By: Prof. Vera Gowlland Debbas*.
Before addressing the issue of Israel’s policy of extrajudicial or targeted assassinations, it is important to place Palestine in context. Palestine has been recognised by the United Nations as a territory with an international status. This was confirmed by the International Court of Justice in its quasi-unanimous 2004 Advisory Opinion on the Wall which determined that this status, and therefore the law applicable to the Territory, resulted from the following:
1) Palestine is a former Class A Mandate over which Great Britain as the Mandatory Power had a special responsibility. The Mandate could not impair or destroy the rights of the original inhabitants. It was based on the fundamental principles of non-annexation and “sacred trust of civilization” .
2) The right of the Palestinian people to self-determination has been confirmed through a process of collective recognition by the international community expressed through the General Assembly in countless resolutions. This right has several legal consequences, which include: confirmation of the self-determination borders which have been recognized by both the General Assembly and Security Council as corresponding to the territory occupied by Israel since 1967, i.e. the West Bank, including East Jerusalem, and Gaza, the right to use force in self-defence within the limits of International Humanitarian Law, the right to respect for the territorial integrity and unity of the whole Territory under occupation, and the duty of every State “to refrain from any forcible action which deprives peoples . . . of their right to self-determination.”
3) Palestine’s status as Occupied Territory under international law has meant the illegality under international law and UN resolutions of Israel’s occupation of Palestinian territories since l967, including Jerusalem, considered to be contrary to Article 2(4) of the UN Charter and the well-established principle of the inadmissibility of the acquisition of territory by force, the prohibition to alter the character and status of the OPT, and hence the nullity of all legislative and administrative measures taken by Israel which purported to do so, including in Jerusalem, and the applicability of the Fourth Geneva Convention and customary law under the Hague Regulations of 1907. The latter contain norms which have been referred to by the ICJ as “cardinal” or “intransgressible” principles of international law. It also means that international human rights law continues to be applicable in time of armed conflict save through the application of its derogability provisions – again this has been confirmed by the ICJ. Finally, the continuing status of Gaza as occupied territory after the disengagement of Israel in September 2005 has been confirmed.
However, as well documented in the reports of Professor John Dugard, the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Israel, in particular after the events of 11 September 2001, has tried to shift the perspective of the conflict from one of illegal occupation to one which is part of the greater “war on terror.” This has allowed it to view its military actions as having no limitations, with attacks by Palestinians, even if directed against official targets such as IDF soldiers, as terrorism. Professor Dugard wrote in one of his reports:
“In the present international climate it is easy for a State to justify its repressive measures as a response to terrorism – and to expect a sympathetic hearing. But this will not solve the Palestinian problem. Israel must address the occupation and the violation of human rights and international humanitarian law it engenders, and not invoke the justification of terrorism as a distraction, as a pretext for failure to confront the root cause of Palestinian violence – the occupation”.
Furthermore, he drew a distinction between acts of mindless terror, such as acts committed by Al Qaeda, and acts committed in the course of a war of national liberation against colonialism, apartheid or military occupation which, while some acts such as suicide bombings were unjustifiable, constitute a painful but inevitable consequence of such situations. He pointed out that history is replete with examples of military occupation that have been resisted by violence and acts of terror, such as resistance to the German occupation during the Second World War, or the resistance of the South West Africa People’s Organization (SWAPO) against South Africa’s occupation of Namibia; and Jewish groups had resisted British occupation of Palestine, inter alia, by the blowing up of the King David Hotel in 1946 with heavy loss of life, by a group masterminded by Menachem Begin, who later became Prime Minister of Israel.
In keeping with the view it has tried to promote of the Palestinian conflict, Israel has, since 2000 and the second intifida, launched into a deliberate long-term policy of selected assassinations or targeted killings of Palestinian activists which it has openly pursued. The State has argued before the Israeli Supreme Court that such “terrorists” are neither combatants nor civilians, but belong to a third category known as “unlawful combatants”. As such they are legitimate targets for attack as long as the armed conflict continues.
The intifada was not the first time Israel had employed assassinations as a policy instrument, for these go as far back as the assassination in 1948 of the UN Swedish mediator for the United Nations, Count Folke Bernadotte, in Jerusalem by Jewish militants. In the past, they have included, in addition to targets other than Palestinians, such as Egyptian and German, 13 members of the Palestinian group Black September, following on the killings of 11 Israeli athletes at the 1972 Olympics in Munich; senior Palestinian leaders such as Khalil al-Wazir (Abu Jihad), the deputy chairman of the Palestinian Liberation Organization, targeted in Tunisia in 1988; Abas Musawi, the secretary general of Hizbullah, in Lebanon in 1992; Fathi Shkaki, the head of Palestinian Islamic Jihad in Malta in 1995; and the attempted assassination of Khaled Mashaal, a senior Hamas leader in Jordan in 1997.
However, these were rare events. In contrast, since 2000, assassinations have escalated and have resulted in ever more widespread innocent civilian deaths. For example, from 2000-2007, according to the report of the Special Rapporteur , over 500 persons were killed in targeted assassinations. Some were particularly dramatic events, provoking an international public outcry and legal pursuits. In 2002 there was the killing in Gaza of Hamas leader Salah Shehadeh in which a one-ton bomb was dropped on a crowded Gaza apartment building in the middle of the night, killing eight children and seven adults and injuring well over 150 other people – apparently the Government of Israel was “fully aware” that Shehada’s wife and daughter “were close to him during the implementation of the assassination … and there was no way out of conducting the operation despite their presence.” In March 2004, Sheik Yassin, the founder and spiritual leader of Hamas, who was paraplegic, was assassinated along with nine other bystanders; this was followed the following month by the killing in Gaza of Hamas leader Abdel Aziz Rantisi.
“Targeted” assassination is a misnomer giving the impression of a clean surgical strike. But this is refuted by such incidents as the killing in 2006 of 11 Palestinians sitting on a beach in Gaza, of which 7 were members of a single family, survived only by a 12 year old Huda Ghalya, if indeed it was intended as a targeted strike rather than a random shooting.
Such killings of alleged Palestinian terrorists have been carried out by all kinds of means after identifying and locating them: helicopter gunships, fighter aircraft, tanks, car bombs, booby traps, and bullets. One research study on such tactics quotes former Shin Bet head Ami Ayalon: “The annihilation of whole neighborhoods is not a targeted war. Razing dozens of acres of groves is not a targeted war. Killing one terrorist along with half a neighborhood definitely isn’t. Words create behavior patterns and behavior patterns expand the hatred and nourish terrorism. One can’t talk about a ‘targeted thwarting’ when innocent children are killed too.”
Understandably such a policy has raised a huge international outcry and debate over its moral and political justifications, and widely condemned as unlawful under international law. In contrast, the United States has claimed, in conformity with its own policies, that Israel has a right to self- defense that could be used in some circumstances to target leaders of terrorist groups.
I turn therefore to the international law regulation of such policies bearing in mind the distinction between members of the political and military wings of combating organizations.
The following explores the policy of extra-judicial assassinations under three fields of law: the law of self-defence, international humanitarian law (IHL) and international human rights law (IHRL).
II. Extra-Judical or Targeted Assassinations Under the Law of Self-Defence:
By situating their military action in the framework of the “war on terrorism”, States like Israel and the United States, have claimed to re-interpret the rules constraining the freedom of States to use military force in international relations (Article 2(4) and 51 of the UN Charter) as well as the rules regulating an armed conflict under International Humanitarian Law (IHL), and it is primarily the Middle East that has borne the brunt of this.
Such interpretations have sought in particular to widen the permissible rules relating to self-defence. There is a claim today for a broad reading of Article 51 of the Charter based on Security Council Resolutions 1368 (2001) and 1373 (2001) on the prevention and suppression of the financing of terrorist acts which refer ambiguously in their preambles to the inherent right of individual or collective self-defence “in accordance with the Charter”. These resolutions were in direct response to the attacks of September 11.
Israel situated its construction of a wall in the OPT and its military operations against Lebanon in 2006 and Gaza in December/January 2008/9 on the basis of its inherent right of self-defence under Article 51 of the Charter against terrorism in the face of the series of suicide bombings in Israel, of the incursions by Hezbollah into Israel and the firing of rockets into Israel by Hamas militants, respectively. But targeted assassinations have also been justified as preventive self-defence against terrorist acts, as well as in order to meet Israel’s security concerns. This has been called “the policy of targeted frustration” of terrorism. Under this policy, the security forces claim to act in order to kill members of terrorist organizations involved in the planning, launching, or execution of terrorist attacks against Israel. Israel has endorsed the claim that Article 51 can no longer be read narrowly, but must take into account armed attacks by non-State actors.
In the Wall case the Court while seriously considering Israel’s security claims, pointed out that Article 51 recognizes the existence of this right only in the case of an armed attack by one State against another State. Consequently, it concluded that Article 51 has no relevance in this case. Moreover, the Court noted that since Israel exercises control in the Occupied Palestinian Territory, the threat which it regarded as justifying the construction of the wall originated within, and not outside, that territory. While the Court has been criticized for a lack of reasoning, its dismissal of self-defence is nevertheless perfectly logical. In view of the status of the Territory, it has been convincingly argued that the right of self-defence was irrelevant in view, inter alia, of the lex specialis of humanitarian law. Moreover, a State in continuing violation of international law through a prolonged occupation could not then plead a circumstance precluding wrongfulness of its acts.
In addition, as the Court stated in the Wall case with reference to Israel’s additional claim of necessity, “the construction of the wall along the route chosen” was not “the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction”.
Israel’s legitimate security concerns could certainly be met by means other than targeted assassinations, if only by terminating its 42-year-old occupation.
All the Judges without exception recognised that while Israel had the right and even the duty to protect the lives of its citizens, to use the words of the dissenting Judge Buergenthal:
“the means used to defend against terrorism must conform to all applicable rules of international law and that a State which is the victim of terrorism may not defend itself against this scourge by resorting to measures international law prohibits.”
The Court confirmed its stand in the case brought by the Democratic Republic of the Congo against Uganda which, having to justify its incursion into and occupation of parts of the Congo, pleaded self-defence in response to the acts of one of the rebel movements operating on Congolese territory. The Court rejected this plea of self-defence, on the grounds that there was no involvement of the Government of the DRC in the acts of the rebels, thus intimating that there was no right of self-defence against the acts of non-state actors not attributable to the State itself. The Court also noted that even if Uganda’s use of force were in support of its perceived security needs (as also claimed by Uganda), it necessarily still violated the principles of international law.
Moreover, the targeted individuals, such as Sheikh Yassin or innocent bystanders were not killed while in the process of carrying out an armed attack. Thus even while not taking a position on whether Article 51 applies to the acts of non-State actors, it is particularly irrelevant in the case of the assassination of political leaders.
It should be noted that Security Council Resolution 611 (1988), confirming a previous resolution 573 (1985), condemned the Israeli assassination of Khalil El Wazir (Abu Jihad) as an “aggression”. It reads in part:
“Having noted with concern that the aggression perpetrated on 16 April 1988 in the locality of Sidi Bou Said has caused loss of human life, particularly the assassination of Mr. Khalil El Wazir,
Gravely concerned by the act of aggression which constitutes a serious and renewed threat to peace, security and stability in the Mediterranean region,1. Condemns vigorously the aggression perpetrated on 16 April 1988 against the sovereignty and territorial integrity of Tunisia in flagrant violation of the Charter of the United Nations, international law and norms of conduct;
III. Extra-Judical or Targeted Assassinations Under International Humanitarian Law:
A targeted assassination has been defined as “a lethal attack on a person that is not undertaken on the basis that the person concerned is a ‘combatant’, but rather where a state considers a particular individual to pose a serious threat as a result of his or her activities and decides to kill that person, even at a time when the individual is not engaging in hostile activities.”
Again, “the term ‘targeted killing’ denotes the use of lethal force attributable to a subject of international law with the intent, premeditation and deliberation to kill individually selected persons who are not in the physical custody of those targeting them”
But the terminology is very wide-ranging – “extrajudicial executions”, “extrajudicial killings” or “assassinations” – depending on context and use.
In the context of terrorism, the question of extraterritorial targeted assassinations has led to an intense debate in regard to the applicability of International Humanitarian Law to such killings. Civilians under IHL, i.e. non-combatants, are protected persons and their right to life is to be respected. First, there exists a set of rules protecting those who find themselves directly in the power of a Party to the conflict, from murder or extermination (Article 32 of the Fourth Geneva Convention; Article 75 (2) of Additional Protocol I, and Common Article 3 of the Geneva Conventions, a provision which has been said to constitute “fundamental general principles of humanitarian law” applicable in all circumstances ). Second, the right to life is also protected under the Fourth Geneva Convention and Additional Protocol I by the well-known series of “cardinal principles”: in particular, the principle of distinction which prohibits attacks on civilians (and civilian objects), the prohibition of weapons which cause unnecessary suffering, and the principle of proportionality, all aimed at minimizing the loss of life during military operations. A final set of rules relates to the grave breaches provisions which includes, inter alia, wilful killing of protected persons (Articles I47 of the Fourth Geneva Convention and 85 of Additional Protocol I); grave breaches give rise to individual criminal responsibility.
Under IHL the question has revolved around whether suspected “terrorists” are legitimate targets, or as civilians, are protected persons “unless and for such time as they take a direct part in hostilities” (art.51(3) of Additional Protocol I) (Article 3 common the four 1949 Geneva Conventions refers to “persons taking active part in the hostilities….