Israeli justices uphold military assassinations

By Richard Boudreaux

Dec. 15, 2006 12 AM PT

Times Staff Writer

JERUSALEM — Israel’s Supreme Court on Thursday rejected 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 mandating that the legality of each operation would be subject to a follow-up judicial review.

International legal experts said the ruling could have an effect in democratic countries such as Israel that are struggling to balance counter-terrorism 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 51-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 6-year-old practice of killing wanted Palestinian militants, even when the targets are not engaged in militant operations.

A form of execution?

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 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 Palestinians have been targeted and killed, along with 129 bystanders, the Israeli human rights group B’Tselem said.

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 were not legally defined as combatants and must be considered civilians, enjoying the right to legal protection as citizens except when engaged in armed clashes or terrorism.

The court rejected the government’s argument that civilians involved in terrorism could 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: 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 the 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.

They noted, for example, the 2002 strike against Salah Shehada, a Hamas operative suspected of plotting suicide bombings. A 1-ton bomb was dropped on his apartment building, killing 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 argued that the army already was adhering to the criteria. They said they were studying the judges’ mandate that an independent investigation be conducted after each operation, subject to a review by the courts. Until now, the military has resisted such scrutiny.

“It’s not clear how this process is supposed to work,” one official said.

Outrage on both sides

Palestinians criticized 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.

Joanne Mariner, a counter-terrorism specialist at Human Rights Watch, said the ruling could influence debate in the United States over the Bush administration’s targeted killings of terrorist suspects overseas. U.S. officials have acknowledged at least 19 missile attacks on such targets since Sept. 11, 2001.

The administration’s legal justification for the killings is a January 2002 congressional resolution authorizing the “use of all necessary and appropriate force” to protect the country from terrorism. But some experts say the operations, carried out by the CIA with little oversight, raise questions under international law.

Amos N. Guiora, a former legal officer in the Israeli military who teaches law at Case Western Reserve University in Cleveland, said Barak’s international prestige as a judge and Israel’s example as “a laboratory for counter-terrorism” gives the ruling “enormous significance” abroad.

“It will serve as a guide for operational counter-terrorism under the rule of law,” Guiora said. “Military commanders, judges and policymakers in democratic countries can look to this decision to understand the legal limits on what can be done against terrorists.”

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Times staff writer Richard B. Schmitt in Washington contributed to this report.