The Occupation of the Law: Judiciary-Legislature Power Dynamics in Palestinians' Tort Claims Against Israel

Abstract

The complex reality of the Israeli-Palestinian Conflict gives rise to violent confrontations between Palestinians and Israeli security forces, which frequently lead to bodily injuries and damage to property of Palestinian civilians. While victims of armed conflict are often forced to resort to international tribunals in order to seek redress for such grievances, the Israeli legislator has created a mechanism that allows Palestinians to bring tort claims against the State of Israel before Israeli civil courts. In the last decade, though, this legislation has become significantly more restrictive, effectively denying state liability for Palestinians’ injuries. This Study is a first systematic attempt to empirically evaluate this unique compensation mechanism. Through the lens of scholarship on judiciary-legislature relations, as developed in the United States and in Israel, this study investigates the role of lower courts adjudicating the politically-charged tort cases of the Israeli-Palestinian Conflict. Employing both quantitative and qualitative methods, the Study utilizes content analysis of 245 decisions rendered by Israeli trial courts between 1992 and 2012, supplemented by in-depth interviews with relevant stakeholders. While scholars tend to focus on the interests of, and power struggles between, legislatures and supreme courts, this Article studies the relationship between law and politics in lower courts. It explores changes in the attitudes of courts towards Palestinians' tort claims against Israel, revealing the power dynamic between the Israeli legislature and civil trial courts. The Study shows a judicial attempt to defend lower courts' institutional independence despite the legislature's efforts to dictate a specifically desired judicial decision-making process.