العربية
HE
العربية
HE
In December 2000, somewhere in the Tulkarm area, Israeli security forces shot and killed the petitioner’s husband. She wrote to the attorney general, asking him to order a criminal investigation of the incident and those responsible for it, but she was denied. The authorities said her late husband headed the Tanzeem organization in Tulkarm, commanded and armed a terrorist cell, which shot at Israeli civilians and soldiers. It had wounded three soldiers.
In her petition to the High Court of Justice (HCJ), the petitioner repeated the demand for a criminal investigation. She argued that her husband had been fatally shot based on suspicions only, without being given a chance to prove his innocence. She argued there had been ample opportunities to take him into custody, for instance, on his way to various destinations and as he was passing through military checkpoints. The petitioner also argued that preferring an operation designed to kill her husband over arresting him and bringing him to justice contravened international law.
The state’s counter argument emphasized the “escalation” in the West Bank and Gaza Strip since September 2000. It argued the laws of war permit targeting a person who is positively identified as engaging in terrorism, that “targeted killing” operations are undertaken in rare case, for the sake of saving lives and when no other alternative is available. It argued that the operation met the standards determined by the High Court and that, in the absence of a suspected criminal offense, no criminal investigation was warranted.
The petition was dismissed in 2011. After quoting, at length, the rules set for “targeted killings” during hostilities in a High Court judgment from 2006 (hereinafter: the 2006 judgment),[1] the court clarified that the guidelines stipulated in that case did not apply directly to the operation which was the focus of the petition, as it was carried out in 2000, and the military was not bound by those guidelines at the time. The court added that “the Petitioner’s matter could have been referred for examination by the special committee”, cited in the 2006 judgment as a mechanism for retroactive review of “targeted killing” operations, though it refused to issue an operative order on this issue.[2]
It is difficult to extract a clear rule from this judgment. Other than repeating parties’ arguments and the rules stipulated in the 2006 judgment, the court stops short of taking a position on the matters requiring resolution. It does not determine what law applies to the lethal attack on the petitioner’s husband, whether the “targeted killing” complied with this law, whether the state has any special duties with regards to “targeted killing” operations, or whether such could arise from an alleged breach of the applicable law. The judgment seems to imply that there is no legal obligation to investigate the incident, despite the petitioner’s claims.
Is it really clearly unnecessary to perform any kind of investigation?
The premise underlying the judgment is that the operation is governed by the laws of armed conflict, but this assertion is not free of doubt. To determine that this is, in fact, the case, the situation in Tulkarm at the time must first be ascertained, and the question whether the laws of war could be applied to the early stages of the second intifada, which began with a string of clashes during popular protests, must be clarified.[3] If these laws did not apply, then the action is subject to law enforcement standards under the laws of occupation and human rights law, which apply in an occupied territory concomitantly.[4] The rules of engagement within this normative framework are tougher than under the laws of war. They stipulate that even when a certain person poses true mortal danger, less injurious means to defuse this danger must be used, including capture and arrest, inasmuch as these are feasible. Further, use of force must strictly be kept to whatever is necessary to defuse the danger (causing injury is preferable to causing death).[5]
Suppose, for the sake of argument, that at the time, about three months after the second intifada broke out, the laws of armed conflict did apply.[6] According to these laws, anyone who takes part in the hostilities is a legitimate target for attack, and is subject to direct attacks even when they do not pose immediate danger to the attackers. The same holds true for soldiers serving in an organized military. It also holds true for members of armed groups – non-state actors – who take a direct part in the hostilities between a country and that armed group. They are stripped of the protection from direct attack reserved for civilians, and may be harmed for “such time as they take a direct part in hostilities”.[7]
And so, some important issues arise with respect to the application of the laws of war: what constitutes taking a direct part in hostilities which turns the civilian into a legitimate target? For how long are attacks on same permitted? Is arrest required prior to a lethal assault? These are exactly the issues the petitioner raised in her petition, and they all required examination and elucidation.
With respect to taking part in hostilities, in the 2006 judgment, the court clarified that not all instances of participation in hostilities result in loss of civilian protection, but that such participation must be direct. It was also held that using weapons as part of the conflict, carrying weapons for the purpose of perpetrating an attack even without actually using them, any preparations integral to attacks such as selecting and marking targets, gathering intelligence, issuing orders, dispatching and transporting combatants for the purpose of carrying out an attack – are all acts that constitute direct participation in hostilities.[8] On the other hand, general logistical support for combatants, including fund raising, dissemination of propaganda, the production, storage and transport of munitions outside the context of a specific operation are not considered direct participation and do not result in loss of protection from attack reserved for civilians.[9] Since the issue is controversial and there are border line cases that are difficult to determine, it is little wonder that the High Court, in its judgment from 2006, noted that “Information which has been most thoroughly verified is needed regarding the identity and activity of the civilian who is allegedly taking part in the hostilities” and that “there is no choice but to proceed from case to case”. It should be noted that according to international law, where there is doubt whether a person participated in the fighting, said person will be considered a civilian entitled to protection.[10]
In terms of the time dimension, or how long a civilian who takes part in hostilities may be targeted, it certainly covers the execution of the attack, as well as preparing for the attack and dispatching to and returning from the site of the attack, inasmuch as these are materially and temporally close to the attack.[11] For example, a distinction is drawn between the point at which a civilian transports bombs to an airport, for the purpose of their future delivery to the battlefield, and the point at which a civilian removes bombs from a cache in order to load them onto launch pads. In addition, it is accepted that civilians who take part in hostilities on a regular, ongoing basis (for instance members of an organized armed group for whom fighting is a “profession”) lose civilian protections and may be targeted at any time, so long as they have not ceased these activities and distanced themselves from the armed group. On the other hand, a civilian who takes part in hostilities only once, or sporadically, regains protection once the hostile act is completed, and cannot be attacked for past hostile acts.[12]
In addition to these distinctions, which may be difficult to implement, the convention today is that human rights law, first and foremost the right to life, arbitrary violation of which is prohibited, continues to apply during hostilities.[13] However, there is debate among countries and international law experts over whether and to what extent the circumstances surrounding a “targeted killing” should be examined in view of human rights law as well as the laws of war, when the latter apply. In the 2006 judgment, the court ruled that when feasible during an armed conflict, non-lethal measures should be taken against a “civilian taking a direct part in hostilities […] at such time as he is doing so” even though he or she are a legitimate target for attack. The court qualified this finding by adding that arrest is sometimes not feasible due to the danger facing the attacking force or innocent bystanders who might be harmed.[14] These circumstances usually occur when the attacking force does not exercise effective control over the area in question, or when intense fighting is taking place.
Many questions arise in the context of the case discussed herein, and it is important to remember that the petitioner has an inferior position in terms of evidence. She does not know what intelligence information the security forces had on her husband or what classified information has been presented to the attorney general.
It is obviously necessary to find out what law applies to the attack on the petitioner’s husband. If the operation is governed by the laws of war – did the deceased’s actions amount to taking “a direct part in hostilities” such that he is stripped of civilian protection? How current and reliable was the information about the deceased and his hostile actions? What is the meaning of the fact that he was targeted while riding in a car, an act that, on the face of it, does not constitute participation in hostilities? Was he on route to commit an attack on Israeli soldiers or civilians? Was he only taking a temporary respite from ongoing engagement in hostilities? Should an attempt have been made to arrest him? Should he have been given the opportunity to surrender and turn himself in? What danger did he pose? Was it immediate danger to human life? Were other practicable measures for defusing said danger available, given the situation on the ground and the risk to soldiers and innocent bystanders?
Is the state exempt from performing this review? The 2006 judgment expressly stipulates that: “after an attack on a civilian suspected of taking an active part, at such time, in hostilities, a thorough investigation regarding the precision of the identification of the target and the circumstances of the attack upon him is to be performed (retroactively)”. However, the court views this directive as applying henceforward, that is from 2006 on. The court also refrained from transferring to matter for review by the “special committee” on the grounds the petitioner had not made such a request.
This formalistic reasoning cannot be accepted. First, the petitioner asked for a criminal investigation. If the investigation is ultimately carried out by some other mechanism, or by an agency other the police, it does not mean that she had waived the substantive demand to investigate the incident. Second, despite the finding that the directives of the 2006 judgment are prospective, the High Court did agree to transfer one “targeted killing” to the investigation of an independent committee given the “exceptionally grave consequences of the operation”, even though it took place before the 2006 judgment was handed down.[15] In the case at hand too, the High Court does hint that a retroactive examination is in fact required by saying: “if and inasmuch as they [the questions raised by the petitioner] can be clarified, should have been clarified by the professional forum which was to have been established for this purpose”.
On the substantive level, it may be that the laws of war in fact did not apply at the relevant time, and the law applicable in the case is the laws of occupation together with human rights law. If this is the case, the state has an obligation to investigate each and every case in which fire at the hands of the security forces results in fatalities. This is required given the victim’s right to life and bodily integrity, as well as to receive “effective remedy” where the right has been violated.[16] The state need not wait for a formal complaint (and such a complaint was, in fact, filed in this case). It has a positive duty to initiate an investigation of the incident.[17] Even if violence that might amount to hostilities was taking place in the area, and inasmuch as it was feasible (if fighting in the Tulkarm area was low intensity at the time), then, it is possible that, given the duration of the occupation and Israel’s effective control of the West Bank, Israel should have used law enforcement measures against the petitioner’s husband, rather than measures available under the laws of war. If this is so, the standard for investigation is that mandated by human rights law.
Finally, even if the laws of war clearly apply to the incident, they require the attacking force to take all possible precautions to ensure the target is, in fact, a military target, or, not a protected civilian.[18] The arguments put forward by the petitioner raise concerns that her husband was unlawfully targeted, based on erroneous and/or dated information. Reasonable doubt regarding her late husband’s participation in hostilities requires an examination of the information the people responsible for the operation had at the time, as well as whether this information could substantiate the determination that the man was a legitimate target, or whether more information could and should have been obtained. While such alleged negligence in taking precautions does not amount to a “war crime”, it could lead to disciplinary, administrative or civil action.[19] An investigation, even if not a criminal one, is required in order to examine the arguments and gather evidence, should such action be taken. If such an investigation uncovers evidence of that a civilian who was not taking part in hostilities was deliberately targeted, a criminal investigation must be opened.[20]
The duty to launch an investigation, whether under human rights law or the laws of war, was not introduced in the 2006 judgment. It originates in international law. Even if no formal criminal investigation is required, the questions surrounding the incident do require examination. This is not a recommendation or a discretionary matter, but a legal duty. This case offered the High Court a chance to clarify some complex issues of principle regarding the duty to investigate in situations where the laws of war and human rights law may apply concomitantly. Instead, the HCJ opted for technical reasoning and a repetition of previous case law, without substantively applying it to the case before it. Had the 2000 incident been referred to the “special committee”, a body external to the military, it would have been an opportunity for a thorough, independent review, even if considerably late.
Adv. Alon Margalit
The author is lawyer, formerly on staff at HaMoked: Center for the Defence of the Individual. He is currently a PhD candidate at the Institute of Advanced Legal Studies, University of London.
