The Public Committee against Torture in Israel V. the Government of Israel: The Israeli High Court of Justice Targeted Killing Decision

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CONTENTS  I   Introduction        A Israel's Policy &Targeted Killing        B Background to the Case        C Main Focus and Structure of the Note II  Summary of Judgment        A Factual Background        B The General Normative Framework            1 International Armed Conflict            2 Combatants            3 Civilians            4 Review by the Court III Critique of Selected Issues        A Four-Fold Test            1 Well-Based Information            2 Less Drastic Measures            3 Investigations            4 Proportionality        B Adequacy of the Four-Fold Test IV  Conclusion 

I INTRODUCTION

A Israel's Policy of Targeted Killing

On 9 November 2000, Hussein 'Abayat, a senior Fatah Tanzim activist, was driving his car on a busy street in his village in the West Bank. An Israel Defence Forces ('IDF') helicopter fired three missiles at him, killing him and two women, Rahma Shahin and 'Aziza Muhammad Danun, who were standing outside a house. (1) 'Abayat's killing, less than two months after the al-Aqsa Intifada began, marked the start of Israel's policy of targeted killings. (2) Israel has since publicly confirmed that the practice of targeted killings occurs under government orders. It can therefore be taken to be state policy. (3) According to B'Tselem, by 31 August 2007, 367 Palestinians had been killed as a result of Israel's policy of targeted killing. (4) Of those casualties, 218 were objects of the targeted killings and 149 were innocent bystanders. (5) The legality of this policy has been widely debated, both in Israel and internationally. The decision in The Public Committee Against Torture in Israel v The Government of Israel ('PCATI') (6) sought to address this issue.

B Background to the Case

On Thursday 14 December 2006, the High Court of Justice ('HCJ') (7) handed down a decision that it had taken five years to reach. (8) In January 2002, the Public Committee Against Torture in Israel ('PCATI') and the Palestinian Society for the Protection of Human Rights and the Environment ('LAW') filed a petition against the State of Israel. (9) The petitioners argued that Israel's assassination policy is unlawful. Assassination, they claimed, is illegal according to the standards of domestic law enforcement in occupied territory which forbid use of lethal force unless it is necessary to protect against an imminent threat of death or serious bodily injury. (10) Avigdor Feldman and Michael Sfard, the petitioners' attorneys, argued that military force can only be used in the context of self-defence according to art 51 of the Charter of the United Nations. Article 51 permits a state to respond to an attack by another state and therefore is not applicable to the conflict between Israel and individuals from the occupied territories. (11) The petitioners argued that targeted assassinations deny the right to due process and violate the fundamental right to life protected under international human rights and international humanitarian law. They qualified this argument by claiming that even if an international armed conflict exists in the context of Israel's belligerent occupation, the targets must be regarded as civilians and therefore protected from military attack. (12) According to the petitioners, art 51(3) of Additional Protocol I (13) to the Geneva Conventions (14) reflects customary international law. (15) When a 'criminal civilian' (16) participates in combat, they lose their immunity 'during (and only when) [they are] ... participating in combat that directly endangers human life' (17) and they can be tried retroactively. (18) The petitioners concluded that '[t]he policy of assassinations harms these civilians when they are not taking part directly in combat or in hostilities, and as such, it is not legal and constitutes a prohibited strike against civilian targets that constitutes a war crime'. (19) They also claimed that the targeted killing policy often causes harm to civilian bystanders, violating the principle of proportionality. …