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On target? The Israeli Supreme Court and the expansion of targeted killings.

Article Excerpt
Israel has used "targeted killings" against suspected terrorists since the AlAqsa intifada began in September 2000. By the end of 2005, almost 300 terrorist organization members and 150 civilian bystanders had been killed in targeted killings, in addition to hundreds of civilians wounded. (1) The policy has received wide international condemnation (2) and has sparked vigorous debate among scholars about its lawfulness. After four years of consideration, (3) the Israeli Supreme Court recently weighed in with the world's first judicial decision on targeted killings in Public Committee Against Torture in Israel v. Government of Israel (PCATI). In PCATI, the court held that terrorists are civilians under the law of armed conflict and thus are lawfully subject to attack only when they directly participate in hostilities. (4) But the court also expanded the traditional definition of "direct participation" and the time period during which civilians may lawfully be attacked. By disregarding the "direct participation" requirement's important evidentiary function, the court weakened the protections that international law affords to all civilians, not just to terrorists.

I. INTERNATIONAL LAW AND THE ISRAELI SUPREME COURT'S DECISION

The international law of armed conflict, principally enshrined in custom, the Hague Convention, (5) the Fourth Geneva Convention, (6) and the First Additional Protocol to the Geneva Conventions (Protocol I), (7) prohibits deliberate attacks on civilians (8) but does not give them total immunity from attack. Rather, international law embraces a balancing of military necessity against the rights of the individual.

This balancing is primarily effectuated through the principle of distinction--an "intransgressible principle[] of international customary law" (9)--which obliges belligerents to distinguish between combatants and civilians. Article 51(3) of Protocol I provides that civilians enjoy immunity from deliberate attack "unless and for such time as they take a direct part in hostilities." (10) The debate over targeted killings has centered on whether suspected terrorists are civilians or combatants and, if they are civilians, what constitutes the "time" of their "direct" participation in hostilities. The authoritative International Committee of the Red Cross Commentary on Protocol I suggests that a civilian may directly participate in hostilities by using a weapon, carrying a weapon for use in hostilities, or "undertak[ing] hostile acts without using a weapon." (11) In an expert opinion in PCATI, scholar Antonio Cassese suggested that in addition to a person engaged in combat, a civilian "engaging in a military deployment" preceding an attack is directly participating if "he carries arms openly during the military deployment." (12)

The Israeli Supreme Court, however, took a broader view. As a threshold matter, the court held that the law of international armed conflict applies to the Occupied Territories (13) and that Article 51(3) of Protocol I binds Israel as custom. (14) It also held that terrorists are civilians and therefore may be attacked only while taking a direct part in hostilities, (15) subject to the customary international law requirement of proportionality. (16) The court then set out a novel and expansive definition of "direct" participation, encompassing all civilians "performing the function[s] of combatants." (17) It defined these functions to include not only bearing arms before, during, or after an attack--the limits identified by the Red Cross and Cassese--but also providing services to unlawful combatants and participating voluntarily as a human shield. (18) Further, the court included the actions of terrorist leaders in holding that direct...