Targeted killings of terrorists are legal under certain circumstances, but not all circumstances, the High Court of Justice ruled yesterday in the final decision of former Supreme Court president Aharon Barak's career.
"It is not possible to state a priori that every targeted killing is forbidden by international law, just as it is not possible to state a priori that every targeted killing is permitted by international law," Barak wrote in the unanimous ruling, which was joined by current Supreme Court President Dorit Beinisch and Justice Eliezer Rivlin.
The ruling, issued in response to petitions by two nonprofit organizations, LAW and the Public Committee Against Torture in Israel, laid down several criteria that must be met for a targeted killing to be legal:
b There must be "convincing and well-founded" information that the target is really involved in terrorist activity, and his involvement must be "direct." As Beinisch stressed in her concurring opinion, "Not every involvement in terrorist activity constitutes taking direct part in enemy action, such as would justify carrying out a targeted killing."
b Targeted killings are only permissible if other methods of dealing with the problem, such as arrest, are impossible, or if an arrest would gravely endanger soldiers' lives.
b Every precaution must be taken to avoid harming innocent civilians in the vicinity, and even then, a targeted killing will be illegal if the harm done to innocent civilians outweighs the security benefits of killing the terrorist. As an example of what constitutes disproportionate harm, Barak offered the following: "It is possible to shoot at a terrorist who is shooting at soldiers or civilians from the balcony of his house, even if as a result, an innocent civilian passerby is liable to be hit ... This would meet the demands of proportionality. That would not be true if the house were bombed from the air and dozens of residents and passersby were hurt."
b Targeted killings are not justified if the target has ceased his involvement in terrorist activity. However, if he has been involved in "a series of hostile acts with interludes between them," the state is justified in viewing these interludes as mere "preparation for the next hostile act," and he would not enjoy immunity.
b After every targeted killing, there must be a thorough and independent investigation into the accuracy of the target's identification as a terrorist. If it turns out that this identification was mistaken, the state should consider paying compensation.
In addition to these guidelines, the ruling laid down several principles of broader significance. For instance, it said, Israel's conflict with terrorist organizations in the territories is an international rather than a domestic conflict, so international law applies.
Additionally, the court rejected the state's argument that terrorists are "unlawful combatants." Terrorists, it ruled, are civilians - but because they are involved in hostile activity, they do not enjoy the immunity from attack legally enjoyed by other civilians.
It also rejected the idea that the entire topic was not justiciable, as it deals with a quintessential issue of defense policy: what tactics to use against the enemy. "The claim of nonjusticiability cannot be accepted in a case where the challenged policy harms human rights," Barak wrote. "If this issue is justiciable in international courts, why should it not be justiciable in national courts?
"Not every effective means is also legal," he added. "The end does not justify the means."
Beinisch, in her concurring opinion, noted that the issue was a thorny one because "international law has not yet developed the laws of combat in a way that would adapt them for combat against terrorist organizations, as opposed to regular armies."
In response to the ruling, Colonel Pnina Sharvit-Baruch, who heads the Israel Defense Forces' international law department, said that while the army already carries out a thorough examination before approving any targeted killing, it will now need to study the ruling carefully to see whether its procedures need to be changed.
Currently, she added, the IDF carries out an investigation after any targeted killing with "problematic results," but not in every case, as the court's ruling requires.
"But the bottom line," she said, "is that the court accepted the state's position and recognized the fact that targeted killings of members of terrorist organizations who are involved in enemy actions are legal."
