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 Court.
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 as follows:
“Civilians shall 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 required.
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 the means
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)