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Israeli Compliance with Legal Guidelines for Targeted Killing

Published online by Cambridge University Press:  16 June 2020

Shahaf Rabi  and
Avery Plaw
Shahaf Rabi
Affiliation:
Shahaf Rabi is the Founder and Director of the Israeli Center for the Study of Targeted Killing, University of Massachusetts Strategic Studies Group (launching in February 2020); [email protected].
Avery Plaw
Affiliation:
Shahaf Rabi is the Founder and Director of the Israeli Center for the Study of Targeted Killing, University of Massachusetts Strategic Studies Group (launching in February 2020); [email protected].
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Abstract

In December 2006 the Israeli High Court of Justice delivered its ruling in the Targeted Killing case (HCJ 769/02). The Court laid out four criteria that must be met for operations conducted as part of Israel's targeted killing policy to be performed legally, and imposed on the state two safeguards to ensure that each operation complies with these criteria. This research examines whether Israel has complied with the ruling in its post-2006 targeted killing operations. The article presents strong evidence which suggests that Israel complies with the Court's four requirements, although there is insufficient information to render a definitive conclusion regarding requirement 3, the principle of proportionality. However, the evidence also casts doubt on Israel's conformity with the two safeguards. The most significant issues revolve around Israel's implementation of and compliance with safeguard 1, the independent ex post facto investigative committee, which should review operations that cause civilian casualties. These concerns include the composition of the committee, its objectivity and independence. In addition, Israel's evolving understanding of the legal status of terrorists has significantly narrowed the jurisdiction of the committee and the HCJ's ruling more generally. These issues are exacerbated by the absence of evidence that safeguard 2, judicial oversight, has occurred.

Keywords

targeted killingsIsraelHCJ 769/02Targeted Killing case
Type
Articles
Information
Israel Law Review , Volume 53 , Issue 2 , July 2020 , pp. 225 - 258
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2020

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Footnotes

Avery Plaw was Professor of Political Science at the University of Massachusetts Dartmouth, and Director of the Initiative for the Study of Asymmetric Conflict and Counterterrorism, UMass Strategic Studies Group. We regret to advise that Avery Plaw passed away in January 2020. As in this article, Avery, a prolific and sagacious scholar, greatly contributed to the targeted killing literature. A fine friend and colleague, he will be sorely missed.

References

1 HCJ 769/02 Public Committee Against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v Israel and Others ILDC 597 (IL 2006) [2006] (Targeted Killing), [40].

2 ibid, concurring opinion of Justice Beinisch.

3 Initiative for the Study of Asymmetric Conflict and Counterterrorism (ISACC), http://isacc.umassd.edu/operations. ISACC is a security studies initiative of the University of Massachusetts Strategic Studies Group. For ISACC's methodology, see https://isacc.umassd.edu/operations/methodology. ISACC cases referenced in this article are open source with details synthesised in a clear incident description and links to each source provided below.

4 See Cassese, Antonio, ‘On Some Merits of the Israeli Judgment on Targeted Killings’ (2007) 5 Journal of International Criminal Justice 339CrossRefGoogle Scholar; Ben-Naftali, Orna, ‘A Judgment in the Shadow of International Criminal Law’ (2007) 5 Journal of International Criminal Justice 322CrossRefGoogle Scholar; Cohen, Amichai and Shany, Yuval, ‘A Development of Modest Proportions: The Application of the Principle of Proportionality in the Targeted Killings Case’ (2007) 5 Journal of International Criminal Justice 310CrossRefGoogle Scholar; Shereshevsky, Yahli, ‘Targeting the Targeted Killings Case: International Lawmaking in Domestic Contexts’ (2018) 39 Michigan Journal of International Law 242Google Scholar.

5 See Falk, Ophir, ‘Permissibility of Targeted Killing’ (2014) 37 Studies in Conflict & Terrorism 295CrossRefGoogle Scholar; Meshel, Tamar, ‘A Decade Later and Still on Target: Revisiting the 2006 Israeli Targeted Killing Decision’ (2016) 7 Journal of International Humanitarian Legal Studies 88CrossRefGoogle Scholar; Krebs, Shiri, ‘Rethinking Targeted Killing Policy: Reducing Uncertainty, Protecting Civilians from the Ravages of both Terrorism and Counterterrorism’ (2017) 44 Florida State University Law Review 943Google Scholar.

6 ISACC (n 3).

7 Seen, Martin and Troy, Jodok, ‘The Transformation of Targeted Killing and International Order’ (2017) 38 Contemporary Security Policy 175, 177–78Google Scholar.

8 Meshel (n 5) 92.

9 Meshel (n 5) 117.

10 ie, ‘sikul memukad’ in the Israeli narrative (literal translation: focused thwarting); often translated as ‘preventive strike’, ‘targeted pre-emptive strike’, or ‘targeted preventive acts’: Ronen Bergman, Rise and Kill First: The Secret History of Israel's Targeted Assassinations (Penguin Random House 2018) 504–06.

11 Targeted Killing (n 1) concurring opinion of Justice Rivlin, [1].

12 David, Steven R, ‘Israel's Policy of Targeted Killing’ (2003) 17 Ethics & International Affairs 111, 117CrossRefGoogle Scholar; Special Investigatory Commission of the Salah Shehadeh Targeted Killing, ‘Report’, February 2011, 86 (in Hebrew), http://www.pmo.gov.il/SiteCollectionDocuments/PMO/32communication/spokemes/reportshchade.pdf.

13 Targeted Killing (n 1) [9], [47]–[54].

14 ibid [1]–[2]; Israel Ministry of Foreign Affairs, ‘Press Briefing by Colonel Daniel Reisner, Head of the International Law Branch of the IDF Legal Division’, Press Briefing, 15 November 2000, https://mfa.gov.il/MFA/PressRoom/2000/Pages/Press%20Briefing%20by%20Colonel%20Daniel%20Reisner-%20Head%20of.aspx.

15 Targeted Killing (n 1) [16]–[21]. For maps of the areas, see United Nations Office for the Coordination of Humanitarian Affairs, ‘West Bank & Gaza Strip: Closure Maps’, June 2009, https://www.ochaopt.org/sites/default/files/ocha_opt_closure_map_booklet_june_2009.pdf.

16 Targeted Killing (n 1) [4]–[5], [24]–[29].

17 ibid [5].

18 ibid [27]–[28], [5], [11]–[12].

19 ibid, concurring opinion of Justice Rivlin, [2]–[3].

20 ibid [23], [32]–[40].

21 ibid [33].

22 ibid [34]–[35].

23 ibid [34]–[35].

24 ibid [37].

25 ibid [36].

26 ibid [36].

27 ibid [35].

28 ibid [38]–[40].

29 ibid [40].

30 ibid [40]–[46].

31 ibid [60].

32 ibid, concurring opinion of Justice Rivlin, [1]–[6].

33 ibid, concurring opinion of Justice Rivlin, [6].

34 ibid, concurring opinion of Justice Rivlin, [1], [7].

35 ibid [54].

36 ibid [40].

37 ibid [54]–[59].

38 Military Advocate General Corps, ‘Military Advocate General Corps: Missions, Structure and Organization’, 68 (in Hebrew), https://www.idf.il/media/32439/%D7%93%D7%95%D7%97-2007-1.pdf.

39 Amos Harel, ‘Pinpoint Attacks on Gaza More Precise’, Ha'aretz, 30 December 2007, https://www.haaretz.com/1.4973342.

40 Shay Levi, ‘Sikul Memukad [Focused Thwarting]: This Way Lethal Loops Get Closed’, Mako, 15 November 2012 (in Hebrew), http://www.mako.co.il/pzm-magazine/Article-498a6e44a430b31006.htm.

41 Guiora, Amos N, Legitimate Target: A Criteria-Based Approach to Targeted Killing (Oxford University Press 2013) 56CrossRefGoogle Scholar; Byman, Daniel L, A High Price: The Triumphs and Failures of Israeli Counterterrorism (Oxford University Press 2011) 309CrossRefGoogle Scholar; Bergman (n 10) 518–19.

42 Bar-Zohar, Michael and Mishal, Nissim, The Mossad Twin (Miskal – Yedioth Aharonot Books and Chemed Books 2017) 192–93Google Scholar (in Hebrew).

43 Military Advocate General's Corps, International Law Department, ‘Aerial Strikes against Terrorists: Some Legal Aspects’, 2 March 2014 (on file with Shahaf Rabi).

44 The Jerusalem Center for Public Affairs is arguably a pro-Israeli government NGO (eg, it is staffed largely by former Israeli government officials). Chemi Shalev, ‘Adelson-Linked Think Tank Article Preceded Netanyahu's Hitler-Mufti Claim’, Ha'aretz, 24 October 2015, https://www.haaretz.com/israel-news/.premium-adelson-linked-think-tank-article-preceded-pm-s-mufti-claim-1.5412970; Paul Goldman, Lawahez Jabari and Alexander Smith, ‘Israel Is Trying to Ban Al Jazeera: Here's What You Need to Know’, NBC News, 13 August 2017, https://www.nbcnews.com/news/world/israel-trying-ban-al-jazeera-here-s-what-you-need-n791061; Nathan Thrall, ‘BDS: How a Controversial Non-Violent Movement Has Transformed the Israeli-Palestinian Debate’, The Guardian, 14 August 2018, https://www.theguardian.com/news/2018/aug/14/bds-boycott-divestment-sanctions-movement-transformed-israeli-palestinian-debate.

45 Justus Reid Weiner, ‘Targeted Killings and Double Standards’, Strategic Perspective 9, 5 June 2012, 10–12, 45, and Appendices A(A) and C, http://jcpa.org/article/targeted-killings-and-double-standards.

46 ibid 11–12, 45.

47 ISACC (n 3) attack dated 1 May 2008, http://isacc.umassd.edu/operations/4506; attack dated 14 January 2009, http://isacc.umassd.edu/operations/73; attack dated 16 November 2010, http://isacc.umassd.edu/operations/71; attack dated 29 October 2011, http://isacc.umassd.edu/operations/4159; attack dated 8 December 2011, http://isacc.umassd.edu/operations/4682; attack dated 30 April 2013, http://isacc.umassd.edu/operations/4053; attack dated 9 March 2012, http://isacc.umassd.edu/operations/3604; attack dated 22 January 2014, http://isacc.umassd.edu/operations/3515.

48 ibid.

49 For a pre-2006 case of mistaken identification in a targeted killing, see ISACC (n 3) attack dated 8 March 2002, http://isacc.umassd.edu/operations/196.

50 ISACC (n 3) attack dated 20 April 2008, http://isacc.umassd.edu/operations/273.

51 HCJ President Justice Hayut wrote in a ruling of the HCJ given on 24 May 2018 that the Court continues to recognise the existence of an armed conflict: HCJ 3003/18 Yesh Din: Volunteers for Human Rights and Others v IDF Chief of Staff and Others (IL 2018) (24 May 2008), [2]–[5] (in Hebrew).

52 State of Israel, ‘The 2014 Gaza Conflict: Factual and Legal Aspects’, May 2015, 157, http://mfa.gov.il/ProtectiveEdge/Documents/2014GazaConflictFullReport.pdf (Protective Edge Report).

53 Schmitt, Michael N and Merriam, John J, ‘Israeli Targeting: A Legal Appraisal’ (2015) 68(4) Naval War College Review 15, 23–24Google Scholar.

54 Schmitt, Michael N and Merriam, John J, ‘The Tyranny of Context: Israeli Targeting Practices in Legal Perspective’ (2015) 37 University of Pennsylvania Journal of International Law 53, 113–14Google Scholar.

55 Protective Edge Report (n 52) 157.

56 Schmitt and Merriam (n 54) 114.

57 Targeted Killing (n 1) [38]–[40].

58 Falk (n 5) 306, 319.

59 Two former ISA directors, Avi Dichter and Yuval Diskin, explained the meaning of ‘ticking bomb’. It refers to an actor with a known history of direct participation in hostilities and the person continues to act in the same manner in the present day (being an ongoing threat). Moreover, in order for a ‘ticking bomb’ to be targeted, there must be information of a concrete attack being planned – general intentions are insufficient: Moreh, Dror, The Gatekeepers (Miskal – Yedioth Aharonot Books and Chemed Books 2014) 283, 314–15Google Scholar (in Hebrew).

60 Uri Blau, ‘License to Kill’, Ha'aretz, 27 November 2008, https://www.haaretz.com/license-to-kill-1.258378.

61 Targeted Killing (n 1) [38]–[40].

62 Blau (n 60).

63 Michal Viner, ‘Examining the Effectiveness of the Sikulim Memukadim Policy Taken Against Hamas’, Inbar Foundation seminar paper, Interdisciplinary Center Herzliya, August 2010, 2 App 4, (in Hebrew), http://docs.wixstatic.com/ugd/b5f2c9_c3d26064b6ff403c82c112eaa8a49243.pdf.

64 Avi Dichter and Daniel L Byman, ‘Analysis Paper Number 8: Israel's Lessons for Fighting Terrorists and Their Implications for the United States’, March 2006, 5–6, 8–9, https://www.brookings.edu/wp-content/uploads/2016/06/byman20060324.pdf; Falk (n 5) 307; The Washington Institute for Near East Policy, ‘PolicyWatch 533: Lessons from the Fight against Terrorism’, 29 December 2005, 2, http://www.washingtoninstitute.org/policy-analysis/view/lessons-from-the-fight-against-terrorism.

65 Falk (n 5) 307.

66 Targeted Killing (n 1) [40].

67 Dan Haloutz, Eye to Eye (ContentoNow 2016).

68 Viner (n 63) 3–4 App 3, 2–6 App 4; Moreh (n 59) 313–14.

69 Blau (n 60).

70 HCJ 8707/10 Yoav Haas and Others v Defense Minister and Others (3 February 2011), [1]–[2] (in Hebrew), https://supremedecisions.court.gov.il/Home/Download?path=HebrewVerdicts\10\070\087\b04&fileName=10087070_b04.txt&type=2.

71 ibid [12]–[13].

72 Haas (n 70); Blau (n 60).

73 ISACC (n 3) attack dated 20 June 2007, http://isacc.umassd.edu/operations/4683.

74 Viner (n 63) 3 App 3.

75 The authors evaluated the extent of compliance with proportionality based solely on how it was described in the Targeted Killing case. See Cohen and Shany (n 4) for an exegesis of the ruling's test of proportionality.

76 Haloutz (n 67) 227, 232–34; Moreh (n 59) 313–14; Viner (n 63) 3 Apps 3 and 4.

77 Haloutz (n 67) 227, 232–34; Viner (n 63) 3 Apps 3 and 4.

78 Viner (n 63) 3 App 3.

79 ibid 3 Apps 3 and 4.

80 Haloutz (n 67) 227, 232–34.

81 Performance specialists are collateral damage management (CDM) experts: Gregory S McNeal, ‘Targeted Killing and Accountability’ (2014) 102 Georgetown Law Journal 681, 741–43.

82 MAG (n 43).

83 Protective Edge Report (n 52) 178.

84 ibid 178–79.

85 MAG (n 43).

86 Schmitt and Merriam (n 54) 77–78.

87 Israeli law does not extend to the Gaza Strip, which is under the de facto authority of Hamas: Dana Wolf, ‘Post Occupation Obligations under the Law of Belligerent Occupation’, PhD thesis, American University Washington College of Law, 2015, 41–42, 50–54.

88 State Comptroller, ‘Operation “Protective Edge”: IDF Activity from the Perspective of International Law, Particularly with regard to Mechanisms of Examination and Oversight of Civilian and Military Echelons’, 14 March 2018, 66–74, http://www.mevaker.gov.il/he/Reports/Pages/622.aspx.

89 ibid 73–74.

90 ibid 67.

91 Haloutz (n 67) 232–34.

92 Viner (n 63) 4 App 4.

93 Efrat Weiss and Ali Waked, ‘Palestinians: Assassination Attempt Failed in Gaza’, Ynet, 30 December 2003 (in Hebrew), https://www.ynet.co.il/articles/0,7340,L-2852006,00.html.

94 Harel (n 39).

95 Blau (n 60).

96 ISACC (n 3) attack dated 14 November 2012, http://isacc.umassd.edu/operations/4038.

97 Bar-Zohar and Mishal (n 42) 196, 203–04.

98 Yoav Zeitun, ‘Behind the Scenes of Targeted Killing in Rafah’, Ynet, 21 August 2014, https://www.ynetnews.com/articles/0,7340,L-4561828,00.html.

99 Moreh (n 59) 281.

100 ibid 326.

101 Harel (n 39).

102 Stein, Yael, ‘By Any Name Illegal and Immoral’ (2003) 17 Ethics & International Affairs 127, 127–37CrossRefGoogle Scholar.

103 Weinreb, Alexander A and Weinreb, Abi, ‘Has Israel Used Indiscriminate Force?’ (2002) 9(3) Middle East Quarterly 17–25Google Scholar; Tamar Sternthal, ‘B'Tselem's Annual Casualty Figures Questioned’, Committee for Accuracy in Middle East Reporting in America, 3 January 2007, https://www.camera.org/article/b-tselem-s-annual-casualty-figures-questioned; ‘NGO Monitor's Analysis of B'Tselem's Annual Report for 2007’, NGO Monitor, 13 March 2008, https://www.ngo-monitor.org/reports/ngo_monitor_s_analysis_of_b_tselem_s_annual_report_for_/; Tamar Sternthal, ‘Updated: In 2007, B'Tselem's Casualty Count Doesn't Add Up’, Committee for Accuracy in Middle East Reporting in America, 2 November 2008, https://www.camera.org/article/updated-in-2007-b-tselem-casualty-count-doesn-t-add-up.

104 B'Tselem, ‘Explanation of Statistics on Fatalities’, https://www.btselem.org/statistics/casualties_clarifications. Note that B'Tselem thus might have incorrectly categorised some operations as targeted killings.

105 ISACC (n 3) attack dated 5 September 2003, http://isacc.umassd.edu/operations/151; attack dated 20 June 2007, http://isacc.umassd.edu/operations/4683.

106 B'Tselem, ‘Palestinians Killed during the Course of a Targeted Killing in the Occupied Territories, before Operation “Cast Lead”’, https://www.btselem.org/statistics/fatalities/before-cast-lead/by-date-of-event/wb-gaza/palestinians-killed-during-the-course-of-a-targeted-killing; B'Tselem, ‘Palestinians Killed during the Course of a Targeted Killing in the Occupied Territories, during Operation Cast Lead’, https://www.btselem.org/statistics/fatalities/during-cast-lead/by-date-of-event/wb-gaza/palestinians-killed-during-the-course-of-a-targeted-killing; B'Tselem, ‘Palestinians Killed during the Course of a Targeted Killing in the Occupied Territories, since Operation Cast Lead’, https://www.btselem.org/statistics/fatalities/after-cast-lead/by-date-of-event/wb-gaza/palestinians-killed-during-the-course-of-a-targeted-killing; Falk, Ophir and Hefetz, Amir, ‘Minimizing Unintended Deaths Enhanced the Effectiveness of Targeted Killing in the Israeli-Palestinian Conflict’ (2017) 42 Studies in Conflict & Terrorism 600, 604Google Scholar.

107 B'Tselem, ‘Palestinians Who Were the Object of a Targeted Killing in the Occupied Territories, before Operation “Cast Lead”’, https://www.btselem.org/statistics/fatalities/before-cast-lead/by-date-of-event/wb-gaza/palestinians-who-were-the-object-of-a-targeted-killing; B'Tselem, ‘Palestinians Who Were the Object of a Targeted Killing in the Occupied Territories, during Operation Cast Lead’, https://www.btselem.org/statistics/fatalities/during-cast-lead/by-date-of-event/wb-gaza/palestinians-who-were-the-object-of-a-targeted-killing; B'Tselem, ‘Palestinians Who Were the Object of a Targeted Killing in the Occupied Territories, since Operation Cast Lead’, https://www.btselem.org/statistics/fatalities/after-cast-lead/by-date-of-event/wb-gaza/palestinians-who-were-the-object-of-a-targeted-killing.

108 B'Tselem (n 106).

109 B'Tselem, ‘Palestinians Who Took Part in the Hostilities and Were Killed by Israeli Security Forces in the Occupied Territories, before Operation “Cast Lead”’, https://www.btselem.org/statistics/fatalities/before-cast-lead/by-date-of-event/wb-gaza/palestinians-who-took-part-in-the-hostilities-and-were-killed-by-israeli-security-forces; B'Tselem, ‘Palestinians Who Took Part in the Hostilities and Were Killed by Israeli Security Forces in the Occupied Territories, during Operation Cast Lead’, https://www.btselem.org/statistics/fatalities/during-cast-lead/by-date-of-event/wb-gaza/palestinians-who-took-part-in-the-hostilities-and-were-killed-by-israeli-security-forces; B'Tselem, ‘Palestinians Who Took Part in the Hostilities and Were Killed by Israeli Security Forces in the Occupied Territories, since Operation Cast Lead’, https://www.btselem.org/statistics/fatalities/after-cast-lead/by-date-of-event/wb-gaza/palestinians-who-took-part-in-the-hostilities-and-were-killed-by-israeli-security-forces; B'Tselem, ‘Palestinians Who Did Not Take Part in Hostilities and Killed by Israeli Security Forces (Not the Objects of Targeted Killings) in the Occupied Territories, before Operation “Cast Lead”’, https://www.btselem.org/statistics/fatalities/before-cast-lead/by-date-of-event/wb-gaza/palestinians-killed-during-the-course-of-a-targeted-killing-not-hisul; B'Tselem, ‘Palestinians Who Did Not Take Part in Hostilities and Killed by Israeli Security Forces (Not the Objects of Targeted Killings) in the Occupied Territories, during Operation Cast Lead’, https://www.btselem.org/statistics/fatalities/during-cast-lead/by-date-of-event/wb-gaza/palestinians-killed-during-the-course-of-a-targeted-killing-not-hisul; B'Tselem, ‘Palestinians Who Did Not Take Part in Hostilities and Killed by Israeli Security Forces (Not the Objects of Targeted Killings) in the Occupied Territories, since Operation Cast Lead’, https://www.btselem.org/statistics/fatalities/after-cast-lead/by-date-of-event/wb-gaza/palestinians-killed-during-the-course-of-a-targeted-killing-not-hisul; B'Tselem, ‘Palestinian[s] Killed by Israeli Security Forces, Not Known if Involved in Fighting in the Occupied Territories, before Operation “Cast Lead”’, https://www.btselem.org/statistics/fatalities/before-cast-lead/by-date-of-event/wb-gaza/palestinians-killed-involvement-in-fighting-unknown; B'Tselem, ‘Palestinian[s] Killed by Israeli Security Forces, Not Known if Involved in Fighting in the Occupied Territories, during Operation Cast Lead’, https://www.btselem.org/statistics/fatalities/during-cast-lead/by-date-of-event/wb-gaza/palestinians-killed-involvement-in-fighting-unknown; B'Tselem, ‘Palestinian[s] Killed by Israeli Security Forces, Not Known if Involved in Fighting in the Occupied Territories, since Operation Cast Lead’, https://www.btselem.org/statistics/fatalities/after-cast-lead/by-date-of-event/wb-gaza/palestinians-killed-involvement-in-fighting-unknown.

110 cf B'Tselem (n 106) and B'Tselem (n 107).

111 B'Tselem (n 106).

112 cf B'Tselem (n 106) and B'Tselem (n 109).

113 B'Tselem (n 106).

114 An alternative analysis considering the ‘object of a targeted killing’ classification as a ‘yes’ produced very similar results.

115 B'Tselem (n 106).

116 We calculated this number based on the TBIJ website on 4 January 2019, taking the top of its ranges for total killed and civilians killed for Pakistan (4026, 969), Yemen (1383, 225), and Somalia (1048, 58). We subtracted civilians killed (1,252) from total persons killed (6,093) to obtain suspected militants killed (4,841). We divided the total civilians killed by the suspected militants to obtain our ratio (0.258624:1): The Bureau of Investigative Journalism, ‘Drone Warfare’, https://www.thebureauinvestigates.com/projects/drone-war.

117 MEO Staff, ‘PCBS Reports: Gaza Strip Is the Most Densely Populated Place on Earth’, Middle East Observer, 12 July 2016, https://www.middleeastobserver.org/2016/07/12/pcbs-reports-gaza-strip-is-the-most-densely-populated-place-on-earth.

118 United Nations Department of Social and Economic Affairs, Statistics Division, ‘Statistical Yearbook 2018 Edition: Sixty-first Issue’, ST/ESA/STAT/SER.S/37, 15–32.

119 Eck, Kristine and Hultman, Lisa, ‘One-Sided Violence Against Civilians in War: Insights from New Fatality Data’ (2007) 44 Journal of Peace Research 233, 241CrossRefGoogle Scholar; Lacina, Bethany and Gleditsch, Nils, ‘Monitoring Trends in Global Combat: A New Dataset of Battle Deaths’ (2005) 21 European Journal of Population 145, 145–65CrossRefGoogle Scholar; Osiel, Mark, The End of Reciprocity (Cambridge University Press 2009) 143CrossRefGoogle Scholar; Kaldor, Mary, New and Old Wars (Stanford University Press 2001) 8Google Scholar.

120 Neta Crawford, ‘Costs of War: Human Cost of the Post-9/11 Wars’, November 2018, https://watson.brown.edu/costsofwar/files/cow/imce/papers/2018/Human%20Costs%2C%20Nov%208%202018%20CoW.pdf.

121 ibid.

122 Targeted Killing (n 1) [40], [54], [59].

123 Aviad Glickman, ‘Mazuz to PM: Accelerate “Sikulim Memukadim Committee”’, Ynet, 17 November 2008 (in Hebrew), http://www.ynet.co.il/articles/0,7340,L-3624292,00.html.

124 Special Investigatory Commission of the Salah Shehadeh Targeted Killing (n 12) 14.

125 Glickman (n 123).

126 Haas (n 70) [12]–[13].

127 Shay Nitzan, ‘Mechanisms of Examination and Investigation in Israel Concerning Complaints and Claims of Violations of the Laws of Armed Conflict’, 6 April 2011, 5–6 (in Hebrew), http://web.archive.org/web/20151116231343/http:/turkel-committee.com/files/wordocs/2162douc.PDF.

128 Amir Oren, ‘Israeli Military Hiding Targeted Killing Investigative Panel’, Ha'aretz, 31 May 2014, http://www.haaretz.com/israel-news/1.596339.

129 MAG (n 43).

130 ibid.

131 HCJ 8794/03 Yoav Haas and Others v Military Advocate General and Others (23 December 2008), [8]–[13] (in Hebrew), https://supremedecisions.court.gov.il/Home/Download?path=HebrewVerdicts\03\940\087\n30&fileName=03087940_n30.txt&type=2.

132 Nitzan (n 127) 5–6.

133 Special Investigatory Commission of the Salah Shehadeh Targeted Killing (n 12) 13–15.

134 Nitzan (n 127) 6.

135 Avichai Mandelblit, ‘Second Position Paper of the Military Advocate General Corps to the Turkel Commission’, 19 December 2010, 64–69, 74 (in Hebrew), http://web.archive.org/web/20151116231448/http://turkel-committee.com/files/wordocs/9111emPatzar.PDF.

136 ibid 64–69, 74.

137 Amichai Cohen and Yuval Shany, The IDF and Alleged International Law Violations: Reforming Policies for Self-Investigation (Israel Democracy Institute 2011) 109–10 (in Hebrew).

138 Targeted Killing (n 1) [40], [54].

139 Glickman (n 123); Nitzan (n 127) 5–6.

140 Blau (n 60).

141 Mandelblit (n 135) 71–75.

142 Haas (n 131) [7].

143 Cohen and Shany (n 137) 109–10.

144 Ministry of Foreign Affairs, ‘The Operation in Gaza: 27 December 2008–18 January 2009: Factual and Legal Aspects’, July 2009, 37, 42, 89–90, https://www.mfa.gov.il/MFA_Graphics/MFA%20Gallery/Documents/GazaOperation%20w%20Links.pdf.

145 ibid 10, 15, 28–30.

146 Military Advocate General's Corps, ‘Operation Pillar of Defense: 14–21 November 2012’, 4 (on file with Shahaf Rabi).

147 Protective Edge Report (n 52) 155–57. Note that other countries, and not only Israel, adopted this legal position: Schmitt and Merriam (n 53) 23–24; Schmitt and Merriam (n 54) 110–15; UN Human Rights Council, Report of the Detailed Findings of the Commission of Inquiry on the 2014 Gaza Conflict (24 June 2015), UN Doc A/HRC/29/CRP.4, paras 59–64, 220, https://www.ohchr.org/en/hrbodies/hrc/coigazaconflict/pages/reportcoigaza.aspx.

148 Nils Melzer, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’, May 2009, 16, 22–25, https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf.

149 Protective Edge Report (n 52) 156.

150 ibid 156–57. For a list of entities that Israel recognised as terrorist organisations, and thus possibly also as OAGs, http://www.mod.gov.il/Defence-and-Security/Fighting_terrorism/Pages/default.aspx.

151 Mandelblit (n 135) 71–75.

152 Melzer (n 148) 16, 22–25.

153 B'Tselem (n 104).

154 (1) Core customary IHL principles of distinction and proportionality continue to apply (see Schmitt and Merriam (n 54) 95–97); and (2) bearing in mind the previously mentioned lack of Israeli ground forces in the Gaza Strip as a highly influencing factor concerning compliance with requirement 2.

155 Dan Efrony, ‘Chief Military Advocate General Mag. Gen. Dan Efrony's Comments on Contemporary Armed Conflict’, speech delivered at the IDF's first international legal conference on ‘International Law in Contemporary Armed Conflicts’, 17 February 2015, https://www.idfblog.com/chief-military-advocate-general-mag-gen-dan-efronys-comments-contemporary-armed-conflict/ (on file with Shahaf Rabi).

156 ISACC (n 3) attack dated 19 May 2007, http://isacc.umassd.edu/operations/89.

157 ISACC (n 3) http://isacc.umassd.edu/operations.

158 ISACC (n 3) attack dated 17 August 2011, http://isacc.umassd.edu/operations/60.

159 Azani, Eitan, ‘The Hybrid Terrorist Organization: Hezbollah as a Case Study’ (2013) 36(11) Studies in Conflict & Terrorism 900, 911–12CrossRefGoogle Scholar.

160 Protective Edge Report (n 52) 157.

161 Francesca Borri, ‘Hamas Leader Sinwar: “I Don't Want Any More Wars”’, Ynet, 4 October 2018, https://www.ynetnews.com/articles/0,7340,L-5363595,00.html.

162 Protective Edge Report (n 52) 157.

163 Schmitt and Merriam (n 54) 113.

164 Note that the executive branch has no control over safeguard 2.

165 Cohen and Shany (n 137) 106–08.

166 Haas (n 70) [12]–[13].

167 Targeted Killing (n 1) [54]–[59].

168 Haas (n 70) [12]–[13].

169 Targeted Killing (n 1).