The Israeli High Court of Justice, in a long-awaited and important ruling, has said that the Israeli government’s policy of targeted killing is not inherently illegal.  In an opinion delivered on December 14, 2006, the Court rejected the argument put forward by Israeli human rights groups that targeted killings are always forbidden as a form of extrajudicial execution.  Instead, the Court said that the legality of strikes against suspected terrorists must be assessed on a case by case basis, in line with the requirements of the laws of armed conflict.

The High Court’s ruling is not only significant in its own right, but is also likely to become an important precedent for other countries engaging in military action against terrorist groups.  Although the Court said that some targeted killings are lawful, it placed significant restrictions on the practice, including a requirement that there be an independent investigation after each attack.  In the course of its opinion, the Court also dismissed the idea put forward by the Bush administration that terrorist fighters in armed conflict are “unlawful combatants” who cannot be treated according to the established rules for combatants or civilians in international law.

The case that gave rise to this decision was first brought in 2002 by a coalition of human rights organizations, though it was suspended for a period in 2005 after the Israeli government temporarily halted the policy of targeted killings as part of a ceasefire agreement with Palestinian Authority Chairman Mahmoud Abbas.  The Israeli human rights group B’Tselem estimates that 210 suspected fighters and 129 innocent civilians have been killed in targeted strikes since the beginning of the second intifada in September 2000.

Law Enforcement or Armed Conflict?

The opponents of targeted strikes who brought the case hoped to persuade the High Court that Israeli actions against Palestinian armed groups should be considered according to the traditional standards of law enforcement, in which it is forbidden to shoot to kill unless strictly necessary to prevent the loss of innocent lives.  However the Court ruled that the situation in Gaza and the West Bank should instead be considered as an ongoing armed conflict, in which Israel faced what the government’s lawyer described as “a constant, continual and murderous wave of terrorist attacks.”  Therefore, the Court said, the primary source for the rules that should determine the legitimacy of targeted killings is the laws of armed conflict.

According to the Court, members of terrorist groups do not have the status of combatants under the laws of war (i.e. authorized fighters, normally members of national armed forces or associated groups, who can be targeted at any time but must be treated as prisoners of war if captured). Instead, the Court said, they remain civilians and are subject to the rules governing the treatment of civilians.  In general, civilians cannot be attacked, but they lose this protection if they choose to take a direct part in the fighting. In the Court’s words, a civilian who commits acts of combat “does not lose his status as a civilian, but as long as he is taking a direct part in hostilities he does not enjoy – during that time – the protection granted to a civilian. He 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.”

The core of the Court’s main opinion, written by the outgoing President of the Court Aharon Barak, consists of a careful analysis of how the idea of “taking a direct part in hostilities” should be interpreted, since this determines the circumstances under which members of armed groups may be attacked.  Beyond the obvious cases (such as an individual who is carrying a bomb to the site of a planned attack), the Court said that this standard also allows attacks against people collecting intelligence for attacks, or those delivering ammunition to an armed group.  Most significantly, it said that targeted strikes are also allowed against those who planned attacks or enlisted people to take part in them.  However the Court said that people who aid armed fighters by “general strategic analysis,” or by giving them “logistical, general support, including monetary aid,” are not taking a direct part in hostilities and cannot be the object of targeted strikes.

The High Court also analyzes the question (currently much disputed among international lawyers) of whether the law permits strikes against irregular fighters only when they are actually preparing an attack, or at other times.  According to the laws of armed conflict, civilians are not to be attacked “unless and for such time as they take a direct part in hostilities.”  But what does this mean in the case of an armed group whose members – while technically civilians – are engaged in a regular campaign of violence? Here Barak’s opinion distinguishes between two opposed cases: “a civilian who took a direct part in hostilities once, or sporadically, but detached himself from them (entirely, or for a long period)” should not be targeted, since he has effectively removed himself from combat; however a terrorist who pauses only “to rest and prepare” for his next attack should not be given immunity simply because he is not at that moment involved in hostile action.  However the Court’s judgement admits that there may be difficult cases between these two extremes “about which customary international law has not yet crystallized.”

Additional Rules for Targeted Strikes

In recognition of the scope for disagreement about whether some people are legitimate targets for attack under these standards, Barak’s opinion goes on to set four additional rules that should govern targeted killings. First, the government must have well-based information before designating anyone as a target. Second, alleged terrorists should not be targeted if there is a less harmful way of removing the threat they pose, by arresting them and putting them on trial. “A rule of law state employs, to the extent possible, procedures of law and not procedures of force,” the opinion states.  Third, after each targeted strike there should be an independent investigation “regarding the precision of the identification of the target and the circumstances of the attack upon him.” Finally, the attack must not cause harm to innocent civilians nearby that is excessive in relation to the military advantage expected by the attack.  This last rule is known as the principle of proportionality and it has a central place in international humanitarian law. 

In adopting this set of standards to judge the legitimacy of targeted killing, the Israeli High Court directly addresses and rejects the idea put forward by the Israeli government and the Bush administration in the United States that there is a third category of “unlawful combatants” who are neither combatants  nor civilians under international law.  According to the Israeli and American governments, members of an armed group that are engaged in an armed conflict against a State are automatically liable to be targeted (or detained) irrespective of whether they are individually taking part in hostilities.  However Justice Barak wrote that “it is difficult for us to see how a third category [beyond combatants and civilians] can be recognized in the framework of the Hague and Geneva Conventions,” and that there were not sufficient grounds for saying such a category had been recognized by customary law.  The Israeli Court’s fairly expansive definition of direct participation might in any case mean that most members of the military wing of terrorist groups remain legitimate targets, but it would clearly forbid attacks against political or spiritual leaders who were not directly involved in campaigns of violence.

The High Court’s finding that targeted strikes should only be used where arrest is not possible, and should in any case be followed by an independent investigation, are the most striking part of the decision.  In one respect, the Court’s treatment of these rules is somewhat abbreviated.  The opinion states that the laws of armed conflict are at the center of the “normative system” applying to the conflict between Israel and the Palestinian groups, though it adds that human rights law and fundamental principles of Israeli public law may also apply.

The Influence of Human Rights

There is not generally thought to be any requirement in the laws of armed conflict that hostile fighters (include civilians who have joined in the fight) should be detained wherever possible instead of being shot.  Nor is there any generally recognized provision or customary law calling for an independent investigation of disputed attacks (though there is an obligation to investigate potential war crimes).  In applying these standards the Israeli court appears to be adding additional criteria derived from human rights principles against the arbitrary deprivation of life (indeed most of the cases it cites in support of these rules are from the European Court of Human Rights). 

The Court’s thinking seems to be that even in the context of an armed conflict, direct strikes against alleged terrorists who do not identify themselves as fighters and are not found on a recognizable battlefield raise questions of due process that go beyond those normally arising in war.  In addition, the fact that Israel is (or was) the occupying power in the area where the killings take place means that there may be a greater chance that the government has enough control of the territory to arrest suspects rather than shooting them.  For these reasons, human rights principles (or public law principles) act alongside the laws of war to limit the scope of military action.  This argument has intuitive plausibility, but the fact that it is not supported by any detailed discussion of the relationship between the laws of war, human rights law and Israeli public law means that it is not completely clear how far it could be extended to other comparable situations.

The obvious point of comparison is America’s proclaimed war against terror.  Not only has the United States carried out several targeted strikes against suspected al-Qaeda members outside battlefield conditions (including the attack against a group of alleged al-Qaeda members in Yemen in November 2002), it also claims the legal right to kill al-Qaeda members even where they could be arrested. 

In a 2002 interview with the Crimes of War Project, the senior Pentagon legal official Charles Allen said that, “When we have a lawful military target that the commander determines needs to be taken out, there is by no means a requirement under the law of armed conflict that we must send a warning to those people and say, you may surrender rather than be targeted,” though he added that the United States as a policy matter did not try to kill people who could be detained.  As far as is known, the United States has not held investigations into any targeted strikes against al-Qaeda members.  Yet it remains much less clear in the case of the United States than Israel that there is even an armed conflict taking place – suggesting that the United States might have an even clearer obligation to respect the kinds of human rights-based limits that Israel’s High Court set out.

In some ways, Justice Barak’s opinion appears to be written with the United States in mind.  It contains an explicit rejection of the idea that terrorist suspects are outside the protection of the law: “They are not outlaws…their human dignity is to be honored; they as well enjoy and are entitled to protection, even if most minimal, by customary international law.” Indeed the opinion as a whole states firmly that customary international law is applicable to armed conflict involving terrorists, something that US officials have sometimes appeared to question. (See United States is “Looking at” the Place of Fundamental Guarantees in the War on Terror.)  In his concluding paragraphs Barak refers explicitly to the British Law Lord Johan Steyn’s comment that there are no “black holes” in the law, a rebuke that was directed at Guantanamo Bay.

Behind the Israeli High Court decision there seems to lie an important if not explicitly stated principle: in low-intensity armed conflict against terrorist groups, where some fighters may be found in non-battlefield conditions and even in places where law enforcement is still effective, and where it may be difficult to know with any certainty whether suspected enemy fighters are taking part in hostilities or not, there is a place for rules derived from the human rights norm against arbitrary deprivation of life (and by extension arbitrary deprivation of liberty) to supplement the conventional laws of armed conflict.  Because this principle is not elaborated, it is not clear how far it would extend – for instance, is it particularly applicable in occupied territory, or might it also apply on the global terrain of US counterterror operations?

It is also far from clear how the Court’s principles will be applied in practice in Israel. Nevertheless by asserting that military action against terrorism must take place within a framework fixed by law and by claiming the right of the courts to hold such actions within strict limits, the High Court of Justice is likely to have set the framework for future discussion of this controversial area.

Related Links:

Israeli High Court Judgement

December 14, 2006

Public Committee Against Torture in Israel

In-Depth: Ahmed Yassin and Hamas

Haaretz Web File

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