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memri
February 18, 2002 No.
345

Israel's High Court of Justice on the War Against Terrorism

On January 29, 2002, Israel's High Court of Justice (the Israeli Supreme Court) rejected a petition submitted onbehalf of Member of Knesset Muhammad Barakah to block the government's policy of "targeted killings" ofterrorists.[1] The court ruled that it will not intervene in the selection of fighting methods used by Israeli securityforces in the battle against terror.

Furthermore, as indicated by the defense attorneys (the government), the State of Israel "no longer relates tothe intifada as a popular uprising, but rather as an 'armed confrontation.'"[2] Following are excerpts from the courthearing:[3]

Plaintiff: "Israel is executing people without a trial. Israel is using lethal means against the individual in his home, his office, and his vehicle, at a time when he is not presenting a clear and present danger."

Justice Eliyahu Mazza: "There is another element here called terror, and it is the enemy of all humanity and not of one particular country. We are talking about the killings of innocent people and [terror] attacks. All countries view terror as a joint shared enemy."

Plaintiff: "And who is to determine who is a terrorist?"

Mazza: "Certainly not the court."

Plaintiff: "But the occupying force in the territories, Israel, is responsible for the lives of the inhabitants."

Mazza: "According to our knowledge, there is intelligence on the individuals who are being targeted. And even then [this is done] only due to lack of other means [to prevent terror attacks]. MK Barakah does not need the platform of Israel's High Court of Justice if he wishes to raise political reservations. We are not conducting the war here... the conduct of [Israel's] war against terror is outside the sphere [of this court]."

Plaintiff: "At least, I ask [that the court] will order an intermediate edict that would freeze the policy of executions until a decision is reached regarding my petition."

Mazza: "Do we know how many people will be killed in Israel tomorrow should we order such an edict?... Madam, go out to the streets of Jerusalem and you will see that this is a daily war. The request to prohibit targeted killing means that the court would become involved in administering the war. That would be akin to us telling the defense minister and the chief of staff to use only the infantry rather than tanks when entering Ramallah."

Plaintiff: "You must intervene, since the taking of life is possible only by a decision of an authorized court."

Mazza: "The involvement of the court in the policy of conducting a war is inconceivable when the interest of the state's security is taken into account."

Justice Mishael Cheshin: "I agree that you [i.e., the plaintiff] will tell all those who sent the suicide [bombers] to the Dolphinarium [discotheque in Tel Aviv where a suicide bomber killed 20 teenagers and wounded over 90 in June 2001], to Hadera, and to Jerusalem that only the court has the authority to decide on the killing of people."

Mazza: "[Let's assume that] at eleven o'clock at night, specific intelligence information arrives that the next day there will be a terror attack in Tel Aviv or Jerusalem. It is known that the terrorist and those who dispatched him are located in a specific place and if they are not harmed, they may disappear and many people will be killed as a consequence. The defense minister will want to authorize the operation against them and you want him to come to court to debate whether there is sufficient evidentiary basis? Should we also invite the terrorist to the court so we can decide whether he is indeed a terrorist?..."

The judges ruled the following: "The High Court of Justice will not intervene in the choice of fighting methods to be used by the security forces in order to foil terror attacks in advance..."


[1] The court hearing was lead by Justices Eliyahu Mazza (who presided), Mishael Cheshin, and Edmond Levy. The state of Israel was represented by attorney Shay Nitzan, backed by the head of the international law division in the army, Colonel Daniel Reisner.

[2] As reported in Ha'aretz, according to the position taken by the defense, the State of Israel "no longer relates to the intifada as a popular uprising, but rather as an 'armed confrontation.' Therefore, the policy is now that of warfare rather than policing. Accordingly, the terrorists that are eliminated are fighters, and worse - illegal fighters who are not entitled to the protection of international law. As such, it is permitted to harm them in order to prevent 'future hostile acts.' Law Professor Emmanuel Gross concurs with this view in an article he published in 'Shnaton Hakirya Ha'academit.' As in the days of President Clinton, he writes, even before September 11, 'The approach was adopted according to which during war as well as in peacetime, when groups or individuals, like bin Laden, pose an imminent threat – killing them in order to prevent the threat should not be viewed as a prohibited assassination.'" I, January 31, 2002.

[3] Ma'ariv, January 30, 2002; IDF Radio, January 30, 2002; I, January 31, 2002.