such a requirement), direct Israeli participation seems highly unlikely. Israel has so far cooperated in activities related to UNRoD claims, including providing requested materials, but still insists that damages should be assessed through existing Israeli mechanisms. UNRoD has also not had much luck in maintaining funding for UNRoD's current activities, much less finding parties willing to fund existing claims.
conclusion
So what happens to the victims of the World Central Kitchen strike and others like them? If the conflict ends, part of a political solution could include reparations and third countries funding Gaza's reconstruction. Whether such a political solution would include personal compensation for civilian victims is a pressing question for a later date.
