Opinio Juris

Israel's High Court of Justice has issued a ruling finding that Israeli military forces may engage in "targeted killings" of Palestinian terrorists consistent with the customary international law of war. A useful discussion of the background of this case can be found here. An English version of the decision can be found here.

The decision is a long and complicated one. Here is the key graf:

The examination of the "targeted killing" – and in our terms, the preventative strike causing the deaths of terrorists, and at times also of innocent civilians – has shown that the question of the legality of the preventative strike according to customary international law is complex (for an analysis of the Israeli policy, . . .[snip]The result of that examination is not that such strikes are always permissible or that they are always forbidden. The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians "for such time as they take a direct part in hostilities" (§51(3) of The First Protocol). Harming such civilians, even if the result is death, is permitted, on the condition that there is no other means which harms them less, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportional. That proportionality is determined according to a values based test, intended to balance between the military advantage and the civilian damage. As we have seen, we cannot determine that a preventative strike is always legal, just as we cannot determine that it is always illegal. All depends upon the question whether the standards of customary international law regarding international armed conflict allow that preventative strike or not.

One interesting move made by the High Court of Justice: it recognized and incorporated principles from Protocol I to the Geneva Conventions, even though Israel has neither signed Protocol I nor has it enacted any legislation implementing the Protocol. Nonetheless, the High Court recognized that Protocol I is part of customary international law, especially Article 51(3): "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities."

The High Court, as far as I can tell, basically said that this provision does not prohibit all targeted killings of Palestinian terrorists, but that it might prohibit some such killings. It also spilled much ink defending the right of the Israeli Courts to review actions by the Israeli military in these cases.

So even though the decision might seem to give a blank check to more targeted killings, it does seem to keep the courts involved in reviewing the legality of such killings. A very interesting and difficult case and one well worth thinking more about.