Israel’s High Court of Justice today ruled that Israel’s policy of ‘targeted killings’ does not categorically violate international law and must instead be judged on a case-by-case basis. The ruling is set to serve as a precedent in international law.
The judges ruled (.doc) that Palestinians engaged in hostilities against Israel, including members of terrorist organisations, are not combatants but civilians and so are protected persons under the law. However, they noted that under international law civilians lose this protection when they take part in direct hostilities. According to Art. 51(3) of the 1977 Additional Protocol I to the Geneva Conventions,
"Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities".
The judges went on to say that even if a Palestinian takes part in direct hostilities against Israel, he does not lose his status as a ‘civilian’. Rather, he loses the legal protection afforded to civilians for the duration of his involvement in direct hostilities. In the court’s words,
‘A civilian taking a direct part in hostilities one single time, or sporadically, who later detaches himself from that activity, is a civilian who, starting from the time he detaches himself from that activity, is entitled to protection from attack. He is not to be attacked for the hostilities which he committed in the past’.
However, the High Court went on to say that,
‘On the other hand, a civilian who has joined a terrorist organization and commits a chain of hostilities, with short periods of rest between them, loses his immunity from attack for the entire time of his activity.’
Here, it disagrees with the opinion of Amnesty International, which advises that,
‘Palestinians engaged in armed attacks against civilians or in clashes with Israeli forces are not combatants...They are civilians who lose their protected status for the duration of the armed engagement. They cannot be killed at any time other than while they are posing an imminent threat to lives. Proof or suspicion that a person participated in an armed attack at an earlier point does not justify, under international law, targeting them for death later on. Those who are not posing an imminent threat to lives may not be assassinated as punishment or as a preventive measure.’
I think Amnesty’s interpretation is the correct one. Both Amnesty and the High Court cite Article 51(3) of the Additional Protocol I to the Geneva Conventions (quoted above) to support their position. The article appears quite straightforward - civilians shall enjoy protection ‘unless and for such time as they take direct part in hostilities’. [my emphasis] The High Court of Justice justifies its qualification to the article thus:
‘For such a civilian, the rest between hostilities is nothing other than preparation for the next act of hostilities.’
However, it does not justify this statement. The law states that a civilian cannot be killed for offences he has committed in the past. It does not say that this no longer applies if the civilian has committed multiple past offences. Of course, if the IDF has concrete evidence to justify the belief that a civilian is preparing for future hostilities, it’s a different story. As it is, the law clearly states that civilians only lose their protection whilst they are directly involved in hostilities. The High Court seems to have contradicted this.
The High Court ruling establishes four conditions that must be satisfied for a targeted killing to be considered legal.
- A decision to classify a civilian as engaged in direct hostilities must be based on ’strong and convincing information’. ‘The burden of proof on the army’, according to the ruling, ‘is heavy.’
- A civilian, even if taking part in direct hostilities, cannot be attacked if ‘a less harmful means can be employed.’ So, for example, ‘if a terrorist taking a direct part in hostilities against can be arrested, interrogated, and tried, those are the means which should be employed’. Furthermore, a civilian taking part in direct hostilities is not an ‘outlaw’ - he retains his human rights. Thus, he must not be harmed ‘more than necessary for the needs of security.’
- After a targeted killing, a ‘thorough’ and ‘independent’ investigation must be carried out to determine the legality of the attack. Compensation should be paid, if necessary, to innocent civilians harmed during the course of the attack.
- The principles of distinction and proportionality must be respected. In other words, ‘every effort must be made to minimize harm to innocent civilians’ and ‘attacks should only be carried out if the expected harm to innocent civilians is not disproportional to the military advantage to be achieved by the attack.’
The ruling concludes that, because of the somewhat fuzzy application of the doctrine of proportionality, a categorical determination of targeted killings to be either legal or illegal is impossible. Rather, they must be judged on an individual basis.
No doubt there will be much heated debate amongst lawyers and experts over the ins and outs of the ruling. I am not in a position to contribute to such a debate. However, it is important to realise that, even according to this ruling, the vast majority of Israel’s targeted killings have been illegal.
According to the ruling, targeted killings are only permissible if a ‘less harmful means’ of preventing a Palestinian engaged in direct hostilities does not exist. Specifically, the ruling says that ‘if a terrorist taking a direct part in hostilities against can be arrested, interrogated, and tried, those are the means which should be employed’. Israel often argues that targeted killings are necessary because it is impossible for Israel to arrest Palestinians in the areas that fall under PA jurisdiction (as defined by the Oslo agreements). In reality, as Amnesty International notes, this is utter nonsense. The IDF has repeatedly demonstrated that ‘it can and does exercise full and effective control of the Occupied Territories, including the areas which fall under the Palestinian Authority jurisdiction.’ Israel’s ability to arrest Palestinians is evidenced by the 10,000 Palestinians currently rotting in Israeli jails. In the summer, the IDF had no trouble arresting 64 Palestinian lawmakers, and in the past the IDF has temporarily detained all males within a certain age bracket in refugee camps. Israel’s argument that it has no available measures less harmful than targeted killing to deal with Palestinian militants is therefore, in virtually all cases, incorrect.
The Caroline doctrine, reaffirmed by the Nuremberg Tribunal, states that anticipatory action is only allowed when the "[n]ecessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." Thus, Israel would be justified in killing militants who are, for example, in a car full of missiles on their way to attack Israel. In reality, however, the majority of targeted killings are carried out against Palestinians who are not at that moment involved in direct hostilities (see, for example, the assassination of Sheikh Yassin). All of these targeted killings are illegal.
The High Court ruling also concludes that Israel must make every effort to ‘minimize harm to innocent civilians.’ A simple look through the record will illustrate that Israel regularly fails to meet this obligation. The death toll also testifies to this: out of a total of 339 Palestinians killed during the course of a targeted killing since September 2000, 129 were bystanders. The Court ruling also says that the principle of proportionality must be respected. Israel has violated this condition numerous times, for example when, in July 2002, an Israeli F-16 jet dropped a one-tonne bomb on a crowded Gaza City apartment block with the aim of killing militant Salah Shehada. He was killed, along with seven children and nine other adults. 70 bystanders were injured and six neighbouring houses were damaged.
The High Court ruled that any classification of a Palestinian as engaged in direct hostilities must be based on ‘strong and convincing information’, and that the ‘burden of proof on the army is heavy’. In fact, the Israel’s political and military leadership has shown an extraordinary willingness to label civilians as terrorists, regardless of the evidence. For example, on December 7 Prime Minister Ehud Olmert stated before a government committee that "[s]ince June, more than 400 members of terrorist organisations have been killed." In reality, 387 Palestinians had been killed, 206 of whom were not taking part in hostilities when they were killed. In the Lebanon war, Israel openly declared that everyone remaining in southern Lebanon "is a terrorist". This despite the fact that, thanks to Israel’s extensive bombing of and repeated threats to target all moving vehicles, around 100,000 civilians remained trapped in southern Lebanon. According to Amnesty International, ‘the Israeli army has not offered evidence that the Palestinians whom it has assassinated were about to, or on their way to, carry out attacks.’ All such targeted killings are illegal according to the High Court ruling.
In their 2006 annual report, Amnesty International concluded that ‘Israeli soldiers, police and settlers who committed unlawful killings, ill-treatment and other attacks against Palestinians and their property commonly did so with impunity.’ B’Tselem, the Israeli human rights organisation, has likewise written of an ‘atmosphere of immunity’, describing how only a ‘very small percentage of cases in which Palestinians were killed [by IDF soldiers] have been investigated.’ Thus, contrary to the requirements laid out in the High Court ruling, the vast majority of targeted killings have not been subsequently investigated by an independent organisation.
In summary, the High Court ruling essentially says that there are conceivable hypothetical situations where a targeted killing would be legal. However, the reality is that virtually all the targeted killings carried out by Israel have been illegal. On this day in 1981 the Knesset passed the Golan Heights Law, which annexed the Golan Heights to Israel in direct contravention of international law, which prohibits the acquisition of territory by force. This should remind the Israeli public of the monumental contempt successive Israeli governments have had for the rule of law. Olmert’s government has proved time and again that it cannot be trusted to use force lawfully. The Israeli public must therefore do what the High Court did not: they must demand an end to Israel’s policy of targeted killings.
Cross-posted at The Heathlander