Israel justifies the assassination as an action taken in self-defence and legitimate anti-terrorism action. That Israel has legitimate security concerns is not denied by many of the world’s leaders, but was Jack Straw right in calling the assassination “unlawful”?

Many commentators will say that Israel is entitled to take strong action to prevent suicide bombings. However, there are limits to the extent to which human rights may be violated in the name of “counter-terrorism”. In the current international context, in which anti-terrorism measures challenge human rights principles, it cannot be denied that a balance must be struck between respect for human rights and the interests of security.

John Dugard, Special Rapporteur of the Commission on Human Rights, who visited Israel and the occupied territories in February, noted: “It is not possible to adopt an armchair attitude in assessing Israel’s response to suicide bombings and Palestinian violence. Israel is entitled to a wide margin of appreciation in its response. But, even allowing for this, it is suggested, on the basis of the evidence provided in this report, that Israel’s response to terror is disproportionate. On occasion, Israel’s action in the occupied Palestinian territories is so remote from the interests of security that it assumes the character of punishment, humiliation and conquest.”

Terje Roed-Larsen, the UN Special Coordinator for the Middle East Peace Process, reiterated the UN’s consistent and vocal opposition to such assassinations. “Israel clearly has a right to live in peace and security,” Mr. Roed-Larsen said in a statement, “but no country can resort to these extra-judicial measures.”

Acting United Nations High Commissioner for Human Rights Bertrand Ramcharan expressed deep concern over Israel’s continued use of assassination. “There is no doubt that Israel has a right to defend itself”, Mr. Ramcharan said. “However, this must be done within the rule of law. Using targeted killings raises serious questions of legality and proportionality, and is likely to make more difficult efforts to move towards peace, as well as risking further undermining respect for human rights of Palestinians and Israelis”.

Israel’s current policy of assassination began under the premiership of Ehud Barak and has continued until today. Senior Israeli political and military officials have acknowledged and condoned the policy of assassination publicly. On 4 July 2001, Israel’s security cabinet voted to give the army almost complete freedom of action to kill anyone suspected of being involved in armed activity. This decision effectively widened the scope for extra-judicial execution. Israeli authorities had initially justified a policy of assassination on the grounds that the policy targeted only those suspects who were on their way to carry out shooting incidents or were preparing to lay a bomb. The shift announced after the security cabinet meeting effectively gave the green light to kill anyone on its list.

From October 2000 to April 2003, Israel has killed more than 230 Palestinians, including 80 children, women and innocent bystanders, in assassination actions. Over 300 persons have been injured in these actions. In the period 10-14 June 2003, Israel killed 27 Palestinians and wounded dozens of others in a series of extrajudicial killings carried out by helicopter gunships in the Gaza Strip. These attacks included an unsuccessful assassination attempt on Dr. Abdel Aziz Al-Rantisi, a senior political leader of Hamas. Four people were killed and 35 injured while 29 nearby apartments were damaged. On 12 June 2003, Israeli army helicopters launched missiles on the car of Yasser Taha. He was immediately killed, together with his wife and young daughter. In addition, five other civilians were killed in the attack and 36 were wounded, including 10 children.

Israel’s claims that it is not possible to arrest and try suspects, particularly where they are in areas controlled by the Palestinian Authority is not backed by evidence. There have been instances in which arrests could have been made. Israeli occupying forces have arrested tens of thousands of Palestinians in frequent raids in refugee camps, towns and villages throughout the occupied Palestinian territories in the past two years. Sheikh Yassin was previously arrested in 1989 by the Israeli army and was sentenced to life imprisonment on charges of ordering the killing of Palestinians accused of collaborating with Israeli security and intelligence services. He was subsequently released by Israel in exchange for two Israeli intelligence agents who had tried to assassinate Khaled Mash’al, a Hamas leader, in Jordan and who were detained there. Israel’s failure to attempt such arrests inevitably gives rise to suspicions that Israel lacks evidence to place such persons on trial and therefore prefers to dispose of them arbitrarily.

Extra-legal, Arbitrary and Summary Executions

The right to life finds its most general recognition in article 3 of the Universal Declaration of Human Rights. Article 6 of the International Covenant on Civil and Political Rights recognizes the inherent right of every person to life, adding that this right “shall be protected by law” and that “no one shall be arbitrarily deprived of life”.

In accordance with article 2 of the Universal Declaration of Human Rights and articles 2 and 26 of the International Covenant on Civil and Political Rights, and pursuant to several other United Nations declarations and conventions, everyone is entitled to the protection of the right to life without distinction or discrimination of any kind, and all persons shall be guaranteed equal and effective access to remedies for the violation of this right.

Moreover, article 4, paragraph 2, of the International Covenant on Civil and Political Rights provides that exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any derogation from the right to life and security of the person. Various other treaties, resolutions, conventions and declarations adopted by competent United Nations bodies contain provisions relating to specific types of violations of the right to life.

One of the most pertinent of these instruments is the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, adopted by the Economic and Social Council in its resolution 1989/65 of 24 May 1989. Article 1 of these principles states: “Exceptional circumstances including a state of war or threat of war, internal political instability or any other public emergency may not be invoked as a justification of such executions. Such executions shall not be carried out under any circumstances including, but not limited to, situations of internal armed conflict, excessive or illegal use of force by a public official or other person acting in an official capacity or by a person acting at the instigation, or with the consent or acquiescence of such person, and situations in which deaths occur in custody. This prohibition shall prevail over decrees issued by governmental authority.”

Case before Israel’s High Court

Last year, human rights groups lodged a complaint, demanding the end to these assassinations. The plaintiffs asked the court to take provisional measures to prohibit these assassinations, while awaiting the court’s final decision relating to this request.

On July 8, 2003, the Israeli High Court held a hearing on the petition. The president of the Court, Judge Aharon Barak, and judges Théodore Or and Eliyahu Matza, rejected the request for an interim injunction prohibiting the government from ordering the army to carry out assassinations and prohibiting the army from executing these orders.

In his 20-page opinion submitted by the petitioners to the Court, the first president of the International Criminal Tribunal for the Former Yugoslavia and world renowned expert on International Humanitarian Law, Professor Antonio Cassese states that the killing of civilians suspected of terrorist activities, if not carried out while they are directly engaged in these activities, is a blatant violation of one of the most fundamental tenets of international law – the obligation of warring sides to distinguish between combatants and civilians.

Attorneys Avigdor Feldman and Michael Sfard argued at the hearing that the State plans assassinations which have no relation to “ticking bombs” and manipulate and stretch to the extreme the definition of this term in order to permit assassinations which are a violation of Israeli and international law. The petitioners expressed their great disappointed at the Court’s denial of the interim injunction and stated that they had hoped that the High Court of Justice would intervene and put a stop to the policy of assassinations which is both contrary to international and Israeli law and immoral. “Legal intervention is necessary in a state where the air force commander sleeps peacefully after ordering a one- ton bomb dropped into a populated area killing women and children. This intervention is justified by international humanitarian law whose purpose is to limit the use of force in situations of conflict and war. The judiciary system must intervene and enforce international law. Inaction is the equivalent of collaboration”. The petitioners added that, unfortunately, the denial of the interim injunction promises the further killing and injury of innocent persons and endangers the chances for reconciliation between the two people. A day after the assassination of Sheikh Ahmad Yassin and the killing of seven other Palestinians, the matter is still before the Israeli High Court of Justice.

Criminal liability

International humanitarian law imposes liabilities upon individuals who order or directly commit grave breaches of the Fourth Geneva Convention. There is a consensus among human rights experts that investigated Israel’s policy of assassination, that the policy is illegal, and, a grave breach of the Fourth Geneva Convention. A number of states voiced their opposition to the practice and hold the policy to be illegal unlawful. Israel has often resorted to extra-judicial killings in the occupied Palestinian territories. The first victim of the current policy was Hussein I’bayat, who was killed on 9 November 2000. Israeli authorities maintained that those targeted were “ticking bombs” on their way to an attack. There is no credible evidence of Israeli attempts to arrest and detain those that were killed in extra-judicial executions. Many of those executed could have been arrested.

Ehud Barak, as Prime Minister and Defence Minister, was effectively in a position to dictate the systematic execution of suspected hostile individuals. As Deputy Defence Minister, Ephraim Sneh repeatedly admitted the existence of the policy of assassination. Both government officials share policy command responsibility and may be criminally liable for the extra-judicial execution of Palestinians from November 2000 until 7 March 2001, when Ariel Sharon became Prime Minister of Israel. As with Barak, Prime Minister Ariel Sharon and his Defence Minister, Benyamin Ben-Eliezer, who was later replaced by Shaul Mofaz, share policy command responsibility and may be criminally liable for the extra-judicial executions that occurred from March onwards. Individuals with strategic command responsibility who may be liable for the policy in question would include the chief of the general staff, the head of the General Security Service, individual soldiers and pilots.

The Israeli newspaper The Jerusalem Post reported that Sharon said the assassination was completely justified and hinted that others would be targeted before he begins implementing his “unilateral disengagement plan”. He said he personally called Chief of General Staff Lt.-Gen. Moshe Ya’alon, OC Air Force Maj.-Gen. Dan Halutz, and Shin Bet head Avi Dichter to congratulate them on the attack.

It is clear that relevant human rights principles and provisions of international humanitarian law prohibit without exception, the extra-judicial execution of individuals. It is within this context that Israel’s policy of assassination is a serious crime under international law. It clearly amounts to intentional and wilful killing, which constitutes a grave breach of international humanitarian law, ie a war crime, and could be subject to international criminal prosecution.

Arjan El Fassed is one of the founders of the Electronic Intifada.

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