New Information on the Use of Lethal Force during IDF Operation "Liquidation Sale" Haaretz Supplement, November 28, 2008

On November 28, 2008, an article appeared in the Haaretz [1] weekend supplement based on secret documents that the newspaper had acquired. The item suggests that the IDF’s top echelons have allegedly authorized the killing of terrorist suspects even when they could have ostensibly been arrested. This revelation may run counter to the 2006 decision of the Israeli High Court of Justice (hereinafter: "HCJ"), which established that targeted killings are to be carried out only in the absence of the alternative of arrest.

In the HCJ ruling on targeted killings (HCJ 769/02 Public Committee Against Torture v. State of Israel), dated December 14, 2006, it was established that the policy of targeted killings, as such, is not illegal, but that preference should be given to methods that cause a lesser degree of harm in every operation. In other words, if it is possible to arrest the terrorist suspect, interrogate him or her and bring him or her to trial, a targeted killing operation should not be carried out. At the same time, the Court qualified this decision, stating that if conducting an arrest entailed risking soldiers’ lives, this method may not be used.

The documents obtained by Haaretz would seem to indicate a departure of IDF operational policy from the HCJ decision. Thus for example, in March 2007, the IDF high command approved "Operation Two Towers," whose objective was to arrest senior members of the Palestinian Islamic Jihad Organization (specifically, Ziad Malaisha, as well as Walid Obeidi and Adham Yunis, if they were identified) in the West Bank, but which also granted permission to exercise operational discretion to kill them.

At a meeting in the office of Major General Yair Naveh, who was serving as the OC Central Command at the time, it was decided that if any of the three wanted men were identified, the force was authorized to kill them in accordance with the assessment of the situation during the course of the mission, provided that there were no women or children nearby. At an additional meeting concerning the operation, the head of the Operations Division, Brigadier General Sami Turjeman, stated that the target of the operation “is the head of a ‘ticking bomb infrastructure,’ which meets the necessary criteria for a preemptive strike.” As for proportionality, Brigadier Turjeman determined that no more than a total of five people could be killed in the operation. According to Haaretz, given that "Operation Two Towers" was postponed for two months for "political reasons," the characterization of the targets as "ticking bombs" is questionable.

In response to the Haaretz investigation, the Office of the IDF Spokesperson stated that although the killing of the targets of the operation was approved, the option of arrest had been considered during the planning stage; however, it was made clear that under certain circumstances in which the safety of the forces was jeopardized, arrest could be impracticable, and if so, a direct hit with the intent to kill was also an option. Command Major General Naveh explained that in such cases, if the wanted men refuse to raise their hands and throw down their weapons, IDF forces are instructed to “make contact” (shoot) in order to protect the lives of the troops. In the event that children and women are in close proximity to the men (for example, in the same car), the force is expected to take greater risks and attempt to carry out an arrest with minimal harm to the civilian population.

"Operation Two Towers" was executed on June 20, 2007 (after the HCJ decision regarding targeted killings), and resulted in the death of Ziad Malaisha and Ibrahim Abed.

The Haaretz investigation has led to the conclusion that, in practice, the line between some IDF arrest and targeted killing operations is extremely thin. This raises concerns that designating certain operations as arrest operations, when the actual intent is to authorize killings, is merely lip service. If this is the case, it is doubtful whether this policy is consistent with the legal requirement to first exhaust all options of arrest, as stated in the judgment regarding targeted killings.

It should also be noted that in 2006-2007 — the years relevant to this article — it is questionable that the IDF had the right to implement a policy of targeted killings in the West Bank. Such policy is legitimate only in times of armed conflict, and it is not at all clear that the situation on the ground can be described in those terms. Moreover, in the West Bank, which was effectively under IDF control during these years, arrest seemed to have always been an option, which means that resorting to targeted killings appears to be illegal. Under such circumstances, lethal force can be employed only within the framework of self-defense (clear and present danger) or to prevent a terrorist suspect from escaping.

* The views expressed in this article are not necessarily those of the Israel Democracy Institute.

[1] Uri Blau, "Liquidation Sale", Haaretz weekend supplement, 28.11.08