Palestinian Law of Tort
By James Crombie at Jan 22, 2009
The damage visible in the fleeting television images we have been allowed to see of post-incursion Palestine is breath-taking. But it was the few well-chosen words of a radio news report which impressed me most - during what was euphemistically termed the "conflict." Raw sewage was running in the streets as a result of artillery fire.
"Oh, yuck," I said to myself, "who is going to pay to fix this?" I can sympathize because, in Canada, we have been worrying for some time about about how to find the money to renew our aging sewer systems and other elements of basic social infrastructure which have been quietly crumbling away for a half century in the absence of any financial provision being made to eventually replace them. We Canadians are fortunate, I suppose, in that no one is actually firing cannons at our infrastructure, or dropping bombs on it. And Canadians on their way to work don't have to drive their cars through puddles of excrement! (Yes, Virginia, many of us still have work to go to, not as many of us as before but still quite a few!)
The human tragedy of Gaza is beyond my comprehension. Waiting for ambulances which come too late, death, disability and grief, who can deal with stuff like that? My middle-class upbringing makes it easier to grasp the problem of property damage. One of the things I was always taught to respect was other people's property. I never actually broke a neighbour's window with a ball, but I knew that if I did either I or my parents would have to pay for the damage.
In Canada, if my dog kills somebody's chickens, or if my tank of heating oil leaks and contaminates my neighbour's well, I have to pay. It's called liability or the law of tort. In Canada, if a military vehicle runs off the road and wrecks the fence in front of my house, I expect to be compensated by the Canadian federal government. If a policeman in hot pursuit of some teenager who has stolen a car loses control of his cruiser and collides with my house, I expect to be compensated by the provincial or municipal government. The same applies for damage from stray bullets fired by police returning the fire of armed bank robbers. (Not that we've seen many of those lately anywhere near where I live.)
On the same principle, compensation should be paid to the owners of property damaged by the actions of the Israeli Defence Force and by Hamas fighters. There's also the matter of damage to infrastructure.
Now I don't expect to see on next week's television news a bevy of Israeli claims officers heading out to inspect the damage done to thousands of private homes in Gaza, with a view to determining the amount of compensation payable to individual families. Nor do I expect to see a photo-op any time soon showing the smiling faces of Tzipi Livni and Ehud Olmert as they sign cheques payable to the government of Gaza, under the impassive gaze of Hamas officials. The image may seem surreal. But this is what the rule of law and adherence to basic principles of respect for property would look like.
It will be extremely difficult to obtain recognition and respect for Palestinian property. But how about getting compensation for damage done to United Nations property? If my memory serves me correctly, three schools plus a compound and warehouse associated with the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) were more or less completely destroyed by fire from Israeli tanks, along with hundreds of tons of humanitarian supplies. Whether this was done completely by accident, on the basis of erroneous information or on purpose doesn't matter much in this context, since it seems pretty clear who actually did the damage and who should pay. I am particularly exercised about this damage, since the UNRWA facilities were, in a way, my property. I pay taxes to the Canadian government, which in turn pays dues to the United Nations which will now have to replace the supplies, buildings and equipment which were destroyed.
That was partly my money which was magically transformed into smoke, flames and flying rubble. UNRWA should be reimbursed, not by me but by the Israeli government.
Part of the international aid sent to Palestine should also be in the form of legal aid and advice for private families who may not know exactly how to go about submitting bills for damage to their houses. (And for damage to their cars. Do Palestinians have cars?) Once the procedures for compensation to private individuals and families are well under way, we could and should turn our attention to the damage done to sewer systems, hospitals, schools, electrical and water distribution networks, government offices, roads, etc. I don't recall reports of damage to olive trees and other greenery as a result of the incursion, but Israeli incursions are often very hard on the olive trees, and a return to civilized life would require that they be replanted as well.
But I have to be careful here. Here it comes. Here comes the inevitable accusation of one-sidedness. This was the excuse used by my own Canadian government in voting against - or not voting for, I forget - UN resolutions calling for a ceasefire, since these resolutions were supposedly overly critical of Israel (which was only defending itself) but not hard enough on Hamas for firing all those Qassam rockets. Well, okay, the answer to this objection is clear and simple. Israeli civilians are clearly as deserving of compensation as Palestinians when some nasty explosive device falls out of the sky on them. And vice versa. The deliberate firing of Qassam rockets into areas where the likelihood is high that they will cause damage to the private property of private Israeli civilians generates liability for the damage caused. Hamas is also liable for damage caused to basic infrastructure like roads, bus shelters and signage by those same rockets.
If the residents of Gaza can bill the IDF for damage caused by tanks, fighter planes and white phosphorous, then residents of Israel, by the same token, can bill the Hamas-controlled administration for damage caused by Qassam rockets. If suicide bombing has been sponsored in any way by Hamas, then they have to pay for that damage too. The rule is - or ought to be in a better world than the one we have: you break it, you pay for it. In an even better world, of course, there would be a good deal less destruction of property to be compensated for.
A welcome by-product of being financially responsible for damage to property might be that less damage would be done to property and, as a result, fewer people would get hurt...