For the first time ever, the Basic Law: Israel as the Nation State of the Jewish People was relied on this week in a controversial law suit against Hamas, the Islamic militant group that controls Gaza. Judge Moshe Drori of the Jerusalem District Court relied on a section of the new Basic Law, which requires the state of Israel to ensure the safety and well-being of the Jewish people. He held that when the state fails to protect the Jewish people against terror attacks, it must provide victims with punitive damages – a form of damages that is rarely ruled by Israeli courts – as a secondary form of protection. In doing so, Drori not only indirectly applied constitutional norms to the interactions of private individuals, he also paved the way to discriminate between victims of terrorist attacks based on their religious affiliation.
The facts of this case are unfortunate and troubling. The plaintiffs are David Mashiach and his family. On August 27, 1998, Mashiach witnessed a terror attacked that was executed by a Hamas operative in Tel Aviv while Mashiach was operating his lottery stand. Consequently, he suffers from post-traumatic stress disorder (PTSD). His family was also found to be suffering from psychiatric trauma as secondary victims, due to the effects the PTSD had on their father.
In finding that Hamas is liable for punitive damages in tort for the losses the Mashiach family sustained due to the Basic Law: Nation State, Drori seems to hold that tort law, and the courts, are enlisted to the war on terror. He states that if the first line of defense fails, that is if the Israeli security forces fail to protect against a terror attack, then the courts must act as the last line of defense. It can be inferred from Drori’s ruling that while courts cannot prevent a harm from materializing, they can provide a mechanism through which individuals can stand on their rights, hold the wrongdoers accountable, and obtain a remedy. In doing so, private law becomes the means through which victims take back control over their rights and are not subject to the ill-purposes of terror organizations.
The use of private law, and specifically civil claims for compensation, as a means in the fight against terror is not novel or unique to Israel. For instance, in the United States, the Anti-Terrorism Act and the Justice Against Terrorism Act provide a cause of action for U.S. nationals to sue for damages from those who aid and abet acts of international terrorism. Similarly, in Canada, the Justice for Victims of Terrorism Act provides a cause of action to seek civil compensation for any individual who sustained a loss due to an act of terror that is connected, even loosely, to Canada.
Nevertheless, Drori’s interpretation of the applicability of the Basic Law: Nation State to tort liability is distinctive in two main ways. First, it discriminates between Jewish and non-Jewish victims of terror attacks. The Mashiach family was granted punitive damages only because of the fact that they are Jewish. If the exact same losses were sustained by a member of any other faith, then they would not have the same claim to punitive damages. Second, Drori’s ruling potentially provides standing for any Jewish person who suffered any loss anywhere in the world to file a claim in Israeli courts. If it is indeed the court’s responsibility under the new Basic Law: Nation State to ensure the well-being of the Jewish people, then their jurisdiction could be viewed as universal. The scope of such jurisdiction far exceeds that which is currently understood to exist. For Israeli courts to have jurisdiction over a civil case it must have territorial connection to Israel. Either the wrongful loss was inflicted in Israel or that the plaintiff is located in it. Drori’s interpretation does not require any such territorial connection, and assumes that a religious affiliation is sufficient.
Hence, Drori’s interpretation of the Basic Law: Nation State reveals an aspect of the latter’s discriminatory nature that was not considered fully until now. It provides only Jewish individuals with the full protection of private law, while allowing them either to inflict certain losses or impose greater risks on non-Jewish individuals. Put differently, the Basic Law assigns different moral and legal value to individuals based on their religious affiliation. In delivering this ruling, Drori is sending out the message that the Israeli courts are being enlisted in the fight against terror, but they will have more conviction when the victims of terrorism are Jewish. This discriminatory message cannot be endorsed by private law, in which all claims and remedies are available to all plaintiffs regardless of their particular characteristics. It does not matter whether a person is rich or poor, black or white, kind or cruel. All can bring a claim through private law to protect their rights. Yet, Drori’s ruling distorts this basic principle by considering these particularities and assigning value to them. Those individuals who will have the “right” religious affiliation will benefit from the full protection of the law, while others could only enjoy a more limited protection. This is not to say that the latter will not be able to obtain compensation, only that the compesation will necessarily be lower than what a Jewish plaintiff could have obtained under the same circumstances. As such, it is clearly wrong. Furthermore, while Israel’s Attorney General Avichai Mandelblit argued that the Basic Law will not result in discrimination against religious minorities in Israel, Drori’s ruling is evidence to the contrary.
It is still unknown whether an appeal to the Supreme Court for Drori’s ruling will be pursued. Nevertheless, such an appeal holds promise, as the ruling can be vacated. The court will then have the opportunity of sending the right message: that private law does not and should not discriminate between individuals.