The High Court of Justice ruled Thursday that the Israel Defense Forces policy of targeted killings of militants does not categorically violate international law, and the legality of each targeted killing must be evaluated on an individual basis.
The three-justice panel unanimously ruled that "it cannot be determined in advance that every targeted killing is prohibited according to customary international law."
The decision is former Supreme Court president Aharon Barak's final ruling, and is expected to serve as a legal precedent in international law and war crime law.
The ruling was issued by Barak along with current Supreme Court President Dorit Beinisch and Justice Eliezer Rivlin.
The court ruled that the conflict between Israel and the Palestinian terrorist organizations has the characteristics of armed international conflict, and therefore is subject to international law.
"In its fight against international terrorism, Israel must act according to the rules of international law," the court said. "We must balance security needs and human rights. Not every efficient means is also legal. The ends do not justify the means."
According to the ruling, terrorist operatives are not legally defined as combatants and therefore must be considered civilians. The court rejected the state's argument that international law currently recognizes a third category comprising "unlawful combatants."
Nonetheless, the court ruled that civilians involved in terror activities are not afforded the same protections granted to innocent civilians under international law.
"A civilian, in order to enjoy the protections afforded to him by international law during an armed conflict, must refrain from taking a direct part in the hostilities," said the court. "A civilian that violates this principle ... is subject to the risks of attack like those to which a combatant is subject, without enjoying the rights of a combatant, e.g. those granted to a prisoner of war."
The court established four primary criteria that must be met in order for a targeted killing to be justified.
First, "well based, strong and convincing information" regarding the individual's terrorist activities.
Second, "a civilian taking a direct part in hostilities cannot be attacked if a less harmful means can be employed."
Third, an independent, thorough investigation must be conducted after the attack to determine "the precision of the identification of the target and the circumstances of the [targeted killing]."
Fourth, every effort must be made to minimize harm to innocent civilians, and "harm to innocent civilians caused during military attacks (collateral damage) must be proportional."
The court also ruled that, since a targeted killing is essentially an attack on a civilian that is engaged in hostile activities, the attack is only justified if carried out against a civilian currently involved in terrorism. Therefore the IDF cannot target former terror operatives who have distanced themselves from terror activity.
The ruling essentially denied a petition against the targeted killings filed in January 2002 by the Public Committee Against Torture in Israel and the Jerusalem-based LAW (The Palestinian Society for the Protection of Human Rights and the Environment).
In February 2005, deliberations on the petition were put on hold following the joint declaration by Prime Minister Ariel Sharon and Palestinian Authority Chairman Mahmoud Abbas of a cease-fire and an end to the assassinations.
However, in November 2005, deliberations resumed following a resumption of targeted killings by the IDF.
At the time, the panel of justices dealing with case, in addition to Barak, included Mishael Cheshin, who has since retired and has been replaced by Rivlin and Beinisch.
A month ago the human rights group Yesh Gvul filed a petition against the justices themselves, for what the organization said was their failure to rule on a petition filed five years earlier.
Attorneys Avigdor Feldman and Michael Sfard represented the petitioners in the case.
A year ago, Feldman told Haaretz in an interview about the case that "there is no doubt there is a predisposition here. From the start, the case was handled at snail's pace, from one preliminary hearing to the next, and a great deal of time passes between each session. The pace stems from the unwillingness of the court to decide in this matter. The Supreme Court has very few ways of avoiding cases, unlike the U.S. Supreme Court, which can decide not to deliberate a certain case, and therefore the only possible tactic is to create procedural twists, so changes may take place with a changing political environment."
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