1 Pub. Comm. Against Torture in Israel v. Gov’t of Israel, HCJ 769/02 [hereinafter Judgment], at <http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf=. The main judgment was written by President (Emeritus) Barak. President Beinisch and Vice President Rivlin concurred and appended individual opinions.

2 The Israeli Supreme Court may sit as a Court of Appeals and as a High Court of Justice. In the latter capacity, it is authorized to “hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another court.” See Basic Law: Judicature, 5744-1984, 38 LSI 101, 104 (1983-84).Google Scholar

3 [Authors’ Note: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, July 8, 1977, 1125 UNTS 3 [hereinafter Additional Protocol I]]

4 Note that Israel refers to attacks against both Israeli civilians and soldiers as “terrorist” attacks. The judgment uses the same language. From a legal perspective, however, soldiers are legitimate targets, and attacks against them—in the context of armed conflicts—do not constitute terrorist acts.

5 For a brief review of “targeted killings” in the context of the intifada, see, for example, Orna Ben-Naftali and Keren, R. Michaeli, ‘We Must Not Make a Scarecrow of the Law’: A Legal Analysis of the Israeli Policy of Targeted Killings, 36(2) Cornell Int’l L.J. 233, 241–47 (2003).Google Scholar For the Court’s description of the factual background, see Judgment, paras. 1-2.

6 See Amnesty International, Israel and the Occupied Territories: State Assassinations and Other Unlawful Killings 8 (2001), at <http://www.amnesty.org=.

7 For the data, see <http://www.btselem.org/English/Statistics/Casualties_Data.asp?Category=19=.

8 HCJ 5872/01 Barakeh v. Prime Minister [2002] IsrSC 56(3) 1.

9 The Israeli Supreme Court is not bound by the stare decisis principle. See Article 20(2) of the Basic Law: Judicature, supra note 2, at 105.

10 The applicable law, says the Court, comprises the Hague Convention [No. IV] Respecting the Laws and Customs of War on Land, and annexed Regulations, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631; Geneva Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 UNTS 287; and Additional Protocol I, supra note 3.

11 Under Geneva Convention [No. 3] Relative to the Treatment of Prisoners of War, 75 UNTS 135 (1949), combatant status brings with it a host of privileges, which include, inter alia, rights to medical treatment (Articles 30-32), religious services (Articles 34-37), food (Article 26), clothing (Article 27), and adequate conditions of detention (Articles 21-22, 25). Most importantly, combatant status entails the right to legal immunity from prosecution for the (legal) actions that they have performed during the war, which otherwise would have been criminal offenses. This customary rule is universally accepted. See Derek, Jinks, The Declining Significance of POW Status, 45 Harv. Int’l L.J. 367, 376 n. 38 (2004).Google Scholar

12 Note that justiciability is a preliminary matter— one usually discussed before proceeding to the merits of a case since the discussion may obviate the need to proceed any further. In the present case, however, the order was reversed, with the merits discussed prior to the question of justiciability. On the significance of this reversal, see Orna, Ben-Naftali, A Judgment in the Shadow of International Criminal Law, 5 J. Int’l Crim. Justice (forthcoming 2007).Google Scholar

13 The discussion of the legal limits imposed on a democracy extends to paragraph 62.

14 See Aharon, Barak, A Judge in a Democracy (2006).Google Scholar

15 That rationale, first in Physicians for Human Rights v. Commander of IDF Forces in Gaza, HCJ 4764/04, [2004] Isr SC 58(5) 385, 391, has been followed in numerous subsequent judgments, including Targeted Killings

16 For the principle of complementarity in the exercise of both international and universal jurisdiction, see Orna, Ben-Naftali & Keren, R. Michaeli, Justice-Ability: A Critique of the Non-justiciability of the Israeli Policy of Targeted Killing, 1 J. Int’l Crim. Justice 368, 389–95 (2003).Google Scholar In light of attempts by foreign states to exercise jurisdiction over Israeli generals suspected of war crimes, President Barak has paved the way, ever since the early 2000s, for the Court to base decisions on petitions emanating from the occupied territories on international law, beginning with Ajuri v. IDF Commander in West Bank, HCJ 7015/02, [2002] IsrSC 56(6) 352, See Detlev, F. Vagts, Case Report: Ajuri v. IDF Commander in West Bank, 97 AJIL 173 (2003).Google Scholar For an analysis of this aspect of the Targeted Killings judgment, see Ben-Naftali, supra note 12.

17 Even the International Criminal Tribunal for the Former Yugoslavia has refrained from thoroughly addressing the phrase “taking direct part in hostilities.” See Prosecutor v. Tadić, No. IT-94-1, para. 16 (May 7, 1997).

18 For the various views on the subject, see International Committee of the Red Cross, Third Expert Meeting on the Notion of Direct Participation in Hostilities (2005), at <http://www.krc.org/Web/eng/siteeng0.nsf/htmlall/participation-hostilities-ihl-311205/$File/Direct_participation_in_hostilities_2005_eng.pdf=.

19 See, e.g., Jean-Francois, Queguiner, Direct Participation in Hostilities Under International Humanitarian Law (2003), at <http://www.hpcr.org/publications/papers.php=Google Scholar; Michael, N. Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 Chi. J. Int’l L. 511 (2004).Google Scholar

20 Note that Additional Protocol I was designed to integrate “Geneva” law and “Hague” law. See Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ Rep. 226, 256 Google Scholar (July 8).

21 See supra text accompanying note 10.

22 Compare Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). On the complex issue of the status of the Palestinian Authority, see, for example, Kathryn, M. McKinney, The Legal Effects of the Israeli-PLO Declaration of Principles: Steps Toward Statehood for Palestine, 18 Seattle U. L. Rev. 93 (1994)Google Scholar; Omar, M. Dajani, Stalled Between Seasons: The International Legal Status of Palestine During the Interim Period, 26 Denv. J. Int’l L. & Pol’y 27 (1997)Google Scholar. Note further that had the Court engaged in the discussion, it would have had to confront Israel’s position regarding the nonapplicability de jure of the Fourth Geneva Convention to the territories occupied since 1967.’ On the Israeli position see Meir, Shamgar, The Observance of International Law in the Administered Territories, 1971 ISR. Y.B. Hum. Rts. 262, 263–66.Google Scholar This position was expressly rejected by the International Court of Justice in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ Rep. 131 (July 9), paras. 89-101. The Israeli High Court of Justice has been avoiding this confrontation with the state for years, settling instead for the latter’s consent to be bound by the humanitarian provisions of the Fourth Geneva Convention, see, e.g., HCJ 2977/02 Adallah v. IDF Commander in West Bank [2002] IsrSC 56(3) 6; HCJ 3451/02 Almadani v. Minister of Defense [2002] IsrSC 56(3) 30; Ajuri v. IDF Commander in West Bank [2002], IsrSC 56(6) 352.

23 Christopher, Greenwood, Terrorism and Humanitarian Law—The Debate over Additional Protocol I, 1989 ISR. Y.B. Hum. Rts. 187 Google Scholar; Christopher, C. Burris, Re-examining the Prisoner of War Status of PLO Fedayeen, 22 N.C. J. Int’l L. & Com. Reg. 943, 976 (1997).Google Scholar Note that customary norms do not obligate states that have expressly objected to them from the outset. See generally Fisheries (UK v. Nor.), 1951 ICJ Rep. 116, 131 (Dec. 18); Ted, L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 Harv. Int’l. L.J. 457 (1985).Google Scholar Compare Holning Lau, Rethinking the Persistent Objector Doctrine in International Human Rights Law, Chi. J. Int’l L. 495 (2005).Google Scholar

24 See supra note 11 and accompanying text. The judgment further refers to civilians “who take direct part in hostilities” as “unlawful combatants,” while at the same time denying that the latter status exists:

The result is that an unlawful combatant is not a combatant, rather a “civilian”. However, he is a civilian who is not protected from attack as long as he is taking a direct part in the hostilities. . .. [C]ivilians who are unlawful combatants are legitimate targets for attack, and thus surely do not enjoy the rights of civilians who are not unlawful combatants, provided that they are taking a direct part in the hostilities at such time. Nor . . . do they enjoy the rights granted to combatants. Thus, for example, the law of prisoners of war does not apply to them. (Para. 26)

Note also the title of Section 6 (“Civilians Who Are Unlawful Combatants”) and the immediately following paragraphs (29 to 31).

25 For the Geneva definition of combatants, see, for example, Article 2(4) of the Third Geneva Convention.

26 Article 44(3) of Additional Protocol I recognizes this type of situation and provides that such person shall nevertheless retain his status as a combatant, “provided that, in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.”

27 On the status of persistent objectors, see supra note 23.

28 John Milton, Paradise Lost, bk. ii, line 996.