The position of the international community on extra-judicial killings was summarised by Sir Crispin Tickell, the UK's former permanent representative to the United Nations, in relation to the assassination by Israelis of Abu Jihad: "it is a betrayal of the natural expectation of the international community that governments will uphold the rule of law."...The fact that the Israeli supreme court is looking into the legality of Israel's policies implicitly recognises that no situation is outside the law and that no victim, in war or peacetime, should be wholly beyond the protection of the law. Prime Minister Sharon should take heed that the era of impunity for war crimes is rapidly drawing to a close.
The Guardian (U.K.)
Saturday July 27, 2002
Toothless in Gaza
Was Israel's assassination of Salah Shehada a war crime and, if so, can any court try it?
Israel's "targeted killing" of the head of the military wing of Hamas in Gaza this week unleashed a storm of protest, for the missile fired into a densely packed residential block at midnight killed not only Salah Shehada but also 15 other people, including nine children, and injured some 150 others. The result could hardly have been unexpected.
The Bush administration and other governments have criticised the attack for the effect it would have on the tottering "peace process". Far from being the "major success" that the Israelis claim, many argued, Israel may be sowing dragon's teeth for a future harvest of suicide bombers. As usual, the discussion has focused on the political and military effectiveness of Israel's action. But what of its legality? Even if Israel could solve its problems by killing wanted Palestinians and innocent Palestinian civilians alike, what of the rule of law? And if attacks like this are illegal under international law, what are the implications, in particular now that the international criminal court (ICC) has been established, for possible prosecutions?
While some governments seem reluctant to ask (let alone answer) this question, in some cases from a justified fear that their own actions may come under scrutiny, the Israeli supreme court is curious. It has now accepted that it has jurisdiction to look into the legality of Israel's policy of "targeted killings" and, in a case brought by a Palestinian NGO, an Israeli NGO and victims' relatives against Israel, Prime Minister Sharon and others, has posed this question: which legal system applies in this case - the laws of war, the law applicable to internal conflict or some other branch of law?
The simple answer is that no body of law applied consistently can be invoked to justify Israel's assassinations of wanted Palestinians. The laws of war, the law applicable to internal conflict, and human rights law in peacetime converge on the principle of the sanctity of human life; all prohibit taking human life when the person killed presents no imminent threat to life or limb and when less drastic means exist for reducing or eliminating the threat they pose.
The legal system which should be applied to the Israeli assassination policy is that of international armed conflict and occupation, with international human rights law providing a background level of protection.
The four Geneva conventions of 1949, which Israel has ratified, apply not only to international armed conflicts but also to occupation. That the occupied Palestinian territories (OPTs) are under occupation is almost tautological, yet Israel has often denied that the Geneva conventions, in particular the fourth (civilian) convention, apply to the annexed and occupied territories. Israel maintains that the OPTs never "belonged" to any Arab state and are thus not "occupied" but "administered" and, as such, not subject to the civilian convention. The applicability of the civilian convention does not, however, depend on such niceties but on the reality of the situation, and its applicability to the OPTs has been confirmed by the declaration adopted in December 2001 by the parties to the convention.
What are the consequences, then, of the civilian convention applying to the OPTs? Since Palestinians are not citizens of Israel, they fall within the definition of "protected persons", being "in the hands of ... the occupying power of which they are not nationals". The convention prohibits the "wilful killing" of protected persons; anyone committing such a killing is guilty of a "grave breach", or war crime.
Each party to the civilian convention is obliged, under article 146, "to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and [to] bring such persons, regardless of their nationality, before its own courts". Any state which has signed the Geneva conventions has not only the right, but also the duty, to prosecute perpetrators of "grave breaches". This is referred to as universal jurisdiction.
Israel has argued that suspected Palestinian terrorists are not protected by the civilian convention because they have taken up arms and therefore are not entitled to be regarded as civilians. Nor are they to be treated as combatants, because they carry arms covertly and do not openly engage Israel's armed forces. However, the convention provides for trial of people who lose their protected status by engaging in activities hostile to the state. So the correct procedure is for Israel to arrest wanted Palestinians and bring them to trial. Killing a person without trial, and many other innocent persons in the process, has no legal justification under the Geneva conventions.
It would also be disingenuous for Israel to claim that it cannot make arrests because it does not have the authority to do so in the OPTs. It has demonstrated that it exercises effective control in the territories and can enter at will.
The position of the international community on extra-judicial killings was summarised by Sir Crispin Tickell, the UK's former permanent representative to the United Nations, in relation to the assassination by Israelis of Abu Jihad: "it is a betrayal of the natural expectation of the international community that governments will uphold the rule of law."
Coexisting with the laws of war is international human rights law, which applies at all times. This body of law is set out in particular in the international covenant on civil and political rights (ICCPR), to which Israel is a party. Human rights law applies during military occupation, so Palestinians in the occupied territories fall within the ambit of Israel's human rights obligations. The right to life is a fundamental human right guaranteed by the ICCPR. It is considered so fundamental that no derogation is permitted, even when there is a "public emergency which threatens the life of the nation".
Israel has invoked the notion of necessity. In the context of international armed conflict, the international criminal tribunal for the former Yugoslavia established that a plea that it was necessary, and therefore legal, to kill a person can only be raised where the target presented an imminent threat - for example, he was about to detonate a bomb - and where the action taken is proportionate to the evil to be averted. There is no justification for killing a person because he is suspected of past or future involvement in terrorist activities, but where he poses no immediate threat, nor where there will be many civilian casualties, as was bound to be the case in this week's attack.
If in carrying out this week's attack, and other assassinations, Israel has indeed committed war crimes, which court can try the crimes? The international criminal court, which came into being on July 1, is able to judge such crimes under its war crimes provision, for example as "intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects ... which would be clearly excessive in relation to the concrete and direct overall military objective to be anticipated". Israel has not, however, ratified the ICC statute, so that court cannot act unless the security council refers the situation to it. Such a referral could be blocked by the veto of any permanent member of the security council.
Thus, perversely, the much-awaited ICC, set up to try war crimes, cannot in this case do anything. This suggests that it will be toothless at precisely the moment that it is needed. That is only partly true, however; Israel, as a non-party to the ICC, with a powerful ally in the security council, is a special case.
Moreover, it is always open to national courts to step into the breach on the basis of universal jurisdiction. The Pinochet case has shown the potential for national prosecutions of international crimes, although factors such as immunity (which brought an end to Belgium's investigation of Sharon earlier this year), not to mention pure politics, have stood in the way.
The fact that the Israeli supreme court is looking into the legality of Israel's policies implicitly recognises that no situation is outside the law and that no victim, in war or peacetime, should be wholly beyond the protection of the law. Prime Minister Sharon should take heed that the era of impunity for war crimes is rapidly drawing to a close.
· John Jones is a barrister specialising in war crimes and extradition. He has worked for the international criminal tribunals for the former Yugoslavia and Rwanda, and was assisted in writing this piece by Olivia Holdsworth, a barrister with expertise in international humanitarian law. The views expressed here are those of the authors.