1. HCJ 769/02, Public Committee against Torture in Israel et al. v. Government of Israel et al., 13 December 2006. The judgment is also available in English at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.pdf. It has been recently analysed in the following articles: S. Schondorf, ‘The Targeted Killings Judgment: A Preliminary Assessment’, (2007) 5 (2) Journal of International Criminal Justice 301; A. Cohen and Y. Shany, ‘A Development of Modest Proportions: The Application of the Principle of Proportionality in Targeted Killings Case’, (2007) 5 (2) Journal of International Criminal Justice 310; O. Ben-Naftali, ‘A Judgment in the Shadow of International Law’, (2007) 5 (2) Journal of International Criminal Justice 322; W. J. Fenrick, ‘The Targeted Killings Judgment and the Scope of Direct Participation in Hostilities’, (2007) 5 (2) Journal of International Criminal Justice 332; A. Cassese, ‘On Some Merits of the Israeli Judgment on Targeted Killings’, (2007) 5 (2) Journal of International Criminal Justice 339; O. Ben-Naftali and K. Michaeli, ‘Public Committee Against Torture in Israel et al. v. Government of Israel’, (2007) 101 (2) AJIL 459.

2. For further information on the origins of the targeted-killing policy, see O. Ben-Naftali and K. Michaeli, ‘Justiciability: A Critique of the Alleged Non-justiciability of Israel's Policy of Targeted Killing’, (2003) 1 (2) Journal of International Criminal Justice 368.

3. A. Eldar, ‘Nay-Sayers Speak Out while Silenced Man Blushes in the Corner’, Ha'aretz, 4 January 2001; Y. Stein, ‘Israel's Assassination Policy: Extra Judicial Executions’, Position Paper, B'Tselem, Jerusalem, 2001.

4. BBC News, ‘Israel's Assassination Policy’, 1 August 2001, available at http://news.bbc.co.uk/2/hi/middle_east/1258187.stm.

5. For further information about these statements, see Stein, supra note 3, at 1–2.

6. B'Tselem, Statistics: Fatalities, available at http://www.btselem.org/English/Statistics/Casualties.asp.

7. The most forceful opinions came from human rights organizations. See Amnesty International, ‘Israel and the Occupied Territories: Israel must end its policy of assassinations’, 4 July 2003, MDE 15/056/2003, available at http://web.amnesty.org/library/index/engmde150562003. The EU also strongly condemned the targeted killings. See Council of the European Union, Press Release, S0076/04, 22 March 2004, Brussels, available at http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/EN/declarations/79544.pdf. The UN Secretary-General used more moderate words and ‘deeply deplored’ the killing of children and the injury of other innocent bystanders during a targeted killing carried out on 20 June 2006. See Office of the Spokesperson for the Secretary-General, Statement attributable to the Spokesman for the Secretary-General on the Middle East, 21 June 2006, Geneva, available at http://www.un.org/apps/sg/sgstats.asp?nid=2099. The UN General Assembly passed several resolutions condemning the practice of targeted killings. See UN Doc. A/RES/58/2; UN Doc. A/RES/58/96; UN Doc. A/RES/58/99; UN Doc. A/RES/57/127; UN Doc. A/RES/56/62; UN Doc. A/RES/ES-10/12; UN Doc. A/RES/ES-10/13.

8. S. David, ‘Israel's Policy of Targeted Killing’, (2003) 17 Ethics & International Affairs 111; Y. Stein, ‘By Any Name Illegal and Immoral’, (2003) 17 Ethics & International Affairs 127; S. David, ‘Reply to Yael Stein: If Not Combatants, Certainly Not Civilians’, (2003) 17 Ethics & International Affairs 138; A. Guiora, ‘Targeted Killing as Active Self-Defense’, (2004) 36 Case Western Reserve Journal of International Law 319; O. Ben-Naftali and K. Michaeli, ‘We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings’, (2003) 36 Cornell International Law Journal 233; E. Gross, ‘Thwarting Terrorists Acts by Attacking the Perpetrators or Their Commanders as an Act of Self-Defense: Human Rights Versus the State's Duty to Protect its Citizens’, (2001) 15 Temple International & Comparative Law Journal 195; N. Kendall, ‘Israeli Counter-terrorism: “Targeted Killings” under International Law’, (2002) 80 North Carolina Law Review 1069; D. Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-judicial Executions or Legitimate Means of Defence?’, (2000) 16 EJIL 171; T. Ruys, ‘License to Kill? State-Sponsored Assassination under International Law’, (2005) 22 (1–2) Military Law and Law of War Review 13; G. Nolte, ‘Preventative Use of Force and Preventative Killings: Moves into a Different Legal Order’, (2004) 5 Theoretical Inquiries in Law 111, at 119; D. Statman, ‘Targeted Killing’, (2004) 5 Theoretical Inquiries in Law 179.

9. Under the Ottoman Empire, the territory then called Palestine was subject to a mixture of Islamic law and modern laws adopted by Turkey. When Turkey was defeated in the First World War and the British Mandate was established, the Mandatory government retained the pre-existing law and, through Art. 46 of the King's Order in Council, 1922, ruled that the law that was in force before the British takeover ‘will remain in force to the extent that it does not conflict with the changes that occurred as a result of the conquest and that in the event of a legal lacuna, the principles of English Common law and equity will apply’. Pursuant to Art. 46 of the King's Ordinance, the English legal system, including the jurisdiction of the English courts, was imported into Palestine. Following the establishment of the state of Israel on 14 May 1948, one of the first legislative texts to be issued by the Provisional Council of State (which was superseded by the Knesset, the Israeli parliament) was the Administration and Law Ordinance, which followed the tradition of preserving the existing law and provided that it ‘will remain in force insofar as it is not repugnant to this ordinance or other (later enacted) laws and subject to such modifications necessitated by the establishment of the State and its institutions’. As a result of this, British law continued to influence the Israeli legal system for a long time after the establishment of the state through the lasting effects of Art. 46 of the King's Order. The direct application of English law was abolished with time as new influences, particularly those originating from German law, were included in Israeli legislation. See also I. Zamir and S. Colombo, The Law of Israel: General Surveys (1995), at 2.

10. Ibid., at 8; The Knesset, The Constitution, Law and Justice Committee, Constitution for Israel Project, The History of the Constitution of Israel, available at http://www.cfisrael.org//a23.html?rsID=278.

11. Zamir and Colombo, supra note 9, at 8. Both laws included a limitation clause forbidding violations of rights except by a law benefiting the values of the state of Israel (enacted for a proper purpose and to an extent no greater than is required). In addition, the Basic Law: Freedom of Occupation included an entrenchment clause which provided that it cannot be amended except by a basic law passed by a majority of Knesset members.

12. S. Shetreet, Justice in Israel: A Study of the Israeli Judiciary (1994), at 2; A. Barak, ‘The Constitutional Revolution: Protected Human Rights’, (1992) 1 Mishpar U'Mimshal 9.

13. Shetreet, supra note 12, at 2.

14. Ibid.

15. Israel Ministry of Foreign Affairs, The Judiciary: The Court System, available at http://www.mfa.gov.il/mfa/government/branches%20of%20government/judicial/the%20judiciary-%20the%20court%20system.

16. Ibid.

17. The remaining members of the Court are Justice Ayala Procaccia, Justice Edmond Levy, Justice Asher Dan Grunis, Justice Miriam Naor, Justice Edna Arbel, Justice Elyakim Rubinstein, Justice Esther Hayut, Justice Salim Joubran, Justice Shoshana Leibovic, and Justice Yigal Mersel.

18. Israel Ministry of Foreign Affairs, supra note 15.

19. Due to lack of space, this article does not address the justiciability of targeted killing, which is another major development following the judgment. In fact, the question of targeted killing was found to be non-justiciable in an earlier decision. See HCJ 5872/01, Barakeh v. Prime Minister, 56(3) PD 1, 29 January 2002. For further information, see Ben-Naftali and Michaeli, supra note 2. Barak, however, decided that the Court could rule on the issue. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, paras. 47–54. See also Cassese, supra note 1, at 340–1; Ben-Naftali, supra note 1, at 326.

20. For further information regarding Barak's perceptions on the role of a judge, his interpretation techniques, his judicial philosophy, and his reasoning style, see A. Barak, The Judge in a Democracy (2006).

21. Cassese, supra note 1, at 342. According to Cassese, this is due to two reasons: ‘First, it is objectively difficult to lay down precise and specific legal standards in the area at issue . . . Second, states, in particular major powers, have demonstrated themselves prepared to leave these standards as loose as possible, in order to retain a broad margin of manoeuvre when engaged in combat.’ Ibid.

22. Ibid., at 343.

23. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-international Armed Conflicts (Additional Protocol II), 1125 UNTS 609, entered into force 7 December 1978. Israel is not a state party.

24. Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-AR72, A.Ch., 2 October 1995.

25. Ibid., para. 70 (emphasis added).

26. Rome Statute of the International Criminal Court, 2187 UNTS 90, entered into force 1 July 2002. It was signed by Israel on 31 December 2000. However, Israel announced that it would not proceed to the ratification.

27. Ibid. (emphasis added).

28. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 16.

29. Ibid.

30. Additional Protocol I enlarged this notion of international armed conflict by providing in Art. 1(4) that it covers ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), 1125 UNTS 3, entered into force 7 December 1978, Art. 1(4). Unfortunately, Additional Protocol I has not been signed by Israel. Furthermore, Art. 1(4) has generated much controversy, thereby precluding it being considered as customary law. See Ben-Naftali and Michaeli, supra note 8, at 256. For this reason, it is not applicable to the Israeli–Palestinian conflict. Still, if Additional Protocol I had been ratified by Israel and Art. 1(4) applied, it is debatable whether Hamas could be considered as a party to the conflict. The United Nations General Assembly has recognized that Palestinian people have a right to self-determination without external interference as well as a right to national independence and sovereignty. This was recognized in a situation where the Palestinians were represented by the Palestine Liberation Organization which, under the leadership of Yasser Arafat, was granted observer status at the United Nations.

31. Gross, supra note 8, at 196.

32. A. Cassese, International Law (2005), at 420. In response to this statement, it can be argued that the preliminary determination whether the situation constitutes an ‘armed conflict’ was superfluous. The sole fact of the occupation would have been sufficient to characterize the conflict as an international armed conflict.

33. Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287, entered into force 21 October 1950, for Israel 6 July 1951.

34. Cassese, supra note 32, at 420 (emphasis in original).

35. Ibid.

36. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 21.

37. Ibid.

38. Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine: Report of the Human Rights Inquiry Commission Established Pursuant to Commission Resolution S-5/1 of 19 October 2000, UN Doc. E/CN.4/2001/121 (2001), at 12–13, para. 39. The following is stated in para. 39 of the Report: ‘Clearly, there is no international armed conflict in the region, as Palestine, despite widespread recognition, still falls short of the accepted criteria of statehood.’ Judge Kooijmans also opined that the Israeli–Palestinian conflict is a non-international one. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, at 229–30 (Judge Kooijmans, Separate Opinion), paras. 35–36. See also Ben-Naftali and Michaeli, supra note 8, at 256, and Kretzmer, supra note 8, at 210.

39. Ben-Naftali and Michaeli, supra note 8, at 271; Kretzmer, supra note 8, at 210.

40. N. Melzer, ‘Targeted Killing under the International Normative Paradigms of Law Enforcement and Hostilities’, doctoral dissertation, Department of Law, University of Zurich, 2007, 445–6 (published as Targeted Killing in International Law (2008, forthcoming), 351).

41. It is submitted, however, that Chief Justice Barak could have gone further as part of this interpretation by granting even more protection to civilians.

42. Convention Relative to the Protection of Civilian Persons in Time of War, supra note 33.

43. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 40.

44. See also Ben-Naftali and Michaeli, supra note 1, at 464.

45. Question of the Violation of Human Rights in the Occupied Arab Territories, supra note 38, at 11, para. 35.

46. Convention Relative to the Protection of Civilian Persons in Time of War, supra note 33.

47. Question of the Violation of Human Rights in the Occupied Arab Territories, supra note 38, at 11, para. 35.

48. Ibid.

49. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 38. See Judge Kooijmans’ Separate Opinion, at 222, para. 9; Judge Al-Khasawneh's Separate Opinion, at 236, para. 4; Judge Buergenthal's Separate Opinion, at 240, para. 2; Judge Owada's Separate Opinion, at 270–1, para. 30.

50. Question of the Violation of Human Rights in the Occupied Arab Territories, supra note 38, at 13, para. 41.

51. UN Doc. No. A/RES/ES-10/2.

52. Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/2 of 25 April 1997, Tenth emergency special session, Agenda item 5, Illegal Israeli Actions in Occupied East Jerusalem and the Rest of the Occupied Palestinian Territory, UN Doc. A/165–10/6-S/1997/494, 26 June 1997, para. 21. This was also noted by Judge Al-Khasawneh in his Separate Opinion in the ICJ's Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 38 (underlining in original), at 236, para. 4.

53. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 38, Judge Al-Khasawneh's Separate Opinion, at 236, para. 3. It should be noted that most of the documents referred to by Judge Al-Khasaweh in the citation above can be found here: United Nations Information Service on the Question of Palestine, UN Resolutions, available at http://domino.un.org/unispal.nsf/UNpercent20resolutions!OpenPage.

54. For further details see D. Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002), at 43–56.

55. See M. Koskenniemi, Fragmentation of International Law: Difficulties Arising form the Diversification and Expansion of International Law – Report of the Study Group of the International Law Commission, Geneva, UN Doc. A/CN.4/L.682, 13 April 2006.

56. In recent years, it appears that the scope of international law has increased dramatically and specialized autonomous legal systems have emerged. Areas that were once regulated by general international law could now fall under several specialized international legal systems. As noted by the International Law Commission, ‘[s]ome commentators have been highly critical of what they have seen as the erosion of general international law, emergence of conflicting jurisprudence, forum shopping and loss of legal security’. See ibid., at 12, para. 9.

57. See e.g. T. Meron, ‘The Humanization of Humanitarian Law’, (2000) 94 AJIL 239; Ruys, supra note 8, at 22 f., 30; Kretzmer, supra note 8, at 210; Melzer, supra note 40, at 254; Ben-Naftali and Michaeli, supra note 8, at 289; K. Watkin, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict’, (2004) 98 AJIL 1, at 24, 34.

58. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 18.

59. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226.

60. Ibid. It was stated, at 240 in para. 25,

61. Bankovic and Others v. Belgium and Others (Appl. 52207/99), ECtHR Decision (G.C.) of 12 December 2001, Reports 2001-XII, at 335.

62. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 38, at 178, para. 106.

63. Additional Protocol I, supra note 30; K. Watkin, ‘Warriors without Rights? Combatants, Unprivileged Belligerents, and Struggle over Legitimacy’, Harvard Program on Humanitarian Policy and Conflict Research, Occasional Paper, Winter 2005, at 69.

64. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 25.

65. Convention Relative to the Protection of Civilian Persons in Time of War, supra note 33.

66. J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (2005), Vol. I, at 299–383.

67. See H. Krieger, ‘A Conflict of Norms: The Relationship Between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study’, (2006) 11 Journal of Conflict & Security Law 265.

68. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 25 (emphasis added).

69. Ibid., Opinion of Justice Rivlin, para. 4 (emphasis added).

70. Ibid., para. 22.

71. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 38.

72. Despite this, the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, a decision of considerable importance for the Israeli–Palestinian conflict, was only relied on once by the Chief Justice, namely in the specific context of the relationship between international humanitarian and human rights law. Interestingly, it was not used to bolster the Chief Justice's conclusion that the law of belligerent occupation applies in the Occupied Territories, although this was clearly one of the findings of the International Court of Justice. The reason behind this selective and rare reliance on the Advisory Opinion could be due to the far-reaching legal consequences for Israel flowing from the ICJ's findings.

73. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 41.

74. There are some difficulties associated with the application of the lex specialis rule: ‘In particular two sets of difficulties may be highlighted. First, it is often hard to distinguish what is “particular” and paying attention to the substantive coverage of a provision or to the number of legal subjects to whom it is directed one may arrive at different conclusions. . . . Second, the principle also has an unclear relationship to other maxims of interpretation or conflict-solution techniques such as, for instance, the principle lex posterior derogat legi priori (later law overrides prior law) and may be offset by normative hierarchies or informal views about “relevance” or “importance”.’ Koskenniemi, supra note 55, at 35–6, para. 58 (emphasis in original). Despite this, the lex specialis rule ‘is a widely accepted maxim of legal interpretation and technique for the resolution of normative conflicts’. Ibid., at 34, para. 56.

75. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 23.

76. Ibid.

77. Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, 26 Martens Nouveau Recueil (ser. 2) 949, 187 Consol. T.S. 429, entered into force on 4 September 1900. Israel is not a state party.

78. This argument is analysed in section 2.3.

79. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 28.

80. The use of this expression under international humanitarian law is not entirely legally correct. A better alternative is to use the expression ‘unprivileged combatants’.

81. Additional Protocol I, supra note 30.

82. Prosecutor v. Blaškić, Case No. IT-95–14, T. Ch. I, 3 March 2000.

83. Ibid., para. 180.

84. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 26.

85. Additional Protocol I, supra note 30.

86. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 26.

87. For instance, the UN Inquiry Commission rejected the view that individuals targeted by Israel can be considered as combatants. See Question of the Violation of Human Rights in the Occupied Arab Territories, supra note 38, at 19, para. 62. According to Kretzmer, international terrorists ‘do not meet the conditions to be regarded as combatants and must, by definition, be regarded as civilians’. See Kretzmer, supra note 8, at 191–2. Watkin considers that they can be classified as civilians who momentarily lose the protection of that status, ‘unless and for such times as they take direct part in hostilities’. Watkin, supra note 63, at 6. Zachary argues that ‘[t]errorism itself has no status under international law, but the individual terrorist does, since he is first and foremost a civilian. No one is born a combatant, whether lawful or not, without being a civilian first’. S. Zachary, ‘Between the Geneva Conventions: Where Does the Unlawful Combatant Belong?’, (2005) 38 Israel Law Review 378, at 390. Amnesty International has also expressed the view that Palestinian terrorists are civilians who have lost their protection: ‘Palestinians engaged in armed clashes with Israeli forces are not combatants. They are civilians who lose their protected status for the duration of the armed engagement. They cannot be killed at any time other than while they are firing upon or otherwise posing an immediate threat to Israeli troops or civilians.’ See Amnesty International, ‘Israel and the Occupied Territories: State Assassinations and Other Unlawful Killings’, MDE 15/005/2001, February 2001, at 29, available at http://web.amnesty.org/library/pdf/MDE150052001ENGLISH/$File/MDE15005.01.pdf. In addition, in his expert opinion on the legality of targeted killing, Cassese treated Palestinian terrorists in this case as civilians. See A. Cassese, Expert Opinion on whether Israel's Targeted Killings of Palestinian Terrorists Is Consonant with International Humanitarian Law, Public Committee Against Torture et al. v. The Government of Israel et al., June 2003, at 16–18.

88. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Justice Rivlin, para. 2.

89. Ibid.

90. Ben-Naftali and Michaeli, supra note 8, at 271.

91. Ex Parte Quirin, 317 US 1 (1942).

92. J. Woolman, ‘The Legal Origins of the Term “Enemy Combatant” Do Not Support its Present Day Use’, (2005) 7 Journal of Law & Social Challenges 145, at 147. For a comprehensive overview of the history of unlawful combatancy, see Watkin, supra note 63, at 45–9.

93. Ibid., at 30–1.

94. The Military Commissions Act of 2006, Pub. L. No. 109–366 (S.3930), 120 Stat. 2600, § 948a(1)(A), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3930enr.txt.pdf.

95. Incarceration of Unlawful Combatants Law, 5762–2002, Art. 2, available at http://www.jewishvirtuallibrary.org/jsource/Politics/IncarcerationLaw.pdf.

96. Ibid.

97. Ibid., Art. 3(a).

98. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 27.

99. Ibid., para. 28.

100. Cassese, supra note 87, at 14–15, para. 26 (emphasis in original). Dörmann recognizes as well that neither the terms ‘unlawful combatant’ nor ‘unprivileged combatant/belligerent’ appear in international humanitarian law treaties. See K. Dörmann, ‘The Legal Situation of “Unlawful/Unprivileged Combatants”‘, (2003) 85/849 International Review of the Red Cross 45, at 46.

101. It is important to note that recognizing an ambiguous category within the existing framework of international humanitarian law could have serious consequences. Zachary warns that it could result in ‘a situation where in every conflict, a State will have numerous options by which to define people it holds captive, in ways that serve his own purposes and interests. The creation of a legal hybrid through which States can . . . enjoy only the advantages provided by the Third and Fourth Geneva Conventions, without granting the detainees defined status, is contradictory to recent trends in international law.’ Zachary, supra note 87, at 415.

102. ‘1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, “inter alia”, shall enforce compliance with the rules of international law applicable in armed conflict. 2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. 3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.’ Additional Protocol I, supra note 30, Art. 43.

103. Convention Relative to the Protection of Civilian Persons in Time of War, supra note 33.

104. Henckaerts and Doswald-Beck, supra note 66, at 3.

105. Ibid., at 19.

106. Ibid., at 25.

107. Additional Protocol I, supra note 30, Art. 51(2).

108. Ibid., Art. 51(3).

109. Henckaerts and Doswald-Beck, supra note 66, at 20.

110. Prosecutor v. Strugar, IT-01–42-T, T.Ch. II, 31 January 2005, para. 220.

111. G. Aldrich, ‘The Laws of War on Land’, (2000) 94 AJIL 42, at 53; Ben-Naftali and Michaeli, supra note 8, at 269; Cassese, supra note 32, at 416; Kretzmer, supra note 8, at 192; Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2004), at 11; V. J. Proulx, ‘If the Hat Fits, Wear It, if the Turban Fits, Run for Your Life: Reflection on the Indefinite Detention and Targeted Killings of Suspected Terrorists’, (2005) 56 Hastings Law Journal 801, at 879; M. Roscini, ‘Targeted Killing and Contemporary Aerial Bombardment’, (2005) 54 ICLQ 411, at 418.

112. Cassese, supra note 87, at 6, para. 10. He added that the ICTY expressed the same idea in Prosecutor v. Strugar et al., Case No. IT-01–42-AR72, A. Ch., 22 November 2002, paras. 9–10 and Prosecutor v. Martić, Case No. IT-95–11-R61, T. Ch., 8 March 1996, paras. 13–14. However, in the opinion of Israel, not all parts of Art. 51(3) of Additional Protocol I have a customary character. According to the state, the part of the Article which determines that civilians do not enjoy protection from attack ‘for such time’ as they are taking direct part in hostilities is not a customary rule. See Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 30.

113. International Committee of the Red Cross, ‘Direct Participation in Hostilities under International Humanitarian Law’, Summary Report, Geneva, September 2003; International Committee of the Red Cross/TMC Asser Institute, ‘Second Expert Meeting: Direct Participation in Hostilities under International Humanitarian Law’, Summary Report, The Hague, 25–6 October 2004; International Committee of the Red Cross (ICRC)/TMC Asser Institute, ‘Third Expert Meeting on the Notion of Direct Participation in Hostilities’, Summary Report, Geneva, 23–5 October 2005; all three reports are available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/participation-hostilities-ihl-311205.

114. ICRC/TMC Asser Institute, ‘Third Expert Meeting’, supra note 113, at 17.

115. Ibid.

116. Ibid., at 18–19.

117. Ibid., at 22.

118. Ibid., at 23.

119. Ibid., at 24.

120. Such as houses where civilians prepared and conducted their operations or places where a car bomb was being installed; ibid.

121. Ibid.

122. He observed that ‘acts which are intended to cause damage to civilians should be added to that definition’. See Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 33. Hostile acts were defined as ‘acts which by their nature and purpose are intended to cause harm to the personnel and equipment of the armd forces’. See V. Sandoz, C. Swinarski, and B. Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), 618, para. 1942.

123. Sandoz, Swinarski, and Zimmermann, supra note 122, 618–19, para. 1943.

124. Ibid., at 619, para. 1944.

125. Henckaerts and Doswald-Beck, supra note 66, at 22.

126. As stated earlier, there is some room for manoeuvre in the interpretation of the concept. The ICRC Commentary provides that to restrict it ‘to combat and active military operations would be too narrow, while extending it to the entire war effort would be too broad, as in modern warfare the whole population participates in the war effort to some extent, albeit indirectly’. See Sandoz et al., supra note 123, at 516, para. 1679.

127. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 34.

128. Ibid.; M. Schmitt, ‘“Direct Participation” in Hostilities and 21st Century Armed Conflict’, in F. Horst et al. (eds.), Krisensicherung und Humanitärer Schutz – Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck (2004), at 505–29.

129. He did quote a passage written by Schmitt:

This statement may have informed his reasoning, but he does not appear to have relied on it.

130. For the examples in this paragraph, see Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, paras. 34–35.

131. Ibid., paras. 34–35.

132. Ibid., para. 36. Here, Chief Justice Barak's finding follows existing Israeli case law and it implies that using involuntary ‘human shields’ is illegal. The Supreme Court, sitting as the High Court of Justice, has previously ruled that it is illegal for the IDF to use Palestinian civilians during military actions and that it is forbidden to use the ‘early warning’ procedure because it contradicts international law. See Adalah – The Legal Center for Arab Minority Rights in Israel et al. v. GOC Central Command IDF et al., HCJ 3799/02, 6 October 2005. This stance also reflects the position taken in international humanitarian law. See Convention Relative to the Protection of Civilian Persons in Time of War, supra note 33, Art. 28; Additional Protocol I, supra note 30. Art. 51(7). In this context, it should be noted further that the IDF Judge Advocate General has recently ordered the Military Police to initiate a criminal investigation into allegations that IDF soldiers have used Palestinians as human shields during an operation in the West Bank. See ‘Report: IDF Used Palestinians as Human Shields in Nablus’, Jerusalem Post, 16 March 2007; C. Urquhart, ‘Israel Accused of Using Palestinian Children as Human Shields’, Guardian, 9 March 2007; BBC News, ‘Israeli Army “Used Human Shields”’, 8 March 2007; BBC News, ‘Israelis Accused of “Human Shields” Tactic’, 25 July 2006. See also R. Otto, ‘Neighbours as Human Shields? The Israel Defense Forces’ “Early Warning Procedure” and International Humanitarian Law’, (2004) 86/856 International Review of the Red Cross 771.

133. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 36.

134. ‘Like workers in munitions factories, civilians acting as human shields, whether voluntary or not, contribute indirectly to the war capability of a state. Their actions do not pose a direct risk to opposing forces. Because they are not directly engaged in hostilities against an adversary, they retain their civilian immunity from attack. They may not be targeted, although a military objective protected by human shields remains open to attack, subject to the attacking party's obligations under IHL to weigh the potential harm to civilians against the direct and concrete military advantage of any given attack, and to refrain from attack if civilian harm would appear excessive.’ Human Rights Watch, ‘International Humanitarian Law Issues in a Potential War in Iraq’, briefing paper, 20 February 2003, available at http://www.hrw.org/backgrounder/arms/iraq0202003.htm#1. Schmitt, however, considered that civilians – with the exception of children – who act voluntarily as human shields unquestionably take a direct part in hostilities. See M. Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private Companies’, (2005) 5 Chicago Journal of International Law 511, at 541.

135. ICRC/TMC Asser Institute, ‘Second Expert Meeting’, supra note 113.

136. Ibid., at 6. However, it was agreed that ‘shielded’ objects remain military objectives.

137. ‘In aerial warfare, for instance, civilians shielding military objectives with their presence constituted much more of a legal obstacle for the attacker than an actual physical defense. Therefore, such voluntary shielding did not constitute DPH [Direct Participation in Hostilities] – but had to be weighed in the proportionality test. In land warfare, on the other hand, voluntary shielding could become an actual physical obstacle to military operations and would then have to be regarded as a defensive measure, which constituted DPH.’ Ibid., at 7.

138. Additional Protocol I, supra note 30, Art. 51(2); Henckaerts and Doswald-Beck, supra note 66, Rule 1, at 3.

139. K. Watkin, ‘Combatants, Unprivileged Belligerents and Conflicts in the 21st Century’, Background Paper prepared for the Informal High-Level Export Meeting on the Reaffirmation and Development of International Humanitarian Law, Cambridge, 27–9 January 2003, at 17.

140. Ibid.

141. K. Watkin, ‘Humans in the Cross-Hairs: Targeting and Assassination in Contemporary Armed Conflict’, in D. Wippman and M. Evangelista (eds.), New Wars, New Laws? Applying the Laws of War in the 21st-Century Conflicts (2005), 137–79, at 153.

142. Ibid.

143. Ibid.

144. Melzer, supra note 40, at 435.

145. Ibid.

146. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 37.

147. Sandoz et al., supra note 122, at 516, para. 1679.

148. Ibid.

149. Ibid., at 619, para. 1944.

150. Ibid., at 1453, para. 4787.

151. ICRC/TMC Asser Institute, ‘Third Expert Meeting’, supra note 113, at 28.

152. Ibid., at 34.

153. Cassese, supra note 87, at 8, para. 15.

154. Ibid. (emphasis in original).

155. Ibid., at 9, para. 16.

156. Melzer, supra note 40, at 432.

157. Ibid., at 433.

158. Ibid.

159. Sandoz et al., supra note 122, at 1453, para. 4789.

160. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 40.

161. ICRC/TMC Asser Institute, ‘Second Expert Meeting’, supra note 113, at 22.

162. ICRC/TMC Asser Institute, ‘Third Expert Meeting’, supra note 113, at 59.

163. Melzer, supra note 40, at 442.

164. ICRC/TMC Asser Institute, ‘Third Expert Meeting’, supra note 113, at 59.

165. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 39.

166. Ibid.

167. There is, however, a need to explore further the meaning of these notions. Fenrick, supra note 1, at 337–8.

168. ICRC/TMC Asser Institute, ‘Third Expert Meeting’, supra note 113, at 59.

169. Ibid.

170. Ibid., at 64; Melzer, supra note 40, at 447.

171. ICRC/TMC Asser Institute, ‘Third Expert Meeting’, supra note 113, at 64.

172. Melzer, supra note 40, at 446.

173. ICRC/TMC Asser Institute, ‘Third Expert Meeting’, supra note 113, at 60.

174. Ibid.; see also Melzer, supra note 40, at 443.

175. Melzer, supra note 40, at 443.

176. ICRC/TMC Asser Institute, ‘Third Expert Meeting’, supra note 113, at 62.

177. Ibid.]

178. Ibid.

179. This view was also submitted by an expert during the Third Expert Meeting, ibid., at 58.

180. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 40. It has been rightly suggested that the requirement of ex ante and ex post examinations, used within the framework of direct participation in hostilities by Barak, should a fortiori also apply to innocent civilians. See Cohen and Shany, supra note 1, at 317–18.

181. Several authors have welcomed this improvement and have found these requirements useful and helpful. Cassese, supra note 1, at 339; Fenrick, supra note 1, at 332, 337, 343–5; Cohen and Shany, supra note 1, at 310, 317–18.

182. Cassese observed that the rules of international humanitarian law on the conduct of hostilities, ‘which only minimally regulate states’ conduct and in effect serve only to prevent extreme cases, may not be amenable to serving as parameters for an assessment of the criminality of the conduct of individual combatants. In other words, those rules may serve for the purpose of establishing state responsibility in the most glaring instances of their violation, but may not serve as criminal rules: criminalization of conduct contrary to those rules might be contrary to the principle of specificity prevailing in international criminal law.’ Cassese, supra note 1, at 341. He emphasized, however, that the judgment has narrowed down these very broad standards, which may serve in the future ‘to turn some unclear international rules into workable standards of conduct, and also to open the way to the possible prosecution of individuals (superiors and subordinates)’. Ibid., at 339. See also Cohen and Shany supra note 1, at 310, 317–20; Ben-Naftali, supra note 1 at 322, 328–31.

183. Ibid., para. 41.

184. See for further details Part II, Section 2.1.5.

185. The customary principle is enunciated in Rule 14 of the International Customary Law Study. It provides that ‘[l]aunching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.’ See Henckaerts and Doswald-Beck, supra note 66, at 46. In conventional law, Art. 51(5)(b) of Additional Protocol I prohibits ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. Similarly, Art. 57(a)(iii) of the same instrument provides that those who plan or decide upon an attack shall ‘refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. In addition, Art. 57(b) stipulates that ‘an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. See Additional Protocol I, supra note 30.

186. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 42.

187. Ibid., para. 44.

188. Ibid.

189. A. Meyerstein, ‘Case Study: The Israeli Strike Against Hamas Leader Salah Shehadeh’, Crimes of War Project, 22 September 2002, available at http://www.crimesofwar.org/onnews/news-shehadeh.html.

190. See also Ben-Naftali, supra note 1, at 330.

191. Ibid., at 325 and 330; HC 8794/03 Hess. v. Chief of Military Staff. See also BBC News, ‘Israel's Military Chief Resigns’, available at http://news.bbc.co.uk/2/hi/middle_east/6269353.stm.

192. Ben-Naftali, supra note 1, at 330.

193. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 46.

194. Sandoz et al., supra note 123, at 683, para. 2206.

195. Ibid., at 684, para. 2209.

196. Ibid., at 684, para. 2212.

197. Ibid., at 684, para. 2215.

198. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Press Release, 13 June 2000, available at http://www.un.org/icty/pressreal/nato061300.htm.

199. Sandoz et al., supra note 123, at 683–4, para. 2208.

200. Ibid., at 684, para. 2210.

201. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 58.

202. H. Keller and M. Forowicz, ‘A New Era for the Supreme Court after Hamdan v. Rumsfeld?’, (2007) 67 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1.

203. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 56.

204. Ibid.

205. Ibid., para. 57.

206. Ibid., para. 58.

207. Physicians for Human Rights v. The Commander of IDF Forces in Gaza, HCJ 4764/04, 58(5) PD 385, 30 May 2004, 393.

208. Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 59.

209. This finding may have been prompted, among others, by the fact that the judgment could have repercussions on the conduct of targeted-killing proceedings initiated abroad. See Cohen and Shany, supra note 1, at 319; Ben-Naftali, supra note 1, at 325–6.

210. Section 2.3.5.1supra, n. 182.

211. Convention Relative to the Protection of Civilian Persons in Time of War, supra note 33.

212. Ben-Naftali and Michaeli, supra note 8, at 291.

213. However, a different and interesting view has been recently formulated in relation to this question. Ben-Naftali found that ‘the “inconclusive conclusion” of the Court is quite significant: it appears that the Court cannot determine whether the policy of targeted killings is permissible or impermissible. Appearances, however, are notoriously deceptive: the Court neither outlawed the policy nor did it legitimize targeted killings as a policy ab initio. It is quite possible that it attempted to preclude it from the ambit of Article 7 of the ICC Statute, which requires the establishment of a governmental policy as an element of crimes against humanity’ (emphasis in original); see Ben-Naftali, supra note 1, at 330.

214. If a targeted killing fulfils the criteria for ex ante and ex post verification, then it can be considered as being legal. These requirements are discussed in section 2.3.5.1supra, at 213 et seq. See Public Committee Against Torture in Israel v. Government of Israel, supra note 1, Opinion of Chief Justice Barak, para. 40. For a similar line of argument, see Fenrick, supra note 1, at 338.

215. Ibid., at 278–9.

216. Additional Protocol I, supra note 30, Art. 50(1).

217. Ibid., Arts. 51(2) and 51(3).

218. Ben-Naftali/ and Michaeli, supra note 8, at 278–9.

219. This should constitute an additional explicit limitation to targeted killing.