| March
2004
The
Targeted Killing of Terrorists -
Legitimate Self-Defence
Following is a summary of Israel's position on this issue.
- The
targeted killing of terrorists is an exceptional measure, appropriate
only in extraordinary circumstances.
- In
cases in which there is an imminent and genuine threat, and in
which there is no practical possibility of preventing such attacks
by other means, it is permissible under international law.
- Terrorists
situated in areas under Palestinian jurisdiction cannot claim
protection under the IVth Geneva Convention, both because these
areas, under the full governmental control of the Palestinian
side, cannot be considered occupied, and, more importantly, because
by actively engaging in terrorist activities they forfeit their
rights under the Convention.
-
The Israeli-Palestinian agreements contain no prohibition on Israel's
defensive measures against terrorism. To the contrary, the agreements
contain specific provisions authorizing Israel's measures in this
regard.
Background
"
For over three and a half years, Israel has been subjected to a
horrendous and continuous barrage of Palestinian-instigated violence
from within the West Bank and the Gaza Strip.
"
The Palestinian Authority has taken almost no steps to comply with
its fundamental obligations, under the Israeli-Palestinian agreements
to combat terrorism, to arrest terrorists, to confiscate illegal
weapons, to prevent incitement and to cooperate on matters of security.
To the contrary, Palestinian officials have consistently supported
and encouraged terrorist actions and engaged in incitement.
"
In order to comply with its responsibility to protect the lives
of its citizens, Israel has initiated a series of defensive measures
intended to protect the lives of Israeli civilians, while limiting,
as far as possible, injury to Palestinian civilians.
"
Painful dilemmas are created by the fact that the terrorists invariably
locate themselves within civilian areas. While the prevention of
injury to civilian bystanders must be a paramount concern, the fact
that a terrorist deliberately places himself within the civilian
population does not grant him immunity.
"
Among these defensive measures, as a rare and exceptional measure,
is the targeted killing of terrorists acting with impunity from
within Palestinian territory. Considered use of this measure is
both lawful and appropriate.
The
right of self-defence in the face of terrorist attacks
"
No state is required by international law to remain passive in the
face of an armed attack. This is a cardinal principle of customary
international law.
"
Israel's options for prevention have been severely narrowed by the
failure of the Palestinian side to comply with its obligations to
combat terrorism, and, to the contrary, its active support and encouragement
for many terrorist acts.
"
In fact, the Palestinian side, far from simply failing to prevent
terrorist activity, has persistently encouraged it, by releasing
terrorists from prison and expressing support for their actions,
while members of the Palestinian police have taken a leading role
in instigating violence.
"Assassination"
or Targeted Defensive Actions
"
The use of such phrases as "assassination" and "extra-judicial
killing" to describe such defensive acts is demagogic and inappropriate.
"
"Assassination" is generally used to describe the murder
of a prominent person or public official for political ends.
The
targeting of terrorists focuses not on the public role of the individual,
but on the role played by them in the murder of innocent civilians,
and has as its goal not political motives but the saving of life.
"
"Extra-judicial killing" implies that an alternative legal
recourse is available and has been deliberately ignored.
o On
the rare occasions that Israel targets terrorists, it is precisely
because no legal recourse is available. As such, the policy is no
more extra-judicial than any individual using force to defend themselves
from attack.
The
IVth Geneva Convention
"
To seek to impose the obligations of the Geneva Convention on Israel
in regard to individuals in areas under Palestinian control and
jurisdiction, would not only be imposing a responsibility without
the rights necessary to fulfill it, but would also absolve the Palestinian
side, which does have actual control in these areas, of its responsibility
to prevent terrorists from acting within its jurisdiction.
"
Even if the Convention were to be applicable to these areas, the
Convention itself recognizes the principle that an individual engaging
in hostile activity forfeits his protection and cannot regain it
by simply masquerading as a civilian.
Israel's
Actions and the Israeli-Palestinian agreements
"
The Israeli-Palestinian agreements do not prohibit Israel's measures
to combat terrorists (be they targeted killings or temporary incursions
into PA territories).
"
To the contrary, the agreements include specific provisions that
allow such activity within areas under Palestinian jurisdiction.
"
These provisions are especially pertinent when the Palestinian side
is continuously flouting its security obligations under these agreements.
"
The argument that, by taking defensive measures against terrorist
acts emanating from Palestinian controlled areas, Israel is violating
the Israeli-Palestinian agreements, is strange, to say the least.
The very situation in which Israel finds itself, and which mandates
the taking of such extraordinary measures, has been created by the
continued breach by the Palestinian side of its obligations under
these agreements.
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Redressing the Balance
