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As Supreme Court president, Aharon Barak had a way of handing down decisions in pairs, seemingly designed to elicit cheers and boos from alternating sides of the political spectrum. During this, his last week on the bench, he has been true to form.
Tuesday's decision to expand the scope of compensation for Palestinians damaged by Israeli military operations infuriated the Right. Now, these same critics are praising the court for yesterday refusing to prohibit targeted killings of terrorists, a key tactic in the fight against terrorism.
Also as usual, Barak spent almost as much effort defending the court's right to rule as on the decision itself. The decision dutifully conveys the government's contention that "the dominant character of the issue is not legal, and the attribute of judicial restraint requires that the Court refrain from stepping down into the combat zone and from judging the operational acts par excellence which are occurring in that zone." Barak would have none of this.
Here, the Right, as usual, fell into Barak's trap. When the Right does not like a decision, it often argues that the court overreached in deciding to take the case in the first place; but if the decision is to the Right's liking, it forgives the court its judicial activism.
The truth is, the issue of judicial overreach is no less relevant now than it was at the height of the suicide bombings in 2002, when an almost identical case was first brought. At that time, the court decided not to rule because "the choice of means of war employed by [the government] in order to prevent murderous terrorist attacks before they happen is not among the subjects in which this Court will see fit to intervene." What has changed? Why does the court see fit to rule now?
Opponents of judicial activism need to be consistent, and cry foul even when decisions are, judged by the outcome, to their liking.
Barak's argument that the issue is a legal one because it involves human rights is impossibly broad. Just as the government needs to strike a balance in its actions, so does the court. That balance seems to be shifting deeper into the realm of military tactics.
As for the decision itself, it is good that it is available in English, because it should be required reading in the court of international opinion. Over 51 exhaustive pages, the decision finds that "it cannot be determined in advance that every targeted killing is prohibited ... just as it cannot be determined in advance that every targeted killing is permissible according to customary international law."
The court found that each such action must be judged individually according to the test of proportionality, weighing the expected military benefit against unintended damage to innocent civilians.
To quantify the matter, the court notes that the petitioners themselves claimed that, over about five years, some 300 members of terrorist organizations were killed in such targeted actions, which also killed about 150 civilians.
The government adds that during this same period about 900 Israeli civilians were killed by terrorists, and that "the number of Israeli casualties in proportion to the population of the State of Israel is a number of times greater than the percentage of casualties in the US in the events of September 11 in proportion to the US population.
\"As is well known," the government continued, "the events of 9/11 were defined by the states of the world and by international organizations, with no hesitation whatsoever, as an 'armed conflict' justifying the use of counterforce."
We would hope that the next time a court in New Zealand, Belgium or the UK is called upon to indict a visiting Israeli general on war crimes, it would follow the learned opinion of our own highest court. This opinion suggests what every nation should know: Terrorism targets only civilians, and therefore our highest priority in defending human rights should be to defeat terrorism.
Targeted killings by definition attempt to pinpoint the fight on the terrorists themselves. States have not only the right, but the duty to defend their citizens. One wonders if any other country, when fighting terrorists who routinely use civilians as human shields, tries harder to avoid killing civilians. If anyone has a more humane or effective way of fighting terrorism, perhaps they should step forward.