Window on Palestine & Haaretz – 2008-11-27 23:04:27
(November 27, 2008) — According to a report published in Haaretz on 26 November, the Israeli military has continued its assassination policy in apparent defiance of High Court of Justice guidelines for such operations. [See Haaretz article below.]
Documents at the hands of Haaretz reveal that the Israeli military approved assassinations in the West Bank, including cases where the targets for assassination could have been arrested instead, and that top-ranking military officers authorized the killings in advance, in writing, even if innocent bystanders would be killed as well. Haaretz also discovered that contrary to what the state told the High Court, assassinations were subject to only minimal restrictions prior to the court’s ruling.
In December 2006, the Israeli High Court of Justice ruled that the Israel military policy of targeted killings of Palestinians does not categorically violate international law, but the legality of each targeted killing must be evaluated on an individual basis.
The three-justice panel unanimously ruled that “it cannot be determined in advance that every targeted killing is prohibited according to customary international law.”
The ruling was issued by former Supreme Court President Aharon Barak, along with the current Supreme Court President Dorit Beinisch and Justice Eliezer Rivlin.
In addition, the court ruled that the conflict between Israel and Palestinian organizations has the characteristics of armed international conflict, and therefore is subject to international law.
“In its fight against international terrorism, Israel must act according to the rules of international law,” the court said.”We must balance security needs and human rights. Not every efficient means is also legal. The ends do not justify the means.”
According to the ruling, Palestinian operatives are not legally defined as combatants and therefore must be considered civilians. This was a rejection of the state’s argument that international law recognizes a third category comprising “unlawful combatants.”
Nonetheless, the court ruled that civilians involved in military activities are not afforded the same protections granted to civilians under international law.
“A civilian, in order to enjoy the protections afforded to him by international law during an armed conflict, must refrain from taking a direct part in the hostilities,” the court stated. “A civilian that violates this principle […] is subject to the risks of attack like those to which a combatant is subject, without enjoying the rights of a combatant, e.g. those granted to a prisoner of war.”
In addition, the court established four primary criteria that must be met in order for a targeted killing to be justified.
First, “well based, strong and convincing information” regarding the individual’s activities.
Second, “a civilian taking a direct part in hostilities cannot be attacked if a less harmful means can be employed.”
Third, an independent, thorough investigation must be conducted after the attack to determine “the precision of the identification of the target and the circumstances of the [targeted killing].”
Fourth, every effort must be made to minimize harm to innocent civilians, and “harm to innocent civilians caused during military attacks (collateral damage) must be proportional.”
Policies of assassination of Palestinian activists are also a popular strategy among Israeli public. According to a public opinion poll conducted in January by the Tammy Steinmetz Center at the Tel Aviv University, 81 percent of Israelis support targeted killings of Palestinian.
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IDF Ignoring High Court on West Bank Assassinations
Uri Blau / Haaretz
TEL AVIV (November 26, 2008) — The Israel Defense Forces has assassinated wanted men in apparent defiance of High Court of Justice guidelines for such operations, according to operational briefings obtained by Haaretz.
The documents reveal that the IDF approved assassinations in the West Bank even when it could have been possible to arrest the targets instead, and that top-ranking army officers authorized the killings in advance, in writing, even if innocent bystanders would be killed as well.
Moreover, the assassination of at least one member of a so-called “ticking infrastructure” was postponed due to an impending visit by a senior U.S. official.
Finally, Haaretz discovered that contrary to what the state told the High Court, assassinations were subject to only minimal restrictions prior to the court’s ruling.
One case analyzed in Haaretz’s investigation, whose findings will be published in full in Friday’s magazine, is that of Ziad Malaisha, who was killed on June 20, 2007 in Kafr Dan, near Jenin.
On March 28, 2007, a meeting was called by then-GOC Central Command Yair Naveh to discuss Operation Two Towers. “The mission” said Naveh, “is arrest,” but “in case identification is made of one of the leaders of Palestinian Islamic Jihad – Walid Obeidi, Ziad Malaisha, Adham Yunis – the force has permission to kill them, according to the situation assessment while carrying out the mission.”
On April 12, Naveh convened another meeting on the subject. This time, he approved killing Malaisha and “another two people at most.”
That same day, two other discussions took place on the subject. One was led by Brig. Gen. Sami Turjeman, then head of the Operations Unit, who said that the operation must kill no more than five people in total, including the car’s driver. The second was led by then-head of the Operations Directorate, Tal Russo, who approved carrying out the assassination even if there was one unidentified person in the car.
The next day, Chief of Staff Gabi Ashkenazi convened a few top officers to approve the mission. These included his deputy, the head of the Operations Directorate, the military advocate general and representatives of Central Command and the Shin Bet security service. Minutes of that meeting show that Ashkenazi forbade the assassination if “more than one unidentified passenger” was in the car. Moreover, he said, “in light of the diplomatic meetings anticipated during the course of the week, the date of implementation should be reconsidered.”
Leading jurists who were asked for comment said these documents show that the IDF is violating the High Court’s ruling of December 2006, which held that assassinations are permissible only if the target cannot be arrested instead, and that “harm to innocent civilians will be legal only if it meets the demands of proportionality.”
In a conversation with Haaretz, Naveh confirmed that sometimes no real effort is made to arrest a target. “If the guy doesn’t put his hands up we don’t ask questions, we immediately establish contact,” he said. “I don’t want to have people hurt for no reason. If I know that the guy is armed and is a ticking bomb, then I want him to be hit immediately without fooling around.”
The IDF Spokesman’s Office said in response that Malaisha, a senior Islamic Jihad operative who was planning terror attacks, was an approved target for assassination, but that during the operational planning, “all the ranks involved decided that if there was an opportunity to arrest the subjects, that alternative is preferable.”
However, because the planning also revealed that arrest might be impossible without excess risk to the soldiers involved, “the option of striking the wanted men with the intent to kill was also planned. This part of the operation was planned as a ‘targeted preemption’ in every respect, in accordance with the restrictions and the conditions laid down by the Supreme Court. The planning was accompanied by legal advice, as in the case of other ‘targeted preemption’ operations.”
“The option of arresting the targets was examined, and only when it became apparent that this was impracticable was the decision made to strike them,” the statement continued.
Finally, it said, the timing of all security operations depends on diplomatic as well as security considerations, and sometimes these factors necessitate delay. However, “this does not detract from the operation’s urgency or necessity.”
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