Abuse of the Nation-State Law

I am quite sure that when MK Avi Dichter first submitted his Nation-State Law bill, he never imaged that it would serve for anything but purely declaratory purposes – whether moral or political. I am also quite sure that none of the 62 MKs who voted in favor of the Basic Law considered it a basis for demanding compensation from Hamas for victims of terrorist attacks carried out by its members.

However, that is exactly what the deputy president of the District Court in Jerusalem, Judge Moshe Drori, did last Monday in his verdict in the lawsuit brought by David Mashiah, who back in 1998 had been severely wounded in a Tel Aviv terrorist attack for which Hamas took responsibility. In 2007, Mashiah sued the Palestinian Authority and Hamas. Drori’s verdict related to Hamas only, upon whom he imposed the payment of compensations to Mashiah of NIS 5.4 million, of which NIS 1 million was for punitive damages – i.e. damages which do not require proof of actual harm caused to the victim. Thus, NIS 4.4 million covers the sum that the National Insurance Institute (NII) has paid or is still to pay the plaintiff for the physical, mental and economic damage caused to him as a result of the terrorist attack, and from which the NII will be reimbursed, while NIS 1 million is to be paid directly to the plaintiff, if and when Hamas pays up.

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It is rare that punitive damages are imposed in the case of terrorist attacks. Of four previous court decisions that imposed such damages, Drori was responsible for two – both involving terrorist attacks in the Jerusalem district. Those cases were decided before the Nation-State Law was enacted.

The article in Basic Law: Israel – the Nation State of the Jewish People upon which Drori based his verdict, was article 6(a), which states: “The state will strive to ensure the safety of the members of the Jewish people in trouble or in captivity due to the fact of their Jewishness or their citizenship,” although he emphasized only the application to the Jewish people and not to Israel’s citizens in general. His argument was that since the state had failed to secure Mashiah’s safety, because it did not succeed in preventing Hamas from carrying out its terrorist attack, the article in the Nation Law is applicable as a kind of alternative remedy and is intended to encourage – certainly not to disturb – a Jew injured in a terrorist attack to receive the maximum compensation possible under the Israeli legal system – i.e. beyond the compensation he has received/is to receive from the NII.

I am not a lawyer and perhaps Drori’s interpretation of article 6(a) is legally sound. However, as a layperson and political scientist, the way I read the article, what it does is to place a moral responsibility on the State of Israel “to strive” to secure the safety of the Jewish people and of its citizens. I do not know whether failure to succeed in achieving what one is instructed to strive for is a punishable offence, for which the state might be sued for damages by those harmed (whether they be Jewish or non-Jewish citizens), but Drori’s interpretation seems far-fetched to me – certainly if taken as far as he took it.

I also wonder what would happen if every Jew and Israeli citizen – Jewish or non-Jewish – started suing the state for not only failing to maintain his or her security, or for actually being the cause of the insecurity. I can imagine that if such a norm were established, the family of the hapless teacher from Um-al-Hiran in the Negev, Musa Abu al-Ki’an – who was shot dead by police after they had accused him of deliberately running over and killing a policemen in the course of confrontations around the destruction of the unrecognized Bedouin village (an accusation that the police itself later admitted was unsubstantiated) – could have sued the state for substantial damages, not only for failing to maintain his security, but for actually causing his death on false pretenses.

Drori himself would certainly throw such a claim out of the window, especially since he is known for his anti-Arab disposition, not to mention racism, in his verdicts.

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In 2009, Drori’s candidacy for the Supreme Court was rescinded on grounds of a scandalous verdict he had issued in 2006: he acquitted yeshiva student Itamar Biton, who admitted to having deliberately bumped his car into Ethiopian supermarket cashier Noga Zora’ish, who had chased him out of the supermarket because he had left without paying. Drori had acquitted Biton in order not to stand in the way of his being appointed as a rabbinical court dayan.

To add insult to injury, he argued that Zora’ish had benefited from the whole incident.

“The most substantial event of her life, in which she was finally accepted into the Israeli society as an equal, were the proceedings before me,” he wrote. “She started speaking hesitantly, with a feeling that she does not count, and a man with a car (the defendant) treated her like a dog. Gradually she understood that a judge was listening to every word she uttered, lawyers approached her politely, and even he who hurt her apologized to her… She understood the great improvement in her social status between the beginning of the proceedings and their end”. Remember, the woman he was referring to was an Ethiopian and the defendant was acquitted.

Fortunately, the Supreme Court saved the Israeli legal system from disgrace, and overturned Drori’s verdict, sentencing the yeshiva student to one year on probation, revoking his driver’s license for three years and imposing on him compensation at a sum of NIS 10,000 for Zora’ish.

I wonder whether anyone will appeal against Drori’s new shameful verdict, which turns our already faulty Nation-State Law into something more sinister and gives antisemites an excuse to accuse Jews of being shameless money-grabbers willing to use any means – including the proclamation of Israel as the nation-state of the Jewish People – to extract money from non-Jews. (I am not saying that Mashiah does not have the right to sue the Hamas for maximal compensation for his disability, resulting from their terrorist attack in which he was hurt; the issue is the legal basis for the verdict).

Do we really want the question of the demand for compensation from Israel by tens of thousands (or more) innocent Palestinians accidentally killed, injured or maimed by Israeli security forces (I am not talking of Palestinians killed, injured or maimed in the course of violent clashes and terrorist events) to rise as a reaction to our Nation Law being misused by one of our judges?

“There are judges in Jerusalem,” former prime minister Menachem Begin is reported to have said back in 1979. I wonder what Begin would have had to say about Drori.

One final question: Why did it take 11 years for a verdict to be given in the Mahsiah claim – 20 years after the event on which it was based?

Apparently the reason was that the plaintiff kept asking for deferrals because of disagreements with the NII regarding the degree of his disability and the compensation to which he is entitled, so at least the court cannot be blamed for the delay.

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