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Israel's Court Upholds Military's Right to Assassinate
[SIZE=-1]By Scott Wilson
Washington Post Foreign Service
Thursday, December 14, 2006; 8:54 AM
[/SIZE]
JERUSALEM, Dec. 14--Israel's high court on Thursday upheld the military's right to assassinate members of what the state defines as terrorist organizations, but cautioned that decisions to launch such operations should always weigh the potential harm to civilian bystanders and the rights of the person being targeted.
The unanimous 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 over 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.
In its summary of the ruling, which has been highly anticipated inside and outside Israel, the court said the state "must balance security needs and human rights."
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 an investigation should follow each assassination, and 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 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 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 killings" officially began in Nov. 2000 when an Israeli helicopter fired missiles at a car carrying Hussein Abiyat, a senior member of the al-Aqsa Martyrs Brigades, near the city of Bethlehem. The strike killed Abiyat and two bystanders.
Israeli security officials have argued that the method is one of 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 methods 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, the Israeli human-rights group, reports that Israeli security forces have assassinated 210 intended targets in operations over the past six years that have 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," Giora Eiland, the former head of Israel's National Security Council, told 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 that what we lived in then. How do you think that came about? It is partly due to targeted killings."
The ruling has been awaited internationally for what it might add to the debate underway in many countries, including the United States, over how to ensure basic human rights amid 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 Nov. 2002 strike on car in Yemen that killed six suspected members of al-Qaeda.
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 the detention of 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."
"A civilian takes part in hostilities when he is engaged in such acts or when he prepares himself for such acts," the court wrote. "It is not required that he carries or uses arms.
"On the other hand, civilians who offer general support for hostilities, such as the selling of food, drugs, general logistical aid, as well as financial support, take an indirect part in hostilities," the court continued, suggesting people in that category are protected from assassination.
By way of offering guidelines to military commanders responsible for ordering assassinations, the decision says "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 as overly vague, along with several other aspects of the decision.
"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 representing 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 official killed in July 2002 by an Israeli F-16 strike on his apartment building in Gaza. Shehada, his body guard and 12 bystanders were killed, most of them women and children. He said he will seek a new hearing "on the basis of this ruling, which obliges the court to order a criminal investigation."
http://www.washingtonpost.com/wp-dy...AR2006121400430.html?nav=rss_email/components
Israel's Court Upholds Military's Right to Assassinate
[SIZE=-1]By Scott Wilson
Washington Post Foreign Service
Thursday, December 14, 2006; 8:54 AM
[/SIZE]
JERUSALEM, Dec. 14--Israel's high court on Thursday upheld the military's right to assassinate members of what the state defines as terrorist organizations, but cautioned that decisions to launch such operations should always weigh the potential harm to civilian bystanders and the rights of the person being targeted.
The unanimous 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 over 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.
In its summary of the ruling, which has been highly anticipated inside and outside Israel, the court said the state "must balance security needs and human rights."
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 an investigation should follow each assassination, and 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 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 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 killings" officially began in Nov. 2000 when an Israeli helicopter fired missiles at a car carrying Hussein Abiyat, a senior member of the al-Aqsa Martyrs Brigades, near the city of Bethlehem. The strike killed Abiyat and two bystanders.
Israeli security officials have argued that the method is one of 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 methods 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, the Israeli human-rights group, reports that Israeli security forces have assassinated 210 intended targets in operations over the past six years that have 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," Giora Eiland, the former head of Israel's National Security Council, told 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 that what we lived in then. How do you think that came about? It is partly due to targeted killings."
The ruling has been awaited internationally for what it might add to the debate underway in many countries, including the United States, over how to ensure basic human rights amid 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 Nov. 2002 strike on car in Yemen that killed six suspected members of al-Qaeda.
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 the detention of 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."
"A civilian takes part in hostilities when he is engaged in such acts or when he prepares himself for such acts," the court wrote. "It is not required that he carries or uses arms.
"On the other hand, civilians who offer general support for hostilities, such as the selling of food, drugs, general logistical aid, as well as financial support, take an indirect part in hostilities," the court continued, suggesting people in that category are protected from assassination.
By way of offering guidelines to military commanders responsible for ordering assassinations, the decision says "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 as overly vague, along with several other aspects of the decision.
"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 representing 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 official killed in July 2002 by an Israeli F-16 strike on his apartment building in Gaza. Shehada, his body guard and 12 bystanders were killed, most of them women and children. He said he will seek a new hearing "on the basis of this ruling, which obliges the court to order a criminal investigation."
