Opinio Juris

Ah, this judgment is in many ways what Hamdan v. Rumsfeld should have been.

Firstly, the Court says explicitly what kind of an armed conflict it is talking about - an international armed conflict occuring in the relevant area, which is under Israel's belligerent occupation (paras. 16-21).

Secondly, the Court is also explicit about the source of law it is applying - customary international humanitarian law, coupled, when needed, with international human rights law. It doesn't, like the Supreme Court did in Hamdan, just pluck Common Article 3 out of thin air, without giving any reasoning as to why and how it is applicable (paras. 22 &23).

Thirdly, when it comes to the status of unlawful combatants, the Court has this to say (para. 25)

"Needless to say, unlawful combatants are not beyond the law. They are not "outlaws". God created them as well in his image; their human dignity as well is to be honored; they as well enjoy and are entitled to protection, even if most minimal, by customary international law."

Fourthly, the Court rules that 'unlawful combatants', though they might be a good descriptive category, are legally speaking civilians, falling under the protection of the Fourth Geneva Convention. As the ICRC, and unlike the US government, the Court considers that there is no gap between the Third and the Fourth Conventions.

Fifthly, the Court rules that Article 51(3) of Additional Protocol I is reflective of customary law in entirety, relying on the recent ICRC study on customary law, the jurisprudence of the ICTY, military manuals and scholarly work (para. 30).

Finally, the Court applies the law it identified and holds that targeted killings may be lawful if they are indeed proportionate. Yet, Justice Barak says in para. 61 that:

" The State of Israel is fighting against severe terrorism, which plagues it from the area. The means at Israel's disposal are limited. The State determined that preventative strikes upon terrorists in the area which cause their deaths are a necessary means from the military standpoint. These strikes at times cause harm and even death to innocent civilians. These preventative strikes, with all the military importance they entail, must be made within the framework of the law. The saying "when the cannons roar, the muses are silent" is well known. A similar idea was expressed by Cicero, who said: "during war, the laws are silent" (silent enim legis inter arma). Those sayings are regrettable. They reflect neither the existing law nor the desirable law (see Re. Application Under s.83.28 of the Criminal Code [2004] 2 S.C.R. 248, 260). It is when the cannons roar that we especially need the laws (see HCJ 168/91 Murkus v. The Minister of Defense, 45(1) PD 467, 470, hereinafter Murkus). Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with. There are no "black holes" (see JOHAN STEYN, DEMOCRACY THROUGH LAW: SELECTED SPEECHES AND JUDGMENTS 195 (2004)). In this case, the law was determined by customary international law regarding conflicts of international character. Indeed, the state's struggle against terrorism is not conducted "outside" of the law. It is conducted "inside" the law, with tools that the law places at the disposal of democratic states.

...

Indeed, in the State's fight against international terrorism, it must act according to the rules of international law."


Here, here.

One key aspect of the Court's ruling is what appears to be its use of human rights law to supplement IHL. Its finding that targeted strikes should only be used if arrest is not possible, and that they should be followed by an independent investigation, is not based on IHL but on an importation of human rights principles into a laws of war framework. This could be an extremely important precedent, but in this area the Court's analysis is very cursory and it is not clear what general principle they are basing it on or in what circumstances it would apply. For my more detailed analysis, see my article on the Crimes of War website http://www.crimesofwar.org/onnews/news-highcourt.html.