On March 5, 2002, a Palestinian terrorist, Ibrahim Hasuna, attacked the Seafood Market restaurant in Tel Aviv. Armed with an M-16 and hand grenades, he murdered three people and wounded dozens more. Yosef Azuz was one of the people severely wounded in the attack. Five years later, he filed a lawsuit for damages. The lawsuit names Marwan Bargouti as bearing direct responsibility for the attack and the Palestinian Authority and PLO for indirect responsibility because they financed it.
This is not the only claim for damages filed against the Palestinian Authority by Israeli citizens and residents wounded in terrorist attacks. Many of these claims raised similar legal questions about the standing of the Palestinian Authority as a respondent in Israeli lawsuits. Is it immune from the internal jurisdiction of the State of Israel's judicial authority? Is an Israeli court the suitable forum to discuss disputes that involve the application of an international treaty, through which the Palestinian Authority was established? Do the claimants have grounds for a lawsuit, grounded in an international agreement, that has not been adopted by national legislation? Under the rules of the choice of laws, does the law applicable in the Palestinian Authority apply to the case, in which case the claimants have no grounds for a suit in the Israeli courts?
In order to avoid a flood of cases and many years of prolonged hearings, these questions had to be answered. A different case, filed with the Central District Court, ended up in the Supreme Court for a decision. With regard to the immunity of the Palestinian Authority, it was decided that each case would be judged on its merits in accordance with a directive of the foreign minister, based on the facts of the case. It was also decided that there was no grounds for a general ruling regarding the nature of the regime of the Palestinian Authority's activity for the purpose of arguing immunity of a foreign sovereign. As for the question of proper forum, the court left the issue in the hands of each claimant. As for the question of choice of laws, it was ruled that Israeli courts had jurisdiction when the location of the attack was in Israel.
In the wake of these rulings, the respondents in Azuz's case petitioned for the case to be dismissed. Central District Court Judge Achikam Stoler dismissed the petition on the grounds that the lawsuit was not grounded on diplomatic agreements or their violation, but that it was a classic claims case for bodily harm.
The respondents appealed Stoler's ruling to the Supreme Court, where Judge Esther Hayut dismissed it. Regarding the argument that a Palestinian court, not an Israeli court, should have jurisdiction in the case, Judge Hayut ruled, "According to the doctrine of improper forum, an Israeli court has, at its descretion, the right not to hear a case if there is another foreign forum that is the natural forum that can hear it, and considerations of efficiency and convenience of the hearing justify not holding the hearing in Israel." She added, "Deciding the natural forum is made by the court applying the relevant maximum affiliation test."
Judge Hayut ruled that this test had been applied in the Azuz case, and that an Israeli court was the proper forum for hearing the case. She ruled, "The attack took place within the State of Israel, the claimant was residing within Israel, the respondent is currently in jail in Israel, and the fact that the conduct attributed to the respondents was carried out in the Palestinian Authority is insufficient grounds to make a Palestinian court the natural forum to hear the case."
Published by Globes [online], Israel business news - www.globes-online.com - on April 20, 2009
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