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19 Dec. 06 : High Court of Justice imposes limitations on Israel 's targeted-killing policy

On 13 December 2006, the High Court of Justice gave its decision on the petition filed in January 2002 by the Public Committee Against Torture in Israel and LAW against Israel 's policy of targeted killings, which the state has carried out officially since the beginning of the second intifada, in September 2000. According to B'Tselem's statistics, Israel 's targeted-killing attacks in the past six years have killed 339 Palestinians, 210 of them the target of the attack and 129 of them civilian bystanders.

The High Court decision states that, "it cannot be determined in advance that every targeted killing is prohibited according to customary international law. The law of targeted killing is established under customary international law, and the legality of each said individual act must be determined in light of it" (Section 64). The High Court based this conclusion on a number of fundamental determinations regarding the proper interpretation of international humanitarian law, which restrict, if only slightly, the freedom of action of Israel in its actions against Palestinian organizations engaged in hostilities against the state.

First, the High Court rejected the state's position that members of armed Palestinian organizations in combat against Israel are neither civilians nor combatants - the two categories established by international humanitarian law - but belong to a third category, "illegal combatants." The state contended that persons in this category, like civilians, are not entitled to privileges granted to prisoners of war, but, like combatants, are legitimate targets of attack so long as the military conflict continues. The High Court ruled that there is no such category. The court held that, inasmuch as members of armed Palestinian organizations do not fall within the category of combatants, they are necessarily civilians and should be treated in accordance with the provisions of international humanitarian law relating to civilians who take part in hostilities.

Second, according to the state, given that members of the Palestinian organizations are "combatants," albeit illegal, international humanitarian law does not require the state to arrest them, where arrest is possible, rather than kill them. When Israel prefers to capture the "illegal combatants" instead of killing them, the state argued, it does so "though not required by law." The High Court rejected this argument and held that the principle of proportionality requires Israel to always use the means that infringe human rights to a lesser degree. "Arrest, interrogation, and trial are not means which can always be used," the court noted, "but this possibility should always be considered," primarily where the army maintains effective control (Section 40).

The High Court also discussed the question of who is a legitimate target of a targeted killing. The court held that international humanitarian law permits the killing of civilians who take part illegally in the hostilities, if there is no reasonable possibility to arrest them, only if their participation is "direct." Direct participation, the court ruled, includes, in addition to the persons carrying out the attacks, the persons who decide on the acts or plan them, and those who enlist others, guide them, and send them to commit the attacks. However, the court continued, it does not include civilians who offer assistance by means of strategic analysis, logistic and financial support, or propaganda. These activities constitute an indirect part in hostilities, so the persons engaged in them are not legitimate objects of targeted killings.

The High Court also held, contrary to the state's argument, that a civilian taking direct part in hostilities loses civilian protection only for such time as the person takes part in the hostilities. However, the High Court gave this phrase a rather broad interpretation: "A civilian who has joined a terrorist organization, which became his home, and in the framework of his role in the organization carries out a chain of hostilities, with short periods of rest between them, loses his immunity from attack for the entire time of his activity" (Section 40). However, in any case, even with this broad interpretation, a person who takes part in hostilities for a certain period of time, even if the participation is intense and significant, but later ceases to take part, is not deemed a legitimate object of a targeted killing.

The High Court also held that, "after an attack on a civilian suspected of taking an active part, at such time, in hostilities, a thorough investigation regarding the precision of the identification of the target and the circumstances of the attack upon him is to be performed (retroactively). That investigation must be independent" (Section 40). Israel currently conducts no such investigation. The judgment, however, did not delineate what constitutes an independent investigation. Clearly, officials subordinate to the persons responsible for the targeted killing are not independent for purposes of conducting the investigation.

The High Court again emphasized that, according to the principle of proportionality, an attack against a legitimate target (in this instance, the civilian taking direct part in the hostilities) at the proper time (during such time as the civilian participates in the hostilities) is not necessarily permissible under international humanitarian law. It is forbidden when the harm that is liable to be caused to innocent civilians is excessive in comparison with the military advantage anticipated from the attack. For example, firing at a Palestinian sniper shooting from his porch "would be proportionate even if an innocent passerby might be harmed. However, that is not the case if the building is bombed from the air and scores of its residents and passersby are harmed" (Section 46).

These limitations that the High Court imposed on Israel 's targeted-killing policy are proper. They are likely to support the view, expressed in international humanitarian law, that during war, not all means are permissible. The court's ruling will possibly reduce the number of persons unjustifiably killed as a result of Israel 's targeted-killing policy.

However, the vagueness of the wording of some of the restrictions can be exploited by Israel , perhaps allowing Israel to argue that its policy received High Court approval. For example, despite the High Court's determination that the state must first consider the possibility of arresting civilians suspected of terrorist activity, the court did not discuss in detail the considerations that the state should take into account regarding the arrest option. The High Court also did not specify the elements of an "independent investigation," so the state might contend that the operational debriefing, generally held by military officials in the chain of command after each targeted-killing attack, comprises an independent investigation.

Finally, it is especially worrisome that the judgment enables civilians who support the terrorist organizations and are used as human shields to be viewed as taking direct part in the hostilities where they do so "willingly" (Section 36). In many cases, the object that ordinary civilians are requested to shield is not "terrorist headquarters," but private homes. Also, one wonders how the High Court expects Israel to verify that the civilians serving as human shields are acting willingly and are not coerced into doing so.

The real test of the High Court's judgment, with its strengths and weaknesses, lies, as in most principle High Court decisions, in its implementation.