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by Ido Rosenzweig and Yuval Shany
Introduction
The plaintiff, a 17-year-old minor who was injured during an IDF targeted killing operation that was directed against Diab Shuwayki, an activist in the Islamic Jihad terrorist organization, on April 5, 2002, sued the State of Israel for the damages inflicted upon him as a result of the operation. The judgment, issued by the District Court of Haifa on March 18, 2009, addressed the question of whether targeted killings constitute "combat action" that is exempt from tort liability under Israeli law. This decision thus deals with an important counter-terrorism issue regarding the right to compensation, under both national and international law, of civilians who suffer collateral injury in operations conducted by the State against terrorists.
Background
On April 5, 2002, an IDF helicopter launched a missile aimed at the car of Diab Shuwayki, an active member of the Islamic Jihad terrorist organization in Hebron (in the West Bank). As a result of that attack, Shuwayki was killed and the plaintiff, who was in the vicinity inside his father's car, was seriously injured (he suffered massive burns all over his body).
The main question addressed in the Court's judgment is whether targeted killing operations constitute "combat action" by the IDF as defined in the Civil Torts Law (State Liability) of 1952, which provides that the State is exempt from liability for "combat action" undertaken by the IDF.[1] It should be mentioned that the current definition of "combat action" in the 1952 Law encompasses actions designed to combat and prevent terrorism or hostile acts. However, this broad definition was only introduced into the Law four months after the Shuwayki operation and, thus, does not apply directly to the case at hand.
The plaintiff's main argument was based on Israel's general Tort Law. He claimed that the State acted negligently by targeting a terrorist in a heavily populated area without taking the necessary precautions to prevent harm to innocent bystanders. Moreover, according to Israeli administrative law and relevant international law standards, every "act of State" as well as "combat action" should meet standards of legality and propriety. The plaintiff also alleged that a targeted killing does not constitute a lawful "act of State" nor a lawful "combat action", but rather an illegal and unjustified activity. Finally, he argued that since Shuwayki, the target of the operation, was unarmed at the time of the attack and did not pose an immediate threat or danger to the IDF or to Israeli citizens, the operation does not qualify as "combat action", but rather constitutes police action (notwithstanding the use of an airborne missile).
In response, the State's main argument was that the Shuwayki targeted killing operation constituted an "act of State" or "combat action". This argument was based on the fact that the conflict known as the "Second Intifada", which was in full progress in 2002, had already been recognized as an armed conflict by the Israeli High Court of Justice [2](hereinafter: HCJ). Hence, all IDF actions undertaken during that armed conflict, which were intended to protect Israeli citizens and soldiers, were considered "combat actions", and a targeted killing operation directed against a high ranking terrorist within the territory under the control of the Palestinian Authority no doubt constituted a "combat action", especially since it was based on intelligence that indicated that Shuwayki was planning a suicide terrorist attack and, therefore, there was an urgent need to intercept his terrorist activity.
The State argued that because the operation was deemed "combat action", it was exempt from liability under Article 5 of Civil Torts Law – a ruling that is justified by the fact that ordinary Tort Law was never meant to be applied during times of war. Moreover, the State argued that in this specific instance, the targeted killing operation was lawful under international law, and the harm to the plaintiff did not present excessive collateral damage.
Decision
In his judgment, Judge Ady Zarankin held that the specific targeted killing operation must be examined against the background of the period in which it was executed – the armed conflict between Israel and terrorist organizations operating in Gaza and the West Bank (the Second Intifada), and that it was a legitimate and essential action designed to protect Israel from impending terrorist attacks.
At the time of the Shuwayki operation, the Civil Torts Act (Liability of the State) did not provide a broad legislative definition for "combat action". Therefore, Judge Zarankin held that the term must be ascertained in light of the nature and character of the operation in question and in accordance with previous Supreme Court decisions. [3] Judge Zarankin, moreover, deemed that the nature of the operation was typically combat-related (regardless of whether the status of armed conflict was established) since the operation was executed by an aerial attack, which is a customary method of warfare.
Judge Zaransky also noted that the Israeli Supreme Court had already decided that a "combat action" does not have to be undertaken against an army of another state; operations directed against terrorist organizations could also fall within the scope of the term. Since the background information before the Court indicated the existence of an armed conflict between Israel and Palestinian terrorist organizations at the time, and because the targeted killing of Shuwayki was executed within this context (in order to prevent terrorist attacks against Israel), the Judge held that the operation clearly qualified as "combat action", and therefore, the State was exempt from tort liability under Israeli law.
Nevertheless, Judge Zarankin added that in "extreme cases", the Court would not automatically exempt the State from tort liability. In such cases, the Court must examine the reasonableness and proportionality of the action undertaken by the IDF. However, he held that the targeted killing operation in question did not cause collateral damage of an extreme nature.
Conclusion
This decision addresses the issue of counter-terrorism military operations from a civil law perspective – the Law of Torts.
Nevertheless, the result – the validation of the exemption of targeted killing operations from tort liability - is not very surprising given that an opposite outcome might have seriously complicated Israel's efforts to effectively combat terrorist organizations. Placing military action under the domestic civil tort standard of reasonableness and proportionality, which is considerably more exacting than the IHL standard of necessity and proportionality, would have curtailed military action against terrorist organizations; under IHL, collateral damage to civilians is acceptable (as long as it is not excessive), while the civil tort standard forbids collateral damage in almost every instance.
It is interesting to note, however, that Judge Zarankin's ruling leaves a small opening for future tort claims brought against extreme "combat actions". While it is not clear which actions would be deemed extreme by the Court, this dicta at least leaves open the possibility that gross violations of IHL would be subject to judicial review before Israeli courts.
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