After nearly five years of deliberating one of Israel’s most controversial military tactics, the country’s top court has opted for a tacit endorsement. In its long-awaited ruling on “targeted killings” of senior Palestinian terrorists, Israel’s High Court of Justice on Thursday rejected civil-rights groups’ demands for a blanket ban, but urged security forces to be discriminating.
“In its fight against international terrorism, Israel must act according to the rules of international law. These rules are based on balancing,” wrote the three-justice panel headed by outgoing High Court President Aharon Barak. “Thus it is decided that 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 according to customary international law.”
Using precision air strikes or special forces on the ground, Israel began tracking and killing terrorist leaders soon after the Palestinians launched the intifada in late 2000. Between 300 and 400 terrorists have died in missions that when mounted in urban areas have incurred civilian casualties as well.
Israel says the practice has reduced terrorism by removing the leaders of terrorist groups and putting the groups on the defensive, forcing their members to hide rather than plot attacks.
The Palestinian Authority and many foreign nations have accused Israel of a policy of state-sponsored assassinations. But Israel says it is preventing imminent deadly attacks and that the alternative — arrest raids — is nearly impossible to carry out in P.A. areas.
The Palestinian Authority, meanwhile, has disregarded its commitments to stop terrorists and dismantle terrorist groups, even helping groups carry out attacks during the intifada.
The High Court ruling was welcomed by Israel’s Justice Ministry, which has been trying to help former military and intelligence commanders ward off private war-crimes suits lodged against them by pro-Palestinian lobbies in foreign courts.
“Justice Barak is very well-regarded abroad,” Deputy State Attorney Shai Nitzan told Army Radio. “This ruling offers enormous protection.”
The Palestinian Authority decried the High Court decision, as did P.A. advocates in Israel.
“Assassination is a form of crime that cannot be justified,” said Saeb Erekat, an adviser to P.A. President Mahmoud Abbas.
Ahmed Tibi, an Israeli Arab lawmaker close to top P.A. officials, called the High Court ruling “the latest in a hawkish line on the land seizures, deportations, assassinations and other evils of the occupation.”
While the High Court has backed some controversial Israeli security practices in the past, it has curbed others — for example, the use of physical coercion in interrogations by the Shin Bet security service. It also has forced the Israeli government to reroute the West Bank security fence to minimize the hardship to Palestinians.
Michael Sfard, an Israeli attorney who represented the petitioners, said the High Court risked giving the military a “green light” for too-sweeping use of extra-judicial killings.
“No one has a problem with the military targeting those who are about to carry out attacks themselves,” Sfard said. “But what about all the other cases?”
He apparently was referring to Palestinian terrorists killed while not actively involved in violence, or of Palestinian political leaders who were involved in terrorism as well.
The state rejected the petitioners’ arguments as unrealistically limiting.
“This interpretation allows those who take an active part in hostilities to ‘change their hat’ at will, between the hat of a combatant and the hat of a civilian. That result is unacceptable,” the High Court quoted state representatives as saying.
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