First the Israeli High Court punted. Then appellants filed a complaint against their inaction and finally the Court felt that it could abscond from the issue no longer and it ruled. The infamous Israeli counter-terror policy of targeted assassination (or what others call extrajudicial assassination) is now legal. Before, the IDF and Shin Bet operated in a nether territory into which the Court refused to enter. But now the justices have turned treif meat into kosher with the wave of a pen.
But in quasi-Solomonic fashion, they’ve only given the IDF 7/8 of the loaf. The government had maintained, in consonance with true U.S. neocon legal reasoning that Palestinian terrorists were “enemy combatants” and therefore not protected by international law. The Supreme Court found that militants were indeed civilians and so covered by international law. Since the Israeli Court is held in some repute around the world, this ruling will come as a blow to the Bush Administration’s legal strategy in prosecuting Al Qaeda suspects. Defendants in the U.S. will be able to argue that the nation with arguably one of the greatest terror threats has thrown out the notion of enemy combatants.
Returning to Palestinian militants, the justices qualify their earlier argument by saying that their civilian status provides no immunity from military assault:
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 provides four criteria to guide what constitutes a legitimate Israeli counter-terror attack:
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 reason I wrote that the Court gave the IDF 7/8 of what it wanted is that the above criteria provide almost no protection either for targeted militants or civilians caught in crossfire. Who determines whether the IDF has satisfied the criteria? The IDF of course. Who monitors IDF compliance with the guidelines? Nominally, perhaps the Court. But it took years for them to hear this case and they only did so under threat of a legal complaint filed against them by an Israeli human rights group. Does anyone make any presence that the Israeli legal or political system provides any checks on IDF counter-terror policy?
That is why number three above is almost laughable. What is an “independent” investigation? Who may be considered independent enough to judge IDF conduct? IDF policy has been to appoint an IDF senior officer to investigate such killings. This may hardly be called “independent.” Perhaps a judicial inquiry might be more independent, but I see no chance that the IDF would be willing to have a truly independent entity, even the courts, investigate its counter-terror activity.
Criteria four is also laughable since it is simply not possible to “minimize harm to innocent civilians.” The IDF makes a point of attacking militants among the most crowded neighborhoods of Gaza in which it is all but guaranteed that it will kill innocents. Further, the Court argues that such killing must be “proportional.” Who determines what is “proportional?” If you kill a militant and also kill a civilian, is that proportional?
To me, this is merely apportioning rain in teaspoons. In practice, I cannot see how the ruling will have much affect on actual anti-terror tactics on the ground. And perhaps this is what the justices intended. They wished to appear to rule that targeted assassination was acceptable under law. But they also wished to provide the IDF every latitude in pursuing their objectives almost unfettered. Which in effect is the status quo ante. In short, a lot of hocus pocus to get us back to where we started.
Perhaps I’m being overly cynical. Perhaps the ruling will save a civilian’s life down the road. In that case, I will be the first to admit the ruling has some benefit.
I heard Amos Guiora (audio) a former IDF officer argue that certain prior targeted assassinations (he uses the Shehadeh killing as an example) in which there was massive loss of civilian life would no longer be acceptable. Unfortunately, I will only believe this legal directive has been implemented when I see the body count. My hunch is that virtually nothing will change. The IDF are experts at bureaucratic trench warfare. They outlast their critics with sheer tenaciousness and cunning. We’ll see who has the last word on targeted assassination. My guess is that there will be very little change in policy and that civilians will continue to die in great numbers through this heinous military tactic. Guiora argues that yesterday’s ruling is of “seminal importance.” We shall see.