Terrorism and the law: the Israel Supreme Court renders a decision in principle enabling Israeli security forces to continue targeted killings of terrorist operatives but imposes limitations and restrictions1

Intelligence and Terrorism Information Center
at the Center for Special Studies (C.S.S)

1. This document was written with the aid of the legal department of the Foreign Ministry in coordination with IDF legal staff.

Overview

1. On December 14, 2006, the Israel Supreme Court rendered High Court Judgment 769/02 (The Public Committee against Torture in Israel v. The Government of Israel ). The Court’s decision enables Israeli security forces to continue carrying out targeted killings on condition that the merits of every instance are individually examined.

2. The judgment was delivered by the Court President (ret.) Aharon Barak and it unanimously rejected the petitions claiming that the use of targeted killings against terrorist operatives was illegal. The judgment marked the end of the Court’s long deliberations, which began in 2002 at the height of the Palestinian terrorist campaign against Israel.

3. The Court stated that “ it cannot be determined in advance that every targeted killing is prohibited according to customary international law,2 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 set out in the customary international law, and the legality of each individual act must be determined in light thereof.” The significance of the judgment is that the Court did not issue a blanket ban on targeted killings, which are an important weapon in the war on terrorism, but imposed limitations and restrictions and required that each specific case be examined on its own merits (which, in any case, is the practice of the Israeli security forces).

4. Following are several points taken from the decision of Court President (ret.) Aharon Barak, with the aim of highlighting the logic and rationale of the judgment. The Appendix of this document is a short summary of the 51-page judgment taken from the Court’s Website, where the full text can also be viewed.3

Major points

The normative framework regulating the conduct of the Israeli-Palestinian confrontation

5. The Court determined that a state of armed conflict exists between Israel and the Palestinian terrorist organizations operating from Judea and Samaria and the Gaza Strip. Therefore, the normative framework applying to the armed conflict between Israel and the Palestinians is the international law governing armed conflicts of an international nature. This refers particularly to aspects of customary international law and treaty law which have been incorporated into the Israeli legal system. Where an issue is not covered by customary international law or treaty law, these are complemented by human rights law and the fundamental principles of Israeli law.

6. More specifically, according to the Court, the following are applicable to the current armed conflict: the 1907 Hague Convention IV and Regulations, the humanitarian provisions of the Fourth Geneva Convention of 1949, and the customary provisions of the First Additional Protocol to the Geneva Conventions (1977).

The legal status of terrorist operatives in the international law governing armed conflicts

7. Rules of international law relating to armed conflict are predicated on balances between humanitarian considerations of human rights and the dignity of individuals affected by the conflict on the one hand and military considerations on the other. The principle of distinction demands that both sides to the conflict distinguish between combatants and military targets as opposed to civilians not taking part in hostilities.

8. In this context, the Court tackled the issue of classifying terrorist operatives: are they “combatants,” “civilians” or “unlawful combatants?” This distinction is of critical importance to questions concerning the rights and duties of combatants and civilians, and to the determination of whether or not a target can be lawfully attacked.

9. The Court determined that operatives belonging to terrorist organizations do not fall into the category of “legitimate combatants” as they do not fulfill the conditions of the laws of warfare and are in effect "unlawful combatants" since they participate in combat but do so in an unlawful manner and as such, do not enjoy the rights given to legitimate combatants. However, the Court did not take a stand regarding the possibility of recognizing a category of “unlawful combatants” as a separate legal category, noting that it had insufficient data to render a decision on this point.

10. Thus, the Court determined that terrorist operatives were civilians, who as a result of their participation in unlawful combat had lost the rights of protection to which innocent civilians who are not engaged in terrorist activities are entitled.

The law relating to "civilians" who are not protected under international law

11. Although Israel is not a party to the First Protocol to the Geneva Conventions, the Court determined that the principle according to which civilians who participate directly in hostilities are not protected (Article 51(3) of the Additional Protocol) is mandatory customary law. That is, when a civilian fulfills the role of a combatant, he loses the protection afforded to civilians. Such a civilian is exposed to the dangers of an attack as is a combatant, but is not entitled to the rights afforded a combatant (e.g. recognition as a "prisoner of war"). According to Article 51(3) of the First Protocol, “civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.”

12. To this end, the Court defined the following parameters in its interpretation of the aforementioned section:

A. Participation in hostilities: Participation in hostilities does not necessarily require the bearing or use of arms and can in fact be done without the use of arms at all. "Hostilities" in this respect includes not only actions directed at an army or state, but also those directed against a state’s civilian population.

B. Direct participation in hostilities: The Court determined that even though there is no general agreement in international scholarship regarding the definition of this term, “direct” participation cannot be limited only to an individual carrying out a physical attack. The Court listed a series of acts which constitute (or do not constitute) direct participation in hostilities:

1) Individuals who are considered as directly taking part in hostilities include: “[terrorist-operatives] who decide on terrorist acts or plan them, and those who enlist others, guide them and send them to commit terrorist acts,” those who collect intelligence about the armed forces, who use weapons used by unlawful combatants, supervise their activities or give them support, or perform the functions of combatants.

2) Individuals who are not considered as directly taking part in hostilities and who do not lose the protection afforded to civilians are, for example: those who sell food or medicine to unlawful combatants, engage in general strategic analysis, supply general logistical support or distribute propaganda.

C. “For such time” (as they are taking a direct part in hostilities): The Court noted that there is no general agreement in the literature regarding the duration for which a terrorist loses the protection afforded to him and therefore each case must be examined on its own merits.

13. The considerations for determining the legality of an individual targeted killing:

A. Reliable information is required before a civilian can be categorized as directly participating in hostilities.

B. “A civilian taking a direct part in hostilities cannot be attacked if a less harmful means can be employed,” such as detention and trial, as required by the principle of proportionality (according to which the anticipated degree of danger to soldiers’ lives is also weighed versus the possibility of detaining the terrorist operative instead of harming him).

C. After an attack on a civilian suspected of taking an active part in hostilities, a thorough ex post facto investigation should be carried out regarding the identity of the target and the circumstances of the attack.

D. “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.” In certain cases, payment of compensation might be considered in the event of harm caused to innocent civilians.

Proportionality

14. The Court ruled that every individual instance should be examined in accordance with the principle of proportionality, i.e. whether the anticipated benefit to be gained from achieving the military goal is proportional to the harm which might be caused to innocent civilians in the vicinity of the target. The Court determined that a balance must be struck between the duty of the state to protect the lives of its soldiers and citizens on the one hand, and its duty to protect the lives of innocent civilians harmed during an attack on a terrorist, on the other. The rule is that terrorists may not to be harmed if the damage anticipated to civilians is excessive in relation to the military advantage to be gained.

Conclusion

15. In the final analysis, the Israel Supreme Court adopted an interpretation of customary international law governing international armed conflicts, ruling that the protection afforded to civilians from military attacks is not extended to terrorists who directly participate in hostilities, this for the duration of such participation. An attack on such a civilian, even if such an attack results in death, is permissible, but only if a less harmful means (detention) cannot be employed, and subject to the condition that any incidental harm caused to innocent civilians meets the requirement of proportionality.


Appendix
4

HCJ 769/02 The Public Committee against Torture in Israel v.

The Government of Israel – Summary of Judgment

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.

Justiciability

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).

The decision

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. 
 

1. This document was written with the aid of the legal department of the Foreign Ministry in coordination with IDF legal staff.
2. International law distinguishes between customary international law and treaty law. Customary law includes the norms of conduct which apply to all countries, including those which are not a party to a treaty on a specific topic. Treaty law, on the other hand, obligates only those countries which have signed a specific treaty.
3. Links to both can be found in English on the Court website.
4. From the Court website.