A Policy That Could Help Palestinians Recover From the War Is Catching On. But There Are Hurdles.

On Sunday, an Israeli airstrike in Rafah killed at least 50 Palestinian civilians, injuring over 200 more. The strike set off a lethal fire in a tent camp that had been designated as a humanitarian area for hundreds of Gazan Palestinians who have been displaced, adding more victims to the tens of thousands killed and injured since fighting began on Oct. 7. Benjamin Netanyahu, Israel’s prime minister, called this incident a “tragic mistake,” but also vowed that Israel would continue to fight in Gaza despite growing calls for an immediate cease-fire. Even if this strike was a mistake—does that change Israel’s obligations to the victims? In other words, should states that cause death and destruction in wartime, intentionally or mistakenly, be held responsible?

Relatively early in the war, Michael L. Gross wrote an opinion for the New York Times in which he argues that Israel has moral obligations and political incentives to pay compensation and provide medical care to civilians in Gaza. Doing so, according to Gross, would not only improve Israel’s moral standing in the eyes of the world, but would also fulfill its moral obligations to innocent victims. More recently, there has been increasing interest and speculation about what compensation Israel might offer to non-Palestinian foreign nationals who have been injured or killed in Gaza, particularly in relation to the deaths of the World Central Kitchen aid workers (for example in Reuters, Verdict, and the Daily Mail).

However, what reparations Israel might owe, and to whom, for the injuries it inflicts on civilians are not questions with simple, single, or straightforward answers. Instead, they vary depending on whether we’re analyzing “what is owed” through a legal, political, or moral prism. The unfortunate truth is that each possibility would leave innocent civilians without redress for most losses that they’ve sustained.

As a matter of international law, Israel is not obligated to pay civilians it harms through warfare. In fact, under the law, no nation owes such a duty to civilians directly, only to other nations; an obligation only arises when international law is infringed. Well, you might be wondering, hasn’t Israel broken international law? The Israel Defense Forces’ own military advocate general, Maj. Gen. Yifat Tomer-Yerushalmi, issued a letter to commanders noting there have been instances in which soldiers acted in ways that “crossed the criminal threshold,” and the Biden administration’s recent report also indicates that Israel may have violated international humanitarian law. But however plain the crimes may seem, in a courtroom, proving them would be difficult. And even if it is established that Israel broke international law, it still would not have a direct obligation to private individuals—only to other states. And you may have noticed that the Palestinian Authority’s status as a state is complicated.

While wrongful losses that foreign nationals suffer might trigger an obligation of reparation under international law between Israel and those nationals’ states, no equivalent legal duty clearly exists to Palestinians. This is because the status of the Palestinian Authority as a state is not settled. Some countries—most recently Ireland, Norway, and Spain—have recognized the Palestinian Authority as a state, as has the International Criminal Court. Yet, the Palestinian Authority does not enjoy statehood status in the United Nations and its institutions. As a result, the likelihood that Israel will be held liable for reparations by an international court appears slim—until it is recognized as a state by the United Nations. Were the Palestinian Authority to gain such status, it would gain the ability to bring a claim for reparations against Israel to the International Court of Justice.

That said, while international law does not provide civilians with a right to claim compensation directly from states, domestic tort law—the civil law through which interpersonal wrongs could be redressed—does just that. Tort law empowers private individuals to seek a remedy directly from their wrongdoer, whether that’s another private individual, a public official, or even states. In theory, tort law could be the answer to civilians who are wrongfully harmed through warfare. However, in practice, many countries, including Australia, Canada, the U.K., and the U.S., have a special immunity from tort liability that bars all claims for almost any loss inflicted through combat, called “the combatant activities exception.”

Israel is no different in this regard. It has relied heavily on U.K. and U.S. precedents to justify its own immunity from tort liability in warfare. In a recent project, I analyzed more than 470 cases from 1959 to 2023—with Temple University law professor Gilat Bachar and the Ceasefire Centre for Civilian Rights—in which Israelis, Palestinians, and foreign civilians sought compensation in tort, through Israel’s civilian courts, for loss of life, bodily injury, and property damage inflicted during armed activities. During this period, Israel has continuously expanded the scope of its immunity and has erected procedural hurdles that essentially render it impossible for any national to even bring a claim in tort against Israel for its security forces’ operations, let alone succeed in such claims. Thousands of claims were filed by civilians during the Second Intifada (the violent period lasting from approximately 2002 to 2005), and a court ruled that the combatant activities exception made Israel immune from liability in only 30 percent of them. In contrast, between 2019 and 2023, only a handful of cases were filed, and Israel was found to be immune from liability in nearly 90 percent of them. In 2022, the Supreme Court of Israel, the country’s apex court, held that Israel’s immunity from tort liability for any loss inflicted by the IDF in Gaza is justified, as it hinders the financial health and morale of Israel’s enemies. Since this decision, civilians in Gaza have had no hope of obtaining a remedy in tort for their losses, whereas civilians in the West Bank maintain a very remote chance of success.

Still, time and again, Israeli courts have reiterated that criminal actions by IDF soldiers, such as looting and wanton destruction of private property, would not fall within the scope of the combatant activities exception. During the current conflict, there have been several reports of such instances (for example here and here), and if past precedent is followed, tort liability could be imposed on individual soldiers as well as on Israel.

Meanwhile, Israeli courts have also continuously expanded the scope of what the Palestinian Authority can be held liable for, via tort law, in claims that Jewish Israeli nationals bring for losses they sustain through hostilities. Echoing Canadian and U.S. legislation that allows imposing compensatory and punitive damages on foreign states that sponsor terrorism, Israeli courts ruled the Palestinian Authority was liable for encouraging violence against its civilian population, and for providing financial support to families of Palestinians that Israel holds on security-related charges. We may very well see tort claims brought against Hamas and the Palestinian Authority for the losses that Hamas inflicted in the current conflict in the near future.

It doesn’t have to stay this way. While neither international law nor domestic law could currently be relied on to identify a duty of reparations that is owed to civilians for losses inflicted through actual hostilities, the law in both realms could be changed. As scholars such as Rebecca Crootof, Uglješa Grušić , and Yaël Ronen have articulated, though, amending the law would require considerable political pressure and powerful states willing to lead by example and make it possible for themselves to be held liable.

Yet even without amending the law, political pressure could see that civilians are provided with some redress for their injuries through voluntary (ex gratia) payments. Governments around the world issue these payments in response to losses for which the law does not offer redress, within the context of armed activities but also in ordinary everyday life. However, applicants can’t demand these payments as a matter of right; they are entirely discretionary.

Israel has three such voluntary payment schemes already in place. The first scheme provides payments to Palestinians in the West Bank for property damage caused by Israeli citizens’ criminal activities. The second scheme allows Palestinian and Israeli nationals to be paid for losses that the IDF or Israel’s Civil Administration inflict in the West Bank through ordinary activities, such as car accidents. The third scheme offers payment to Palestinians and other foreign nationals in instances that the IDF inflicts a loss and it is believed that nonpayment could negatively affect Israel’s political or security interest.

It is the third scheme that may seem to offer an avenue for potential redress to the civilian population in Gaza. But unfortunately, the world should not hold its breath for Israel to make voluntary reparations.

One reason is the current political climate in Israel, and the ultra-right-wing political views of many of its ministers. Israel is unlikely to make voluntary payments to Palestinian civilians in Gaza lacking substantial external political pressure, especially as civilians are viewed by some political actors as an enemy. Voluntary reparations are also unlikely due to practical hurdles. The procedure for applying for payment is not easily publicly available or translated into English or Arabic. Moreover, evidence from past decisions suggests that Gaza residents are very unlikely to successfully obtain payment. Analyzing three Freedom of Information Act requests, I was able to establish that between 2004 and 2014, all claims by Palestinians from Gaza were denied; 57 claims by Palestinians from the West Bank were approved, granting a total of 1,879,532 Israeli shekels (approximately $504,200); and one claim by a U.K. national for an undisclosed six-figure sum was granted following significant political pressure by the U.K. government.

This data supports the common belief that the families of the volunteers of the World Central Kitchen are likely to be offered such payments, and those payments are also likely to be considerable. It’s hardly a coincidence that those most likely to receive considerable compensatory payment are mostly not Palestinian, but Western. Only one of the seven World Central Kitchen volunteers who were killed was Palestinian.

As international and domestic law fall short of compensating civilians who have suffered from state actions, and voluntary payments are dependent on elusive political interests, perhaps it is no wonder that Michael L. Gross sought to ground his argument in morality. Yet, his argument that nations that wage war necessarily have a moral obligation to the civilians they harm in the process is more contentious than he lets on. Views on this vary widely within the academy (and outside it), and no doubt the decision would engender a bitter political debate within and outside Israel and Palestine. Some philosophers deny that any moral obligations to grant reparations exist; others question whether a moral obligation to compensate victims ought to exist only to redress harms that are inflicted wrongfully; and others believe that all losses create a moral obligation to compensate for them, regardless of fault. The question of to whom moral obligation demands Israel’s payment would no doubt be fiercely contentious after this war due to the war’s asymmetrical and urban character, the commitment of war crimes by Hamas, and the historical and political context. That’s to say nothing of the emotional and personal connection that millions of people have to each side of the conflict; lived realities are driving everyone’s views of what the right thing to do is, and for whom.

So, what can be said with certainty about what states owe to civilians in warfare? Perhaps that for far too long, states owed far too little. Or that even when we can articulate what intuitively is a moral wrong that requires redress, law and politics often fail to provide civilians with a means of compensation as a matter of right. Nevertheless, there is value in a duty of reparations. It is a means of acknowledging our humanity, the need to take accountability for the wrongs we inflict and to show care toward others. Even during war, these values hold true.