Summary of Ruling on Targeted Killings
(December 14, 2006)
HCJ 769/02: Public
Committee Against Torture in Israel v. Government of Israel
The Government of Israel employs a policy
of “targeted killings” which cause
the death of terrorists who plan, launch,
or commit terrorist attacks in Israel and
in the area of Judea , Samaria , and the
Gaza Strip, against both civilians and soldiers.
These strikes at times also harm innocent
civilians. Does the State thus act illegally?
That was the question posed before the Supreme
International Armed Conflict
The Supreme Court, in a judgment delivered
by the President (ret') A. Barak, with President
D. Beinisch and Vice-President E. Rivlin
concurring, decided that the starting point
of the legal analysis is that between Israel
and the terrorist organizations active in
Judea, Samaria, and the Gaza Strip, there
exists a continuous situation of armed conflict.
This conflict is of an international character
(international armed conflict). Therefore,
the law that applies to the armed conflict
between Israel and the terrorist organizations
is the international law of armed conflicts.
It is not an internal state conflict that
is subject to the rules of law-enforcement.
It is not a conflict of a mixed character.
A fundamental principle of the customary
international law of armed conflict is the
principle of distinction. It distinguishes
between combatants and civilians. Combatants
are, in principle, legitimate targets for
military attack. Civilians, on the other
hand, enjoy comprehensive protection of their
lives, liberty and property. The Supreme
Court rejected the view according to which
international law recognizes a third category
of “unlawful combatants”.
Harm to Civilians
The Supreme Court decided that members of
the terrorist organizations are not combatants.
They do not fulfill the conditions for combatants
under international law. Thus, for example,
they do not comply with the international
laws of war. Therefore, members of terrorist
organizations have the status of civilians.
However, the protection accorded by international
law to civilians does not apply at the time
during which civilians take direct part in
hostilities. This too is a fundamental principle
of customary international law. It is expressed
in Article 51(3) of the 1977 Additional Protocol
I to the Geneva Conventions which states
enjoy the protection afforded by this section,
unless and for such time as they take a
direct part in hostilities.”
Thus, 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.
A civilian who violates this principle and
takes direct part in hostilities does not
lose his status as a civilian, but as long
as he is taking a direct part in hostilities
he does not enjoy the protections 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.
When can it be said that a civilian takes
part in hostilities? Hostilities
are acts which are intended to harm the army
or civilians. A civilian takes part in hostilities
when he is engaged in such acts, or when
he prepares himself for such acts. It is
not required that he carries or uses arms.
When can it be said that a civilian takes
a direct part in hostilities? A civilian
bearing arms (openly or concealed) who is
on his way to the place where he will use
them, or is using arms, or is on his way
back from such a place, is a civilian taking
a direct part in hostilities. So are those
who decide on terrorist acts or plan them,
and those who enlist others, guide them and
send them to commit terrorist acts. On the
other hand, civilians who offer general support
for hostilities, such as selling of food,
drugs, general logistic aid, as well as financial
support, take an indirect part in hostilities.
How shall we understand the scope of the
words “for such time” during
which the civilian is taking direct part
in hostilities? A civilian taking a direct
part in hostilities one single time, or sporadically,
who later detaches himself from that activity,
is a civilian who, starting from the time
he detaches himself from that activity, is
entitled to protection from attack. He is
not to be attacked for the hostilities which
he committed in the past. On the other hand,
a civilian who has joined a terrorist organization
and commits a chain of hostilities, with
short periods of rest between them, loses
his immunity from attack for the entire time
of his activity. For such a civilian, the
rest between hostilities is nothing other
than preparation for the next act of hostilities.
These examples point out the dilemma regarding
the requirement which “for such time” presents
before us. On the one hand, a civilian who
took a direct part in hostilities once, or
sporadically, but detached himself from them
(entirely, or for a long period) is not to
be harmed. On the other hand, the “revolving
door” phenomenon, by which each terrorist
can rest and prepare for the next act of
hostilities while receiving immunity from
attack, is to be avoided. In the wide area
between those two possibilities, one finds
the “gray” cases, about which customary
international law has not yet crystallized.
There is thus no escaping examination of
each and every case. In that context, the
following four things should be said: First,
well based, strong and convincing information
is needed before categorizing a civilian
as falling into one of the discussed categories.
Innocent civilians are not to be harmed.
Information which has been most thoroughly
verified is needed regarding the identity
and activity of the civilian who is allegedly
taking a direct part in the hostilities.
The burden of proof on the army is heavy.
In the case of doubt, careful verification
is needed before an attack is made. Second,
a civilian taking a direct part in hostilities
cannot be attacked if a less harmful means
can be employed. A civilian taking a direct
part in hostilities is not an outlaw (in
the original sense of that word – people
deprived of legal rights and protection for
the commission of a crime). He does not relinquish
his human rights. He must not be harmed more
than necessary for the needs of security.
Among the military means, one must choose
the means which least infringes upon the
humans rights of the harmed person. Thus,
if a terrorist taking a direct part in hostilities
can be arrested, interrogated, and tried,
those are the means which should be employed.
Arrest, investigation, and trial are not
means which can always be used. At times
the possibility does not exist whatsoever;
at times it involves a risk so great to the
lives of the soldiers, that it is not required.
Third, after an attack on a civilian suspected
of taking an active part, at such time, in
hostilities, a thorough investigation regarding
the precision of the identification of the
target and the circumstances of the attack
upon him is to be performed (retroactively).
That investigation must be independent. In
appropriate cases compensation should be
paid as a result of harm caused to an innocent
civilian. Fourth, every effort must be made
to minimize harm to innocent civilians. Harm
to innocent civilians caused during military
attacks (collateral damage) must be proportional.
That is, attacks should be carried out only
if the expected harm to innocent civilians
is not disproportional to the military advantage
to be achieved by the attack. For example,
shooting at a terrorist sniper shooting at
soldiers or civilians from his porch is permitted,
even if an innocent passerby might be harmed.
Such harm conforms to the principle of proportionality.
However, that is not the case if the building
is bombed from the air and scores of its
residents and passersby are harmed. Between
these two extremes are the hard cases. Thus,
a meticulous examination of every case is
The Supreme Court rejected the position
of the State that the issue of targeted killings
is not justiciable. First, this position
must be rejected in cases that involve impingements
upon human rights. Second, the disputed issues
in this petition are of legal nature. They
involve questions of customary international
law. Third, these issues were examined by
international courts and tribunals. Why do
those questions, which are justiciable in
international courts, cease to be justiciable
in national courts? Fourth, the law dealing
with preventative acts on the part of the
army which cause the deaths of innocent civilians
requires ex post examination of the
conduct of the army. That examination must – thus
determines customary international law – be
of an objective character. In order to intensify
that character, and ensure maximum objectivity,
it is best to expose that examination to
judicial review. That judicial review does
not replace the regular monitoring of the
army officials performed in advance. In addition,
that judicial review is not review instead
of ex post objective review, after
an event in which it is alleged that innocent
civilians who were not taking a direct part
in hostilities were harmed. After the (ex
post ) review, judicial review of the
decisions of the objective examination committee
should be allowed in appropriate cases. That
will ensure its proper functioning.
The Scope of Judicial Review
The Supreme Court decided that the scope
of judicial review of the decision of the
military commander to perform a preventative
strike causing the deaths of terrorists,
and at times of innocent civilians, varies
according to the essence of the concrete
question raised. On the one end of the spectrum
stands the question regarding the content
of international law dealing with armed conflicts.
That is a question of determination of the
applicable law, par excellence. That
question is within the realm of the judicial
branch. On the other end of the spectrum
of possibilities is the decision, made on
the basis of the knowledge of the military
profession, to perform a preventative act
which causes the deaths of terrorists in
the area. That decision is the responsibility
of the executive branch. It has the professional-security
expertise to make that decision. The Court
will ask itself if a reasonable military
commander could have made the decision which
was made. Between these two ends of the spectrum,
there are intermediate situations. Each of
them requires a meticulous examination of
the character of the decision. To the extent
that it has a legal aspect, it approaches
the one end of the spectrum. To the extent
that it has a professional military aspect,
it approaches the other end of the spectrum.
A democracy fights with one hand tied
behind her back: The ends do not justify
In conclusion, the Supreme Court observes
that in a democracy, the fight against terror
is subject to the rule of law. In its fight
against international terrorism, Israel must
act according to the rules of international
law. These rules are based on balancing.
We must balance security needs and human
rights. The need to balance casts a heavy
load upon those whose job is to provide security.
Not every efficient means is also legal.
The ends do not justify the means. In one
case the Court decided the question whether
the state was permitted to order its interrogators
to employ special methods of interrogation
which involved the use of force against terrorists,
in a “ticking bomb” situation.
The Court answered that question in the negative.
In President Barak's judgment, he described
the difficult security situation in which
Israel finds itself, and added:
“We are aware that this judgment of
ours does not make confronting that reality
any easier. That is the fate of democracy,
in whose eyes not all means are permitted,
and to whom not all the methods used by her
enemies are open. At times democracy fights
with one hand tied behind her back. Despite
that, democracy has the upper hand, since
preserving the rule of law and recognition
of individual liberties constitute an important
component of her security stance. At the
end of the day, they strengthen her and her
spirit, and allow her to overcome her difficulties
(HCJ 5100/94 The Public Committee against
Torture in Israel v. The State
of Israel , 53(4) PD 817, 845).
Thus it is decided that it cannot be determined
in advance that every targeted killing is
prohibited according to customary international
law, just as it cannot be determined in advance
that every targeted killing is permissible
according to customary international law.
The law of targeted killing is determined
in the customary international law, and the
legality of each individual such act must
be determined in light of it.
Sources: Jerusalem Post (December 14, 2006)