Not a license for targeted killing
The High Court ruling on targeted killings does not give blanket approval to these killings, nor does it make it easier for the Israel Defense Forces to carry them out. To a great extent, it even makes them more difficult.
The ruling by the High Court of Justice on the legality of targeted killings does not give blanket approval to these killings, nor does it make it easier for the Israel Defense Forces to carry them out. To a great extent, it even makes them more difficult, since the decision sets out, for the first time, strict rules that make targeted killings an extreme exception that must be used with proportionality.
Those who deal with security should read at least the last three pages of the ruling, which was written by Supreme Court President Dorit Beinisch. They contain clear statements about what is allowed and what is prohibited, a kind of practical summary of the main arguments that Justice Aharon Barak discussed at length. Although the High Court did not grant the petitioners' demand for a blanket outlawing of targeted killings, the directives it gave assure future judicial oversight of all cases in which a targeted killing exceeds the limits of these rules. If it should turn out, albeit retrospectively, that a targeted killing was illegal, it might lead to a trial and the paying of compensation to the innocent civilians who were hurt by it.
The court did not accept the state's position that a new status, that of "illegal combatants," be accorded to anyone involved in terror. Those involved in terror, rather, are civilians who have lost the protection granted to civilians, the High Court said, "for the period of time during which they take direct part in hostile acts." They are not to be considered dangerous indefinitely, and the question of whether they continue to constitute a threat must be scrutinized carefully before a targeted-killing order is issued. Such an order must not be issued as an act of revenge, punishment or deterrence, but only in prevention, and the information that turns an ordinary civilian into one who takes part in hostile acts must be sufficiently well-founded. The threat must be "strong and persuasive," and the individual in question must be party to "ongoing action that does not limit itself to concrete sporadic or one-time action."
The High Court put two additional safeguards in place for a targeted killing: Use must not be made of this extreme measure when an arrest may be made without real danger to the lives of soldiers; and a targeted killing is to be avoided if it will lead to disproportionate collateral harm to innocent civilians. Under no circumstances is the High Court ruling to be seen as license "to take human life arbitrarily."
Thus, in its ruling, the High Court deprived the state of the possibility of using targeted killings as a habitual act, even vis-a-vis those involved directly in terror. The criterion of danger to the lives of innocent civilians is key in determining the legality of the act. According to this ruling, it is doubtful that the killing of Saleh Shehadeh in July 2002, in which 13 civilians were killed, would have passed the test of legality. To prevent the recurrence of such cases, the High Court demanded the establishment of an objective committee to examine retroactively every targeted killing in which civilians were injured; its conclusions will be subject to judicial oversight.
In the end, this significant ruling will be tested by its results. On the one hand, the fictitious concept of the "ticking bomb" is off the agenda and the legitimate bank of targets has been expanded. On the other hand, license to strike even at legitimate targets has been curtailed by stringent rules of proportionality, by which the security establishment will have to operate.