Public Committee v. Government of Israel

This case summary is being revised and will be updated soon

Court	Supreme Court of Israel, Israel
Case number	HCJ 769/02
Decision title	Judgment
Decision date	13 December 2006
Parties	The Public Committee Against Torture in Israel Palestinian Society for the Protection of Human Rights and the Environment The Government of Israel The Prime Minister of Israel The Minister of Defense The Israel Defense Forces The Chief of the General Staff of the Israel Defense Forces Shurat HaDin – Israel Law Center and 24 others
Other names	Targeted Killings case
Categories	War crimes
Keywords	law of armed conflict, war crimes, Palestinian-Israeli conflict, targeted killing
Links	Judgment

Summary

In 2002, two human rights organisations filed a petition against Israel’s policy to eliminate alleged terrorists by targeted killings. Four years later, the Supreme Court provided a judgment. It acknowledged that Israel is engaged in an armed conflict with terrorist organisations and that therefore, the laws of war should apply. Terrorists, the Court reasoned, are neither combatants nor civilians in the legal sense. The Supreme Court therefore qualified the alleged terrorists as ‘non-legal combatants’. This does not mean, however, that killing these non-legal combatants is always legal. Nor is this always illegal. The Court establishes a framework with four conditions which have to be applied on a case-to-case basis to determine the (il)legality of a targeted killing. The Court reasoned that a targeted killing is only legal if the decision to kill is 1) based on reliable evidence, 2) if there are no other choices to alleviate the danger to Israel’s national security, 3) if the attack is followed by a thorough investigation and 4) if harm to innocent bystanders is limited to the absolute minimum.

Procedural history

In January 2002, the Public Committee Against Torture in Israel and the Palestinian Society for the Protection of Human Rights and Environment filed a petition against the policy of targeted killing by the State of Israel. They argued that this policy contravened, among others, Israeli law, the laws of war and human rights law. Israel argued that members of terrorist organizations which target Israel are unlawful combatants in a conflict and therefore legitimate targets.

Legally relevant facts

Under the ‘policy of targeted frustration of terrorism’, Israeli security forces act in order to kill those considered members of terrorist organisations. During the second intifada, which started in February 2000, targeted killings have been performed across the West Bank and the Gaza Strip. The policy of targeted killing was the focus of a petition filed by the Public Committee Against Torture in Israel and the Palestinian Society of Human Rights and the Environment. According to their data, close to three hundred individuals - considered by Israel to be members of terrorist organisations - have been killed until the end of 2005. Of the targets and victims, many were allegedly (regular) civilians: “[a]pproximately one hundred and fifty civilians who were proximate to the location of the targeted persons have been killed during those acts. Hundreds of others have been wounded” (para. 1-2).

Core legal questions

The core legal question in this case was whether Israel, by engaging in a policy of targeted killing, thereby also killing civilians, acts in violation of international law, Israeli law and basic principles of human morality (p. 1; para. 2).

Specific legal rules and provisions

Paragraph 1 of the Hague Regulations Concerning the Laws and Customs of War on Land.
Article 13 of the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
Article 13 of the Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
Articles 4 and 13 of the Third Geneva Convention relative to the Treatment of Prisoners of War.
Common Article 3 of the Geneva Conventions
Article 51(3) of Additional Protocol 1 (AP I).

Court's holding and analysis

The Court held that since an armed conflict is existing between Israel and alleged terrorist organisations, international humanitarian law applies, thereby overruling the regular legal regime of human rights law and domestic, Israeli law (para. 18).

Hereafter the Court assessed the status of alleged terrorists under humanitarian law (para. 23). It established that they are not combatants, as they do not belong to armed forces or other units to which international law grants status similar to that of combatants (para. 24). Neither did the Court consider them as civilians enjoying protection of their lives, liberty and property under international humanitarian law, because they take part in hostilities and are therefore ‘unlawful combatants’, who forfeit the right to protection a regular civilian would enjoy (para. 26; 29-40). The Court considered that it could not determine the overall legality of targeted killings (para. 60). It held that on a case-to-case basis, four criteria had to be applied in order to assess the legality of targeted killing:

the decision to kill has to be based on reliable evidence;
the measure of targeted killing has to be proportionate;
the attack must be followed by a thorough investigation;
and collateral damage (meaning the harming of innocent bystanders) must be proportionate (para. 40).

Further analysis

Lesh, Moodrick-Even Khen and Eichensehr provided a notes on this judgment. More general analyses on the legality/illegality of targeted killings are provided, e.g., by Melzer, Vogel, Blank, Kramer and Downes.