¹ HCJ 769/02 The Public Committee Against Torture in Israel v. the Government of Israel [December 14, 2006] (not yet published) [hereinafter the Court's decision or the Petition]. The English translation is available at www.court.gov.il (last visited February 20, 2007).

² We shall call this policy “targeted killings.”

³ The Court defines February 2000 as the beginning of the Intifada; however, it is commonly agreed that the Intifada began at the end of September 2000.

⁴ These data refer to the period between September 29, 2000 and May 1, 2006. See http://www.mfa.gov.il/mfa/terrorism-%20obstacle%20to%20peace/palestinian%20terror%20since%202000/ (last visited February 20, 2007).

⁵ These data refer to the period between September 29, 2000 and December 31, 2006. See http://www.btselem.org/Hebrew/Statistics/Casualties.asp (last visited February 20, 2007).

⁶ It is important to note that international non-judicial forums have dealt with this issue. See, e.g., the report of the Human Rights Inquiry Commission to the U.N. Commission on Human Rights: Dugard, John, Hossain, Kamal & Falk, Richard, Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine, E/CN.4/2001/121 (16 Mar. 2001)Google Scholar, also available at http://www.ucihl.org/communication/Right_to_Life_Meeting_Report.pdf (last visited February 20, 2007). This commission, which was set up to investigate the events at the beginning of the second Intifada and the first occurrences of targeted killings, condemns this policy. It claims that Israel neither proved that the targeted persons were participating directly in hostilities when targeted, nor did it present evidence of the military nature of the acts carried out by the targeted persons. In conclusion, it refers to it as a policy of “extra-judicial executions.” See id. at paras. 53-64. Note also the reports of conferences of experts such as: Expert Meeting on the Right to Life in Armed Conflicts and Situations of Occupation, Organized by The University Centre for International Humanitarian Law, Geneva, Convened at International Conference Centre, Geneva, 1 – 2 September 2005 (hereinafter “the Geneva Expert Meeting”); International Committee of the Red Cross, Direct Participation in Hostilities under International Humanitarian Law, (September 2003)Google Scholar, also available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/participation-hostilities-ihl-311205/$File/Direct%20participation%20in%20hostilities-Sept%202003.pdf (last visited February 20, 2007); and Direct Participation in Hostilities under International Humanitarian Law, Second Expert Meeting, The Hague, 25-26 October 2004, Co-organized by the ICRC and the TMC Asser Institute [hereinafter the ICRC Second Expert Meeting]. The reports analyze the question of direct participation in hostilities and attempt at formulating an agreed-upon definition of this term. A third report of the ICRC's expert meetings, which is forthcoming, is intended to represent the final conclusions of these experts. In addition, related issues such as the right to life, self-defense, proportionality, and military necessity were dealt with by judicial bodies such as the ICJ and the ECTHR. See, e.g., McCann v. the United Kingdom, 21 Eur. Ct. H.R. (Ser. B) 97 (1996), in which the Court discusses the means which may be employed against terrorism in light of the analysis of the constraints put on the right to life by the right of self-defense; Ergi v. Turkey, Application No. 23818/93, Judgment of 28 July, 1998, where the ECTHR determines the lawfulness of the measures taken by the Turkish security forces in the Kurdish areas. The Court uses both IHL discourse and HRL norms in order to decide this question. It states that Turkey did not correctly apply the principle of proportionality and “did not take all feasible precautions… minimizing incidental loss of civilian life.” See id. at para. 79; The ICJ's Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (July 8, 1996), available at http://www.icj-cij.org/icjwww/icases/iunan/iunanframe.htm (last visited February 20, 2007), and Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004) available at http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm (last visited February 20, 2007), where the Court accepts the application of human rights law (HRL) discourse to cases of an international humanitarian law (IHL) nature, even though it considers IHL to be the lex specialis in these cases.

⁷ Paragraphs 16-21 of the Court's decision, supra note 1, former President Barak's ruling. Unless otherwise mentioned, all the citations from the Court's decision are taken from Barak's ruling.

⁸ Id. at para. 31.

⁹ Id. at para. 33.

¹⁰ Id. at paras. 34-7.

¹¹ Id. at paras. 38-40.

¹² Id. at para. 35.

¹³ Id. at para. 39.

¹⁴ Id. at para. 40.

¹⁵ Id. at para. 44.

¹⁶ See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Adopted June 8, 1977), 1125 U.N.T.S 3 reprinted in 16 I.L.M. 1391 (1977) [hereinafter AP 1 Articles 51(5)(b), 57].

¹⁷ The Court's decision, supra note 1, at para. 46.

¹⁸ Id. at paras. 47-54.

¹⁹ Id. at paras. 58-9.

²⁰ The opinions of Deputy President Rivlin and President Beinisch are not summarized here but rather those portions of the opinions that emphasize different aspects of the case than those discussed in the main decision are presented.

²¹ The Court's decision, supra note 1, at para. 28.

²² Id. at para. 2 of Rivlin's decision.

²³ Id. at Beinisch's ruling.

²⁴ Id. at paras. 16-21.

²⁵ See Prosecutor v. Tadic, IT-94-1, ICTY, App.C, (October 2, 1995).

²⁶ See Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/Ser.L/-V/II.116 Doc.5 rev.1 corr., (October 22, 2002). This view, which has gained support after the events of 9/11, is echoed in the writings of numerous scholars that were published prior to these events. These scholars claim that recurrent terrorist acts constitute a relatively high level of armed attack. Some examples are: Blum, Yehuda, The Beirut Raid and the International Double Standard; A Reply to Professor Richard A. Falk, 64 Am. J. Int'l. L., 80, 136 (1970)CrossRefGoogle Scholar; Rawls, James P., Military Responses to Terrorism: Substantive and Procedural Constrains in International Law, in American Society of International Law, Proceedings of the 81th Annual Meeting (Malloy Michael, P. ed., 1990)Google Scholar; Beck, Robert J. & Arend, Anthony C., “Don't Tread on Us": International Law and Forcible State Responses to Terrorism, 12(2) Wis. Int'l. L.J. 153, 190 (1994)Google Scholar.

²⁷ Sadat, Leia Nadya, Terrorism and the Rule of Law, 3 Wash. U. Global Stud. L. Rev. 135, 136 (2004)Google Scholar; Paust, Jordan J., Symposium: Current Pressures on International Humanitarian Law: War and Enemy Status After 9/11: Attacks on the Laws of War, 28 Yale J. Int'l. L. 325, 326 (2003)Google Scholar. Paust claims that there is no armed conflict between Al-Qaeda and the U.S. because Al-Qaeda does not even meet the definition of a non-state actor that can be a party to a non-international armed conflict, let alone fulfilling the criteria for recognition of an international armed conflict.”

²⁸ The Court's decision, supra note 1, at para. 21.

²⁹ Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention No. I)(Adopted August 12, 1949), 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II)(Adopted August 12, 1949), 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention No. III)(Adopted August 12, 1949), 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilians Persons in Time of War (Geneva Convention No. IV)(Adopted August 12. 1949), 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287.

³⁰ AP I. The customary articles of this protocol are also binding on states that are not parties to this protocol.

³¹ Protocol Additional to the Geneva Conventions of August 12 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) 8 July 1977, 1125 U.N.T.S 609, reprinted in 16 I.L.M. 1442 (1977).

³² Common Article 3 of GC, AP II, Article 14.

³³ Id.

³⁴ Yet, AP II and Common Article 3 of GC refer to armed conflicts between states and non-state actors. AP I, in addition to defining the rules applicable to international armed conflicts, was designed to cover wars of national liberation as well.

³⁵ This is generally a characteristic of an international armed conflict, and yet, according to Common Article 3 of GC, it may also characterize a non-international armed conflict. The Article reads: “[i]n the case of an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum the following provisions…” It seems, then, that a non-international armed conflict, as well, may cross the borders of a state, if the organization is located in the territory of one of the High Contracting Parties of the Convention, yet not the Party with which the organization is in struggle.

³⁶ The Court's decision, supra note 1, at para. 18.

³⁷ For the opinion that an armed conflict arising in an occupied territory is of an international character, see Dinstein, Yoram, War, Aggression and Self-Defence 5–6 (4th ed. 2005)CrossRefGoogle Scholar; Cassese, Antonio, International Law 420 (2nd ed. 2005)Google Scholar.

³⁸ For the specification of these conditions see Hague Convention No. IV Respecting the Laws and Customs of War on Land and Annex Regulations Respecting the Laws and Customs of War on Land, (Adopted October 18, 1907), 36 Stat. 2277 T.S. No. 539 (hereinafter the Hague Regulations), Article 1; GC III, Article 4a; and AP I, Article 44.

³⁹ I.e., combatants who are entitled to POW status.

⁴⁰ The Court's decision, supra note 1, at para. 21. Note also that the U.S. Supreme Court ruled recently that the armed conflict between the U.S. and Al-Qaeda is a non-international one. See Hamdan v. Rumsfeld, Secretary of Defense, et al., (judgment of June 29, 2006). (No. 05-184) 415F. 3d 33, also available at http://www.supremecourtus.gov/opinions/05pdf705-184.pdf.

⁴¹ Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 34–5 (Pictet, Jean S. ed., 1958)Google Scholar.

⁴² Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, September 28, 1995 Israel-Palestinian Liberation Organization, reprinted in 36 I.L.M. 557; An Agreement between the Government of Israel and the Palestinian Liberation Organization Concerning the Gaza Strip and Jericho Area, September 28, 1995 [hereinafter Oslo Agreements].

⁴³ Some parts of the West Bank such as Jericho were considered “Area A,” while most parts were considered “Area C” in which Israel retained responsibility for security matters while responsibility for civil matters was divided between Israel and the Palestinian Authority.

⁴⁴ For a discussion of the changes in the legal status of the Gaza Strip after the Oslo Agreements due to Israel's military operations in Gaza, see, e.g., Kretzmer, David, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?, 16(2) EJIL 171, 206 (2005)CrossRefGoogle Scholar. For a somewhat nuanced position with regard to the status of the Palestinian population in the West Bank and Gaza see Shany, Yuval, Israeli Counter-Terrorism Measures: Are They “Kosher” under International Law?, in Terrorism and International Law Challenges and Responses, 96, 105 (Schmitt, Michael ed., 2002)Google Scholar.

⁴⁵ Geneva Convention No. IV, supra note 29.

⁴⁶ The Hague Regulations, supra note 38.

⁴⁷ See, e.g, a British Court's decision stating that the degree of Britain's effective control in Iraq is dependent on the changing circumstances in the area: Case No. C1/2005/0461, C1/2005/0461 B, Al-Skeini & Ors (on the application of), v. Secretary of State for Defence [2005] EWCA Civ 1609 (December 21, 2005). See also, the Israeli Supreme Court's statements in cases dealing with the Israeli Army activities in the territories during the second Intifada, that the laws of armed conflict should prevail in those territories. See, e.g., HCJ 2461/01 Kna'an v. the Commander of IDF Forces in Judea Samaria Area [March 29, 2001] (unpublished); HCJ 4764/04 Doctors for Human Rights v. the Commander of IDF Forces in Gaza [2004] IsrSC 58(5) 385; HCJ 3239/02 Mar'ab v. the Commander of IDF Forces in Judea and Samaria Area [2003] IsrSC 57(2) 349.

⁴⁸ See supra note 44 and the accompanying text.

⁴⁹ The Court's decision, supra note 1, at para. 40.

⁵⁰ Hague regulations, Article 42.

⁵¹ The U.S. Army'S Operational Law Handbook ch. 2, 6 (2002); Hersch Lauterpacht (The War Office), the British Manual of Military Law: Part III—The Law of War on Land n.9 (1958).

⁵² The Law for Imprisonment of Unlawful Combatants, 2002, S.H. 192.

⁵³ Osman Bin Haj Mohamed Ali v. Public Prosecutor [1969], 1 A.C. 430 (PC); United States ex rel Quirin v. Cox, 317 U.S. 1 (1942); Israel Military Court sitting in Ramallah, Military Prosecutor v. Omar Mahmud Kassem and Others (April, 13 1969), reprinted in 42 Int'l L. Rep. 479 (1971)Google Scholar.

⁵⁴ Yoo, John C. & Ho, James C., The Status of Terrorists, 44 Vir. J. of Int'l L. 217 (2003)Google Scholar; Dinstein, Yoram, The Conduct Of Hostilities Under The Law of International Armed Conflict 29–30 (2004)CrossRefGoogle Scholar; Dinstein, Yoram, Unlawful Combatancy, 32 Isr. Y.B. H.R. 249 (2002)Google Scholar; Baxter, Richard R., So-called “Unprivileged Belligerency”: Spies, Guerrillas, and Saboteurs, 28 Brit. Y.B. Int'l L. 323 (1951)Google Scholar, and Baxter, Richard R., The Duties of Combatants and Conduct of Hostilities (Law of the Hague), in International Dimensions of Humanitarian Law 105 (Henry Dunant Institute & UNESCO eds., 1988)Google Scholar.

⁵⁵ Dorman, Knut, The Legal Situation of “Unlawful/Unprivileged” Combatants, 85 IRRC 45 (2003)Google Scholar. For literature that supports the ICRC's position, see Ben-Naftali, Orna & Gleichgevitch, Sean S., The Imprisonment of Enemy Combatants Who Are Not Entitled to a Prisoner of War Status, 7 Hamishpat, 435 (2002)Google Scholar [in Hebrew]; Zachary, Shlomy, Between the Geneva Conventions: Where Does the Unlawful Combatant Belong, 38 Isr. L. Rev. 378 (2005)CrossRefGoogle Scholar; Khen, Hilly Moodrick-Even (written under the supervision of Mordechai Kremnitzer), Unlawful Combatants or Unlawful Legislation? On the Imprisonment of Unlawful Combatants Law (2002), 58 The Israel Democracy Institute Research Paper, 15–24 (2005) [in Hebrew]Google Scholar; Antonio Cassese, Expert Opinion on Whether Israel's Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law, written at the request of the Petitioners in HCJ 769/02, supra note 1. For a somewhat nuanced position, according to which the civilians participating directly in hostilities are called “unprivileged belligerents” see Watkin, Kenneth, Combatants, Unprivileged Belligerents and Conflict in the 21^st Century, 1 IDF L. Rev. 69, 74 (2003)Google Scholar.

⁵⁶ The Court's decision, supra note 1, at para. 28.

⁵⁷ GC Common Article 3.

⁵⁸ AP I Article 51 (3), AP II Article 14(3). In fact, the Court does not refer to AP II since this protocol deals with non-international armed conflict, whereas, as previously mentioned, the Court refers to the conflict discussed in its decision as an international one.

⁵⁹ I.e., when they take direct part in hostilities. See AP I Article 51(3), AP II Article 14, GC Common Article 3.

⁶⁰ The Court's decision, supra note 1, at para. 28.

⁶¹ Id. at Section 6.

⁶² See, e.g., id. at paras. 29, 31, 34, & 35.

⁶³ Id. at para. 28.

⁶⁴ The Court's decision, supra note 1, at paras. 2 & 3 of Rivlin's decision.

⁶⁵ Id. at para. 39.

⁶⁶ The Law for Imprisonment of Unlawful Combatants, supra note 52.

⁶⁷ Referred to as “the area” by the Court.

⁶⁸ Title No.6 of the Court's decision, supra note 1 et seq.

⁶⁹ Id. at para. 31.

⁷⁰ Id. at para. 30.

⁷¹ See the Court's affirmation in para. 23 of the Court's decision: Civilians who do not participate directly in the conflict should be legally protected and left unharmed.

⁷² Id. at para. 33.

⁷³ Id. at paras. 34-7.

⁷⁴ Id. at paras. 38-40.

⁷⁵ Id. at para. 33.

⁷⁶ Id. at para. 34.

⁷⁷ Id. at para. 35.

⁷⁸ Id. at para. 37.

⁷⁹ Id. at para. 40.

⁸⁰ I.e., claiming that well-founded information with regard to both the identity and the activity of the civilian is needed.

⁸¹ The Court's decision, supra note 1, at para. 44.

⁸² Id. at para. 46.

⁸³ In contrast to the analysis of taking direct part, which I criticize in the following paragraphs.

⁸⁴ The Court's decision, supra note 1, at para. 35.

⁸⁵ Some of the examples given for direct participation are: a person who collects intelligence on the army, whether on issues regarding the hostilities or beyond those issues; a person who transports unlawful combatants to or from the place where the hostilities are taking place; a person who operates weapons which unlawful combatants use, or supervises their operation, or provides service to them, regardless of the distance from the battlefield. Examples of persons who are considered to be indirect participants are: a person who sells food or medicine to an unlawful combatant; a person who aids the unlawful combatants by general strategic analysis, and grants them logistical, general support, including monetary aid. See the Court's decision, supra note 1, at para. 35.

⁸⁶ Id. at para. 34.

⁸⁷ See Vienna Convention on the Law ofTreaties (Adopted May 23,1969), 1155 U.N.T.S 331, Article 31(3) (c) which refers to the rules of interpretation of treaties and reads: “[One should account] any relevant rules of international law applicable in the relations between the parties.”

⁸⁸ The Court's decision, supra note 1, at para. 47-54.

⁸⁹ Id. para. 35.

⁹⁰ Id. at para. 36.

⁹¹ Note that I do not necessarily deny the Court's conclusion, but rather claim that it lacks a general theoretical basis. For the opposite viewpoint, claiming that even civilians who are located in military installations could not be referred to as legitimate targets but that injuring them may be considered legitimate collateral damage, when caused in accordance with the rules of proportionality, see The Handbook of Humanitarian Law in Armed Conflict 162 (Fleck, Dieter ed., 1995)Google Scholar.

⁹² The Court's decision, supra note 1, at para. 46.

⁹³ I.e., the GSS torture case in which the Court decided whether some physical investigative means were legally acceptable. See HCJ 5100/94 The Public Committee against Torture in Israel v. the Government of Israel [1999] IsrSC 53(4) 817 [hereinafter the GSS Torture case]. In the “bargain chips” case the Court discussed the question of whether serving as bargain chips for negotiation on the release of Israeli prisoners of war was a legitimate reason for detention under the Emergency Powers (Detention) Law [1979] 33 S.H. 89. See ADA 10/94 Anonymous Persons v. the Minister of Defense [1997] IsrSC 53(1) 97 [hereinafter the Bargain Chips case].

⁹⁴ The Bargain Chips case, Id.

⁹⁵ The GSS Torture case, supra note 93.

⁹⁶ For a discussion of these questions see Parks, W. Hays, Air War and the Law of War, 32 A. F. L. Rev. 1, 141–2 (1990)Google Scholar; Fenrick, William J., The Rule of Proportionality and Protocol I in Conventional Warfare, 98 Mil. L. Rev. 91, 107 (1982)Google Scholar.

⁹⁷ For a discussion of another suggested risk test according to which a legitimate target is one that the other party's agent believes, in good faith, to be risking him, see ICRC second Expert Meeting, supra note 6.

⁹⁸ See, e.g. Kretzmer, supra note 44, at 197. This question has been dealt with at length in the reports of the Geneva Experts meeting, supra note 6, in the context of deciding the status of persons who participate in hostilities on behalf of an organization according to AP II, Article 14. While some experts suggested that the protocol's reference to a status of “civilians” implies that there should also be a status of “fighters,” who constitute a threat to the other party merely by their membership in the militant group, others objected to this view and claimed that the silence of the protocol regarding such a category (i.e, “fighters”) should instead be understood as lack of recognition of such a group. According to these experts, had the protocol intended to create such a category, it would have expressly defined one, as it did with regard to the group of “civilians,” in Article 14. According to this reading of the protocol, the mere participation in a group does not constitute a threat to the other party, but rather only specific acts of direct participation create such a risk.

⁹⁹ In contrast, for example, to its conclusive relevance to criminal law self-defense rules. It may be claimed that the armed conflict concept of risk is different than that common in the criminal law self-defense paradigm. That is, the risks to the soldiers or the civilian population may be generated at earlier stages than that at which the danger becomes immediate and tangible, which is the prevailing concept of criminal law self-defense rules.

¹⁰⁰ Schmitt, Michael N., State–Sponsored Assassination in International and Domestic Law, 17 Yale J. Int'l. L. 609, 648 (1992)Google Scholar; Kretzmer, supra note 44, at 203; Nolte, Georg, Preventive Use of Force and Preventive Killings: Moves into a Different Legal Order, 5 Theoretical Inq. L. 111, 124 (2004)Google Scholar.

¹⁰¹ This doctrine is widely accepted in international law. For some of its modern formulations see API Articles 86, 87; Statute of the International Criminal Court, Article 28 UN Doc. A/CONF/183/9, reprinted in 37 ILM 999 (1998), corrected through May 8, 2000, by UN Doc. CN. 177.2000. TREATIES-5 [hereinafter ICC Statute]; Report of the Secretary-General Pursuant to Paragraph 2 of S.C. Res. 808, U.N. SCOR, 48th Sess., Annex, art. 7, at 38, U.N. Doc. S/25704 (1993) [hereinafter ICTY Statute]; S.C. Res. 955, U.N. SCOR, 9th Sess., 3453d mtg., Annex, art. 6, at 5, U.N. Doc. S/RES/955 (1994) [hereinafter ICTR Statute]; United States v. von Leeb (1948), in: 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, October 1946-April 1949, at 462 (1949-53) and the case-law of the ICTY and the ICTR, such as Prosecutor v. Delalic (Judgment of November 16, 1998), IT-96-21-T, 343 (ICTY Trial Chamber II), available at http://www.un.org/icty/celebici/trialc2/judgement/cel-tj981116e.pdf (last visited March 26, 2007) [hereinafter Celebici]; Prosecutor v. Delalic (Judgment of February 20, 2001), IT-96-21-A, 231 (ICTY Appeals Chamber); Prosecutor v. Akayesu (Judgment of September 2, 1998), ICTR-96-4-T, PP 486-491 (ICTR Trial Chamber I).

¹⁰² See, e.g., ICC Statute, Article 25, Id. and Ambos, Kai, Article 25, in Commentary on the Rome Statute of the International Criminal Court margin no. 9 (Otto, Triffterer ed., 1999)Google Scholar.

¹⁰³ Note also Daniel Statman's suggestion to define legitimate targets according to an analysis of the person's role in the organization rather than relying on the mere concept of membership. Statman, Daniel, The Morality of Assassination: A Reply to Gross, 51(4) Pol. Stud. 777–8 (2003)CrossRefGoogle Scholar.

¹⁰⁴ A similar logic guides Ben-Naftali and Michaeli's suggestion to refer to operational leaders of terrorist organizations who are directly involved in the carrying out of terrorist acts as combatants. The consequence of such a definition is broadening the period of time in which they should be regarded as legitimate targets, so that they may be targeted at any time throughout the entire period of their leadership. See Ben-Naftali, Orna & Michaeli, Keren, “We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 Cornell L.J. 233, 278, 290 (2003)Google Scholar.

¹⁰⁵ See also Ben-Naftali & Michaeli,Id. The writers suggest that in reference to ordinary activists of terrorist organizations, only armed persons should be targeted and only for such time as they use their weapons. Id. at 278, 290.

¹⁰⁶ See, e.g., Juan Carlos Abella v. Argentina, Case 11.137 Inter-Am. C.H.R. Report No. 55/97, OEA/Ser.L./V./II.95 doc. 7 rev. 271 (1997) [hereinafter the Tablada case]; Inter-Am. Ct. H.R. (Ser.C) No. 70 (2000) [hereinafter the Bamaca-Valesquez case]; Ergi v. Turkey, supra note 6. Compare with cases where neither the Inter-American Court nor the European Court have applied the cumulative theory, such as Inter-Am. Ct.H.R. (Ser.C) No. 67 (2000) [hereinafter the Los Palermas case]; Loizidou v. Turkey, Application No. 15318/89, Judgment of 18 December 1996, 310 Eur. Ct. H.R. (Ser A)(1995).

¹⁰⁷ For possible ways to apply HRL to the issue of targeted killings see Ben-Naftali & Michaeli, supra note 104, at 274, Kretzmer, supra note 44, at 202-4 and Watkin, Kenneth, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 Am. J. Int'l L. 1, 23 et seq. (2004)CrossRefGoogle Scholar.

¹⁰⁸ For a detailed suggestion of the guidelines for the establishment of such procedures see Kremnitzer, Mordechai, Is Everything Kosher When Dealing with Terrorism ? On Israel's Preventative Killings Policy in the West Bank and in the Gaza Strip, 60 Isr. Dem. Inst. Res. Note 35–6 (2005)Google Scholar [in Hebrew].

¹⁰⁹ AP I Article 51(5)(b).

¹¹⁰ Some examples are: Fenrick, supra note 96; Fenrick, William J., Targeting and Proportionality during the NATO Bombing Campaign against Yugoslavia, 12 (3) EJIL 489 (2001)CrossRefGoogle Scholar; Parks, supra note 96; Kretzmer, supra note 44, at 200-1.

¹¹¹ Benvenisti, Eyal, Human Dignity In Combat: The Duty To Spare Enemy Civilians, 39 Isr. L. Rev. 81, 89, 93 (2006)Google Scholar.

¹¹² Kasher, Asa & Yadlin, Amos, Military Ethics of Fighting Terror: An Israeli Perspective, 4(1) J. Military Ethics 3 (2005)CrossRefGoogle Scholar.

¹¹³ The Court's decision, supra note 1, at paras. 47-54 discussing the justiciability of the question posed to the Court in the petition.