HCJ 769/02
1. The Public Committee against Torture in Israel
2. Palestinian Society for the Protection of Human Rights and the Environment
v.
1. The Government of Israel
2. The Prime Minister of Israel
3. The Minister of Defense
4. The Israel Defense Forces
5. The Chief of the General Staff of the Israel Defense Forces
6. Shurat HaDin – Israel Law Center and 24 others
The Supreme Court Sitting as the High Court of Justice
[December 11 2005]
Before President (Emeritus) A. Barak, President D. Beinisch,
and Vice President E. Rivlin
Petition for an Order Nisi and an Interlocutory Order
For Petitioners: Avigdor Feldman, Michael Sfarad
For Respondents no. 1-5: Shai Nitzan
For Respondents no. 6: Nitsana Darshan-Leitner, Sharon Lubrani
JUDGMENT
President (Emeritus) A. Barak:
The Government of Israel employs a policy of preventative strikes which cause the death of terrorists in Judea, Samaria, or the Gaza Strip. It fatally strikes these terrorists, who plan, launch, or commit terrorist attacks in Israel and in the area of Judea, Samaria, and the Gaza Strip, against both civilians and soldiers. These strikes at times also harm innocent civilians. Does the State thus act illegally? That is the question posed before us.
1. Factual Background
In February 2000, the second intifada began. A massive assault of terrorism was directed against the State of Israel, and against Israelis, merely because they are Israelis. This assault of terrorism differentiates neither between combatants and civilians, nor between women, men, and children. The terrorist attacks take place both in the territory of Judea, Samaria, and the Gaza Strip, and within the borders of the State of Israel. They are directed against civilian centers, shopping centers and markets, coffee houses and restaurants. Over the last five years, thousands of acts of terrorism have been committed against Israel. In the attacks, more than one thousand Israeli citizens have been killed. Thousands of Israeli citizens have been wounded. Thousands of Palestinians have been killed and wounded during this period as well.
2. In its war against terrorism, the State of Israel employs various means. As part of the security activity intended to confront the terrorist attacks, the State employs what it calls "the policy of targeted frustration" of terrorism. Under this policy, the security forces act in order to kill members of terrorist organizations involved in the planning, launching, or execution of terrorist attacks against Israel. During the second intifada, such preventative strikes have been performed across Judea, Samaria, and the Gaza Strip. According to the data relayed by petitioners, since the commencement of these acts, and up until the end of 2005, close to three hundred members of terrorist organizations have been killed by them. More than thirty targeted killing attempts have failed. Approximately one hundred and fifty civilians who were proximate to the location of the targeted persons have been killed during those acts. Hundreds of others have been wounded. The policy of targeted killings is the focus of this petition.
2. The Petitioners' Arguments
3. Petitioners' position is that the targeted killings policy is totally illegal, and contradictory to international law, Israeli law, and basic principles of human morality. It violates the human rights recognized in Israeli and international law, both the rights of those targeted, and the rights of innocent passersby caught in the targeted killing zone.
4. Petitioners' position is that the legal system applicable to the armed conflict between Israel and the terrorist organizations is not the laws of war, rather the legal system dealing with law enforcement in occupied territory. Changes were made in petitioners' stance during the hearing of the petition, some as a result of changes in respondents' position. At first it was claimed that the laws of war deal primarily with international conflicts, whereas the armed conflict between Israel and the Palestinians does not fit the definition of an international conflict. Thus, the laws which apply to this conflict are not the laws of war, rather the laws of policing and law enforcement. In the summary of their arguments (of September 9 2004), petitioners conceded that the conflict under discussion is an international conflict, however they claim that within its framework, military acts to which the laws of war apply are not allowed. That is since Israel's right to self defensive military action, pursuant to article 51 of the Charter of the United Nations of 1945, does not apply to the conflict under discussion. The right to self defense is granted to a state in response to an armed attack by another state. The territories of the area of Judea, Samaria, and Gaza are under belligerent occupation by the State of Israel, and thus article 51 does not apply to the issue. Since the State cannot claim self defense against its own population, nor can it claim self defense against persons under the occupation of its army. Against a civilian population under occupation there is no right to self defense; there is only the right to enforce the law in accordance with the laws of belligerent occupation. In any case, the laws applicable to the issue at hand are the laws of policing and law enforcement within the framework of the law of belligerent occupation, and not the laws of war. Within that framework, suspects are not to be killed without due process, or without arrest or trial. The targeted killings violate the basic right to life, and no defense or justification is to be found for that violation. The prohibition of arbitrary killing which is not necessary for self defense is entrenched in the customary norms of international law. Such a prohibition stems also from the duties of the force controlling occupied territory toward the members of the occupied population, who are protected persons according to IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention), as well as the two additional protocols to the conventions signed in 1977. All of this law reflects the norms of customary international law, which obligate Israel. According to petitioners' argument, the practice employed by states fighting terrorism unequivocally indicates international custom, according to which members of terrorist organizations are treated as criminals, and the penal law, supplemented at times with special additional emergency powers, is the law which controls the ways of the struggle against terrorism is conducted. Petitioners note, as examples on this point, Britain's struggle against the Irish underground, Spain's struggle against the Basque underground, Germany's struggle against terrorist organizations, Italy's struggle against the Red Brigades, and Turkey's struggle against the Kurdish underground.
5. Alternatively, petitioners claim that the targeted killings policy violates the rules of international law even if the laws applicable to the armed conflict between Israel and the Palestinians are the laws of war. These laws recognize only two statuses of people: combatants and civilians. Combatants are legitimate targets, but they also enjoy the rights granted in international law to combatants, including immunity from trial and the right to the status of prisoner of war. Civilians enjoy the protections and rights granted in international law to civilians during war. Inter alia, they are not a legitimate target for attack. The status of civilians, and their protection, are anchored in Common Article 3 of the Geneva Conventions. That is the basic principle of customary international law. Petitioners' stance is that this division between combatants and civilians is an exhaustive division. There is no intermediate status, and there is no third category of "unlawful combatants". Any person who is not a combatant, and any person about whom there is doubt, automatically has the status of civilian, and is entitled to the rights and protections granted to civilians at the time of war. Nor is a civilian participating in combat activities an "unlawful combatant"; he is a civilian criminal, and in any case he retains his status as a civilian. Petitioners thus reject the State's position that the members of terrorist organizations are unlawful combatants. Petitioners note that the State itself refuses to grant those members the rights and protections granted in international law to combatants, such as the right to the status as prisoners of war. The result is that the State wishes to treat them according to the worst of the two worlds: as combatants, regarding the justification for killing them, and as civilians, regarding the need to arrest them and try them. That result is unacceptable. Even if they participate in combat activity, members of terrorist organizations are not thus removed from the application of the rules of international law. Therefore, according to petitioners' position, terrorist organization members should be seen as having the status of civilians.
6. Petitioners note that a civilian participating in combat might lose part of the protections granted to civilians at a time of combat; but that is so only when such a person takes a direct part in combat, and only for such time as that direct participation continues. Those conditions are determined in article 51(3) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (hereinafter – The First Protocol). According to petitioners' position, the provisions of that article reflect a customary rule of international law. Those provisions have been adopted in international caselaw, and they are referred to in additional international documents, as well as in the military manuals of most western states. In order to preserve the clear differentiation between combatants and civilians, a narrow and strict interpretation has been given to those provisions. According to that interpretation, a civilian loses his immunity from attack only during such time that he is taking a direct and active part in hostilities, and only for such time that said direct participation continues. Thus, for example, from the time that the civilian returns to his house, and even if he intends to participate again later in hostilities, he is not a legitimate target for attack, although he can be arrested and tried for his participation in the combat. Petitioners claim that the targeted killings policy, as carried out in practice, and as respondents testify expressly, strays beyond those narrow boundaries. It harms civilians at times when they are not taking a direct part in combat or hostilities. The targeted killings are carried out under circumstances in which the conditions of immediacy and necessity – without which it is forbidden to harm civilians - are not fulfilled. Thus, it is an illegal policy which constitutes forbidden attack of civilian targets.
7. Petitioners attached the expert opinion of Professor Cassese, expert in international law, who served as the first president of the International Criminal Tribunal for the former Yugoslavia. In his opinion, Professor Cassese discusses the principled differentiation in international law between civilians and combatants, which is entrenched, inter alia, in the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, annex to Convention (IV) respecting the Laws and Customs of War on Land. Those who do not fall into the category of combatants are, by definition, civilians. There is no third category of "unlawful combatants". Thus, those who participate in various combat activities without fitting the definition of combatant, are of civilian status, and are entitled to the protections granted them in the laws of war. A civilian who participates in combat activities loses those protections, and might be a legitimate target for attack. However, that is the case only if he is taking a direct part in the hostilities, and only if the attack against him is carried out during such time of said participation. That rule is determined in article 51(3) of The First Protocol, but it reflects a rule of customary international law. Professor Cassese's position is that the terms "direct part" and "such time" are to be interpreted strictly and narrowly. A civilian participating in hostilities loses the protections granted to civilians only for such time that he is actually taking a direct part in the combat activities, such as when he shoots or positions a bomb. A civilian preparing to commit hostilities might be considered a person who is taking a direct part in hostilities, if he is openly bearing arms. When he lays down his weapon, or when he is not committing hostilities, he ceases to be a legitimate target for attack. Thus, a person who merely aids the planning of hostilities, or who sends others to commit hostilities, is not a legitimate target for attack. Such indirect aid to hostilities might expose the civilian to arrest and trial, but it cannot turn him into a legitimate target for attack.
8. Petitioners' stance is that the targeted killings policy, as employed in practice, violates the proportionality requirements which are part of Israeli law and customary international law. The principle of proportionality is a central principle of the laws of war. It forbids striking even legitimate targets, if the attack is likely to lead to injury of innocent persons which is excessive, considering the military benefit stemming from the act. This principle is entrenched in article 51(5)(B) of The First Protocol, which constitutes a customary rule. The targeted killing policy does not fulfill that requirement. Its implementers are aware that it may, at times nearly certainly, lead to the death and injury of innocent persons. And, indeed, that result occurs time after time. Due to the methods used in implementing that policy, many of the targeted killing attempts end up killing and wounding innocent civilians. Thus, for example, on July 22 2002 a 1000 kg bomb was dropped on the house of wanted terrorist Salah Shehade, in a densely populated civilian neighborhood in the city of Gaza. The bomb and its shock waves caused the death of the wanted terrorist, his wife, his family, and the deaths of twelve neighbors. Scores were wounded. This case, like other cases, demonstrates the damage caused by the targeted killings policy, which does not discriminate between terrorists and innocent persons. Thus, petitioners' stance is that the targeted killings policy does not withstand the proportionality requirement stricto senso. Moreover, petitioners argue that the policy does not withstand the second proportionality test, regarding the least harmful means. Petitioners argue that respondents use the means of targeted killings often, including on occasions when there are other means for apprehending those suspected of terrorist activity. Petitioners point out that the security forces made hundreds of arrests in "area A"* in Judea, Samaria, and the Gaza Strip during the second intifada. Those figures show that the security forces have the operational ability to arrest suspects even in "area A", and to bring them to detention and interrogation centers. In those circumstances, targeted killing is not to be done. Last, petitioners claim that the targeted killings policy is not immune from severe mistakes. The targeted persons are not granted an opportunity to prove their innocence. The entire targeted killings policy operates in a secret world in which the public eye does not see the dossier of evidence on the basis of which the targets are determined. There is no judicial review: not before, nor after the targeted killing. In at least one case, it is suspected that there was a mistake in identity, and a person with a name similar to the wanted terrorist, who lived in the same village, was killed.
3. The Respondents' Response
9. In their preliminary response to the petition, respondents pointed out that an essentially identical petition, with essentially identical arguments, had been heard and rejected by the Supreme Court (HCJ 5872/01, judgment of January 29 2002). In that judgment it was determined that "the choice of means of war employed by respondents in order to prevent murderous terrorist attacks before they happen, is not among the subjects in which this Court will see fit to intervene." Respondents' position is that this approach is appropriate. This petition, like its predecessor, is intended to lead this Court into the heart of the combat zone, into a discussion of issues which are operational par excellence, which are not justiciable. For those reasons, the petition should be rejected in limine. However, respondents did not repeat that argument in the later briefs they submitted.
10. On the merits, respondents point out the security background which led to the targeted killings policy. Since late September 2000, acts of combat and terrorism are being committed against Israel. As a result of those acts, more than one thousand Israeli citizens have been killed during the period from 2000-2005. Thousands more have been wounded. The security forces take various steps in order to confront these acts of combat and terrorism. In light of the armed conflict, the laws applicable to these acts are the laws of war, or the laws of armed conflict, which are part of international law. Respondents' stance is that the argument that Israel is permitted to defend herself against terrorism only via means of law enforcement is to be rejected. It is no longer controversial that a state is permitted to respond with military force to a terrorist attack against it. That is pursuant to the right to self defense determined in article 51 of the Charter of the United Nations, which permits a state to defend itself against an "armed attack". Even if there is disagreement among experts regarding the question what constitutes an "armed attack", there can be no doubt that the assault of terrorism against Israel fits the definition of an armed attack. Thus, Israel is permitted to use military force against the terrorist organizations. Respondents point out that additional states have ceased to view terrorist activity as mere criminal offenses, and have begun to use military means and means of war to confront terrorist activities directed against them. That is especially the case when dealing with wide scale acts of terrorism which continue for a long period of time. Respondents' stance is that the question whether the laws of belligerent occupation apply to all of the territory in the area is not relevant to the issue at hand, as the question whether the targeted killings policy is legal will be decided according to the laws of war, which apply both to occupied territory and to territory which is not occupied, as long as armed conflict is taking place on it.
11. Respondents' position is that the laws of war apply not only to war in the classic sense, but also to other armed conflicts. International law does not include an unequivocal definition of the concept of "armed conflict". However, there is no longer any doubt that an armed conflict can exist between a state and groups and organizations which are not states. That is due, inter alia, to the military ability and means which such organizations have, as well as their willingness to use them. The current conflict between Israel and the terrorist organizations is an armed conflict, in the framework of which Israel is permitted to use military means. The Supreme Court also made that determination in a series of cases. Regarding the classification of the conflict, respondents originally argued that it is an international armed conflict, to which the usual laws of war apply. In their summary response (of January 26 2004), respondents claim that the question of the classification of the conflict between Israel and the Palestinians is a complicated question, with characteristics that point in different directions. In any case, there is no need to decide that question in order to decide the petition. That is because according to all of the classifications, the laws of armed conflict will apply to the acts of the State. These laws allow striking at persons who are party to the armed conflict and take an active part in it, whether it is an international or non-international armed conflict, and even if it belongs to a new category of armed conflict which has been developing over the last decade in international law – a category of armed conflicts between states and terrorist organizations. According to each of these categories, a person who is party to the armed conflict and takes an active part in it is a combatant, and it is permissible to strike at him. Respondents' position is that the members of terrorist organizations are party to the armed conflict between Israel and the terrorist organizations, and they take an active part in the fighting. Thus, they are legal targets for attack for as long as the armed conflict continues. However, they are not entitled to the rights of combatants according to the Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949 (hereinafter The Third Geneva Convention) and The Hague Regulations, since they do not differentiate themselves from the civilian population, and since they do not obey the laws of war. In light of that complex reality, respondents' position is that a third category of persons – the category of unlawful combatants – should be recognized. Persons in that category are combatants, and thus they constitute legitimate targets for attack. However, they are not entitled to all the rights granted to legal combatants, as they themselves do not fulfill the requirements of the laws of war. Respondents' stance is that members of terrorist organizations in the boundaries of the area fall into the category of "unlawful combatants". The status of terrorists actively participating in the armed conflict is not that of civilians. They are party to the armed conflict, and thus they can be attacked. They do not obey the laws of war, and thus they do not benefit from the rights and protections granted to legal combatants, who obey the laws of war. Respondents' position is, then, that according to each of the alternatives, "the State is permitted to kill those who fight against it, in accordance with the fundamental principles of the laws of war which apply in every armed conflict" (paragraph 68 of respondents' response of January 26 2004).
12. Alternatively, respondents' position is that the targeted killings policy is legal even if the Court should reject the argument that terrorist organization members are combatants and party to the armed conflict, and even if they are to be seen as having the status of civilians. That is because the laws of armed conflict allow harming civilians taking a direct part in hostilities. Indeed, in general, the laws of war grant civilians immunity from harm. However, a "civilian" who takes a direct part in hostilities loses his immunity, and can be harmed. Thus, it is permissible to harm civilians in order to frustrate the intent to commit planned or future hostilities. Every person who takes a direct part in committing, planning, or launching hostilities directed against civilian or military targets is a legitimate target for attack. This exception reflects a customary rule of international law. Respondents' stance is that the simultaneity requirement determined in article 51(3) of The First Protocol, pursuant to which a civilian who takes a direct part in hostilities can be harmed only during such time that he is taking that direct part, does not obligate Israel, as it does not reflect a rule of customary international law. On this point respondents note that Israel, like other states, has not joined The First Protocol. Thus, harming civilians who take a direct part in hostilities is permitted even when they are not participating in the hostilities. There is no prohibition on striking at the terrorist at any time and place, as long as he has not laid down his arms and exited the circle of violence. Last, respondents claim that even if all of the provisions of article 51(3) of The First Protocol are considered customary rules, the targeted killings policy complies with them. That is since the article is to be interpreted more widely than the interpretation proposed by petitioners. Thus, the term "hostilities" is to be interpreted as including acts such as the planning of terrorist attacks, launching of terrorists, and command of a terrorist ring. There is no basis for Professor Cassese's position, according to which "hostilities" must include use of weapons or carrying of weapons. In addition, the term "direct part" should be given a wide interpretation, so that a person who plans, launches, or commits a terrorist attack is considered to be taking a direct part in hostilities. Finally, even the simultaneity condition should be interpreted widely, so that it is possible to strike at a terrorist at any time that he is systematically involved in terrorist acts. Respondents' position is that the very narrow interpretation proposed by petitioners for article 51(3) is unreasonable and angering. It appears from the stance of petitioners, as well as from the expert opinion on their behalf, that terrorists are granted immunity from harm for the entire time that they plan terrorist attacks, and that this immunity is removed for only a most short time, at the time of the actual execution of the terrorist attack. After the execution of the terrorist attack the immunity once again applies to the terrorists, even if it is clearly known that they are returning to their homes to plan and execute the next terrorist attack. This interpretation allows those who take an active part in hostilities to "change their hat" at will, between the hat of a combatant and the hat of a civilian. That result is unacceptable. Nor is it in line with the purpose of the exception, which is intended to allow the state to act against civilians who take part in a conflict against it. Respondents' response is that the targeted killings policy complies with the laws of war, even if terrorists are to be seen as civilians, and even the provisions of article 51(3) of The First Protocol are to be considered customary rules.
13. Respondents' position is that the targeted killings policy, as implemented in practice, fulfills the proportionality requirement. The proportionality requirement does not lead to the conclusion that it is forbidden to carry out combat activities in which civilians might be harmed. Such a requirement would mean that harm to the civilians must be proportionate to the security benefit likely to stem from the military act. Moreover, the proportionality of the act is to be examined against the background of the inherent uncertainty which clouds all military activity, especially considering the circumstances of the armed conflict between Israel and the terrorist organizations. The State of Israel fulfils the proportionality requirement. Targeted killings are performed only as an exceptional step, when there is no alternative to them. Its goal is to save lives. It is considered at the highest levels of command. In every case, an attempt is made to minimize the collateral damage liable to be caused to civilians during the targeted killing. In cases in which security officials are of the opinion that alternatives to targeted killing exist, such alternatives are implemented to the extent possible. At times targeted killing missions have been canceled, when it has turned out that there is no possibility of performing them without disproportionately endangering innocent persons.
4. The Petition and its Hearing
14. The petition was submitted (on January 24 2002), and after preliminary responses were submitted, it was scheduled for hearing before a panel of three Justices. After the first session (on April 18th 2002, before Barak P., Dorner J. & Englard J.), the parties were asked to submit supplementary briefs, including responses to a series of questions which were posed by the Court. After submission of those responses, an additional session of the petition's hearing was held (on July 8 2003, before a panel consisting of Barak P., Or V.P. & Mazza J.). During that session, petitioners' motion for interlocutory injunction was heard. The motion was denied. At the request of the parties, additional dates for submission of supplemental briefs were set. At petitioners' request, an additional session was held (on February 16 2005, before a panel consisting of Barak P., Cheshin V.P. & Beinisch J.). During this hearing respondents presented the Prime Minister's statement at the Sharem a-Sheikh conference, according to which the State of Israel suspended the use of the targeted killings policy. In light of that statement, we decided to suspend the hearing of the petition to another date, in case that should be necessary. In June 2005 the State renewed the implementation of the policy. In light of that, and to the parties' request, an additional hearing was held (on December 11, 2005, before a panel consisting of Barak P., Cheshin V.P. & Beinisch J.). At the end of that hearing, we determined that judgment would be given after the submission of additional supplementary briefs on behalf of the parties. According to the decision of Beinisch P. (of November 22 2006), Rivlin V.P. replaced Cheshin V.P., who had retired.
15. After the petition was submitted, two additional motions for enjoinder were submitted. First (on July 22 2003), petitioners' counsel submitted a motion, on behalf of the National Lawyers Guild and the International Association of Democratic Lawyers, for enjoinder to the petition and to submit briefs as amici curie. Respondents opposed the motion. Later (on February 23 2004) a motion was submitted by "Shurat ha-Din – Israel Law Center" and 24 additional applicants, for enjoinders as respondents to the petition. Petitioners opposed the motion. We decide to allow both motions and to enjoinder the applicants as parties to the petition. The arguments of amici curie support most of petitioners' arguments. They further argue that the killing of religious and political leaders contradicts international law and is illegitimate, both in times of war and in times of peace. In addition, the policy of targeted killing is not to be implemented against those involved in terrorist activity except in cases in which there is immediate danger to human life, and even then it is to be implemented only if there is no other means that can be used to remove the danger. The arguments on behalf of "Shurat haDin" support most of respondents' arguments. It further claims that targeted killings are permissible, and even required, pursuant to the Jewish law principle of "if one rises to kill you, rise and kill him first" (BABYLONIAN TALMUD, SANHEDRIN 8, 72a), and pursuant to the Jewish law rule regarding "he who pursues his fellow man to kill him…" (MAIMONIDES, MISHNE TORAH, NEZIKIM, Halachot Rotzeach v'Shmirat Nefesh, chapter 1, halacha 6).
5. The General Normative Framework
A. International Armed Conflict
16. The general, principled starting point is that between Israel and the various terrorist organizations active in Judea, Samaria, and the Gaza Strip (hereinafter "the area") a continuous situation of armed conflict has existed since the first intifada. The Supreme Court has discussed the existence of that conflict in a series of judgments (see HCJ 9255/00 El Saka v. The State of Israel (unpublished); HCJ 2461/01 Kna'an v. The Commander of IDF Forces in the Judea and Samaria Area (unpublished); HCJ 9293/01 Barake v. The Minister of Defense, 56(2) PD 509; HCJ 3114/02 Barake v. The Minister of Defense, 56(3) PD 11; HCJ 3451/02 Almandi v. The Minster of Defense, 56(3) PD 30 (hereinafter "Almandi"); HCJ 8172/02 Ibrahim v. The Commander of IDF Forces in the West Bank (unpublished); HCJ 7957/04 Mara'abe v. The Prime Minister of Israel (unpublished, hereinafter – Mara'abe). In one case I wrote:
"Since late September 2000, severe combat has been taking place in the areas of Judea and Samaria. It is not police activity. It is an armed conflict" (HCJ 7015/02 Ajuri v. The Military Commander of the Judea and Samaria Area, 56(6) PD 352, 358; hereinafter "Ajuri").
This approach is in line with the definition of armed conflict in the international literature (see O. BEN-NAFTALI & Y. SHANI, INTERNATIONAL LAW BETWEEN WAR AND PEACE, 142 (2006) [HAMISHPAT HABEINLEUMI BEIN MILCHAMA LE'SHALOM], hereinafter "BEN-NAFTALI & SHANI"; Y. DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 201 (4th ed. 2005); H. DUFFY, THE 'WAR ON TERROR' AND THE FRAMEWORK OF INTERNATIONAL LAW 219 (2005), hereinafter DUFFY). It accurately reflects what is taking place, to this very day, in the area. Thus the situation was described in the supplement to the summary on behalf of the State Attorney (on January 26 2004):
"For more than three years now, the State of Israel is under a constant, continual, and murderous wave of terrorist attacks, directed at Israelis – because they are Israelis – without any discrimination between combatants and civilians or between men, women, and children. In the framework of the current campaign of terrorism, more than 900 Israelis have been killed, and thousands of other Israelis have been wounded to date, since late September 2000. In addition, thousands of Palestinians have been killed and wounded during that period. For the sake of comparison we note that the number of Israeli casualties in proportion to the population of the State of Israel, is a number of times greater than the percentage of casualties in the US in the events of September 11 in proportion to the US population. As is well known, and as we have already noted, the events of 9/11 were defined by the states of the world and by international organizations, with no hesitation whatsoever, as an 'armed conflict' justifying the use of counterforce.
The terrorist attacks take place both within the territories of Judea, Samaria, and the Gaza Strip (hereinafter 'the territories') and in the State of Israel proper. They are directed against civilians, in civilian population concentrations, in shopping centers and in markets, and against IDF soldiers, in bases and compounds of the security forces. In these terrorist attacks, the terrorist organizations use military means par excellence, whereas the common denominator of them all is their lethalness and cruelty. Among those means are shooting attacks, suicide bombings, mortar fire, rocket fire, car bombs, et cetera" (p. 30).
17. This armed conflict does not take place in a normative void. It is subject to the normative systems regarding the permissible and the prohibited. I discussed that in one case, stating:
"'Israel is not an isolated island. It is a member of an international system'…. The combat activities of the IDF are not conducted in a legal void. There are legal norms – some from customary international law, some from international law entrenched in conventions to which Israel is party, and some in the fundamental principles of Israeli law – which determine rules about how combat activities should be conducted" (HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) PD 385, 391, hereinafter Physicians for Human Rights).
What is the normative system that applies in the case of an armed conflict between Israel and the terrorist organizations acting in the area?
18. The normative system which applies to the armed conflict between Israel and the terrorist organizations in the area is complex. In its center stands the international law regarding international armed conflict. Professor Cassese discussed the international character of an armed conflict between the occupying state in an area subject to belligerent occupation and the terrorists who come from the same area, including the armed conflict between Israel and the terrorist organizations in the area, stating:
"An armed conflict which takes place between an Occupying Power and rebel or insurgent groups – whether or not they are terrorist in character – in an occupied territory, amounts to an international armed conflict" (A. CASSESE, INTERNATIONAL LAW 420 (2nd ed. 2005), hereinafter CASSESE).
This law includes the laws of belligerent occupation. However, it is not restricted only to them. This law applies in any case of an armed conflict of international character – in other words, one that crosses the borders of the state – whether or not the place in which the armed conflict occurs is subject to belligerent occupation. This law constitutes a part of iue in bello. From the humanitarian perspective, it is part of international humanitarian law. That humanitarian law is the lex specialis which applies in the case of an armed conflict. When there is a gap (lacuna) in that law, it can be supplemented by human rights law (see Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226, 240, hereinafter The Legality of Nuclear Weapons; Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, 136, hereinafter The Fence; Bankovic v. Belgium, 41 ILM 517 (ECHR, 12 December 2001); see also Meron, The Humanization of Humanitarian Law, 94 AMERICAN JOURNAL OF INTERNATIONAL LAW 239 (2000)). Alongside the international law dealing with armed conflicts, fundamental principles of Israeli public law, which every Israeli soldier "carries in his pack" and which go along with him wherever he may turn, may apply (see HCJ 393/82 Jami'at Ascan el-Malmun el-Mahdudeh el-Masauliyeh, Communal Society Registered at the Judea and Samaria Area Headquarters v. The Commander of IDF Forces in the Judea and Samaria Area, 37(4) P.D. 785, 810, hereinafter Jami'at Ascan; Ajuri, at p. 365; Mara'abe, at paragraph 14 of the judgment).
19. Substantial parts of international law dealing with armed conflicts are of customary character. That customary law is part of Israeli law, "by force of the State of Israel's existence as a sovereign and independent state" (S.Z. Cheshin, J., CrimApp 174/54 Shtempfeffer v. The Attorney General, 10 PD 5, 15; see also CrimApp 336/61 Eichmann v. The Attorney General, 17 PD 2033; CApp 7092/94 Her Majesty the Queen in Right of Canada v. Edelson, 51(1) PD 625, 639 and the caselaw referred to within, and Ruth Lapidoth, The Status of Public International Law in Israeli Law, 19 MISHPATIM 809 (5750) [Mikumo shel haMishpat haBeinleumi haPombi beMishpat haYisraeli]; R. SABLE, INTERNATIONAL LAW 29 (2003) [MISHPAT BEINLEUMI]). Shamgar P. expressed that well, stating:
"According to the consistent caselaw of this Court, customary international law is a part of the law of the country, subject to Israeli statute determining a contrary provision" (HCJ 785/87 Afu v. The Commander of IDF Forces in the West Bank, 42(2) PD 4, 35).
The international law entrenched in international conventions which is not part of customary international law (whether Israel is party to them or not), is not enacted in domestic law of the State of Israel (see HCJ 69/81 Abu A'ita v. The Commander of the Judea and Samaria Area, 37(2) PD 197, 234, and Zilbershatz, Integration of International Law into Israeli Law – The Current Law is the Desirable Law, 24 MISHPATIM 317 (5754) [Klitat haMishpat haBeinleumi leMishpat haYisraeli – haDin haMatzui, Ratzui]). In the petition before us, there is no question regarding contradictory Israeli law. Public Israeli law recognizes the Israel Defense Forces as "The People's Army" (article 1 of Basic Law: the Army). The army is authorized "to do all acts necessary and legal, in order to defend the State and in order to attain its security-national goals" (article 18 of the Administration of Rule and Justice Ordinance, 5708-1948). Basic Law: the Government recognizes the legality of "any military acts needed in order to defend the State and public security (article 40(b)). These acts also include, of course, armed conflict against terrorist organizations outside of the boundaries of the State. Also to be noted is the exception to criminal liability determined in article 34m(1) of The Penal Code, 5737-1977, according to which a person shall not be criminally liable for an act which he "has a duty, or is authorized, by law, to do." When soldiers of the Israel Defense Forces act pursuant to the laws of armed conflict, they are acting "by law", and they have a good justification defense. However, if they act contrary to the laws of armed conflict they may be, inter alia, criminally liable for their actions. Indeed, the "geometric location" of our issue is in customary international law dealing with armed conflict. It is from that law that additional law which may be relevant will be derived according to our domestic law. International treaty law which has no customary force is not part of our internal law.
20. International law dealing with the armed conflict between Israel and the terrorist organizations is entrenched in a number of sources (see DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 5 (2004), hereinafter DINSTEIN). The primary sources are as follows: the fourth Hague convention (Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907), hereinafter The Hague Convention). The provisions of that convention, to which Israel is not a party, are of customary international law status (see Jami'at Ascan, at p. 793; HCJ 2056/04 The Beit Sourik Village Council v. The Government of Israel, 58(5) PD 817, 827, hereinafter Beit Sourik; Ajuri, at p. 364). Alongside it stands The Fourth Geneva Convention (IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949)). Israel is party to that convention. It has not been enacted through domestic Israeli legislation. However, its customary provisions constitute part of the law of the State of Israel (see the judgment of Cohen, J. in HCJ 698/80 Kawasme v. The Minister of Defense, 35(1) PD 617, 638, hereinafter Kawasme). As is well known, the position of the Government of Israel is that, in principle, the laws of belligerent occupation in The Fourth Geneva Convention do not apply regarding the area. However, Israel honors the humanitarian provisions of that convention (see Kawasme; Jami'at Ascan, at p. 194; Ajuri, at p. 364; HCJ 3278/02 Hamoked: Center for Defense of the Individual founded by Dr. Lotte Salzberger v. The Commander of IDF Forces in the West Bank Area, 57(1) PD 385, 396, hereinafter Hamoked: Center for Defense of the Individual; Beit Sourik, at p. 827; Mara'abe, at paragraph 14 of the judgment). That is sufficient for the purposes of the petition before us. In addition, the laws of armed conflict are entrenched in 1977 Additional Protocol I to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, hereinafter The First Protocol). Israel is not party to that protocol, and it was not enacted in domestic Israeli legislation. Of course, the customary provisions of The First Protocol are part of Israeli law.
21. Our starting point is that the law that applies to the armed conflict between Israel and