Case Number

HCJ 769/02

Date Decided

12-14-2006

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: In the armed conflict between the State of Israel and the terrorist organizations operating in the territories of Judaea, Samaria and the Gaza Strip the government of the State of Israel decided to adopt a policy of ‘targeted killings’ against terrorists. The petitioners asked the court to declare that this policy was illegal under international law and to order the respondents to desist from using the policy.

Held: Customary international law distinguishes between ‘combatants’ and ‘civilians.’ There is insufficient information for saying that a third category of ‘unlawful combatants’ has been recognized at this time by customary international law. Since terrorists do not satisfy the requirements of the definition of ‘combatants’ in international law, because inter alia they do not observe the laws and customs of war, they must be classified as civilians. Under article 51 of the First Additional Protocol to the 1977 Geneva Conventions, civilians may not in principle be targeted by armed forces. However, art. 51(3) of the First Protocol states that ‘Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.’ Therefore terrorists may be targeted by armed forces if ‘they take a direct part in hostilities.’ The targeting of terrorists by armed forces must satisfy the requirements of art. 51(3); the terrorists must ‘take a direct part in hostilities’ and the targeting of terrorists may be carried out ‘for such time’ as they do so. The principle of proportionality in carrying out these attacks should also be observed.

It cannot therefore be said that ‘targeted killings’ are prohibited by customary international law in every case, just as it cannot be said that they are permitted by customary international law in every case. Each case should be examined prospectively by the military authorities and retrospectively in an independent investigation, and the findings should be based on the merits of the specific case. These findings will be subject to the scrutiny of the court.

Keywords

International Law -- Laws of war, International Law -- Occupied territories, International Law -- Treaties

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