Discussion and Decision
- After reviewing the appeal, the arguments supplementing the appeal and the answers, we found that the appeal should be heard in accordance with Regulation 138(a)(5) of the Civil Procedure Regulations, 5779-2018 and decided on the basis of the material before us. I will preface the end and say that I have reached the conclusion that the appeal should be dismissed.
Exemplary Compensation Law
- First, I will mention that a petition against the law was rejected on the matter PATherefore, arguments seeking to undermine the foundations on which the law stands should be rejected. In these circumstances, we must address in the framework of the present hearing only the arguments relating to the interpretation of the sections of the law in relation to its application and the manner of its implementation.
- I will briefly discuss the principles outlined in case law regarding the interpretation of laws, which indicate that it will be done in stages. First, the The language of the legislation which delimits the scope of interpretations that the law can carry. To the extent that the language allows for more than one interpretation, it is necessary to choose from among the available alternatives the option that best realizes the The purpose of the law. The purpose of the law consists of both the purpose The subjective - The goals, values and policies that the legislature sought to achieve through the legislation, which are reflected in the legislative history; They are from the purpose The Objective - The goals, policies, values and principles that are intended to realize any piece of legislation in a modern democratic society (Civil Appeal Authority 67114-01-25 Anonymous v. As'ad, paragraphs 14-15 (December 22, 2025); High Court of Justice 5158/21 Gortler v. Minister of Welfare, paragraphs 18-19 (December 28, 2023); Aharon Barak Interpretation in Law Volume Two - Interpretation of Legislation 80-81, 201-204 (1993) (hereinafter: Barak, Interpretation of the Legislation)).
Having discussed these things, I will turn to the appellants' arguments and the interpretation of the law.
- The Law's Applicability in Time: The provision of section 4 states that the law will apply to a claim that has not yet become statute of limitations or that was pending on the eve of the commencement of the law. The language of the law in this regard is clear, and it is even consistent with the subjective purpose as expressed in the minutes of the Foreign Affairs and Defense Committee. With regard to claims that have already been filed, exemplary damages may be awarded by virtue of the law as long as no final judgment has been given in their matter – whether they were rejected or accepted, and even if the case is still pending before the appellate court (see also: Minutes 138 of the Foreign Affairs and Defense Committee, 25th Knesset, 16 (January 22, 2024) (hereinafter: Transcript 138 of the Foreign Affairs and Defense Committee)). With regard to claims that have not yet been filed, the possibility of awarding exemplary damages by virtue of the law depends on the statutes of limitations, where the cause of action is The act of terror (Minutes 57 of the Foreign Affairs and Defense Committee, 25th Knesset, 39 (July 11, 2023) (hereinafter: Minutes 57 of the Foreign Affairs and Defense Committee)).
- The appellants are of the opinion that the fact that the law allows for the award of exemplary compensation even in relation to acts of terror that occurred many years prior to its enactment, means that the law operates retroactively. It was further argued that the application of the law creates in practice new causes of action and torts "unlawfully and unjustly". First, we must set the record straight. The law does not create a new cause of action as claimed. As I noted above, the cause of action was and still is the act of terrorism, and to the extent that the cause of action has become obsolete, it is not possible to file a new claim out of thin air. As to the appellants' argument regarding the applicability of the law, this question arose in the matter of PA However, I have left the decision on it for the time being (ibid., at paragraph 17). It seems that the time has come to address it and decide on it.
- Before I proceed to discuss the applicability of the law before us, I will put before us the distinctions between the various possible applicability to the legislation: "Retroactive Law Changes the legal status of an action that was taken before the legislation came into force. Retrospective Law changes to the future the legal consequences of an action that was taken before the legislation came into force. Prospective Law changes the legal status of an action that will be taken after the legislation comes into force" (High Court of Justice 6971/11 Eitnit Construction ProductsTax Appeal State of Israel v., paragraph 37 (April 2, 2013)). In addition, a law can be applicable Active "If it is intended to change, and in practice changes, the legal effect of an existing situation" (Civil Appeal 1613/91 Arbiv v. State of Israel, IsrSC 46(2) 765, 782 (1992) (hereinafter: Matter Arbiv)). As a rule, the application of a law, by its nature, is forward-looking unless otherwise stipulated (see section 10(a) of the Government and Law Ordinance, 5708-1940). This is because the law is intended to regulate relations between people and direct behavior, and its retroactive application violates the principles of justice and the reliance interest of those concerned (for more on this, see High Court of Justice 5119/23 The Movement for Moral Integrity v. The Knesset, paragraph 45 and the references therein (October 26, 2023)). In view of the above, and to the extent that the application of a law can be interpreted in different ways, there is a presumption that the law is forward-looking ( Arbiv, at p. 776).
- And what is the meaning of the striking? In the matter PA The state argued that the law has active application because it applies to factual situations that exist in the present – pending claims or claims that have not yet been filed and have not yet become obsolete, relating to an existing factual situation. I am of the opinion that the application of the law should be looked at in accordance with a different reference point. Not in relation to the legal claim, but in relation to the tort. And I will explain. In order to fall within the scope of the law and be entitled to exemplary damages, it is necessary to prove the existence of: (1) an act of terrorism; (2) the death or permanent disability of a person; (3) Remuneration or ratification on behalf of the appellants. In view of the language of section 4 of the Law, which states that the Law applies to pending claims or to claims that have not yet become statute of limitations, there may be cases, such as the case before us, in which the three components above occurred even before the entry into force of the Law. In this sense, the law "changes the future [...] the legal consequences of [...] events (acts or omissions) that occurred or occurred before the date of the entry into force of the law" (Matter Arbiv, at p. 777), and is therefore retrospective.
As a rule, there is no defect in itself in determining that the law applies retrospectively, certainly where the legislature has expressed its explicit opinion to this effect – "The ordinary legislature is free to explicitly determine that the timely applicability of the law is retroactive or retrospective" (Matter Arbiv, at p. 775). This was also the position of the professionals in the discussions of the Knesset Foreign Affairs and Defense Committee (see Transcript 57 of the Foreign Affairs and Defense Committee, at p. 39. In fact, a review of the committee's deliberations shows that the possibility of further expanding the application of the law was examined (see the minutes of the 158th session of the 25th Knesset, 126 (March 11, 2024) (hereinafter: Minutes of the 158th session of the 25th Knesset)). From the clear language of the applicability provision of the Law, I learn that the legislature's opinion was that the appellants' reliance interest is not worthy of protection in this case. It should be recalled that reprisals for terrorism were a criminal offense, and ratification of terrorism was a tort even before the law came into force (paragraphs 38 and 49 of the Anonymous respectively). Therefore, I do not find inherent difficulty in determining that the law has retrospective applicability. As for the appellants' argument that the retrospective application of the law also affects the change in their compensation, I will address this later.
- The Act of the Beit Din: The appellants insist that in the case Anonymous It was held that they should not be obligated to pay punitive damages where they were directly responsible for an act of terror by virtue of being a "ratifier" party. Therefore, the appellants maintain that in the circumstances of this case, there is an act of the court according to which they should be awarded only medical damages. I do not believe that there is any substance to this argument. Abar.
The legal framework that delimited our determinations in the matter Anonymous There was the Torts Ordinance, and nothing more. In the meantime, it was held that the appellants can be held liable for personal and direct torts by virtue of section 12 of the Torts Ordinance, by virtue of their being "ratifiers". Subsequently, it was held that although by virtue of their responsibility they are liable to compensate the injured persons with medical damages for the damage caused to them, they cannot be obligated to pay punitive damages, in view of the assumption that "Punitive compensation is a foreign plant in tort law. It is forbidden to put a foreign plant on top of a foreign plant, and therefore the PA should not go so far as to obligate the PA, as a 'ratifier' under section 12 of the Torts Ordinance, to pay punitive damages" (paragraph 55 of my judgment). Therefore, the determination in the matter Anonymous according to which the appellants should not be obligated to pay punitive damages within the limits of To the normative situation which was before this court, given that the source of the appellants' liability is in section 12 of the Torts Ordinance, and not For the circumstances of the specific case As the appellants try to argue.