Legal Analysis

This brief overview of the applicable law is based on the thorough legal analysis conducted by B’Tselem[1] with respect to the activities of the undercover units in the Occupied Territories during the first intifada. According to the Israeli human rights group, B’tselem, actions carried out against “wanted” persons do not fall under the rules of war, but rather under law enforcement activities. Indeed, in the cases presented in this report, the victims were not killed in armed confrontations with Israeli forces, but were civilians usually tracked down and targeted far from any clashes or hostile activities. However, the laws of war will also be examined, since Israel classifies the confrontation with the Palestinians as “armed conflict” and bases its justification for the policy of assassination on the doctrine of military necessity.

A.        Israeli Law

Three principles in Israeli law could justify the use of force to apprehend “wanted” suspects.[2]

Self-defense involves prevention of an immediate threat and excludes criminal liability in such a case. However, the assault has to be immediate, and this principle cannot be invoked to justify the killing of an individual who may have presented a threat in the past or may present a threat in the future.

The Defense of Necessity also excludes criminal liability in cases where there is danger of grievous harm to a third person. This principle, however, cannot be invoked if the action taken results in the death of the assailant.

The Defense of Justification for those Executing the law exempts soldiers from criminal responsibility if they use live fire while enforcing the law. Three conditions however have to be fulfilled: (1) They have to be conducting a legal arrest (i.e. based on a legally-issued arrest warrant or on the personal knowledge of the soldier conducting the arrest); (2) the arrest has to be made in connection with a dangerous felony (meaning that live fire can only be used if it is proportionate to the danger posed by the suspect); and (3) there must be no other way to have executed the arrest.

B.        International Law

The right to life is one of the most basic, non-dirigible principles of international human rights law. It is mentioned in the Universal Declaration of Human Rights of 1948 (UDHR, Art. 3), in the International Covenant of Civil and Political Rights of 1966 (ICCPR, Art. 6), and also in the (Fourth) Geneva Convention Relative to the Protection of Civilians in Times of War of 1949 (Art. 27 and 32). According to this principle, Israel has the duty to respect and protect the life of civilians under its authority.

International humanitarian law deserves a closer look, since Israel qualifies its confrontation with Palestinians as “armed conflict” and therefore justifies its policy of assassination under the doctrine of military necessity:

As part of the preventive action against enemy combat activity, the laws pertaining to combat which are part of the international law, allow, during fighting, to act against those who have been positively identified as engaged in carrying out attacks on Israeli targets with the intent of causing casualties. These people are enemies who fight against Israel, and they plan and carry out lethal attacks against Israel while the Palestinian Authority does nothing to stop them. The Israeli security forces operate under all the relevant conditions and limitations.[3]

The PHRMG does not agree that this view justifies the policy of assassinations. Under international humanitarian law[4] and the doctrine of military necessity, only Palestinian “combatants” would be a legitimate target for the Israeli army. However, Palestinians who resist the occupation of the Palestinian territories are not “combatants” in the sense of the Geneva Conventions, since they have not been proven to act on orders provided by an organized combatant in the conflict, (in this case, the Palestinian Authority.)[5]

 As residents of an occupied territory, they are “protected persons” in the sense of Article 4 of the Fourth Geneva Convention, and the right to life is one of their fundamental rights that ought to be protected by the occupying power. The definition of protected persons even encompasses those who committed hostile acts against the occupying power without being members of the regular combatant forces[6]. Protected persons – like all civilians in the territory of a party to the conflict – would be legitimate targets only if and as long as they take a direct part in the hostilities, or, in the words of the Israeli army, if they were “positively identified as engaged in carrying out attacks on Israeli targets with the intent of causing casualties.” International humanitarian law is clear on this point: hostile activities have to be “in progress.” There exists neither a preventive nor a punitive right to kill. Protected persons who are suspected of carrying out such hostile activities lose certain rights[7], but do not become “combatants,” i.e. legitimate targets. The occupying power is only entitled to arrest suspects and bring them before a court, which must then provide a fair trial[8]. Even more: willful killing of a protected person constitutes a grave breach of the Geneva Conventions,[9] and the persons ordering or committing such acts must be brought to trial as war criminals. According to the Israeli army itself, “this activity [of preventive assassinations] is decided at the highest levels. [10]”