A report by the Special Investigatory Commission which investigated the targeted killing of Salah Shehadeh which took place in Gaza city on July 22, 2002, was submitted today to Prime Minister Benjamin Netanyahu.
1. A report by the Special Investigatory Commission (hereinafter: the "Commission") which investigated the targeted killing of Salah Shehadeh which took place in Gaza city on July 22, 2002, was submitted today to Prime Minister Benjamin Netanyahu. During the operation, a one-ton bomb was dropped on the house in which Shehadeh was staying, killing him, Hamas activist Zahar Natzer, Shehadeh’s wife Layla and his 15-year-old daughter Iman, who were with him in the house.
Unfortunately, as a result of the operation, 13 civilians including women and children, who were not directly involved in terrorist activities, were killed and dozens of civilians in the vicinity were injured.
2. Following the operation, a petition was filed with the Israeli Supreme Court in its capacity as the High Court of Justice (HCJ 8794/03), requesting the Court to order the Military Advocate General and the Attorney General to open a criminal investigation against the Air Force Commander, the Chief of General Staff, the Minister of Defense and the Prime Minister of Israel, in order to determine whether criminal offenses had been committed in the course of the planning and implementation of the operation.
During the deliberations, and following the intervention of the Supreme Court, the State Attorney’s Office announced that in light of the special circumstances surrounding the incident, the State would consent to the appointment of a committee of inquiry to examine the circumstances surrounding the harm inflicted on uninvolved civilians. The petitioners, on their part, also agreed to the establishment of an external and objective committee to examine the outcome of the targeted killing. As a result, on January 23, 2008, then Prime Minister, Mr. Ehud Olmert, appointed a Committee comprising three members: Former Military Advocate General Brig. Gen. (Res.) Tzvi Inbar – Committee Chairman; Maj. Gen. (Res.) Yitzhak Eitan and Mr. Yitzhak Dar – Committee members. Unfortunately, in the course of the work of the Commission, Atty. Tzvi Inbar became ill and after a difficult and courageous battle, he succumbed to his illness and passed away on August 31, 2009.
3. Following the passing of Atty. Tzvi Inbar, Prime Minister Benjamin Netanyahu appointed retired Supreme Court Justice Tova Strasberg-Cohen as Commission Chair. The task assigned to the Commission, as detailed in the letter of appointment delivered to the Commission by the Prime Minister, was to examine the justification for the strike on Salah Shehadeh, the circumstances in which he and the other casualties of this operation were hit and the question of whether there was an effective alternative means to the strike on Shehadeh.
4. The Commission’s investigation focused on the legality of the decision-making process regarding the planning and implementation of the targeted killing operation against Shehadeh and the difficult and regrettable collateral consequence of harm to uninvolved civilians. All of these issues were investigated in light of legal, normative, moral and ethical criteria, according to Israeli and international law, and the values and norms of the State of Israel and its security forces.
The Commission also examined whether the above referenced actors accorded proper weight to these considerations in the selection of the target and the means to carry out the strike, and if the correct balance was made between the risk to uninvolved civilians as a collateral consequence of a targeted killing (even if the target was a legitimate one) and the military benefit to be derived from the operation. It is a normative investigation of the decisions made.
5. The Commission’s work was thorough and comprehensive. It collected a great deal of material and heard testimony from high-ranking political and security officials. The Commission also invited the representatives of those harmed, who refused to appear before it. The report contains findings, conclusions and recommendations, and provides answers to the questions and issues which the Commission was asked to investigate in its letter of appointment. In light of the importance of this issue to the public, the Commission prepared an unclassified report for publication which contains the main points of the full report (which includes facts that cannot be disclosed for reasons of national security).
6. The targeted killing against Shehadeh was imperative because of the increase and escalation in terrorist attacks since 2000, in a manner which led to a situation of actual war, classified as an "armed conflict". These attacks were carried out mainly by the Hamas Movement, to which Shehadeh belonged as one of its senior leaders and Head of its Operational Branch. They exacted a heavy blood toll, killing hundreds of Israeli citizens, including men, women and children, and leaving thousands more injured. These acts were perpetrated with the malicious intent of killing innocent civilians and disrupting the daily lives of the citizens of Israel.
Shehadeh was the driving force behind the Hamas, its ideology and its operations, and was directly involved in the planning and execution of deadly terror attacks. This situation necessitated effective, immediate and pinpointed measures to eliminate or at least minimize the attacks. One of the means chosen for this purpose was targeted killings against the leading planners and perpetrators of terrorist attacks.
7. Shehadeh was aware of his fugitive status and frequently switched residences. Initially, more moderate steps were considered to try to thwart Shehadeh’s activities in some of the areas where he was located, whether in his residences or while he was in movement. Possible courses of action were explored, as well as various methods of operation and the type of weapons that could be used to ensure a successful outcome.
However, other alternatives that were considered were not implemented, either because the chances of success were uncertain or because Shehadeh switched houses during the planning stages or because there was too great a risk to Israeli forces or to uninvolved civilians resulting from, inter alia, the difficulties involved in a ground operation in a densely-populated area. Therefore, targeted killing was selected as a measure that would guarantee Shehadeh’s elimination, with the expectation that this would not cause disproportionate harm to uninvolved civilians.
8. The normative framework that applies to targeted killings and the instructions for their implementation were reviewed, analyzed and formulated in the comprehensive "Supreme Court Ruling on Targeted Killings" of December 14, 2006 (HCJ 769/02). These principles have since become fundamental principles to which the State of Israel and its security forces must conform in their military activity against terrorism, and specifically in a targeted killing operation during a situation of armed conflict. The Commission’s investigation was carried out on the basis of these principles.
9. The Commission’s conclusion was that Shehadeh’s terrorist activity categorized him " a civilian taking a direct part in hostilities at that time". The threat he posed to Israel’s population, the lives of its citizens and all those in the territories under its control was certain, immediate and significant. Shehadeh’s classification as a target, carried out by the Israel Security Agency (hereinafter: "ISA") and under its responsibility, was professional, based on concrete information and in accordance with the principles of Israeli and international law. Therefore, the strike against Shehadeh, which was intended to terminate his deadly activity, was a "legitimate targeted killing".
10. The Commission concluded that the difficult collateral consequences of the strike against Shehadeh, in which uninvolved civilians, mostly women and children, were killed and many others injured, became clear in hindsight, as disproportionate in the circumstances of the incident in question. Such was the view of the Commission and this was also the assessment in hindsight of the great majority of the senior officials involved in the planning and implementation of the operation, who stated that if they had foreseen in real-time the scope and gravity of the collateral damage which actually resulted, the operation would not have been carried out. The said consequence was unintended, undesired and unforeseen. It did not stem from disregard or indifference to human lives.
11. All those involved in the operation showed awareness and sensitivity throughout the entire operation to the issue of risk to uninvolved civilians and the duty to avoid or minimize it to the extent possible, in line with the principle of proportionality. This view found expression in the numerous deliberations that were held with the participation of senior security officials, in which the need to avoid harm to uninvolved civilians, and in particular women and children, was addressed; and both oral and written instructions were given in this regard.
In addition, the operation was aborted twice because of the presence of a minor, Shehadeh’s daughter, in the house at the time the strike was planned to have taken place. Notwithstanding all this, a gap arose between what was expected and what actually occurred. The central reason for this gap was incomplete, unfocused and inconsistent intelligence information with regard to the presence of civilians in the structures adjacent to the Shehadeh house (the garage and huts), where most of the civilians died.
12. This gap stemmed from incorrect assessments and mistaken judgment based on an intelligence failure in the collection and transfer of information to the various echelons involved in the points of contact between the different agencies involved, and from a lack of sufficient understanding regarding the uncertainty that was created as a result of this unfocused, inconsistent and incomplete intelligence information which was before the decision-makers.
There were various reasons for the intelligence failure, as a result of which too much weight was placed on the immediate strike on Shehadeh, and too little weight was given to the possible risk to uninvolved civilians as a result of the strike. These are the main reasons which explain the failure:
• The urgent need to put an end to Shehadeh’s deadly activity by using the effective and lawful means of targeted killing;
• The enormous resources invested in gathering evidence and locating Shehadeh, and the real risk of losing track of him or being prevented from neutralizing him;
• The creation of optimal conditions for the strike, in terms of time and place, which were not certain to repeat themselves;
• The short period of time – only a few days – that the ISA had to collect information on the area surrounding the Shehadeh house and the presence of persons in the adjacent structures, compared to the long period of time they had to collect the intelligence information on Shehadeh himself;
• The risk that the operation would be exposed and thwarted as a result of the collection of more comprehensive and precise intelligence information.
All of these reasons may explain the failure, but not justify it.
13. All of the above, and more, diverted the full weight to the target itself and to ensuring the success of the strike against him, and to placing too little weight on the risk of harm to uninvolved civilians. Thus, the appropriate balance between the overall considerations of the decision-makers was disrupted, in a way that led to disproportionate harm to uninvolved civilians.
14. An examination of the operation according to the rules of Israeli and international law unequivocally removes any suspicion that a criminal offense was committed by any of those involved in the operation. The Commission does not recommend that personal measures be taken against any of those involved in the operation, and instead focuses on systemic recommendations. The main grounds for this are as follows:
• The conduct of those involved in the operation, and in particular those who decided to implement it in the manner in which it was carried out, does not constitute a disciplinary offense and does not match the characteristics of such an offense;
• The failure of the operation, in so far as it related to the harm caused to uninvolved civilians, occurred despite the fact that during the stages of planning and implementation, all those involved addressed the norms embodied in Israeli and international law;
• The decision-makers foresaw proportionate harm to uninvolved civilians. The gap between their expectation and the actual harm caused did not stem from disregard or indifference to human lives, but rather was the result of incorrect assessments and mistaken judgment due to an intelligence failure and varying interpretations of the meaning of the information;
• The intelligence failure was partly the result of objective constraints with regard to circumstances, time pressure and a concern that the operation would be thwarted, thereby posing a certain, immediate and substantial risk to the lives of Israeli citizens;
• The many years which have passed since the operation;
• The decision-makers in this operation (the Director of ISA and the IDF Chief of General Staff) have since completed their service and are no longer in the security forces;
• Those among the leadership of the security forces who voiced their objections, reservations or hesitations regarding the implementation of the operation as it was outlined, primarily the Deputy Director of ISA and the IDF Deputy Chief of General Staff, acted properly both in expressing their opinions during the deliberations which took place and in accepting the decision made by their superiors, which in their view was within the scope of their powers and was lawful in the circumstances and conditions which existed in real-time;
• The heads of the security services – the decision makers in the operation – acknowledged the failures which occurred and the need to take measures to prevent a recurrence of such collateral consequences as those which occurred in this specific operation;
• Shortly after the operation, investigations were conducted by the various branches of the security forces. Following these investigations, lessons were learned and internalized by the security forces and incorporated both in writing and orally in training, lectures and regulations. Changes were also introduced accordingly in the mechanisms dealing with targeted killing operations;
• There was a significant decrease in the use of targeted killings in the war on terrorism, and technological means were developed to ensure the success of such operations, including with regard to their collateral consequences;
• No targeted killing operation carried out since the strike against Shehadeh has resulted in a similar outcome, in either scope or gravity;
• In the years which have passed, and particularly since the Supreme Court Ruling on Targeted Killings, the normative principles and rules of Israeli and international law regarding targeted killings have been learned, internalized and implemented. Special emphasis was placed on the principle of proportionality and the need to maintain proper balance between the success of the strike against the target and the prevention or minimization of the risk to uninvolved civilians, while strictly adhering to the principle of proportionality;
• The Supreme Court Ruling on Targeted Killings had a decisive impact on all the relevant bodies with regard to the importance of addressing the risk to uninvolved civilians, in accordance with the principles of Israeli and international law and the ethical foundations on which they are based;
• The political echelon also incorporated lessons learned from the operation and its consequences. Today, the procedure for transferring intelligence information to the political echelon is more organized, and decisions by the security services are more carefully scrutinized. There is awareness regarding initiation of meetings with the heads of the security services and the need to request clarifications as appropriate to ensure that the most independent and well-informed decision is made as necessitated by domestic and foreign policy considerations, particularly with regard to possible harm to uninvolved civilians as a result of targeted killings.
15. The Commission’s recommendations are systemic ones, designed to concentrate and focus the normative and ethical considerations that must be taken into account and the measures that must be exercised prior to a decision to carry out a targeted killing, in order for it to be lawful.
Therefore, the recommendations refer only to the issue of harm to uninvolved civilians as the collateral consequence of the Shehadeh strike. Some of the recommendations have already been implemented by the political and security agencies, and to the extent implemented, they must be adapted and completed in light of both the letter and spirit of the recommendations.
These are the main recommendations:
16. The security forces must incorporate and internalize, on an ongoing basis, the principles and norms of Israeli and international law and the ethical and moral foundations on which they are predicated, particularly in all that relates to harm to uninvolved civilians resulting from a targeted killing against a legitimate target.
17. The principle of proportionality must be carefully adhered to. A derivative of this principle is that a strike should not be carried out, even if the target is in and of itself legitimate, if the expected harm to uninvolved civilians is excessive in relation to the anticipated military advantage to be derived from the strike, and this in each case according to its circumstances. In this context, maximum caution must be exercised in the selection of the method of striking the target and the type of weapon to be used in the operation.
18. The ISA must expand and reinforce the system of intelligence-gathering in all that relates to the risk of harm to uninvolved civilians resulting from a targeted killing against a legitimate target.
19. The ISA, which accompanies all stages of the operation, must ensure that there are clear procedures for the transfer on an ongoing basis of existing positive information and for highlighting information which is incomplete, to all the parties involved in the operation.
20. A transcript of every deliberation involving a decision regarding a targeted killing will be prepared in real time. The real-time records must be kept until after the operation is examined by an external committee, to the extent such a review is required by the guidelines outlined in the Supreme Court ruling.
21. The authorized IDF bodies must examine the involvement of the Intelligence Division in targeted killing operations and determine a clear policy with regard to such involvement. This is necessary in light of claims made by high-ranking Intelligence Division officials in their testimony to the Commission, that in their view they were not properly involved in the said operation.
22. The security and political echelons must formulate a short and concise written procedure for the transfer of material and the decisions of the Director of ISA and the IDF Chief of General Staff to the political echelon.
23. Differences of opinion or substantial reservations among senior officials in the mechanisms involved, which can significantly affect the decision of the political echelon, shall be made known to the latter. Special emphasis shall be placed on the risk of harm to uninvolved civilians.
24. The legal advice accompanying deliberations by the security echelons prior to making a substantive decision regarding the carrying out of a targeted killing must be expanded and institutionalized. The security services must advise the political echelon of the position of their legal advisers, to the extent that this would have implications for the considerations which the political echelon must taken into account.
25. The Commission is aware of the pressures of time, place and circumstances to which all those involved in the planning and implementation of a targeted killing are subject. Therefore, the said recommendations are set down subject to those exceptions demanded by situations of pressure and constraints which prevent full compliance with the regulations. In such instances, the procedures may be deviated from or shortened, but only on condition that the essence of Israeli and international legal principles and the instructions outlined in the Supreme Court ruling is not impacted.
26. In conclusion, it is the duty of the State of Israel to safeguard the lives, well-being and security of the citizens of Israel, its soldiers and all those coming within it. On the basis of this duty, the State must use all lawful means at its disposal to eradicate or minimize terrorist attacks against it. In doing so, it must balance between this duty and its duty to avoid harm to uninvolved civilians who may be harmed as a result of a strike against a legitimate target. This balance is demanded by the State of Israel’s fundamental normative, ethical and moral principles and by the principles of customary international and humanitarian law adopted by it.
This law determines the rules of war in situations of "armed conflict", to which the State of Israel considers itself bound. A proper balance, while implementing the principle of proportionality according to the circumstances of each case, will ensure the lawfulness of a targeted killing both internally and internationally, if and when it is needed in the war against deadly terrorism.
The required balance was not properly achieved in the targeted killing against Shehadeh. Decisions were made on the basis of flawed, incomplete and inconsistent information which led to misunderstandings, erroneous assessments and mistaken judgment, which resulted in an unforeseen, undesired and unintended outcome.
27. Despite the outcome which resulted in this instance, the means of targeted killing was and continues to be a lawful tool in the war against deadly terrorism, provided that the operation is carried out in accordance with the principles and rules set out by Israeli and international law and the ethical and moral norms on which they are based.
28. The Commission appreciates the trust placed in it and hopes that the security and political echelons that have learned lessons and acted to implement them, will adopt the conclusions and recommendations in this report, which are aimed at preventing a recurrence of such incidents.