Access Denied – Using Procedure to Restrict Tort Litigation: The Israeli-Palestinian Experience

Abstract

Procedural barriers which limit individuals’ ability to bring lawsuits — like conditioning litigation upon the provision of a bond — are a subtle way to reduce the volume of tort litigation. The use of such procedural doctrines often spares legislatures from the need to debate the substance of legal rights, especially when those rights are politically controversial. This Article presents a case study of this phenomenon which has escaped scholarly attention, in the intriguing context of the Israeli-Palestinian Conflict. On the books, a unique mechanism enables non-Israeli citizen Palestinians of the West Bank and Gaza Strip to bring civil actions for damages against Israel before Israeli civil courts. Yet, since the early 2000s, Israel began using a host of procedural obstacles to restrict Palestinians’ access to its civil courts, effectively precluding their ability to bring claims arising from Israeli military actions. Through fifty-five in-depth interviews with lawyers, policy makers, plaintiffs, and other key stakeholders, alongside a host of secondary sources such as parliamentary protocols and NGO reports, this Article considers the impact this process has on Palestinians’ access to justice. While the use of procedure to encroach on an injured person’s right to compensation may be considered a taking of property, and thus, conceptualized as a dignity taking, such an analysis overlooks a key component of the harm caused to these individuals. Procedural restrictions that block access to the courts also deny Palestinians of their right to participate in the litigation process. Focusing only on property rights — the “end game” of the litigation — ignores benefits derived from the litigation process, including accountability, transparency, and recognition, which may be particularly important when it comes to plaintiffs from vulnerable, disadvantaged groups.