The state and attorneys for the Public Committee against Torture in Israel (PCATI) clashed sharply in the High Court of Justice on Sunday over whether Israel's policy of targeted assassinations against Palestinian terrorists is legal.
The PCATI submitted a petition against targeted assassinations in 2002, but hearings were halted 10 months ago when the state announced it was suspending the policy. The High Court decided to resume the hearings after the government declared it was renewing the policy following the IDF withdrawal from the Gaza Strip in September.
According to the petitioners, represented by attorneys Avigdor Feldman and Michael Sfard, targeted assassinations violate international humanitarian law. According to the laws of belligerent occupation (part of international humanitarian law), Israel was responsible for the welfare of the Palestinians under its occupation, they said. The law stipulated that the army could only kill enemy fighters who were uniformed and carried weapons, or civilians for such time as they took an active part in hostilities, they added.
According to Feldman and Sfard, this meant that IDF soldiers could only kill a Palestinian during the time he was actively engaged in shooting or carrying out other terrorist actions against Israeli targets. This same Palestinian, when not actively involved in acts of terrorism, was regarded as a civilian by international law and could therefore not be harmed, they said.
The state, represented by attorney Shai Nitzan, told the court that since Israel had withdrawn from the Gaza Strip, it did not hold the area in belligerent occupation and therefore the petition could not apply to Israeli actions in that area. Furthermore, 95 percent of the targeted assassinations perpetrated by the army since the beginning of the so-called Aksa intifada had taken place in Gaza, where Israeli forces were not present in large parts of the territory and could not arrest suspected terrorists, he said.
Nitzan said even in the West Bank, where Israel was clearly the occupying force, it was entitled to use targeted assassinations when necessary. When it came to confronting terrorism, he argued, it was not the laws of belligerent occupation but the laws of armed conflict that applied. According to this law, Israel was not obliged to protect terrorists and had the right to kill them, he said.
Nitzan said the state's argument was based on three claims: The first was that in an armed conflict with a terrorist organization, "fighters" are defined as all those participating in the overall direction, planning and execution of terrorist acts. Secondly, even if terrorists are not defined as fighters but civilians, international humanitarian law stated that civilians could be killed "for such time as they take an active part in hostilities."
Nitzan then offered a definition of the term "take an active part in hostilities." The petitioners maintained that a civilian was taking an active part in hostilities only when he fired his rifle or detonated a bomb. According to Nitzan, taking an active part in hostilities meant "being systematically involved in acts of terror."
Finally, what does the law mean by the words "for such time as?" The petitioners maintained that "for such time as" meant that a civilian may be killed only during the time he was actively involved in a terrorist act. According to Nitzan, "for such time as" meant "for as long as the person takes an active role in terrorism."