In a ruling handed down on Tuesday and being reported by The Jerusalem Post for the first time now, IDF West Bank Court President Col. Netanel Benishu as well as Judges Lt.-Col. Ronen Atzmon and Lt.-Col. Yair Tirosh also said that punitive damages for terrorist murders could be unlimited.
In contrast, the top appeals court granted Lubarsky’s family NIS 1,500,000 in punitive damages.
Much of the court decision delved into the history and purpose of damages laws in criminal proceedings in Israeli civilian courts versus the IDF West Bank Courts that deal with the Palestinians.
Although the lower court had said the absence of a ceiling for damages in legislation governing the West Bank was an oversight by the legislator, the top court disagreed.
According to Benishu and his panel, the legislator left out any ceiling for damages, partially taking into account the difficulty of using civil wrongful death damages proceedings against Palestinians, whereas such a process is easier in Israel.
But Benishu went further than declaring there was no ceiling for damages.
In fact, a number of lower courts over the last several years have been granting punitive damages awards in murder cases worth millions of shekels.
However, Benishu lamented that almost nothing has been collected from these awards most of the time.
He said the IDF West Bank commander, who is also the commander for the Home Front, with support from the Israeli civilian government, should pass legislation to establish tactics and mechanisms for collecting these damages.
In lieu of such a mechanism, Benishu warned that the IDF and the government leave the courts looking inept and as if their rulings are meaningless.
Yet, the problem Benishu is highlighted is not entirely unique to the West Bank.
Even in cases where Israeli civilians have won civil court judgments directly against the Palestinian Authority, there are a very limited number of cases where there was any real way to collect.
This issue is compounded by the fact that most Palestinians do not have the economic means to pay significant damages.
On top of that, there have been contrary rulings in Israel about whether poor persons should be assessed damages in addition to their jail terms (the court said no) versus whether civil damages should be set based on a defendant’s economic worth or the damage they caused (the court said the damage they caused should be decisive.)
The NIS 1,500,000 was still far less than the family and their lawyer former IDF West Bank Chief Prosecutor Lt.-Col. Maurice Hirsch sought.
The convicted murderer, Islam Nagi, killed Lubarsky in May 2018.
Lubarsky was seriously wounded when a marble slab was dropped on his head during an operation to arrest a terrorist cell in Ramallah involved in recent shooting attacks.
An IDF official stated after the May 2018 incident that Lubarsky was wearing full protective gear and standing close to one of the homes in the refugee camp in Ramallah, and that his helmet was “destroyed” after he was initially hit by the slab, which was thrown from a third-story rooftop.
The soldier, who was part of the operation’s covering force, received initial emergency medical attention in the field.
Transferred to intensive care at Hadassah University Medical Center in Jerusalem’s Ein Kerem, he succumbed to his wounds and died two days later.