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Israeli Supreme Court Approves Restricted Targeted Killings

The Israeli Supreme Court ruled December 14, 2006, that customary international law permits the IDF to resort to targeted killings of Palestinian terrorists in the West Bank and Gaza Strip as long as the circumstances of each case meet legal conditions. The first targeted killing, according to the petitioners, occurred on November 9, 2000, when an Israeli helicopter fired a missile at the jeep carrying Hussein Abayat of the Tanzim in Beit Sahour. The missile killed Abayat and two bystanders.

“The result of our examination is not that such strikes are always permissible or that they are always forbidden,” retired Supreme Court president Aharon Barak wrote in a ruling that was published simultaneously in English because of international interest aroused by the case.

“The approach of customary international law applying to armed conflicts of an international nature is that [enemy] civilians are protected from attacks by the army,” he wrote. “However, that protection does not exist regarding civilians ‘for such time as they take part in hostilities’ (according to Article 51 (3) of the First Protocol Additional to the Geneva Conventions of August 12, 1949.) Harming such civilians, even if the result is death, is permitted on the condition that there is no other alternative that harms them less, and on condition that innocent civilians nearby are not harmed [disproportionately]…

”That proportionality is determined according to a values-based test intended to balance between the military advantage [to the army that perpetrates the targeted killing] and the [collateral] civilian damage [caused by the killing].

“As we have seen, we cannot determine that a preventive strike is always legal, just as we cannot determine that it is always illegal. All depends upon the question whether the standards of customary international law regarding international armed conflict allow that [specific] preventive strike or not.”

Supreme Court President Dorit Beinisch and Deputy Supreme Court President Eliezer Rivlin joined Barak in unanimously rejecting a petition objecting to the policy of targeted killings on grounds it violated Israeli and international law.

The state argued that in a state of armed conflict between Israel and terrorists, the terrorists are neither combatants or civilians, but belong to a third category known as “illegal combatants.” As such, they are legitimate targets for attack as long as the armed conflict continues.

For a targeted killing to be considered legal, the state must fulfill four conditions to the best of its ability:

  • It must have strong evidence that the potential target meets the conditions for having lost his protected status.
  • If less drastic measures can be used to stop the potential target posing a security a threat, such as arrest, the state must use them, unless this alternative poses too great a risk to the lives of the soldiers.

  • An independent and thorough investigation must be conducted immediately after the operation to determine whether it was justified. In appropriate cases, the state should compensate innocent civilians for harm done.

  • The state must assess in advance whether the collateral damage to innocent civilians involved in a targeted killing is expected to be greater than the advantage gained by the operation. If it is, the state must not carry out the operation.

If the state performs all four tasks (including the retroactive one) and finds that the proposed operation meets the conditions set forth in the law, the targeted assassination will be legal, concluded Barak.

Jerusalem Post