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Article Excerpt
CONTENTS
I Introduction A Israel's Policy &Targeted Killing B Background to the Case C Main Focus and Structure of the Note II Summary of Judgment A Factual Background B The General Normative Framework 1 International Armed Conflict 2 Combatants 3 Civilians 4 Review by the Court III Critique of Selected Issues A Four-Fold Test 1 Well-Based Information 2 Less Drastic Measures 3 Investigations 4 Proportionality B Adequacy of the Four-Fold Test IV Conclusion
I INTRODUCTION
A Israel's Policy of Targeted Killing
On 9 November 2000, Hussein 'Abayat, a senior Fatah Tanzim activist, was driving his car on a busy street in his village in the West Bank. An Israel Defence Forces ('IDF') helicopter fired three missiles at him, killing him and two women, Rahma Shahin and 'Aziza Muhammad Danun, who were standing outside a house. (1) 'Abayat's killing, less than two months after the al-Aqsa Intifada began, marked the start of Israel's policy of targeted killings. (2) Israel has since publicly confirmed that the practice of targeted killings occurs under government orders. It can therefore be taken to be state policy. (3) According to B'Tselem, by 31 August 2007, 367 Palestinians had been killed as a result of Israel's policy of targeted killing. (4) Of those casualties, 218 were objects of the targeted killings and 149 were innocent bystanders. (5) The legality of this policy has been widely debated, both in Israel and internationally. The decision in The Public Committee Against Torture in Israel v The Government of Israel ('PCATI') (6) sought to address this issue.
B Background to the Case
On Thursday 14 December 2006, the High Court of Justice ('HCJ') (7) handed down a decision that it had taken five years to reach. (8) In January 2002, the Public Committee Against Torture in Israel ('PCATI') and the Palestinian Society for the Protection of Human Rights and the Environment ('LAW') filed a petition against the State of Israel. (9) The petitioners argued that Israel's assassination policy is unlawful. Assassination, they claimed, is illegal according to the standards of domestic law enforcement in occupied territory which forbid use of lethal force unless it is necessary to protect against an imminent threat of death or serious bodily injury. (10) Avigdor Feldman and Michael Sfard, the petitioners' attorneys, argued that military force can only be used in the context of self-defence according to art 51 of the Charter of the United Nations. Article 51 permits a state to respond to an attack by another state and therefore is not applicable to the conflict between Israel and individuals from the occupied territories. (11) The petitioners argued that targeted assassinations deny the right to due process and violate the fundamental right to life protected under international human rights and international humanitarian law. They qualified this argument by claiming that even if an international armed conflict exists in the context of Israel's belligerent occupation, the targets must be regarded as civilians and therefore protected from military attack. (12) According to the petitioners, art 51(3) of Additional Protocol I (13) to the Geneva Conventions (14) reflects customary international law. (15) When a 'criminal civilian' (16) participates in combat, they lose their immunity 'during (and only when) [they are] ... participating in combat that directly endangers human life' (17) and they can be tried retroactively. (18) The petitioners concluded that '[t]he policy of assassinations harms these civilians when they are not taking part directly in combat or in hostilities, and as such, it is not legal and constitutes a prohibited strike against civilian targets that constitutes a war crime'. (19) They also claimed that the targeted killing policy often causes harm to civilian bystanders, violating the principle of proportionality. (20) Finally, the petitioners argued that the targeted individuals are not given the opportunity to prove their innocence, and there is no independent judicial review of the operations. (21)
The State of Israel, (22) against whom the case was petitioned, argued that there has been, and it remains embroiled in, a 'new kind of conflict' with terrorist organisations. (23) The respondents argued that since September 2000, Israel has been confronted with 'acts of combat and terrorism' and the applicable legal framework is therefore the laws of armed conflict. (24) These terrorist attacks are, according to the respondents, 'armed attacks' against which Israel can defend itself according to the right to self-defence under art 51 of the UN Charter. The respondents also argued that the law of occupation is not relevant to determining the legality of targeted killing. (25)
According to the State, the members of the terrorist organisations that Israel targets are party to the conflict and take an active part in hostilities. They are therefore legitimate targets. Shai Nitzan, the State attorney, argued that because the terrorists' conduct violates the laws of war, they belong to a third category known as 'unlawful combatants'. (26) As such, they do not enjoy the privileges of combatants according to Geneva Convention III and can be targeted at all times. (27) The State qualified its argument by stating that even if terrorists were defined as civilians rather than combatants according to the laws of war, civilians lose their immunity when they take an active part in hostilities. (28) The State argued that the restrictions against attacks on civilians directly participating in hostilities set out in art 51(3) of Additional Protocol I are not binding upon Israel. According to the respondents, this article has not attained the status of customary international law, therefore Israel rejects the time limitation in art 51(3) (attacking civilians 'for such time'). (29) Consequently, it considers the planning, launching and commanding of terrorist attacks to be direct participation in hostilities. It therefore believes that its policy of targeted killing complies with art 51 (3). (30) Finally, the respondents rejected the petitioners' claim that the targeted killing policy violates the proportionality requirement. The State argued that targeted killing is only performed as 'an exceptional step, when there is no alternative'. (31)
C Main Focus and Structure of the Note
The targeted killing judgment is significant because it establishes international humanitarian law as the appropriate normative framework for ruling on the legality of targeted killing. Specifically, the Court's analysis of the meaning of 'civilians' and 'direct participation in hostilities' breaks new legal ground. This case note examines the judgment with an emphasis on its discussion of what, legally, can be classified as civilians taking a direct part in hostilities. The judgment begins by setting out the factual background to the case, and then establishes the normative framework for assessing the legality of targeted killing. In resolving the substantive legal issues according to that framework, the Court addressed the justiciability of targeted killing and the scope of judicial review. The Court then drew its conclusions. Part II of this case note summarises and examines the targeted killing judgment and outlines the findings and legal reasoning provided by the Court. Part III critiques a particular aspect of the judgment relating to the forfeiture of civilian immunity, which is determined by four requirements imposed by the Court. Are these requirements helpful in regulating targeted killings? Or does the wording of the requirements leave the judgment open to criticism for failing to set stringent restrictions? These questions, this case note argues, call for closer analysis. Part IV concludes with an assessment of the judgment focusing on what it means to forfeit civilian immunity, and in particular, whether the Court's analysis of the meaning of civilians directly participating in hostilities contributes to and clarifies this vague area of international humanitarian law.
II SUMMARY OF JUDGMENT
The three-justice panel (32) unanimously held that the question of whether every targeted killing is prohibited according to customary international law could not be determined in advance. (33) In so doing, they rejected the petitioners' claim that the policy of targeted killings must cease on the grounds that it violated both Israeli and international law. The petitioners' argument that the policy is 'totally illegal' was, according to President Beinisch, a 'sweeping stance'. (34) However, the judgment does not simply legitimise targeted killings: it delivers a nuanced account of the circumstances in which they are legitimate, as well as the circumstances in which they are not. Therefore, the ruling does not endorse the State's approach to targeted killing, but rather imposes restrictions on State policy.
A Factual Background
President Barak, who authored the main ruling, opened his judgment by setting out the question presented to the Court: does the State act illegally when it employs a policy of preventative strikes? He then examined this question in the context of the current hostilities, providing a narrative of the factual background. He described the 'massive assault of terrorism' that has been directed against the State of Israel since the outbreak of the second Intifada in 2000. (35) During the second Intifada Israel has employed what he called '"the policy of targeted frustration" of terrorism' by ordering the killing of
members of terrorist organizations involved in the planning, launching, or execution of terrorist attacks against Israel. During the second intifada, such preventative strikes have been performed across Judea, Samaria, and the Gaza Strip. (36)
President Barak's judgment began by clearly delineating the parameters of the issue before the Court and the circumstances within which the disputed practice occurs. In his introduction, he also described the effect of terrorism on Israeli society:
They [terrorist attacks] are directed against civilian centers, shopping centers and markets, coffee houses and restaurants. Over the last five years, thousands of acts of terrorism have been committed against Israel. In the attacks, more than one thousand Israeli citizens have been killed. Thousands of Israeli citizens have been wounded. Thousands of Palestinians have been killed and wounded during this period as well. (37)
B The General Normative Framework
1 International Armed Conflict
One of the significant findings of the judgment is that international humanitarian law is the correct framework within which to determine the legality of targeted killing. (38) The Court rejected the petitioners' argument that targeted killing should be regulated according to law enforcement rules and human rights law. (39) Instead, the Court held that an international armed conflict exists. (40) The decision to choose the law of armed conflict model over the law enforcement model has important ramifications in determining the legality of targeted killing. (41)
President Barak affirmed the importance of international law in the decision-making of the Court by ruling that the appropriate normative framework in determining the legality of targeted killing is customary international law applicable to international armed conflict. (42) It is significant that a domestic court relied so heavily on international law, but this is consistent with the jurisprudence of the Court during the last six years of the Intifada because many of the petitions during this period were concerned with military operations. (43) The many references to international legal authorities throughout the judgment demonstrate that 'the Israeli HCJ engages in ... international legal discourse and that international legal standards apply to Israel'. (44)
The Court held that an international armed conflict exists between Israel and terrorist organisations. (45) President Barak explained that a conflict between an occupying state in an area subject to belligerent occupation, and terrorists who come from that occupied territory, is an international armed conflict. (46) President Barak quoted former International Criminal Tribunal for the Former Yugoslavia ('ICTY') President Antonio Cassese to support his position. (47) The Court then expanded its reasoning, ruling that an armed conflict is of international character if it 'crosses the borders of the state--whether or not the place in which the armed conflict occurs is subject to belligerent occupation'. (48)
By ruling that the conflict between Israel and terrorist organisations is international, the Court clearly diverged from the traditional understanding that international armed conflicts are between sovereign states. (49) Additional support for this aspect of the ruling was provided by the Court when it considered the capacity of terrorists to inflict harm. As President Barak explained:
in today's reality, a terrorist organization is likely to have considerable military capabilities. At times they have military capabilities that exceed those of states.... Confronting the dangers of...
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