High Court Essentially Upholds Current Targeted-Killing Policy

It cannot be determined ahead of time whether a given targeted killing is forbidden or permitted according to international law. So rules a Supreme Court forum headed by Aharon Barak.

Hillel Fendel, | updated: 10:12

The ruling leaves much open for interpretation, though it gives examples in an attempt to set guidelines. For instance, if a terrorist is shooting at soldiers from a house, the court rules that soldiers may return fire, even if civilians might be hurt in the process. However, bombing a residential building from the air to stop a terrorist, thus endangering civilians, is much more problematic, the ruling states.

Minister Gideon Ezra, a former top Shabak figure, said, "This ruling basically reflects how the army already works. The first case [mentioned above] is not even a case of 'targeted killing;' such a case is obviously permitted. But when a terrorist is far away, that is when the army has to find a way to get him, hurting as few civilians as possible."

The ruling was postponed for five years, for various reasons, and has been translated into English - an unprecedented move - because of its international importance. It was given in response to a suit filed by The Public Committee against Torture in Israel and the Palestinian Society for the Protection of Human Rights and the Environment.

"It cannot be determined in advance that every targeted killing [of terrorists] violates international law," the ruling states, "just as it cannot be said in advance that every targeted killing is permitted according to international law. The laws of targeted killings are determined by international law, and the legality of every individual strike must be determined accordingly."

They claimed that targeted killings violate the basic right to life, violate international law, and have no justification. "The law of civil rights is an ethical force that is stronger than explosive belts, car bombs and the murder of innocents," the petitioners stated.

The State of Israel responded that the policy is necessary in the framework of the war against terrorism. The Israel Law Center, headed by Attorney Nitsana Darshan-Leitner, together with 25 Jerusalemites who use public transportation and "feel under perpetual danger from terrorism," submitted a "friends of the court" brief in
support of the targeted killing policy.

The Law Center, in a statement released today, applauded the Court's ruling. The statement asserts that the Court had ruled that the targeted-killing policy is not "a disproportionate use of force against Palestinian terrorists." However, the Law Center criticised the aspect of the ruling that "held that each operation against a specific target must be weighed according to its own individual circumstances and the safety of innocent Palestinians must also be considered. [This is] clearly a case of the High Court, once again, dangerously 'showing mercy to the cruel.'"

The "friends of the court" brief had demanded that the Court consult traditional Jewish Law on the matter, in light of the fact that Israeli law does not directly address the issue. "Jewish Law states that the government is obligated, from an ethical point of view, to kill terrorists before they kill Israelis. Similarly, Jewish Law states that the IDF must take endangered innocent Israeli lives into consideration before those of the Arab enemy."

MK Aryeh Eldad (National Union) reacted to the ruling with some satisfaction: "Surprisingly, this time Aharon Barak did not give further ammunition to the terrorists against us. But still, the people of Israel should be very happy that Barak is finally leaving his post."

A Separate Ruling
In another ruling issued today, the Court instructed the IDF Prosecution to investigate whether illegal orders had been issued in an incident two years ago. A 13-year-old girl was killed by IDF fire after she walked more than 100 meters in area the army had closed to Arabs. As she approached an IDF position, she threw her bag towards the soldiers - a move designed to arouse suspicion, as terrorists routinely used children and juveniles to perpetrate attacks. Then-IDF Chief of Staff Lt.-Gen. Moshe Yaalon said the girl was sent to lure the soldiers into the line of sniper fire. The shooter was later tried and acquitted.




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