Israel Matzav

Supreme Court restricts targeted killings

In what is thankfully the last decision of the Aharon Barak era, Israel's Supreme Court today placed restrictions on the IDF's ability to carry out targeted killings against 'Palestinian' terrorists. That's the upshot of today's decision, despite the fact that all of the mainstream media are headlining that targeted killings are 'legal' (even Arutz Sheva called this one as the Supreme Court 'essentially upheld' targeted killings). (For the record, a retired judge is allowed three months to continue working on cases that he heard while he was on the court. Barak's three months end tomorrow).

The court said that it 'cannot be determined ahead of time' whether or not a targeted killing is legal under 'international law' (and by the way, that term is in scare quotes for a reason: a state is not bound by 'international law' unless it chooses to be so bound).

The ruling leaves much open for interpretation, though it gives examples in an attempt to set guidelines. For instance, if a terrorist is shooting at soldiers from a house, the court rules that soldiers may return fire, even if civilians might be hurt in the process. However, bombing a residential building from the air to stop a terrorist, thus endangering civilians, is much more problematic, the ruling states.

In other words, all the terrorist leaders have to do is to make sure that they are surrounded by human shields and they are safe. That's not hard to do at all in Gaza, is it?

The classic case to which that last sentence is referring is that of Salah Shehadeh.

Salah Shehade was one of the founders of Hamas and the commander of its military wing. He was directly responsible for hundreds of attacks committed against Israeli citizens and its security forces over the past two years. These have resulted in death and injury to large numbers of people. Quite simply, in recent years, Shehade had been the central figure in Hamas's organization. And, it is known that Shehade was planning further severe acts of terror.

Israeli security officials have stated that Shehade was closely associated with most of the terrorist activities in the Gaza area, whether in planning them himself or in their approval. To take just two examples of these wanton acts: the killing of four soldiers at the IDF posting nicknamed "Africa" (January 9, 2002) and the slaughter of 5 high school students at Atzmona (March 7, 2002).

Shehade mobilized the Hamas leaders in the West Bank, and served as the main link with Hamas officials' abroad. Shehade also led the efforts to manufacture rockets with the aim of directing them at the heart of Israel. He personally oversaw the production and purchase of armaments.

Over the course of two years, Israeli authorities made dozens of requests to the Palestinian Authority to take measures against Shehade's activities. The Palestinian Authority, however, permitted him as well as other Hamas operatives to operate freely.

On July 23, 2002, an IDF plane dropped a one-ton bomb on Shehadeh's home, killing him. But Shehadeh had surrounded himself with civilians - including children - and fifteen people, including nine children, died. More than 150 were wounded. The court did not rule today on a petition arising out of the Shehadeh case that was filed with this petition. The second petition was filed by one Yoav Hass, an Israeli Jew and a leader of the traitorous Yesh Gvul organization. The petition that was decided today was filed by 'Palestinian' NGO's.

With today's Supreme Court ruling, the IDF will hesitate even more to carry out an assassination like Shehadeh's (the inquiry eventually showed that the IDF nearly aborted the mission, had aborted it twice previously, and believed Shehadeh was alone). Indeed, the Israel Law Center, headed by Nitzana Darshan-Leitner,

criticised the aspect of the ruling that "held that each operation against a specific target must be weighed according to its own individual circumstances and the safety of innocent Palestinians must also be considered. [This is] clearly a case of the High Court, once again, dangerously 'showing mercy to the cruel.'"

Leitner had filed an amicus (friend of the court) brief in this case, in which the court was urged to consult Jewish law, one of the permitted sources for the Israeli Supreme Court to consider:

"Jewish Law states that the government is obligated, from an ethical point of view, to kill terrorists before they kill Israelis. Similarly, Jewish Law states that the IDF must take endangered innocent Israeli lives into consideration before those of the Arab enemy."

Haaretz adds:

According to the ruling, terrorist operatives are not legally defined as combatants and therefore must be considered civilians. The court rejected the state's argument that international law currently recognizes a third category comprising "unlawful combatants."

Nonetheless, the court ruled that civilians involved in terror activities are not afforded the same protections granted to innocent civilians under international law.

"A civilian, in order to enjoy the protections afforded to him by international law during an armed conflict, must refrain from taking a direct part in the hostilities," said the court. "A civilian that violates this principle ... is subject to the risks of attack like those to which a combatant is subject, without enjoying the rights of a combatant, e.g. those granted to a prisoner of war."

What is considered "taking a direct part in the hostilities?" Does the court believe that a human shield is "taking a direct part in the hostilities?" In my opinion, they are, but I will bet that the court would disagree. I believe that the Geneva Convention would agree with me.

The court established four primary criteria that must be met in order for a targeted killing to be justified.

First, "well based, strong and convincing information" regarding the individual's terrorist activities.

Second, "a civilian taking a direct part in hostilities cannot be attacked if a less harmful means can be employed."

Third, an independent, thorough investigation must be conducted after the attack to determine "the precision of the identification of the target and the circumstances of the [targeted killing]."

Fourth, every effort must be made to minimize harm to innocent civilians, and "harm to innocent civilians caused during military attacks (collateral damage) must be proportional."

The court also ruled that, since a targeted killing is essentially an attack on a civilian that is engaged in hostile activities, the attack is only justified if carried out against a civilian currently involved in terrorism. Therefore the IDF cannot target former terror operatives who have distanced themselves from terror activity.

The second and fourth 'primary' criteria (there are others too?) bother me. The second one bothers me because it will encourage second-guessing of the IDF afterwards, which means that the IDF will be less inclined to pull the trigger. And the fourth criterion bothers me, because I believe that Israel's response to terror has to be disproportionate. And by the way, how is the term 'former terror operative' defined? How long does the target have to be ostensibly out of the terror business in order not to be a target anymore? This invites having the courts examine every single targeted assassination to determine on a case-by-case basis after the fact to determine whether or not the IDF was allowed to do it in the first place.

The Jerusalem Post adds that

The ruling, however, conditioned approval on preventing harm to uninvolved Palestinian civilians and said monetary compensation should be dispensed to the families of innocents killed in such operations.

This fits in with the court's ruling the other day that 'Palestinians' injured in army activities can sue the IDF. The IDF is going to have to start drafting litigators by the dozens to deal with all the hundreds of 'Palestinians' who are likely to file suit against it.

And for those who want a little history of the targeted assassination policy, the Post has it for you:

The petition against the legality of the targeted assassination policy in principle was filed by the Public Committee against Torture in Israel and LAW, the Palestinian Society for the Protection of Human Rights and the Environment, in January 2002.

The petitioners, represented by attorneys Avigdor Feldman and Michael Sfard [Israeli Jews. CiJ], wrote that Israel first introduced the policy on November 9, 2000, when an Israeli helicopter fired a missile at the jeep of Tanzim activist Hussein Abayat in Beit Sahour, near Bethlehem. The missile killed Abayat and two passersby. Three others were wounded.

YNet notes that the State attempted to claim that the issue was not justiciable:

In their decision, the High Court judges also referred to the State's reply to the petition, in which it claimed that the targeted killing issue is not justiciable. According to the judges, in any place where the policy harms human rights it is examined by international courts and tribunals, and therefore can also be examined by national courts.

As I have noted in the past, part of the problem with Israel's Supreme Court is that it does not know the meaning of the term "not justiciable."

The politicians are acting as if the ruling does not change anything. This is from the Arutz Sheva article linked above:

Minister Gideon Ezra, a former top Shabak figure, said, "This ruling basically reflects how the army already works. The first case [mentioned above] is not even a case of 'targeted killing;' such a case is obviously permitted. But when a terrorist is far away, that is when the army has to find a way to get him, hurting as few civilians as possible."

I disagree. I think it's inevitable that the court's decision is going to open the door to hundreds of compensation claims and second-guessing of the IDF's operational decisions. It will have a chilling effect - for lack of a better term - on the IDF's targeted assassination policy. And the security of Israelis will suffer as a result.

posted by Carl in Jerusalem @ 3:01 PM