By Kaitlin Secker
Israel’s targeted killings in the West Bank and the Gaza Strip have often been the source of international controversy. Many violent conflicts ensued after the UN partitioned western Palestine into two states for the Jews and the Palestinian Arabs in 1947. Some of the most notable, recent conflicts include the First and Second Intifadas, Operation Defensive Shield, Operation Cast Lead, Operation Pillar of Defense, Operation Protective Edge, and the Stabbing Intifada. During the Second Intifada in the early 2000s, Israel increasingly used air strikes to target Palestinian militants in organizations like Hamas in response to the uptick in the number of terror attacks carried out against Israel. By 2005 alone, almost three hundred terrorist organization members were killed, along with one hundred and fifty civilian deaths and hundreds of civilian injuries.
Many disagree about the legality of these strikes, which depends on whether Israel’s conflict with Hamas should be viewed under the hostilities or the law enforcement paradigm. The hostilities paradigm applies when there is an international armed conflict between two states, and when there is a non-international armed conflict. Non-international armed conflicts occur once there has been intense and protracted violence between a state and rebel group. During armed conflicts, the international community recognizes that a state’s military needs to use force against legitimate military targets as long as civilians who are not taking a direct part in the hostilities are not targeted. Attacks that incur civilian damage must be proportional to the expected military gain, and parties must make efforts to avoid civilian casualties whenever possible. Conversely, situations not involving armed conflicts are analyzed under the law enforcement paradigm. In such cases, the principle of absolute necessity dictates that the use of force should be a last resort needed achieve a legitimate gain such as self-defense or effectuating a lawful arrest. It is generally expected that targets should be given due process of law. If, however, force is absolutely necessary, then the state should only use the smallest amount of force possible and take measures to avoid incidental civilian casualties or injuries. The goal is to minimize injury and respect human life and property.
IHL, which was established through the Geneva Conventions of 1949 and Additional Protocols I and II of 1977, was designed to govern armed conflicts and therefore applies under the hostilities paradigm.  IHL covers all parties involved in the conflict and aims to protect people who are not or are no longer taking part in hostilities. It commands parties to distinguish between non-combatants and combatants and between military and non-military targets. Additionally, attacks on military objectives must not violate the rules of proportionality, meaning that the strike must achieve a concrete military goal, the value of which must not be outweighed by the amount of civilian damage caused.
IHRL applies during times of peace under the law enforcement paradigm. It has many treaty sources such as the Conventions on Genocide and Torture and the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. IHRL also has a basis in soft law and custom and centers around the idea that all people, as human beings, are entitled to basic rights. It seeks to protect individuals from unacceptable government behavior. IHRL was created to apply regardless of the situation, but some treaties allow governments to deviate from the rules during times of emergency. However, there are certain things that governments may never do, even during emergencies and armed conflicts, such as enslaving or torturing people.
In 2002, the Public Committee Against Torture in Israel and the Palestinian Society for the Protection of Human Rights and the Environment sued the State of Israel for conducting targeted killings. They claimed that Article 51 of the UN Charter only allows for self-defense measures to be used against another state and that Israel targeted individuals when they were not actively participating in hostilities. They also argued that the tactic violated the law of proportionality due to the number of innocent bystanders who were killed during the strikes. The State of Israel argued that it is involved in an international armed conflict with Palestine and is dealing with acts of terrorism, giving Israel the right to self-defense. Israel claimed that the individuals targeted were involved in the planning, organization, and carrying out of attacks against Israeli citizens and therefore lost their protected status as civilians. Israel asserted that it takes precautionary measures to limit the amount of civilian casualties while achieving legitimate military objectives.
In 2006, the Israeli Supreme Court issued a ruling. Because the complaint was filed during the Second Intifada—a conflict which lasted for five years and resulted in about 4,000 casualties—the court held that IHL applied. The court ruled that Israel was involved in an international armed conflict because the conflict “crosse[d] the borders of the state” and because of Israel’s long history of violence and wars with the Palestinians. The court explained that modern terrorist organizations are much stronger than they were in the past, making them legitimate military targets. Relying on Article 51 of the Geneva Conventions, the court stated that everyone is entitled to some form of protection, but civilians who participate in hostilities against Israel forfeit their protected status under international law. The court held that the definition of “those who take a direct part in hostilities” includes the men who carry out terrorist attacks as well as those who plan, recruit, and direct the attacks. The court also noted that one does not have to be participating in one of these activities at the exact time he is targeted. The court explained that it is difficult for the military to target a terrorist only as he is actively engaging in hostilities and that people who join terrorist organizations and then take “short periods of rest” between their hostile acts should not be afforded protection during their rest periods. If the “rest is nothing more than preparation” for next hostile act, then the person will not regain his protected status.
The court held that many of these determinations must be made on a case-by-case basis and reserved itself the right to investigate the military’s targeted killings and intervene when necessary. The court also developed a four-part test to judge the legality of targeted killings. First, the State bears the burden of proving that a targeted person lost his protected status. Second, the court will examine whether a less serious option existed, such as arrest, but will not require that the alternative option be used if it would have posed too great a risk to Israeli soldiers. Third, the State must make an investigation into the killing and in certain circumstances must compensate any civilians harmed. Fourth, the State has to assess the proportionality of the strike in advance, and if the strike will violate the law of proportionality, then it may not carry out the strike.
The court’s ruling attempts to limit the amount of harm done to Palestinian civilians while also recognizing the military’s need to remove threats to Israeli civilians. It restrains the circumstances in which the Israeli military can lawfully carry out targeted killings and makes the military more accountable. The Israeli forces try to limit the amount of collateral civilian damage by warning citizens to evacuate an area in which the military will be conducting strikes and by limiting the number of strikes carried out in highly populated areas. Most of the strikes are successfully done with little to no civilian collateral damage, but this is often a difficult task. Many of the terrorists conduct their illegal activities in densely populated areas in an effort to hide and insulate themselves. Due to the high risk of collateral damage, it is no easy task to determine the proportionality of a strike. There is no sure way to assess how many more successful attacks the target may have completed or how many people would have died as a result. Israel also tries to take less severe measures when possible by arresting suspected terrorists. However, many of the terrorists who previously spent time in Israeli prisons ended up being eliminated through targeted killings because upon release, they continued participating in hostile acts.
I think that one of the biggest issues with the court’s ruling is that the investigation of a strike happens after the strike has occurred. This leaves room for the military to carry out a questionable strike and then try to justify it later. The court understandably did not want to make it too difficult for the military to carry out necessary strikes, but investigating the strike before it is carried out would have ensured greater accountability. The court could have made an exception to the rule requiring a pre-strike investigation when the strike is time sensitive for an important national security concern. Overall, the post-strike investigations help ensure more compliance with international law, but it does leave the military with a lot of wiggle room.
There is also an issue of whether the court’s ruling is applicable at all times or only in times of highly increased violence. The court justified its finding that IHL applied by citing that there has been an intense history of violence between Israel and Palestine. Because the violence between the two sides is always present to some degree, it is unclear whether that justification would allow the military to consistently operate under IHL or only during conflicts that more closely resemble wars. If, the military needs to apply IHRL during times of relative peace, then any strike carried out during those times would have a much higher likelihood of violating international law.
I believe that Israel should apply IHL during times of war and IHRL during times of decreased violence. IHL would be applicable during conflicts like the intifadas and the various operations that Israel conducted. During these times, there is a spike in the amount of violence, and therefore it would be appropriate to use IHL. During times of decreased violence, IHRL should apply even if some intermittent fighting occurs. This would allow Israel to use targeted killings when they are most needed while requiring Israel to give suspected terrorists due process of law outside of war. If a targeted killing is carried out during a time of decreased violence, then the Israeli Supreme Court should review it with the highest level of scrutiny to ensure that the Israeli military is abiding by international law.
 Historical Timeline: 1900-Present, ProCon.ORG (July 22, 2015), https://israelipalestinian.procon.org/view.timeline.php?timelineID=000031.
 HCJ 769/02 The Public Committee against Torture in Israel v. The Government of Israel 1, 2 (2006) (Isr.) http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.pdf.
 Nils Melzer, Targeted Killing in International Law 261 (2008).
 Gloria Gaggioli, ICRC, The Use of Force in Armed Conflicts: Interplay between the Conduct of Hostilities and Law Enforcement Paradigms 8, https://www.icrc.org/eng/assets/files/publications/icrc-002-4171.pdf (last visited Nov. 19, 2017).
 Id. at 8-9.
 Id. at 8.
 Id. at 8-9.
 Id. at 9.
 Advisory Service of International Humanitarian Law, ICRC, International Humanitarian Law and International Human Rights Law (2003), https://www.icrc.org/eng/assets/files/other/ihl_and_ihrl.pdf.
 Advisory Service of International Humanitarian Law, supra note 13.
 HCJ 769/02 The Public Committee against Torture in Israel v. The Government of Israel 1, 1 (2006) (Isr.) http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.pdf.
 Michelle Lesh, Case Notes: The Public Committee against Torture in Israel v the Government of Israel: the Israeli High Court of Justice Targeted Killing Decision, 8 Melb. J. Int’l L. 373, 376 (2007).
 The Public Committee against Torture in Israel, at 2.
 Lesh, supra note 26, at 377.
 Intifada Toll 2000-2005, BBC News (Feb. 8, 2005) http://news.bbc.co.uk/2/hi/middle_east/3694350.stm; Melzer, supra note 5, at 33.
 The Public Committee against Torture in Israel, at 11.
 Id. at 13.
 Id. at 3.
 Lesh, supra note 26, at 384.
 Scott D. MacDonald, The Lawful use of Targeted Killing in Contemporary International Humanitarian Law, 2 Journal of Terrorism Research 3 (2011), http://jtr.st-andrews.ac.uk/articles/10.15664/jtr.232/.
 Lesh, supra note 26, at 385.
 Id. at 386.
 Id. at 386-87.
 Michael Schwartz et al., Israel Drops Leaflets Warning Gaza Residents to Evacuate Ahead of Strikes, CNN (July 13, 2014), http://www.cnn.com/2014/07/13/world/meast/mideast-tensions/index.html.
 Bob Fredericks, Hamas’ Disturbing ‘Human Shields’ Manual, N.Y. Post (Aug. 5, 2014), https://nypost.com/2014/08/05/hamas-manual-details-civilian-death-plan-israel/.