Lessons for human rights and humanitarian law in the war on terror: comparing Hamdan and the Israeli Targeted Killings case

International Review of the Red Cross No 866, p. 373-393

A sort of counter to the blog post below. This article looks at 2 recent cases involving terrorism and human rights and humanitarian law.

A key portion to note (with relevance to the discussion on targeted killings) is on page 389, where the Israeli Supreme Court lays down conditions for targeted killings

1. The state must possess well-based, thoroughly verified information regarding the identity and activity of the civilian who is allegedly taking part in the hostilities; the burden of proof on the state is heavy.
2. A civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed. In the words of the Court, ‘‘Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.’’
3. If a civilian is indeed attacked, a thorough and independent investigation must be conducted regarding the precision of the identification of the target and the circumstances of the attack, and in appropriate cases compensation must be paid for harm done to innocent civilians.
4. Finally, combatants and terrorists are not to be harmed if the damage expected to be caused to nearby innocent civilians is not proportionate to the military advantage directly anticipated from harming the combatants and terrorists.