Israeli High Court decision on scope of conflict with terrorists

* Public Committee Against Torture in Israel v. Israel

Israel’s high court, in an opinion by Chief Justice Aharon Barak, has rejected a challenge to Israel’s use of targeted strikes.  The full opinion is posted here.  The court’s 4-page summary can be linked for the Post's coverage here.

The opinion is notable in many respects, including the following determinations:

- There is an international armed conflict (CA2) in Gaza and the West Bank (not a common article 3 conflict)

- There are legal categories of combatants and of civilians, but not a separate category of “unlawful combatants”

- Terrorists are civilians rather than combatants and thus have no right to engage in hostilities, but insofar as they nonetheless take a direct part in hostilities they may be targeted for such time as they do so (citing AP I Art. 51(3))

- So, what is the scope of this rule?  Here, I’ll let the court’s summary speak for itself (the court takes a shot – a very interesting shot – at trying to flesh out this terribly important and controversial issue):

“When can it be said that a civilian takes part in hostilities? Hostilities are acts which are intended to harm the army or civilians. A civilian takes part in hostilities when he is engaged in such acts, or when he prepares himself for such acts. It is not required that he carries or uses arms. When can it be said that a civilian takes a direct part in hostilities? A civilian bearing arms (openly or concealed) who is on his way to the place where he will use them, or is using arms, or is on his way back from such a place, is a civilian taking a direct part in hostilities. So are those who decide on terrorist acts or plan them, and those who enlist others, guide them and send them to commit terrorist acts. On the other hand, civilians who offer general support for hostilities, such as selling of food, drugs, general logistic aid, as well as financial support, take an indirect part in hostilities. How shall we understand the scope of the words "for such time" during which the civilian is taking direct part in hostilities? A civilian taking a direct part in hostilities one single time, or sporadically, who later detaches himself from that activity, is a civilian who, starting from the time he detaches himself from that activity, is entitled to protection from attack.  He is not to be attacked for the hostilities which he committed in the past.  On the other hand, a civilian who has joined a terrorist organization and commits a chain of hostilities, with short periods of rest between them, loses his immunity from attack for the entire time of his activity. For such a civilian, the rest between hostilities is nothing other than preparation for the next act of hostilities. These examples point out the dilemma regarding the requirement which "for such time" presents before us.  On the one hand, a civilian who took a direct part in hostilities once, or sporadically, but detached himself from them (entirely, or for a long period) is not to be harmed. On the other hand, the "revolving door" phenomenon, by which each terrorist can rest and prepare for the next act of hostilities while receiving immunity from attack, is to be avoided. In the wide area between those two possibilities, one finds the "gray" cases, about which customary international law has not yet crystallized.  There is thus no escaping examination of each and every case.  In that context, the following four things should be said: First, well based, strong and convincing information is needed before categorizing a civilian as falling into one of the discussed categories.  Innocent civilians are not to be harmed. Information which has been most thoroughly verified is needed regarding the identity and activity of the civilian who is allegedly taking a direct part in the hostilities. The burden of proof on the army is heavy.  In the case of doubt, careful verification is needed before an attack is made. Second, a civilian taking a direct part in hostilities cannot be attacked if a less harmful means can be employed. A civilian taking a direct part in hostilities is not an outlaw (in the original sense of that word – people deprived of legal rights and protection for the commission of a crime). He does not relinquish his human rights. He must not be harmed more than necessary for the needs of security. Among the military means, one must choose the means which least infringes upon the humans rights of the harmed person. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed. Arrest, investigation, and trial are not means which can always be used.  At times the possibility does not exist whatsoever; at times it involves a risk so great to the lives of the soldiers, that it is not required. Third, after an attack on a civilian suspected of taking an active part, at such time, in hostilities, a thorough investigation regarding the precision of the identification of the target and the circumstances of the attack upon him is to be performed (retroactively). That investigation must be independent. In appropriate cases compensation should be paid as a result of harm caused to an innocent civilian. Fourth, every effort must be made to minimize harm to innocent civilians. Harm to innocent civilians caused during military attacks (collateral damage) must be proportional. That is, attacks 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. For example, shooting at a terrorist sniper shooting at soldiers or civilians from his porch is permitted, even if an innocent passerby might be 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. Between these two extremes are the hard cases. Thus, a meticulous examination of every case is required.”

Comments

[Milton Hirsch]

Many thanks for posting this wonderful specimen of jurisprudence. Regrettably, American judicial scholarship and American standards of due process in our own "war against terror" suffer badly in comparison.