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HCJ 769/02 (2005)
[President of the Court Aharon Barak gave the judgment:]
… 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 … 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 … 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. …
21. Our starting point is that the law that applies to the armed conflict between Israel and the terrorist organizations in the area is the international law dealing with armed conflicts. So this Court has viewed the character of the conflict in the past, and so we continue to view it in the petition before us. According to that view, the fact that the terrorist organizations and their members do not act in the name of a state does not turn the struggle against them into a purely internal state conflict (see CASSESE, at p. 420). Indeed, in today's reality, a terrorist organization is likely to have considerable military capabilities. At times they have military capabilities that exceed those of states. Confrontation with those dangers cannot be restricted within the state and its penal law. Confronting the dangers of terrorism constitutes a part of the international law dealing with armed conflicts of international character. … According to the approach of Professor Kretzmer, that armed conflict should be categorized as a conflict which is not of purely internal national character, but also not of international character, rather is of a mixed character, to which both international human rights law and international humanitarian law apply (see David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence? 16 EUROPEAN JOURNAL OF INTERNATIONAL LAW 171 (2000), hereinafter "Kretzmer"); Respondents' counsel presented those possibilities to us, and pointed out their problems, without taking any stance on the issue. As stated, for years the starting point of the Supreme Court – and also of the State's counsel before the Supreme Court – is that the armed conflict is of an international character. In this judgment we continue to rule on the basis of that view. It should be noted that even those who are of the opinion that the armed conflict between Israel and the terrorist organizations is not of international character, think that international humanitarian or international human rights law applies to it (see Kretzmer, at p. 194; BEN-NAFTALI & SHANI, at p. 142), as well as Hamdan v. Rumsfeld, 165 L. Ed. 2d 729 (2006); and Prosecutor v. Tadic, ICTY, case no. IT-94-1, para. 127, hereinafter Tadic; regarding armed conflict which is not international, see YORAM DINSTEIN, CHARLES H. B. GARRAWAY & MICHAEL N. SCHMITT, THE MANUAL ON NON-INTERNATIONAL ARMED CONFLICT: WITH COMMENTARY (2006)….
Implementation of the General Principles in This Case
60. The Order Nisi given at the request of petitioners was as follows:
"to obligate respondents 1-3 to appear and explain why the 'targeted killing' policy (hereinafter – 'execution policy') should not be annulled, and why they should not refrain from ordering respondents 4-5 to implement that policy, and to obligate respondents 4-5 to appear and explain why they should not refrain from carrying out executions of wanted persons according to said policy."
The examination of the "targeted killing" – and in our terms, the preventative strike causing the deaths of terrorists, and at times also of innocent civilians – has shown that the question of the legality of the preventative strike according to customary international law is … The result of that examination is not that such strikes are always permissible or that they are always forbidden. The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians "for such time as they take a direct part in hostilities" (§51(3) of The First Protocol). Harming such civilians, even if the result is death, is permitted, on the condition that there is no other less harmful means, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportionate. That proportionality is determined according to a values based test, intended to balance between the military advantage and the civilian damage. As we have seen, we cannot determine that a preventative strike is always legal, just as we cannot determine that it is always illegal. All depends upon the question whether the standards of customary international law regarding international armed conflict allow that preventative strike or not.
61. The State of Israel is fighting against severe terrorism, which plagues it from the area. The means at Israel's disposal are limited. The State determined that preventative strikes upon terrorists in the area which cause their deaths are a necessary means from the military standpoint. These strikes at times cause harm and even death to innocent civilians. These preventative strikes, with all the military importance they entail, must be made within the framework of the law. The saying "when the cannons roar, the muses are silent" is well known. A similar idea was expressed by Cicero, who said: "during war, the laws are silent" (silent enim legis inter arma). Those sayings are regrettable. They reflect neither the existing law nor the desirable law (see Re. Application Under s.83.28 of the Criminal Code  2 S.C.R. 248, 260). It is when the cannons roar that we especially need the laws (see HCJ 168/91 Murkus v. The Minister of Defense, 45(1) PD 467, 470, hereinafter Murkus). Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with. There are no "black holes" (see JOHAN STEYN, DEMOCRACY THROUGH LAW: SELECTED SPEECHES AND JUDGMENTS 195 (2004)). In this case, the law was determined by customary international law regarding conflicts of an international character. Indeed, the State's struggle against terrorism is not conducted "outside" of the law. It is conducted "inside" the law, with tools that the law places at the disposal of democratic states.
62. The State's fight against terrorism is the fight of the state against its enemies. It is also law's fight against those who rise up against it (see Kawasme, at p. 132). In one of the cases in which we examined the laws of armed conflict, I stated:
"This fighting is not taking place in a normative void. It is being conducted according to the rules of international law, which determine principles and rules for combat activity. The saying, 'when the cannons roar, the muses are silent,' is incorrect. Cicero’s aphorism, that laws are silent during war, does not reflect modern reality. . . . The reason at the foundation of this approach is not only the pragmatic consequence of the political and normative reality. Its roots lie much deeper. It is an expression of the difference between a democratic state fighting for its life and the fighting of terrorists rising up against it. The state fights in the name of the law and in the name of upholding the law. The terrorists fight against the law, while violating it. The war against terrorism is also law’s war against those who rise up against it. . . .
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