High Court leaves both sides seeking refuge in the nuances

Thursday's decision on targeted killings is too vague to be of practical use without further refinement.

By DAN IZENBERG
aharon barak 224.88 (photo credit: Courtesy)
aharon barak 224.88
(photo credit: Courtesy)
The High Court ruling on targeted assassinations is characteristic of its approach to the war against terrorism under the leadership of retired Supreme Court President Aharon Barak in that it seeks a balance between the conflicting values of human rights and national security. However, it is not an altogether satisfying ruling because it offers the state guidelines for determining whether a potential targeted killing is legal or not that are too vague to be of practical use without further refinement. The court's ruling hinges on Article 51 (3) of the 1977 Additional Protocol I to the Geneva Conventions, which states that "civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities." Barak wrote that the answer to the question raised by the petitioners in this case was to be found in the interpretation of this provision. The laws of war are meant to introduce a humanitarian element into the conflict by establishing a clear separation between entities - civilians and combatants. An army may (within certain limits) kill soldiers of the enemy with impunity. However, it is prohibited from deliberately killing civilians. Barak rejected the state's argument that in the war between Israel and the Palestinian terrorist organizations, the terrorists constituted a third category defined as "illegal combatants." He maintained that as international law currently stands, there is no such category and, therefore, Palestinian terrorists must be regarded as civilians. However, according to the provision mentioned above, civilians are only protected when they do not take part in the fighting. They are not protected "for such time as they take a direct part in the hostilities." Barak wrote that the provision required interpretation. For example, what does it mean to "take a direct part in hostilities?" Does this mean, as one might instinctively expect, personally shooting at Israeli troops or planting bombs in Israeli population centers? Barak says no, and provides examples of other actions that should be considered "taking a direct part in hostilities." He also provides examples of more remote involvement in hostilities that cannot be considered to be direct. In effect, there is a broad spectrum of actions, most of which are in the grey area between the obvious extremes. But the ruling does not provide much insight into the grey area. The state will have to decide for itself whether the actions attributed to the suspected terrorist are "direct acts of hostility" or not. What Barak does do is to insist that the state know the precise nature of the suspect's activities so that its assessment of whether he is a protected civilian or not will at least be based on verifiable facts. The same is true of the term "for such time as." Are terrorist unprotected civilians when they are asleep at night? Of when they hold down a day job? Barak raises the question and makes it clear that there is a variety of possibilities, but does not go beyond that. He asserts that if a civilian was involved in terrorism at one point but abandoned it afterwards, he is a protected civilian. But what about a person who takes "a direct part in hostilities" occasionally or sporadically. Is he always an unprotected civilian or is he protected during the lengthy periods when he is not involved in such activities? Barak does not provide an answer to these questions. Human rights groups were not satisfied with the court's ruling. They, of course, wanted an outright ban on targeted assassinations. Nevertheless, just as Barak's analysis provides the state with a broad conception of what is permissible and what is not, by the same token it provides these groups and the innocent victims of targeted assassinations with the same broad conception for challenging individual killings on the grounds that they exceeded the criteria established in the ruling.