Israeli High Court Backs Military On Its Policy of 'Targeted Killings'

By Scott Wilson
Washington Post Foreign Service
Friday, December 15, 2006

JERUSALEM, Dec. 14 -- Israel's high court upheld Thursday the military's right to assassinate members of groups the state defines as terrorist organizations, but cautioned that such operations should always be weighed first against the potential harm to civilian bystanders and the human rights of the target.

The unanimous decision departs little from guidelines the military says it already follows in carrying out "targeted killings," the terminology used by the government and by the court in its ruling. But it does say commanders should allow an independent investigation to follow each assassination and recommends that the military compensate "innocent civilians" harmed in the operation.

Under current practice, Israel's military works with Shin Bet, the domestic security service, to compile lists of Palestinians who are influential or active figures in armed groups. Using eavesdropping equipment, aerial surveillance and informants, air force pilots or drone operators receive detailed information about a target's movements, most commonly in the Gaza Strip, where the army no longer operates regularly on the ground.

Military officers say the decision to strike is made -- sometimes in a matter of minutes -- by balancing the threat posed by the target against the potential for injuring bystanders. Many of the strikes have killed civilians in addition to targeted individuals.

Israeli military officials said they would review the court's findings in coming days. But one senior officer who specializes in matters of international law said the ruling, although vague in places, appeared to be a "validation" of existing policies regarding assassinations, and he expected few new restrictions to be implemented.

The decision states that military commanders must have "strong and convincing" information before ordering an assassination, and should not do so "if a less harmful means can be employed," namely, arrest. The ruling also says that "every effort must be made to minimize harm to innocent civilians."

"The need to balance casts a heavy load on those whose job it is to provide security," the three-judge panel wrote. "Not every efficient means is also legal. The ends do not justify the means."

The ruling has been awaited outside Israel for what it might add to the debate underway in many countries, including the United States, over how to ensure basic human rights in what the Bush administration calls the "war on terrorism." Following Israel's lead, the U.S. military and intelligence agencies have also used drones to carry out assassinations, including a November 2002 strike on a car in Yemen that killed six suspected members of al-Qaeda.

The decision, one of the last to be issued by retiring Chief Justice Aharon Barak, represented a disappointing defeat for Israeli and Palestinian human rights organizations that have called the tactic, pioneered during the most recent Palestinian uprising, a war crime.

Hawkish lawmakers and officials from Israel's security establishment expressed pleasant surprise at the ruling, given that Barak, an activist judge throughout his decades-long career, has often come down against the military in cases where human rights and security measures appear to conflict. The court said the state "must balance security needs and human rights."

The ruling stemmed from a petition filed by two human rights organizations -- one Israeli, one Palestinian -- challenging the state's right to assassinate members of Hamas, the al-Aqsa Martyrs Brigades and other armed groups fighting the Jewish state. In its decision, the court said the "starting point of the legal analysis is that between Israel and the terrorist organizations active in the Judea, Samaria and the Gaza Strip" -- referring to the territory Israel occupied in the 1967 Middle East war -- "there exists a continuous situation of armed conflict."

The ruling states that international law applies to the Israeli-Palestinian conflict, saying "it is not an internal state conflict that is subject to the rules of law enforcement."

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