Fighting Anti-Israeli Bias

Countering
Item 7

THE UNHRC'S STANDING AGENDA ITEM
TARGETING ISRAEL

Claims

Claim 10: Israel commits extrajudicial killings

examples

ALBA, Venezuela, 41st Session

“Numerous reports from the Office of the High Commissioner for Human Rights reveal a series of serious violations of human rights and international humanitarian law committed against the Occupied Palestinian Territory, including… extrajudicial executions…”

State of Palestine, 42nd Session

“Israel continues its illegal practices of targeting and killing children, people with special needs, paramedics, medical staff and journalists… and extrajudicial killings.”

Algeria, 41st Session

“My country condemns [Israel’s] widespread use of summary and extrajudicial killings.”

Our Response

UN Watch

The Israeli military does engage in targeted killings of high-level Palestinian terrorists, such as senior leader of the Palestinian Islamic Jihad Baha Abu al-Ata. However, as noted by Yale Law School Professor Harold Koh, this does not amount to “extrajudicial killing” and is not a violation of international law. The Supreme Court of Israel addressed the legality of targeted killings under international law in its 2006 judgment in The Targeted Killings Case.[1] The court found that targeted killings were permissible under the Laws of Armed Conflict and that “the legality of each individual act must be determined in light thereof,” i.e., each case must be assessed on its own merits. At the same time, the Supreme Court imposed limitations and restrictions on the practice to ensure it would not be abused. A 2010 article in the Harvard National Security Journal, which concluded that the practice of targeted killings was “legally justifiable” and “morally permissible” in the war on terror, described the Targeted Killings decision as “the most comprehensive judicial decision ever rendered addressing the legal framework of the ‘war on terrorism.’”[2]

In a Brookings Institution paper, Israeli MK Avi Dichter, former head of the Israeli Security Agency, and Daniel Byman, Director of the Georgetown University Center for Peace and Security Studies Program, wrote the following:

The Israelis have developed an entire method for implementing targeted killings. The key requirement is superb intelligence… Israel also goes through several steps to minimize the loss of innocent life. Only those individuals who cannot be easily arrested can be considered for the list of targets. The Israeli intelligence services then carefully evaluate these individuals, with only the most dangerous arch terrorists put on the list to be killed…

The government prohibits targeted killings in crowded areas, such as narrow streets where many innocents may be present. As a result, Israel has passed up a number of opportunities to kill terrorist leaders during parades because of crowded conditions and because the inevitable panic that would follow such an attack would lead to innocent deaths.[3]

It is notable that during President Barack Obama’s tenure, the U.S. conducted hundreds of drone strikes targeting terrorists in Pakistan, Somalia, Yemen, and elsewhere. In a March 2010 speech to the American Association of International Law, Harold Koh, then Legal Advisor for the State Department, rejected the argument that these drone strikes constituted extrajudicial killings. In addition to applying “extremely robust” procedures to identify targets, Koh explained that the U.S. “rigorously” implemented “the principles of distinction and proportionality” to ensure its operations were “conducted in accordance with all applicable law.”[4] Distinction prohibits targeting of civilian objects, i.e. only military objectives are lawful targets. Proportionality prohibits strikes that will result in incidental death or injury to civilians that would be clearly excessive in relation to the anticipated military advantage.

Other Obama administration officials likewise defended the legality of the U.S. drone strikes. For example, in February 2012, General Counsel for the Department of Defense Jeh Johnson stated: “Under well-settled legal principles, lethal force against a valid military objective, in an armed conflict, is consistent with the law of war and does not, by definition, constitute an ‘assassination.’”[5] President Obama himself justified the U.S. strikes in a January 2012 speech, emphasizing that the targets were “on a list of active terrorists who are trying to go in and harm Americans, hit American facilities, American bases, and so on.”[6]

In addition to the targeted killings of high-level terrorists, Israeli security forces are routinely faced with individual or small team attacks requiring them to make quick assessments in the field as to whether a particular gunman or infiltrator from the West Bank or Gaza poses an imminent threat to life. When faced with life-threatening situations, such as attacks by armed Palestinians at checkpoints or infiltration of armed Palestinians into Israel through the Gaza security fence, Israeli soldiers may use force commensurate with the threat, including deadly force. Even seemingly “harmless” activities like rock throwing can be life-threatening. In the last two years, two Israeli soldiers were killed by rocks — including by marble slabs dropped on their heads from rooftops — and Israeli civilians have also been killed by rocks thrown at cars, causing fatal crashes.[7]

International law permits the use of deadly force by security forces for self-defense, and the IDF uses deadly force as a matter of last resort when other less lethal means cannot be used. As the Supreme Court of Israel recently stated in its decision concerning Israel’s Rules of Engagement for the Gaza border confrontations: “The basic principles of international law also permit the use of potentially lethal force, provided that it is applied for recognized and specific objectives — inter alia, for the sake of self-defense, or the defense of others…” (HCJ 3003/18 and HCJ 3250/18, May 24, 2018).[8]

Thus, use of deadly force by the Israeli security forces for self-defense is legal under international law subject to compliance with the applicable IDF rules which are drafted pursuant to legal advice and in accord with international law. When a soldier departs from the IDF rules, such as in the Elor Azaria case, the IDF has shown that it will prosecute the soldier and punish him accordingly.[9] Israel also has avenues for civilian review by the Attorney General, and judicial review, including by the Supreme Court.[10]

[1] Israel Supreme Court decision on targeting terrorist operatives, Israel Ministry of Foreign Affairs (December 20, 2006), https://mfa.gov.il/mfa/aboutisrael/state/law/pages/israel%20supreme%20court%20decision%20on%20targeting%20terrorist%20operatives%2020-dec-2006.aspx.

[2] Gabriella Blum and Philip Heymann, Law and Policy of Targeted Killing, Harvard National Security Journal (June 27, 2010), https://harvardnsj.org/wp-content/uploads/sites/13/2015/01/Vol-1_Blum-Heymann_Final.pdf.

[3] Avi Dicter and Daniel L. Byman, Israel’s Lessons For Fighting Terrorists And Their Implications For The United States, Brookings Institution (March 8, 2006), https://www.brookings.edu/wp-content/uploads/2016/06/byman20060324.pdf.

[4] Micah Zenko, How the Obama Administration Justifies Targeted Killings, Council on Foreign Relations (July 5, 2012), https://www.cfr.org/blog/how-obama-administration-justifies-targeted-killings.

[5] Id.

[6] Id.

[7] Judah Ari Gross, IDF soldier killed by rock thrown at his head during West Bank arrest raid, Times of Israel (May 12, 2020), https://www.timesofisrael.com/idf-soldier-killed-by-rock-thrown-at-his-head-during-west-bank-arrest-raid/#gs.gd77gf; Man killed in Jerusalem rock-throwing attack named as Alexander Levlovitz, Times of Israel (September 15, 2015),  https://www.timesofisrael.com/man-killed-in-jerusalem-rock-throwing-attack-named-as-alexander-levlovitz/#gs.gd77v9.

[8] Yesh Din, et al. v. IDF Chief of Staff, et al., Case No. HCJ 3003/18 and HCJ 3250/18, Supreme Court of Israel (May 24, 2018), https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts%5C18%5C030%5C030%5Ck08&fileName=18030030.K08&type=4.

[9] Yoav Zitun and Yonatan Baniyeh, Sgt. Elor Azaria convicted of manslaughter after Hebron shooting, Ynet (April 1, 2017), https://www.ynetnews.com/articles/0,7340,L-4902894,00.html.

[10] The IDF Military Justice System, IDF (last visited January 17, 2021),  https://www.idf.il/en/minisites/military-advocate-generals-corps/the-idf-military-justice-system/.

UN Watch