Public Committee against Torture v Government of Israel

JurisdictionIsrael
CourtSupreme Court (Israel)
Docket Number(HCJ 769/02)

Israel, Supreme Court.2

(Barak, President (Emeritus); Beinisch, President; Rivlin, Vice-President)

(HCJ 769/02)

Public Committee against Torture in Israel and Another
and
Government of Israel and Others1

(Targeted Killings Case)

War and armed conflict Armed conflict Definition Distinction between international and internal armed conflicts Territories occupied by Israel since 1967 Attacks by and on suspected terrorists in occupied territory Whether an international armed conflict Applicable law Self-defence Scope of application Whether Article 51 of Charter of the United Nations, 1945 applicable to terrorist attacks not emanating from a State

War and armed conflict Combatants Definition of lawful combatant Civilians When civilian loses immunity from attack Direct participation in hostilities

Terrorism Customary international law The right to self-defence Unlawful combatants Targeting killings policy The law of Israel

Summary: The facts:Following a wave of attacks which killed more than 1,000 Israeli citizens and wounded many more, the Israeli Government employed a policy of preventive strikes (the policy of targeted frustration, or targeted killings), at those who planned, launched or executed terrorist attacks against Israel. The petitioners maintained that, by the end of 2005, this policy had led to the deaths of approximately 300 members of terrorist organizations and 150 civilians. The petitioners argued that the policy was contrary to international law, Israeli law and basic principles of human morality. It was argued that the rights of those targeted by the Israeli authorities, as well as of innocent passers-by, were violated. The petitioners maintained that the policy could not be justified by reference to the right of self-defence under Article 51

of the United Nations Charter and that it contravened the customary law prohibition of arbitrary killings, the protections afforded to the civilian population of occupied territory by Geneva Convention No IV, Relative to the Protection of Civilian Persons in Time of War, 1949 (the Geneva Convention) and, to the extent that the laws of war were applicable, the prohibitions of attacks upon civilians not directly participating in hostilities and the doctrine of proportionality. The respondents challenged all of these submissions. They argued that the right of self-defence was applicable in the face of the terrorist attacks against Israel, that the legality of the policy had to be assessed by reference to the laws of war and was compatible with those laws

Held:The petition was denied.

(1) The normative system which applied to the conflict included the international law regarding international armed conflicts, the laws of belligerent occupation and human rights law. Fundamental principles of Israeli public law might also apply. Customary international law was part of Israeli law, and was therefore relevant to this conflict. International law dealing with the armed conflict was derived from the Fourth Hague Convention, 1907, the humanitarian provisions of the Geneva Convention and the customary law principles of the laws of armed conflict, including those codified in the 1977 Additional Protocol I to the Geneva Conventions (paras. 1820).

(2) The armed conflict was of an international character and was therefore subject to the law applicable to international armed conflicts. Under that law, humanitarian considerations and military needs had to be balanced and the balance would be affected by the identity of the person harmed by the military. While the principle of distinction prohibited launching military attacks against civilians, combatants were a legitimate target (paras. 213).

(3) According to the Hague Regulations, members of terrorist organizations could not be considered as lawful combatants since they did not have any fixed emblem distinguishing them from the civilian population and did not observe the laws and customs of war. Nor did they enjoy civilians' immunity from attack since a person who took a direct part in hostilities did not enjoy such immunity. Unlawful combatants were therefore civilians, but at the same time they did not enjoy the protection from attacks (paras. 2431).

(4) Civilians lost the immunity granted to them by customary international law if they chose to take a direct part in hostilities. A person took a direct part in hostilities when using weapons in armed conflict, gathering information, or preparing himself for such an activity. It was not required that the civilian bear arms or use his weapons in this respect. Activities such as transporting unlawful combatants to or from the place where hostilities were committed, or supervision of unlawful combatants' operations, constituted taking a direct part in the hostilities. However, the definition of direct participation in hostilities should not be interpreted too broadly and did not include such acts as selling food or medicines to combatants (paras. 3240).

(5) An attack could not be justified once less harmful means were available. The rule of proportionality required that once alternatives such as arrest, interrogation and trial could be employed, targeted killing should be avoided. The military advantages of harming combatants or civilians taking part in hostilities should be balanced against the damage caused to innocent civilians (paras. 406).

(6) Harming civilians who took a direct part in hostilities was permitted only when no other less harmful measure could be applied and any harm to innocent civilians was proportionate. It could not, therefore, be decided that targeted killings were always permitted, or always forbidden. The standards of customary international law should be reviewed according to the circumstances of each case (para. 60 and pp. 48890).

The following is the text of the judgments delivered in the Court:

President (Emeritus) A. Barak

The Government of Israel employs a policy of preventative strikes which cause the death of terrorists in Judea, Samaria, or the Gaza Strip. It fatally strikes these terrorists, who plan, launch, or commit terrorist attacks in Israel and in the area of Judea, Samaria, and the Gaza Strip, against both civilians and soldiers. These strikes at times also harm innocent civilians. Does the State thus act illegally? That is the question posed before us.

1. Factual Background

[1.] In February 2000, the second intifada began. A massive assault of terrorism was directed against the State of Israel, and against Israelis, merely because they are Israelis. This assault of terrorism differentiates neither between combatants and civilians, nor between women, men, and children. The terrorist attacks take place both in the territory of Judea, Samaria, and the Gaza Strip, and within the borders of the State of Israel. They are directed against civilian centers, shopping centers and markets, coffee houses and restaurants. Over the last five years, thousands of acts of terrorism have been committed against Israel. In the attacks, more than 1,000 Israeli citizens have been killed. Thousands of Israeli citizens have been wounded. Thousands of Palestinians have been killed and wounded during this period as well.

2. In its war against terrorism, the State of Israel employs various means. As part of the security activity intended to confront the terrorist attacks, the State employs what it calls the policy of targeted frustration of terrorism. Under this policy, the security forces act in order to kill members of terrorist organizations involved in the planning, launching, or execution of terrorist attacks against Israel. During the second intifada, such preventative strikes have been performed across Judea, Samaria, and the Gaza Strip. According to the data relayed by petitioners, since the commencement of these acts, and up until the end of 2005, close to 300 members of terrorist organizations have been killed by them. More than 30 targeted killing attempts have failed. Approximately 150 civilians who were proximate to the location of the targeted persons have been killed during those acts. Hundreds of others have been wounded. The policy of targeted killings is the focus of this petition.

2. The Petitioners' Arguments

3. Petitioners' position is that the targeted killings policy is totally illegal, and contradictory to international law, Israeli law, and basic principles of human morality. It violates the human rights recognized in Israeli and international law, both the rights of those targeted, and the rights of innocent passers-by caught in the targeted killing zone.

4. Petitioners' position is that the legal system applicable to the armed conflict between Israel and the terrorist organizations is not the laws of war, rather the legal system dealing with law enforcement in occupied territory. Changes were made in petitioners' stance during the hearing of the petition, some as a result of changes in respondents' position. At first it was claimed that the laws of war deal primarily with international conflicts, whereas the armed conflict between Israel and the Palestinians does not fit the definition of an international conflict. Thus, the laws which apply to this conflict are not the laws of war, rather the laws of policing and law enforcement. In the summary of their arguments (of 9 September 2004), petitioners conceded that the conflict under discussion is an international conflict, however they claim that within its framework, military acts to which the laws of war apply are not allowed. That is since Israel's right to self-defensive military action, pursuant to Article 51 of the Charter of the United Nations of 1945, does not apply to the conflict under discussion. The right to self-defense is granted to a State in response to an armed attack by another State. The territories of the area of Judea, Samaria, and Gaza are under belligerent occupation by the State of Israel, and thus Article 51 does not apply to the issue. Since the State cannot...

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