Thursday, December 14, 2006|
Israel high court rules some targeted killings legal
Jeannie Shawl at 10:28 AM ET
[JURIST] The Israeli Supreme Court [official website] ruled [opinion text; summary, DOC] Thursday that not all targeted killings [BBC backgrounder] of Palestinian militants are prohibited by international law. Two Israeli human rights groups filed a petition in 2002 seeking a ban on the Israeli policy, which government officials defend as the most effective method of stopping Palestinian terrorists from bombing Israel targets. The high court acknowledged that some killings were not legal, but refused to order a complete ban:
Thus it is decided that it cannot be determined in advance that every targeted killing is prohibited according to customary international law, just as it cannot be determined in advance that every targeted killing is permissible according to customary international law. The law of targeted killing is determined in the customary international law, and the legality of each individual such act must be determined in light of it.The court outlined four factors that would determine whether a targeted killing was justified:
First, well based, strong and convincing information is needed before categorizing a civilian as falling into one of the discussed categories. Innocent civilians are not to be harmed. Information which has been most thoroughly verified is needed regarding the identity and activity of the civilian who is allegedly taking a direct part in the hostilities. The burden of proof on the army is heavy. In the case of doubt, careful verification is needed before an attack is made. The court's consideration of the case had been put on hold after Israeli security officials said in January 2005 that targeted killings of Palestinian militants would be suspended [JURIST report], but the court resumed deliberations later that year after the Israel Defense Forces began the practice again.
Second, a civilian taking a direct part in hostilities cannot be attacked if a less harmful means can be employed. A civilian taking a direct part in hostilities is not an outlaw (in the original sense of that word Â? people deprived of legal rights and protection for the commission of a crime). He does not relinquish his human rights. He must not be harmed more than necessary for the needs of security. Among the military means, one must choose the means which least infringes upon the humans rights of the harmed person. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed. Arrest, investigation, and trial are not means which can always be used. At times the possibility does not exist whatsoever; at times it involves a risk so great to the lives of the soldiers, that it is not required.
Third, after an attack on a civilian suspected of taking an active part, at such time, in hostilities, a thorough investigation regarding the precision of the identification of the target and the circumstances of the attack upon him is to be performed (retroactively). That investigation must be independent. In appropriate cases compensation should be paid as a result of harm caused to an innocent civilian.
Fourth, every effort must be made to minimize harm to innocent civilians. Harm to innocent civilians caused during military attacks (collateral damage) must be proportional. That is, attacks should be carried out only if the expected harm to innocent civilians is not disproportional to the military advantage to be achieved by the attack. For example, shooting at a terrorist sniper shooting at soldiers or civilians from his porch is permitted, even if an innocent passerby might be harmed. Such harm conforms to the principle of proportionality. However, that is not the case if the building is bombed from the air and scores of its residents and passersby are harmed. Between these two extremes are the hard cases. Thus, a meticulous examination of every case is required.
Arab members of the Knesset, Israel's parliament, condemned the ruling Thursday, saying that the court's decision authorized war crimes [Haaretz report]. AP has more. Haaretz has local coverage.
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