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."
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."