The High Court of Justice ruled Thursday that customary international law permits the IDF to resort to targeted killings of Palestinian terrorists in the West Bank and Gaza Strip as long as the circumstances of each case meet legal conditions. "The result of our examination is not that such strikes are always permissible or that they are always forbidden," retired Supreme Court president Aharon Barak wrote in a ruling that was published simultaneously in English because of international interest aroused by the case.
A summary of the ruling
Analysis: Trying to fit a square into a round hole
"The approach of customary international law applying to armed conflicts of an international nature is that [enemy] civilians are protected from attacks by the army," he wrote. "However, that protection does not exist regarding civilians 'for such time as they take part in hostilities' (according to Article 51 (3) of the First Protocol Additional to the Geneva Conventions of August 12, 1949.) Harming such civilians, even if the result is death, is permitted on the condition that there is no other alternative that harms them less, and on condition that innocent civilians nearby are not harmed [disproportionately]â€¦
"That proportionality is determined according to a values-based test intended to balance between the military advantage [to the army that perpetrates the targeted killing] and the [collateral] civilian damage [caused by the killing].
"As we have seen, we cannot determine that a preventive strike is always legal, just as we cannot determine that it is always illegal. All depends upon the question whether the standards of customary international law regarding international armed conflict allow that [specific] preventive strike or not."
In handing down the ruling, a panel of three Supreme Court justices - Barak, Supreme Court President Dorit Beinisch and Deputy Supreme Court President Eliezer Rivlin - unanimously rejected a petition objecting to the policy of targeted killings on grounds it violated Israeli and international law.
The petition was submitted more than four years ago by the Public Committee against Torture in Israel and Al-Haq, The Palestinian Society for the Protection of Human Rights and the Environment. The petitioners were represented by attorneys Avigdor Feldman and Michael Sfard.
Feldman and Sfard argued that even if the laws of war were applicable to the armed conflict between Israel and Palestinian terrorist organizations, the terrorists must be regarded as civilians and be protected from military attack. When such civilians take part in acts of violence against Israel, they lose their protected status for as long as they take part in hostilities and can be attacked and killed during that time. But as soon as the hostilities are over, they regain their protected status. They may be criminally prosecuted for breaking the law, but cannot be killed, according to the lawyers.
The state argued that in a state of armed conflict between Israel and terrorists, the terrorists are neither combatants or civilians, but belong to a third category known as "illegal combatants." As such, they are legitimate targets for attack as long as the armed conflict continues.
Should the court reject the category of "illegal combatants" and insist that the terrorists are civilians, the state continued, the laws of war, specifically Article 51 (3) of the First Protocol, allowed the army to kill them while they took part in direct hostilities. The state interpreted the term "direct hostilities" to include "carrying out, planning or sending others to carry out" acts of violence.
The state also said it did not accept as binding the provision in Article 51 (3) stating that the terrorists lost their protected status only for the time they were directly involved in hostile action.
Barak, who wrote the main decision, rejected some of the arguments of both sides. For example, he rejected the state's position that international law recognized the status of "illegal combatants." He also rejected the state's claim that the time provision in Article 51 (3) was not binding on Israel.
According to Barak, the key provision in the laws of war relating to the question of targeted killings was Article 51 (3) of the First Protocol, which states: "Civilians shall enjoy the protection afforded by this section unless and for such time as they take a direct part in hostilities." He explained that according to this provision, a civilian who took violent action against the enemy did not lose his civilian status, but did not enjoy the protected status of a civilian during the time that he was involved in the violent action.
Barak then examined each part of the provision separately. For example, he considered the meaning of the term "takes a direct part" and found that it meant more than just shooting at the enemy. A person who transported terrorists or serviced their weapons should also be considered to be taking a direct part in hostilities, he wrote, adding: "The function determines the directness of the part taken in the hostilities."
Regarding the words "for such time as," Barak wrote that there was no consensus among international lawyers as to what this meant. For example, "A civilian who has joined a terrorist organization which has become his 'home,' and in the framework of his role in that organization he commits a series of hostilities, with short periods of rest in between them, loses his immunity from attack 'for such time' as he is committing the series of acts."
Should he be regarded as a terrorist only while committing each separate hostility? Barak said no. "Indeed, regarding that civilian, the rest between hostilities is nothing other than preparation for the next hostility." Because the terms in Article 51 (3) are relative and not absolute, each potential targeted killing must be considered on its own merits to determine whether the specific terrorist has lost his protected civilian status or not.
Thus, for a targeted killing to be considered legal, the state must fulfill four conditions to the best of its ability:
It must have strong evidence that the potential target meets the conditions for having lost his protected status.
If less drastic measures can be used to stop the potential target posing a security a threat, such as arrest, the state must use them, unless this alternative poses too great a risk to the lives of the soldiers.
An independent and thorough investigation must be conducted immediately after the operation to determine whether it was justified. In appropriate cases, the state should compensate innocent civilians for harm done.
The state must assess in advance whether the collateral damage to innocent civilians involved in a targeted killing is expected to be greater than the advantage gained by the operation. If it is, the state must not carry out the operation.
If the state performs all four tasks (including the retroactive one) and finds that the proposed operation meets the conditions set forth in the law, the targeted assassination will be legal, concluded Barak.
The petitioner, The Public Committee against Torture in Israel, warned that the ruling could encourage the state to carry out more targeted killings than it has until now, and said it regretted that the court should have provided clearer criteria for when targeted assassinations were legal.
"The rules and tests set down by the court for carrying out targeted assassinations, while trying to restrict them, are vague and do not clearly define the rules of what is permissible and what is not for the security forces," the organization wrote.
Meanwhile, the right-wing Shurat Hadin organization said it applauded the court's decision upholding the legality of targeted killings, but criticized it for declaring that the state must carefully examine each case in the context of international law.
"This is clearly a case of the High Court, once again, dangerously showing mercy to the cruel," said the head of the organization, Nitzana Darshan-Leitner.