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

The practice of targeted assassination began officially in November 2000, when an Israeli helicopter fired missiles at a car carrying Hussein Abayat, a senior member of the al-Aqsa Martyrs Brigades, near the city of Bethlehem. The strike killed Abayat and two bystanders.

Israeli security officials have argued that targeted killings are among their most effective tools against the armed groups, which have carried out scores of suicide attacks against Israeli civilians, fight from civilian areas and employ other guerrilla tactics that pose challenges to Israel's conventional army.

But many of the assassinations have been conducted by Israeli attack helicopters, drones or fighter aircraft, and civilian casualties are common. B'Tselem, an Israeli human rights group, reports that in operations over the past six years Israeli security forces have assassinated 210 intended targets but also killed 129 bystanders.

"Anyone who thinks that in this kind of warfare things cannot go wrong and mistakes cannot happen does not know in what world he is living," Maj. Gen. Giora Eiland, the former head of Israel's National Security Council, told Israel's Army Radio. "Compare the terrorist attacks that were taking place only four years ago with those taking place today. In the last analysis, we are now living in an incomparably better situation now than what we lived in then. How do you think that came about? It is partly due to targeted killings."

Barak, who once ruled that Israeli officials could not use torture during interrogations even to stop imminent suicide bombings, rejected in Thursday's decision the concept of "unlawful combatants" employed by the Bush administration to justify detaining suspects without charges.

Instead, the court decided that "members of the terrorist organizations are not combatants," but civilians who relinquish certain legal protections when they participate directly in "hostilities" intended to "harm the army or civilians."

By way of offering guidelines to military commanders responsible for ordering assassinations, the decision says that "shooting at a terrorist sniper shooting at soldiers or civilians from his porch is permitted, even if an innocent passerby is 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," it continues. "Between these two extremes are the hard cases. Thus a meticulous examination of every case is required."

In reviewing specific cases, the ruling said, "the Court will ask itself if a reasonable military commander could have made the decision which was made." Human rights lawyers criticized that advice, along with several other aspects of the decision, as overly vague.

"Here the court has done something that will create a cloud of illegality over many missions, because the officer will not know what is allowed and what is prohibited," said Michael Sfard, the attorney for the petitioners in the case. "When you go to court, at least you expect to get a clear ruling."

Sfard also represents petitioners in the case of Salah Shehada, a Hamas military commander killed in July 2002 when an Israeli F-16 dropped a one-ton bomb on his house in Gaza, killing him and 14 others, including nine children. Sfard said he will seek a new hearing "on the basis of this ruling, which obliges the court to order a criminal investigation."