Legality of preventive targeted killings - international armed conflict - status of members of terrorist organizations - civilians taking direct part in hostilities - principle of proportionality - judicial review of military measures during armed conflict.

Author:Ben-Naftali, Orna
Position:Public Committee Against Torture in Israel v. Government of Israel

PUBLIC COMMITTEE AGAINST TORTURE IN ISRAEL V. GOVERNMENT OF ISRAEL. Case No. HCJ 769/02. At . Supreme Court of Israel, sitting as the High Court of Justice, December 13, 2006.

In Public Committee Against Torture in Israel v. Government of Israel (1) (Targeted Killings) the Supreme Court of Israel, sitting as the High Court of Justice, (2) examined the legality of Israel's "preventative targeted killings" of members of militant Palestinian organizations. The Court's unanimous conclusion reads:

The result of the examination is not that such strikes are always permissible or that they are always forbidden. The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians "for such time as they take a direct part in hostilities" ([section]51(3) of [Additional Protocol I (3)]). Harming such civilians, even if the result is death, is permitted, on the condition that there is no less harmful means, and on the condition that innocent civilians are not harmed. Harm to the latter must be proportional. (Para. 60) "Preventative targeted killings" is a term used by the government of Israel to describe one of the measures it employs to combat terrorist attacks directed against its citizens and soldiers. (4) Palestinians regard this measure as a type of state assassination, aimed at suppressing their uprising (intifada) against, and opposition to, the continuous occupation. (5) The first such acknowledged strike occurred on November 9, 2000. (6) As of the date of Targeted Killings, 338 Palestinians had been killed as a result of this policy, 128 of whom, including 29 children, were innocent bystanders. (7) These data underscore the policy's controversial nature. In a previous attempt to obtain judicial review of the policy of targeted killings, the Court accepted the state's position that the matter is not justiciable (8)--a position rejected in the instant case. (9)

The starting point of Targeted Killings is that a continuous situation of armed conflict has existed between Israel and "various terrorist organizations" since September 2000 (para. 16). In the Court's view, this armed conflict is of an international character because it "crosses the borders of the state" (para. 18). Therefore, the applicable normative framework is the international law of armed conflicts. This law is part of international humanitarian law (IHL) and includes the laws of belligerent occupation (para. 20). (10) Substantial parts of this law are customary and, as such, part of Israeli law (para. 19). IHL is lex specialis, to be supplemented, in the event of lacunae, by human rights law (paras. 18-21). Israeli law requires soldiers of the Israeli Defense Forces to act pursuant to the laws of armed conflict. If they act contrary to these laws, "they may be, inter alia, criminally liable for their actions" (para. 19).

IHL, said the Court, is based on a balance between human rights and military requirements, thus reflecting "the relativity of human rights, and the limits of military needs" (para. 22). The principle of distinction, differentiating between two categories of people, combatants and civilians, is a central factor in this balance: combatants are legitimate military targets, whereas civilians are not (paras. 23-26). IHL, at present, does not recognize a third category of "unlawful combatants" (para. 28). The Palestinian militants fail to meet the qualifying conditions set in the Hague Regulations and in the Geneva Conventions for combatants. Consequently, they are civilians. They are not, however, entitled to the full protection granted to civilians who do not take a direct part in the hostilities (para. 26).

According to the norm reflected in Article 51(3) of Additional Protocol I, which the Court considered part of customary international law, civilians who take a "direct part in hostilities" do not lose their status as civilians. However, "for such time" as they take part in the hostilities, they become legitimate objects of attack, without enjoying the rights of civilians (para 30). (11) The interpretation of this provision should be dynamic, adapting the rule to new realities (para. 28).

Article 51(3) of Additional Protocol I comprises three cumulative components: (1) "hostilities"; (2) "direct part"; and (3) "for such time." The Court interpreted "hostilities" as acts intended to cause damage to the army or to civilians. A civilian takes a direct part in hostilities when he engages in, or prepares himself for, such acts (para. 33). Noting the lack of customary standards for (2) (para. 34) and (3) (para. 39), the Court concluded that "there is no escaping going case by case, while narrowing the area of disagreement" (para. 34). It thus offered guidelines and examples in respect of these two elements.

A civilian takes a "direct part" in hostilities when he is physically engaged in them or when he plans, decides on, and sends others to be thus engaged. At one end of the spectrum, a civilian bearing arms who is on his way to (or from) the place where he will use (or had used) them, clearly is taking a direct part in hostilities. At the other end are cases of indirect support, including selling of supplies and financing hostile acts. In between are the hard cases, where the function that the civilian performs determines how direct a part he takes in the hostilities; in this middle area, collecting intelligence, servicing weapons, and functioning as a "human shield" are direct acts of participation...

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