The Israeli Supreme Court Rules on "Targeted Killings": Part One of a Two-Part Series

By JOANNE MARINER

Friday, Dec. 22, 2006

Last week, in a much-anticipated ruling, the Israeli Supreme Court addressed the legality of Israel's policy of "targeted killings." In a case filed by local human rights groups, the Court was asked to assess whether the killing of suspected terrorists in the Occupied Territories should be considered a prohibited form of assassination, or rather, as the Israeli government argued, as the lawful killing of combatants in wartime.

Since September 2000, according to local human rights groups, 210 suspected militants and 129 civilians have been killed in targeted strikes carried out by the Israeli Defense Forces in the Occupied Territories. In 2002, in perhaps the most notorious such attack, 15 innocent civilians, including nine children, were killed when the IDF dropped a one-ton bomb on an apartment building that housed Hamas leader Saleh Shehadeh.

Much of the immediate press coverage of the ruling last week emphasized that the Court authorized the government's targeted killings policy. Yet the opinion is much more nuanced than this simple description suggests. While it's true that the Court did not ban the practice of targeted killings, the ruling was far from an endorsement of the government's approach to them.

At least in theory, the ruling imposes significant constraints on the army's power to kill suspected militants. It requires that such killings be attempted only when solid information indicates that the target is taking a direct part in hostilities (including by planning terrorist attacks), when the arrest of the target would be too risky, and when the likely harm to innocent civilians does not outweigh the military advantage gained by the death of the target. It also requires that a thorough and independent investigation be carried out in the wake of every such attack.

The ruling is important for Israel, but is also quite relevant to the United States. Following Israel's lead, the U.S. has in recent years carried out missile attacks against suspected terrorists in Yemen and Pakistan. No other country is known to engage in the practice.

All is Not Fair in War

The first argument asserted by the petitioners, in opposing the Israeli government's targeted killing policy, is that rather than applying wartime rules, the Court should ground its analysis in normal law enforcement standards. Under the latter set of standards, lethal force can only be used by the military or police in certain very narrow circumstances, essentially to protect against an imminent threat of death or serious bodily injury. It is clear that the Israeli government's policy of targeted killings violates these rules.

But the Court's opinion gives short shrift to the law enforcement argument, finding that wartime rules apply because the country is at war. Indeed, in a quite debatable assertion, the Court finds that "a continuous situation of armed conflict has existed [in Israel and the Occupied Territories] since the first intifada" - that is, since 1987.

While the Court is quick to adopt the war paradigm, it does not accept that war means that the rules go out the window. Rejecting the claim that "during war, the laws are silent," the Court emphasizes instead that "it is when the cannons roar that we especially need the laws."

Moreover, in an implicit rebuttal to arguments made by the Bush administration and its defenders, the Court specifies that terrorism, even when it adds up to war, cannot be fought in a normative void. It states that "the state's struggle against terrorism is not conducted 'outside' of the law" and suspected terrorists, in particular, are not stripped of legal protections.

Indeed, the Court not only applies international humanitarian law -- the laws of war -- in evaluating the legality of targeted killings, it also looks to human rights standards. In setting out the legal framework that is relevant to the assessment, it states that human rights rules have a role to play in filling the gaps of the laws of war. This claim is in direct contradiction to the Bush Administration's position that the laws of war entirely displace human rights norms.

Implementation and Impact

The Supreme Court's ruling could, if implemented in good faith, limit the IDF's reliance on targeted killings. It seems apparent, for example, that the IDF carries out many such attacks even when the alternative of arrest would be practicable.

But whether the Court's ruling will be all that meaningful in practice is far from clear. The broad wording of key parts of the opinion leaves ample room for interpretation, and there is little reason to believe that the Israeli military will interpret it in a restrictive way. An indicator that the government does not believe that the ruling will require any change in IDF practices came just after it was issued, when a government spokesman announced that the IDF was already complying with the Court's stated rules.

Another worrying sign is found in a section of the opinion titled "The Scope of Judicial Review." In this passage, the Court explains that while it has an important role to play in explaining the legal rules applicable to targeted killings, it will be much more timid in policing their implementation.

This is predictable, but unfortunate. Unless a real effort is made to ensure that the rules the Court prescribes are actually followed, the Court's inspiring words will still be nothing more than words.


Joanne Mariner is a human rights attorney based in New York and Paris.

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