Analysis: Trying to fit a square peg into a round hole

Targeted killings ruling is an attempt to avoid, as much as possible, a concrete definition of terrorism.

aharon barak thought 88  (photo credit: Ariel Jerozolimski)
aharon barak thought 88
(photo credit: Ariel Jerozolimski)
"The ruling is an attempt to fit a square peg into a round hole," Dr. Boaz Ganor, director of the Institute for Counter Terrorism at the Inter-Disciplinary Center (IDC) in Herzliya told The Jerusalem Post in response to the Thursday's High Court of Justice ruling into the legality of targeted killings. "The ruling," Ganor said, "is an attempt to avoid morally binding definitions, which stems from a tendency of international justice to avoid, as much as possible, a concrete definition of terrorism." The ruling's text begins with the definition of 'combatants' versus the definition of 'civilians'. A so-called third category of 'unlawful combatants,' under which terrorists are usually defined in Israel, does not exist according to former Chief Justice Aharon Barak. According to Ganor, disregarding the third category of unlawful combatants is in discord with international treaties, which recognize such a category. "The ruling is based on international treaties like the Hague protocols from 1907 and the Geneva Treaty, which do not pertain to modern, asymmetrical warfare," said Ganor. "In fact, our institute is working jointly with the Maxwell School of Government in Syracuse University on a set of recommendations to revise the Geneva Treaty. We will present our conclusions in the centenary of the Hague protocols in Washington, in 2007." Barak, however, did not dismiss this option altogether: two issues could temporarily define a civilian as a combatant for all intents and purposes: simultaneity and direct involvement. Simultaneity means that as long as a civilian is in involved in combat, he is a combatant. A civilian who committed acts of terrorism ten years ago, therefore, is no longer a combatant. A person involved in combat on any kind of regular basis (the ruling avoided definition of this regularity), can and should be considered a combatant and his periods of rest can be considered a preparation for the next attack. Direct involvement means that a person is directly involved in combat. According to Prof. Yoram Shachar, former IDC dean of the Radzyner School of Law, while the ruling's text is subtly phrased and one has to read between the lines, this is where Barak made a real change. "Barak chose a wide definition of 'direct' - not only the person holding a gun is a directly involved, but also the planner of the attack, the persons in charge of logistics pertaining to the attack, thus hinting that the entire chain of command might possibly be targeted, and not only the actual fighters in the field." Effectively this could mean that the ruling would lead to carrying out a series of military operations held back until now because of their judicially problematic status. Reflecting the careful tone of the ruling itself, Dr. Eyal Gross from the Tel Aviv University School of Law said that the main points of the ruling were not to give a clear-cut definition that targeted killings are legal or illegal, but elucidating the gray areas existing in the definitions of combatants. "By elucidating the criteria by which combatants are defined, the ruling perhaps paves the way to a more in-depth set of criteria for determining whether a case in question would be legal or not," said Gross. "Of course, all attempts should be made to make arrests when this is possible, and even when not, proportionality serves as another yardstick for choosing the right measures."