15 Dec Israeli High Court Finds “Targeted Killings” Can Be Legal Under Customary International Law
Israel’s High Court of Justice has issued a ruling finding that Israeli military forces may engage in “targeted killings” of Palestinian terrorists consistent with the customary international law of war. A useful discussion of the background of this case can be found here. An English version of the decision can be found here.
The decision is a long and complicated one. Here is the key graf:
The examination of the “targeted killing” – and in our terms, the preventative strike causing the deaths of terrorists, and at times also of innocent civilians – has shown that the question of the legality of the preventative strike according to customary international law is complex (for an analysis of the Israeli policy, . . .[snip]The result of that examination is not that such strikes are always permissible or that they are always forbidden. The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians “for such time as they take a direct part in hostilities” (§51(3) of The First Protocol). Harming such civilians, even if the result is death, is permitted, on the condition that there is no other means which harms them less, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportional. That proportionality is determined according to a values based test, intended to balance between the military advantage and the civilian damage. As we have seen, we cannot determine that a preventative 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 preventative strike or not.
One interesting move made by the High Court of Justice: it recognized and incorporated principles from Protocol I to the Geneva Conventions, even though Israel has neither signed Protocol I nor has it enacted any legislation implementing the Protocol. Nonetheless, the High Court recognized that Protocol I is part of customary international law, especially Article 51(3): “Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.”
The High Court, as far as I can tell, basically said that this provision does not prohibit all targeted killings of Palestinian terrorists, but that it might prohibit some such killings. It also spilled much ink defending the right of the Israeli Courts to review actions by the Israeli military in these cases.
So even though the decision might seem to give a blank check to more targeted killings, it does seem to keep the courts involved in reviewing the legality of such killings. A very interesting and difficult case and one well worth thinking more about.
Ah, this judgment is in many ways what Hamdan v. Rumsfeld should have been. Firstly, the Court says explicitly what kind of an armed conflict it is talking about – an international armed conflict occuring in the relevant area, which is under Israel’s belligerent occupation (paras. 16-21). Secondly, the Court is also explicit about the source of law it is applying – customary international humanitarian law, coupled, when needed, with international human rights law. It doesn’t, like the Supreme Court did in Hamdan, just pluck Common Article 3 out of thin air, without giving any reasoning as to why and how it is applicable (paras. 22 &23). Thirdly, when it comes to the status of unlawful combatants, the Court has this to say (para. 25) “Needless to say, unlawful combatants are not beyond the law. They are not “outlaws”. God created them as well in his image; their human dignity as well is to be honored; they as well enjoy and are entitled to protection, even if most minimal, by customary international law.” Fourthly, the Court rules that ‘unlawful combatants’, though they might be a good descriptive category, are legally speaking civilians, falling under the protection of the Fourth Geneva… Read more »
As FYI,
My colleague Amos Guiora, a former Israeli Defense Forces JAG officer was cited in the opinion.
The cited piece, entilted Terrorism on Trial: Targeted Killing As Active Self-Defense appears in 36 CASE WESTERN RES. J. INT’L L. 319 available for download HERE.
One key aspect of the Court’s ruling is what appears to be its use of human rights law to supplement IHL. Its finding that targeted strikes should only be used if arrest is not possible, and that they should be followed by an independent investigation, is not based on IHL but on an importation of human rights principles into a laws of war framework. This could be an extremely important precedent, but in this area the Court’s analysis is very cursory and it is not clear what general principle they are basing it on or in what circumstances it would apply. For my more detailed analysis, see my article on the Crimes of War website http://www.crimesofwar.org/onnews/news-highcourt.html.
How interesting. The passage Marko cites from para 61 of the judgment has a very neatly hidden reference to Guantanamo Bay in it. Johan (a/k/a Lord) Steyn, at the time a judge in the House of Lords, used the phrase ‘a legal black hole’ to describe the position of the ‘unlawful combatants’ in Camp Delta.
Has the Supreme Court of Israel now ratified this assessment? Its explanation of the concept of ‘unlawful combatants’ may suggest as much.
It is, of course, understandable that the judges did not in terms condemn U.S. policy, but it is surely not a cause for delight in the White House that Israel, of all States probably the one with the greatest experience of a ‘war on terror’, has now refused to adopt a position the U.S. seems to regard as indispensible in that ‘war’.