Attorneys Avigdor Feldman and Michael Sfarad yesterday submitted a detailed 50-page-plus document to the clerk of the Supreme Court. Even non-lawyers will read it with bated breath. Unlike the documents usually filed with the court, this one is rich in literary style (including irony), raises grave moral and philosophical questions and includes information with which the public is not familiar.
The document was prepared for the court in the framework of a petition to the High Court of Justice that was brought a year-and-a-half ago against the prime minister, defense minister and chief of staff, regarding the army's policy of targeted liquidations in the West Bank and Gaza Strip since the outbreak of the intifada.
Feldman and Sfarad are asking liquidations to be ruled unlawful, both by Israeli law and international law, and for the government and the army to be told to stop them.
The document makes some far-reaching statements. Feldman and Sfarad describe the killing of Hamas activist Salah Shehada, who was assassinated last July with a one-ton aerial bomb that killed another 14 people, injured 150 people and destroyed numerous homes in the vicinity of Shehada's home: "It greatly pains us to say the following, but we do not have any choice, because the legal and moral truth obligates us to present these facts, in their full severity, before the honorable court: liquidation is a war crime, the consistent, widespread policy of targeted liquidations bounds on a crime against humanity and the State of Israel has turned its pilots into war criminals that hunt wanted men as if they were on a duck hunt (and duck hunting is also against the law)."
Tough moral challenge
This extraordinary legal document whose introductory chapter describes the liquidation of Shehada, bears a very unlegalistic title ("While the commander of the air force sleeps soundly"). The authors quote Israel Air Force commander Major General Dan Halutz, who told the pilots who liquidated Shehada, in a statement that appeared in the Haaretz Weekend Magazine ("Guys, sleep well tonight. By the way, I sleep well at night, too..."). They also cite Halutz's answer to Weekend Magazine reporter Vered Levy-Barzilai, who asked him what a pilot feels as he releases a one-ton bomb over a residential neighborhood ("... I feel a slight ping in the aircraft, the result of releasing the bomb. It passes a second later, and that's it. That's what I feel.").
"Only a liquidation policy that is thoroughly assimilated in all of the branches of the army, from the air force and intelligence corps to the infantry and artillery corps, and which becomes part of the ethos of its soldiers (along with heroism and comradeship?), is capable of causing the commander of the air force to offer a blood-chilling description of what a pilot feels as he is launching a bomb in a civilian environment."
The final chapter of the document is entitled, "Defeating the terrorists without defeating democracy," and is about political ethics, not the law. "The State of Israel," it states, "faces a most difficult moral challenge. It must fight a merciless wave of terrorist attacks - which strikes at civilians in cafes and shopping centers - but it must also maintain its image in this struggle, and not lose its moral backbone. Any victory that came at the cost of losing our humanity is no victory at all, any such victory is essentially a victory for the terrorist."
After determining that the assassinations, "which perhaps began as a method of eradicating terrorist attacks," now also serve "additional objectives" and also "increase the motivation of members of the Palestinian groups to initiate additional terrorist attacks," they write: "We are killing civilians in the streets of Gaza and Ramallah, in the alleys of Jenin and Hebron, we are chasing cars with helicopters and blowing them up with missiles intended for use against tanks on the battlefield, we are sniping at civilians walking out of the front door of their home, we are booby-trapping phone booths and planting bombs, we are sowing destruction and ruin in numerous families, and all this without any legal procedure, without any evidentiary infrastructure of anything being presented to anyone. This is the biggest victory of all of the architects of death in the cafes and shopping centers."
Between the first and last chapters, the document presents a detailed list of all of the liquidations and all of the attempted assassinations that Israel's security forces carried out between November 9, 2000, the day that a helicopter fired a missile in Beit Sahour that assassinated Fatah activist Hussein Salim Abiyat and the two women driving with him in his car, and April 29, 2003, the day that a missile fired from a helicopter liquidated Popular Front activist Nidal Salameh in Khan Yunis, along with the man driving with him in his car.
In the 29 months that have passed between these two killings, Israel carried out no less than 175 liquidation attempts. In other words, the document says, one attempt every five days.
Feldman and Sfarad's list is based primarily on official announcements by the Israel Defense Forces Spokesman and on semi-official announcements that were published in the Israeli press that are attributed to "military sources." It nevertheless includes a few other instances that Palestinian groups subsequently said were assassinations carried out by Israel, but that Israel either did not claim or alleged the death resulted from an exchange of gunfire, during an escape attempt or in what the IDF calls a "work accident." In any event, the 175 events did result in the death or injury of hundreds of bystanders that had nothing to do with anyone who Israel wished to assassinate.
In these 175 cases, says the authors, 235 people were killed and 310 injured. Only 156 of the dead were described as targets. The other 79 were their relatives, neighbors or just bystanders. The age of 31 of the incidental dead varied from two months (the baby Dunia Matar, a neighbor of Shehada's in Gaza) and 18 years; 11 of these victims were women. The statistics of the injured is even more problematic: five of the wounded were people whom Israel intended to liquidate but failed in the mission; the remaining 305 wounded were relatives, neighbors or bystanders.
At this point in the document, the two lawyers adopt a dramatic tone: "The high number of bystanders harmed by the liquidation policy, the immense number of wounded, the number of destroyed families, the innocent citizens who were killed, the children that we have handicapped for life, all of these victims of the Israeli assassination policy stand at the gates of the honorable court in a long line, and prove more than any cold legal argument that the means chosen by the IDF to realize the policy of liquidations is blatantly unlawful and immoral."
Another panel headed by Barak
The petition filed by Feldman and Sfarad, who are representing the Public Committee Against Torture in Israel and Law - the Palestinian Society for the Protection of Human Rights and the Environment, which is active in the territories to safeguard human rights and the environment, was submitted in early 2002 and is being heard by a panel of justices headed by Supreme Court President Aharon Barak. At the first hearing on the petition, held over a year ago, the justices turned down the state's argument that the issue was non-adjudicable, and the justices asked the state's representatives to prepare a document that would describe in full its position on the legal status of liquidations, including their status in terms of the laws of war and international law.
The brief filed in February by the State Prosecutor, which runs more than 85 pages, states that the liquidation policy "conforms with" legal directives. "Israel," wrote Shai Nitzan of the State Prosecutor's office, "now finds itself in a state of warfare against murderous terror organizations that do not distinguish between lawful and unlawful targets, lawful and unlawful means, and lawful and unlawful methods. Whereas the actions taken by Israel and the security forces are executed amid ongoing legal counsel and are assessed (as in this case) by the legal courts, in accordance with Israeli and international legal norms, on the Palestinian side there is no law and no judge, no legal counsel and no enforcement of law."
The main chapter of the prosecution's document concerns the examination of the legality of liquidation. It is entitled "Terrorists as legal targets in warfare" and opens with a statement that is seemingly at odds with Israel's right to carry out liquidations. "The international law on the laws of war," Nitzan writes, "distinguishes between two categories of people: combatants and civilians. While combatants are legitimate targets for attack, intentional attack on civilians is absolutely forbidden."
Nevertheless, the aggregate international experience since World War II, he hastens to add, proves that "there exist numerous situations in which the distinction (between combatants and civilians) is not so cut and dry." Aside from soldiers operating in the framework of regular armies, there are also "members of militias" and "resistance movements." "There is no dispute," he writes, in reference to members of the Palestinian organizations, "that an individual who takes direct part in hostile actions is a legitimate target, no matter what his formal classification is (member of regular army, uniformed combatant, guerrilla fighter, civilian, etc.)"
"In accordance with these principles," continues Nitzan, "any individual who takes direct part (be it execution, planning or sending) in hostile actions directed against civilian or military targets, falls into the definition of `legitimate target.'" He adds: "In conclusion, it can therefore be said that terrorists - that is, persons taking active part in planning, sending and execution of acts of terrorism - are legitimate targets for attack, under the laws of warfare."
Feldman's and Sfarad's document is a response to Nitzan's. Assassination, they maintain, is unlawful not only because it constitutes "summary execution without trial" but also because it causes "massive killing of innocents due to errors in identification." In this context, they cite not only the attempt made on March 4, 2002 to liquidate Hussein Abu Kwaik in the Al-Amari refugee camp, which caused the deaths of his wife and 14-year-old son (Abu Kwaik was not present) and the attempt made 10 days later in Jenin to liquidate Abd al-Karim Aweis, which resulted in the death of his brother, but also the "mistaken liquidation of the two Israeli security guards near the settlement Pnei Hever," which took place on March 13, 2003. Feldman and Sfarad allege that the latter incident would not have happened if not for the liquidation policy pursued by the army and political echelons. "The army's investigation of the incident proves that the victims of the liquidation were given no opportunity to surrender or to lay down their weapons," they write.
The decision on the legality of liquidations now moves to Aharon Barak's court. The High Court of Justice hearing on the matter (for which a date has not yet been fixed) is somewhat reminiscent of another High Court hearing in the 1990s about the legality of the torture employed in Shin Bet interrogations.
In a document filed yesterday by Feldman and Sfarad, the two lawyers take pains to remind Barak of the previous petition, in which Feldman was also involved and which was decided by a panel headed by Barak. "Torture was also at the time considered an `irreplaceable' interrogation method, and only the honorable court in its celebrated decision stemmed the erosion." The statement is immediately followed by this pronouncement, which is tinged with obsequiousness: "There is an extensive history of legal rulings that were not always received warmly by the defense establishment, and may not have been popular when they were adopted, but which constitute, and will continue to constitute, a source of national pride and a part of our democratic canon.
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