Israel Supreme Court sets limits on killings

Demand for ban on targeting of militants rejected

December 15, 2006|By Richard Boudreaux | Richard Boudreaux,LOS ANGELES TIMES

JERUSALEM -- Israel's Supreme Court rejected yesterday a demand by civil liberties groups for a blanket ban on the military's targeted killings of Palestinian militants, saying the practice could be justified in some instances under international law.

But the court, ruling for the first time on one of the conflict's most sensitive questions, set limits on the circumstances in which such killings would be considered legal. It left the military to decide in secret whom to target, while requiring that the legality of each operation would be subject to follow-up judicial review.

International legal experts said the long-awaited ruling could have an impact in democratic countries that, like Israel, are struggling to balance counterterrorism policies with democratic checks and balances.

"In a democracy, the fight against terror is subject to the rule of law," the three-judge panel said. "Not every efficient means is also legal. The ends do not justify the means."

The 65-page decision concluded: "It cannot be determined in advance that every targeted killing is prohibited according to customary international law, just as it cannot be determined in advance that every targeted killing is permissible."

The ruling is expected to leave largely intact Israel's six-year-old practice of killing wanted Palestinian militants with missiles fired from manned aircraft and drones even when the targeted militants are not engaged at the time in terrorist operations.

Israel began the practice after the collapse of Israeli-Palestinian peace talks and the outbreak of violence in the fall of 2000. Israeli officials see it as the most effective way to stop Palestinians known to be planning suicide bombings and rocket attacks on Israeli population centers.

Civil liberties groups consider the killings a form of execution without trial. An estimated 210 targeted Palestinians have been killed, along with 129 bystanders, according to the Israeli human rights group B'tselem.

The petition asking the Supreme Court to ban the practice was filed in 2002 by two other groups, the Public Committee Against Torture in Israel and the Palestinian Society for the Protection of Human Rights and the Environment.

Thursday's decision was the last one shaped by Aharon Barak, an internationally respected jurist, before his recent retirement after 15 years as the court's president. Barak and two other justices, including his successor, Dorit Beinisch, signed the unanimous opinion.

It said Palestinian militants are not legally defined as combatants and must be considered civilians, enjoying the right to legal protection as ordinary citizens except when they are engaged in armed clashes or terrorism.

The court rejected the government's argument that civilians involved in terrorism can be considered "unlawful combatants" and deprived of their civil rights indefinitely. In the judges' view, the military cannot target former operatives who have distanced themselves from terrorist activity.

The ruling said several criteria must be met for a targeted killing to be justified: First, there must be "well based, strong and convincing information" that the targeted person is plotting a terrorist act. Then the military must be convinced that "less harmful means" of stopping that person, such as arrest and prosecution, are impossible.

The operation should be carried out "only if the expected harm to innocent civilians is not disproportional to the military advantage to be achieved by the attack," the ruling said.

Those standards would rule out many lethal operations Israel has conducted and invite lawsuits over some of them, legal experts said. The most well-known is the 2002 strike against Salah Shehada, a Hamas operative wanted for plotting suicide bombings. A 1-ton bomb dropped on his apartment building killed Shehada and 14 bystanders, including nine children.

Michael Sfard, a lawyer who brought the case against the government, said the court's criteria were "too vague and left too much discretion in the military's hands." Israeli officials insisted that the army was adhering to the criteria. They said they were studying the judges' requirement that an independent investigation be conducted after each operation, subject to review by the courts. Until now, the military has resisted such scrutiny.

Palestinians cried foul at the ruling. "Assassination is a crime that cannot be justified," said Saeb Erekat, a veteran Palestinian peace negotiator. "It is unbecoming of a nation-state."

Benny Elon, a rightist member of Israel's parliament, said the ruling would tie the military's hands. "No nation can fight a war, much less win, if a court is the one determining whether a particular target is `kosher,'" he said.

Richard Boudreaux writes for the Los Angeles Times.

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