EXTRA-JUDICIAL EXECUTIONS DURING THE AL-AQSA INTIFADA:  A GRAVE BREACH OF THE 4^th GENEVA CONVENTION
 
(Prepared by the Palestinian Society for the Protection of Human Rights and the Environment)
 
February 6, 2001

Introduction

Following the executions[1] of two Palestinians found guilty of collaborating with Israel on 13 January 2001, the Israeli Prime Minister, Ehud Barak commented: “I am opposed to the death penalties, which we saw [being carried out] in the Palestinian Authority”[2]. In an allusion to the fact that the death sentences had been handed down by the Palestinian State Security Court after grossly unfair trials[3], the Israeli Prime Minister criticized the way the defendants had been executed after  “show trials reminiscent of darker periods in history”[4].  While condemning the implementation of death sentences after unfair trials in the PNA controlled areas, the Israeli government has repeatedly approved the “liquidation” of Palestinians suspected of hostile activities against Israeli soldiers or civilians. In the Israeli official rhetoric these killings have been termed as “hitting Palestinian targets”, “pinpointing attackers” or “neutralizing the organizers of attacks”.  However, in reality, these killings constitute extra-judicial executions, where the victims have been killed without trial and without the chance of a fair legal process designed to examine the allegations brought forward against them. Instead they have been sentenced to death in a secret process, with no opportunity to defend themselves or to appeal the sentence. 

Apparently in response to criticism of massive helicopter attacks on Palestinian targets, the Israeli political and military establishment decided to adopt a policy of extra-judicial executions to punish and deter with the aim of suppressing the current Intifada. Israeli Deputy Defense Minister Ephraim Sneh explained the policy as follows: “I can tell you unequivocally what the policy is. If anyone has committed or is planning to carry out terrorist attacks, he has to be hit…It is effective, precise and just.”[5] It should however be noted that Israel’s liquidation policy with regard to Palestinian suspects is not new. Undercover units of the Israeli army also carried out extra-judicial executions during the first Intifada (1987-1993) and throughout the period of the Oslo Process.  

Since 9 November 2000, at least 8 Palestinians affiliated to Fatah, Hamas or Islamic Jihad and 6 bystanders have been killed pursuant to this policy while others have been injured. The weaponry used to carry out the assassinations included sniper fire, missiles from helicopter gunships, tank-fire and a bomb planted in a car. The killings were carried out under circumstances, which suggest complete disregard for the risk involved to the lives of bystanders. Some of the victims were gunned down in the center of towns or even when driving a taxi with passengers.

Among those killed, three were political prisoners who had been released from PNA prisons shortly before their assassination. As hundreds of others associated to or suspected of supporting the Islamist groups Hamas and Islamic Jihad, Ibrahim Bani Audi, Anwar Humran and Abbas Awiwi had been held in PNA prisons without charge or trial, outside the framework of domestic law and in contravention of international human rights standards. LAW had repeatedly demanded that they be either released or promptly tried before a court operating in accordance with international fair trial standards.

Statements by military and political officials suggest that the Israeli government feels entitled to “use all available means” and  “do everything possible in order to foil terrorist attacks.”[6] It is within this conceptual framework that the assassination of Palestinians perceived as a threat is legitimized on the grounds of its “effectiveness”.  However, whatever policy the Israeli government chooses to implement, it must be within the limits imposed by international humanitarian and human rights law. For this reason, Israel is not allowed to “use all available means” in its confrontation with the Palestinians. No matter how “effective” they may be, the undisputable fact is that extra-judicial executions are a violation of international law. Under the Fourth Geneva Convention, Israel as the Occupying Power has the right to arrest and bring to trial those suspected of violent hostile activities. However, under the same Convention, extra-judicial executions are wilful killings, which constitute war crimes and are subject to universal jurisdiction. 

Statements by Israeli officials: The Intent to kill

The decision to systematically implement a policy of political assassinations during the Al Aqsa Intifada was taken after the use of helicopter attacks on PNA targets – police stations, political party offices and TV stations – was deemed ineffective and harmful to Israel’s image in the international community. In the wake of the bomb attack on a bus in Hadera on 22 November 2000, senior military officials announced that Israel would respond with a number of steps, which could include “the use of special units to neutralize the organizers of the attack”.[7] The same day Israel Radio reported that “Israel Air Force attacks against Palestinian targets will be cut down to a minimum because they are not very effective and cause harm to Israel’s image; instead, Israel will use elite units to pinpoint attackers”.[8] About ten days later, a senior Israeli defense official told the Israeli newspaper Ha’aretz that the “new approach” would allow Israel “to take advantage of places where there is a relative advantage in order to hit a Palestinian target, even if this is not done immediately after an attack against us.”[9] In the same article, it was reported that pursuant to this policy, a number of elite units of the Israeli army had been deployed in the West Bank and the Gaza Strip to target senior activists in Fatah and other Palestinian organizations.

On 2 January 2001, two days after the assassination of Dr. Thabet in Tulkarem, the “liquidation policy” was discussed in the Knesset Foreign Affairs and Defense Committee. During the committee meeting, a senior official in the security establishment stated that  “the activity involving the assassination of wanted [terror] suspects is effective”.  When some members of the Knesset questioned the legal and moral basis of these killings, Ehud Barak explained that Israel was in a warlike situation and had to fight “terror” with all available means[10]. The Israeli Prime Minister added:  “We are at war…If people shoot at us and kill us, then our alternative is to attack them. A state facing the threat of terror has to wage a struggle.”[11]   In the same meeting, Chief of Staff Shaul Mofaz referred to a legal opinion issued by Military Advocate General Menachem Finkelstein arguing that in exceptional cases it was permissible to kill ‘Palestinian terrorists’: “This is not routine, but an exceptional method whose goal is to save human lives in absence of any other alternative. (…) It is used against people [who have] definitely [been] identified as having worked, and are working, to commit attacks against Israel.”[12]

On 9 January 2001, Dr. Thabet’s widow filed a petition with the Israeli High Court and asked the Court to order the government to stop its liquidation policy. The High Court subsequently asked Ehud Barak in his capacity as Israel’s Defense Minister, to respond to the petition. Attorney General Elyakim Rubinstein has stated that there is no Israeli “shoot-to-kill” policy and that the government will soon present to the High Court its position on the matter.[13] However, recent statements by Deputy Defense Minister Ephraim Sneh after two Israelis were killed in Tulkarem appear to indicate that Israel has no intention of stopping its policy of assassinating Palestinian activists:

“There is no magic remedy in this war. There’s no one means that provides answers to everything. But on the bottom line, when you weigh the cost versus the benefit in human lives, pinpoint operations against arch-terrorists – this is the most effective thing.”[14]

Extra-judicial Executions: 8 Cases

The assassination of Hussein ‘Abayat on 9 November 2000 was the first known extra-judicial execution carried out by Israel since the beginning of the Al Aqsa Intifada. A number of killings followed, which LAW believes did also constitute extra-judicial executions. The list below does however not claim to be comprehensive.

The following Palestinian political activists have been victims of the Israeli liquidation policy during the Al Aqsa Intifada:

Hussein ‘Abayat was killed on 9 November 2000 in Beit Sahour near Bethelem when helicopters of the Israeli Air Force fired anti-tank missiles on his car. Two women standing nearby, Aziza Mahmoud Danoun Jubran (58) and Rahma Rasheed Shaeen Hindi (54), were killed. At least 3 other people were badly injured, namely Nasmi and Jamila Sh’ibat and Khaled Salahat. 

Jamal Abed Al Razeq, a 30-year-old Fatah activist, was killed at the Morag Junction in the Gaza Strip on 22 November 2000. Three other Palestinians were killed during the incident, namely Awni Ismail (37), Sami Abu Laban (35) and Nael Alidawi (25), all from Rafah. 

Ibrahim Bani Audi was killed in Nablus on 23 November 2000 by a bomb planted in his car by the Israeli security services with the collaboration of a relative of Ibrahim.

Anwar Mahmoud Humran was killed by snipers of the Israeli army on 11 December 2000 when leaving Al Quds Open University in the al Dahye quarter in Nablus.

Yousif Abu Swaye was killed on 12 December 2000 by snipers of the Israeli army just outside his father’s house in Al Khader village near Bethelem.

Abas al Awiwi was killed by snipers of the Israeli army in Hebron on 13 December 2000 when he was standing in front of the shoe factory when he use to work.

Hani Abu Bakra, a 31-year-old Hamas activist, was killed at the Gush Katif junction in the Gaza Strip on 14 December 2000, when driving a minibus with passengers on board. He was stopped by Israeli soldiers who asked for his ID and then shot him in the head and the chest from short range. A 40-year-old passenger, Issa Kanan, was injured during the incident and died later from his wounds.   

Dr. Thabet Thabet was killed by gunfire in Tulkarem on 31 December 2000, when reversing his car outside his home.

EYEWITNESS REPORTS

The case of Hussein ‘Abayat, assassinated in Beit Sahour on 9 November 2000

On 9 November 2000, at 11.30 a.m., Hussein ‘Abayat, a 37-year-old local Fatah activist, was killed in Beit Sahour near Bethelem when helicopters of the Israeli Air Force fired anti-tank missiles on his car. During the attack, two women standing nearby, Aziza Mahmoud Danoun Jubran (58) and Rahma Rasheed Shaeen Hindi (54), were killed. At least 3 other people were badly injured, namely Nasmi and Jamila Sh’ibat and Khaled Salahat. 

Imad Jamil Fares, a resident of Beit Sahour who lives near the site where ‘Abayat was assassinated, reported to LAW[15]:

I remember the day, it happened on 9 November 2000. My house is about 10 meters from the site where ‘Abayat was killed and I was at home. I did not see how his car was fired upon. At around 11.45 in the morning, I suddenly heard an explosion and went out to see what had happened. Within seconds, I heard another explosion. The windows of my house were broken and the shutters were damaged. When I looked out I saw a grey Mitsubishi on fire and the burnt body of the driver. Two women were lying on the ground near the car and appeared to be critically injured. Their faces were black, completely burnt and still bleeding.

I knew the two women because they were from the same village as me but I did not recognize them. They had come to Beit Sahour to visit a neighbor whose house had been shelled by the Israeli army the night before. One of them, Aziza Danoun Jubran, is actually a relative; she was my uncle’s wife. She had been hit in her head and all her clothes were burnt but she was still alive. The other woman, Rahma Shahin, had also been hit in the head and was bleeding severely from the abdomen. Other people were also injured during the attack. For example, Nasmi and Jamila Sh’ibat, a couple who live nearby. Nasmi had injuries all over his body and could not move; Jamila was wounded in her face and the abdomen.

The Israeli army justified the assassination of Hussein ‘Abayat, who was married and had four children, and thus overtly admitted responsibility. Head of the Central Command Major General Yitzhak Eitan argued that Abayat had organized many gunfire attacks on Gilo, a Jewish settlement illegally established on territory occupied by Israel in 1967. In relation with the assassination of ‘Abayat, the Israeli newspaper Ha’aretz quoted Eitan as follows: “The State of Israel cannot for long stay indifferent to the repeated attacks on its soldiers and civilians. Any other country would long ago have responded with great force. We will continue to hurt anyone trying to hurt us. This is not our first or our last move.”[16] According to the same source, Israeli military sources further claimed that “the attack was carried out in a ‘highly professional way’, and that civilian casualties could not have been prevented.”[17]

The case of Ibrahim Bani Audi, assassinated in Nablus on 23 November 2000

In the afternoon of 23 November 2000, 34-year-old Hamas militant Ibrahim Bani Audi was killed in Nablus by a bomb planted in his car by the Israeli security services with the collaboration of Alan Bani Audi, a relative of Ibrahim. When the bomb exploded Ibrahim was driving in front of the Al Salam mosque, on Jamal Abed al Nasser Street, in the center of Nablus. He died instantly. Following the explosion, helicopters of the Israeli Air Force were seen hovering over the town.

Israeli army sources suggested that Ibrahim Bani Audi had been killed while preparing a bomb[18]. However, during his trial in front of the Palestinian State Security Court in Nablus[19], Alan Bana Audi admitted that he had been recruited by the Israeli security services in February 2000. He explained how he was blackmailed into collaboration and reported that during a meeting on 21 November Israeli agents took his car for a few hours and instructed him to give it to Ibrahim[20]:

In February 2000, I was arrested by Israeli intelligence agents and taken to a place for interrogation. The agents played a tape with a conversation I had had with a girl and gave me a cup of coffee with tranquilizers. After that I was shown pictures of myself with a woman I did not know. They blackmailed me and I agreed to collaborate with them.

When the Intifada broke out the Israeli security agents asked me to watch Ibrahim Bani Audi and to provide them with information about him. I visited Ibrahim in Jneid prison several times and told him that I was willing to carry out suicide bombings and that I wanted to join Hamas military wing [Izzadin Kassam]. We had a good relationship and I informed the Israelis about him.

On Tuesday night, 21 November, I had a meeting with Israeli agents. During the meeting I noticed that my car was taken to another place for about three hours. I received instructions to give Ibrahim my car on Wednesday or Thursday and to go afterwards to Kossyn near Nablus. During prison furloughs, Ibrahim used to drive a car.

On Thursday, 23 November, at about 12.30, I received a phone call from Ibrahim. He told me that he was in Sefhian Street in Nablus and I gave him my car.

Afterwards I went to Kossyn. There were three Israeli agents waiting for me. After a while I received a phone call from a relative who told me that Ibrahim had been killed by an explosion in his car. The Israeli agents explained that their aim was to hit Hamas and to cause tension between Hamas and the PNA. They said that they did not want me to go back to my village and that I should stay in Israel. 

Ibrahim Bani Audi was a 34-year-old Hamas militant from the West Bank town of Tammoun near Jenin, married with four children. He was assassinated while on furlough from Jneid prison near Nablus, where he had been detained without trial since August 1998.

The case of Anwar Mahmoud Humran, assassinated in Nablus on 11 December 2000

On 11 December 2000, at about 1.30 p.m., Anwar Mahmoud Humran, a 28-year-old Islamic Jihad activist from the West Bank village of Arrabe near Jenin, was killed by snipers of the Israeli army in Nablus. Eyewitnesses reported that he was shot at from an Israeli army outpost on Mount Jerzin when leaving Al Quds Open University in the al Dahye quarter in Nablus. Rafidiah hospital in Nablus, where Humran was subsequently taken, reported that his body had been hit by 19 bullets.

According to press reports, the Israeli army said that soldiers had returned fire after being shot at by Humran and other Palestinians, suggesting that he had been killed in an exchange of fire.[21] Eyewitnesses stated however, that there was no previous shooting in the area at the time of the incident and that Humran appeared to be looking for a taxi when he was suddenly struck down by intensive gunfire. Mayada Jum’a, an 18-year-old student, reported to LAW[22]:

On 11 December, at around 1.30 p.m., while doing some studying in the balcony of my flat, I saw a man standing in the street, at a distance of about 10 meters from my house. I knew him because he had rented a shop in the same building where I live. He was on his own and appeared to be waiting for a taxi; maybe he was on his way home from college. The area was quiet and there were no clashes going on at that time.

Suddenly I heard two gunshots and saw that a bullet had hit the man in the leg. He fell on the ground and started screaming. The shots to his body continued however and did not cease for about 5 minutes. The shooting came from the Israeli army outpost on Mount Jirzeem. I think that he must have been hit by 20 bullets or more. There were some university students around but everybody was scared, and it took some time until people dared to approach the man lying on the ground.

I weep every time I remember the incident. It is the first time in my life that someone has been killed in front of my eyes. I ask God to let me forget what I have seen. 

The account given by another resident, 45-year-old Nura Libada, also indicates that Anwar Humran was deliberately gunned down rather than killed in a shoot out[23]: 

On 11 December, at about 1.30 p.m., while I was cleaning at home, I heard heavy gunshots. At the first moment, I thought that the shooting was directed against my house but my son called me and said ‘come mama see, a guy has been shot’. I opened the door and saw a man lying on the ground, at a distance of about 10 meters from my house. The shots continued for about 5 minutes. I screamed and wondered why they were shooting at this man in particular. I wanted to rush towards him but I was terrified. There were people around, students and other pedestrians but no one could reach him because of the shooting. We called an ambulance but he was already dead when it arrived. He died instantly. I reckon that about 20 bullets hit him.

Anwar Mahmoud Khumran, who was married with children, was a political detainee in the PNA. He had been held in detention without charge and trial in Jneid prison near Nablus since October 1998 and was released only 6 weeks before his assassination. In March 2000, LAW and the Palestinian Independent Commission for Citizens’ Rights (PICCR) had petitioned the Palestinian High Court in Ramallah for his release arguing that his detention was illegal.[24] At the time of the assassination the case was still pending.

The case of Yousif Abu Swaye, assassinated in Al Khader (Bethlehem) on 12 December 2000

On 12 December 2000, at about 2.30 in the afternoon, 28-year-old Fatah activist Yousif Abu Swaye was gunned down by IDF snipers just outside his father’s house in Al Khader village near Bethelem. According to information gathered by LAW, he was approaching the house when a barrage of shots was fired at him and riddled his body. He died immediately. His father, Ahmad Abu Swaye, told LAW[25]:

On Tuesday, 12 December, I was expecting my son and his wife for the Iftar – the breaking of the fast during Ramadan. He had got married nine months ago and his wife was pregnant. She arrived first; Yousif had stopped at the Suleyman Pools for prayer and would arrive shortly. The Suleyman Pools are very close to my house in Al Khader. A short while later, at about 2.30 p.m., I heard gunshots. When I went out to see what was happening I heard 5 more gunshots and saw a man lying on the ground, at a distance of about 10 meters from my house. At that stage I did not realize that the young man was my son. I rushed to help him but when I reached him he did not move. He was already dead. The neighbors came and we took him to Beit Jala hospital. Twenty-one bullets hit him all over his body including the head, the neck and the chest. I did not see any soldiers at the site but the shots I heard came from the direction of a nearby Israeli army outpost.          

Yousif Aby Swaye had been fined and detained during the first Intifada (1987-1993) and was apparently wanted by Israel. His father reported that already in 1995 Israeli soldiers searching for his son had threatened to kill him:

In 1995 Israeli soldiers broke into my house in the middle of the night and forced all the family and me to stand against the wall. An officer called Captain Sultan inquired about Yousif’s whereabouts and threatened: ‘I know that he is hiding in the PNA controlled areas; never mind, we will bring him dead to you’.

According to press reports, the Israeli army had no immediate comment but the assassination came just hours after statements that Israel “would track down and kill those who harm Israelis.”[26]

The case of Abas al Awiwi, assassinated in Hebron on 13 December 2000

On 13 December 2000, 26-year-old Hamas activist Abas al Awiwi was killed by snipers of the Israeli army in Hebron. At the time of the attack he was standing in front of the shoe factory where he used to work, at a distance of 250 meters from an Israeli checkpoint located between areas H1[27] and H2. According to medical reports, al Awiwi was shot at close range and hit by three bullets, two in the abdomen and one in the chest.  

Abderrahman Ahmad Abderrahman Badr, an engineer who has his office in the same building as the shoe factory of the al Awiwi family, reported to LAW[28]:

On 13 December 2000, I was in my office in El Adel Street in the center of Hebron, which is about 400 meters away from the H2 zone of Hebron, under Israeli control. The shoe factory of the al Awiwi family is on the ground floor of the building while my office is on the second floor.

I remember that it was exactly 12.20 p.m. when I heard a sound like that of a bomb or a sound bomb. I got off my chair and looked out of the window down to the street. At a distance of about 5 meters from the sidewalk I saw the young Abas al Awiwi lying on the ground. A group of young people rushed towards him, stopped a taxi, asked the passengers to get off and put him in the taxi. Afterwards I learnt that he had been shot dead.

According to press reports the Israeli army refused to admit or deny responsibility for the assassination.[29] Apparently Israel claimed that Abas al Awiwi was carrying a pistol but information collected by LAW indicates that he was unarmed at the time of the attack.

Since 1997 Abas al Awiwi had been held several times in detention without trial in the prison of the Al Muqata’a in Hebron, under the control of the PNA. He had been released from prison about 5 weeks before his assassination.

The case of Dr. Thabet Thabet, assassinated in Tulkarem on 31 December 2000

On 31 December 2000, at around 10 a.m., Dr. Thabet Thabet, a 50-year-old dentist, married and with three children, was killed by gunfire outside his home in the West Bank city of Tulkarem. He was taken to Tulkarem hospital but died from his wounds at about 10.30 the same morning. Dr. Thabet was Fatah’s secretary general in Tulkarem, director general of the Palestinian Health Ministry in Nablus and a lecturer in Public Health at Al Quds Open University.  His wife, Dr. Siham Thabet, reported to LAW[30]:

My husband was killed when he was reversing his car outside our home in Tulkarem. He was on his way to work at the PNA Health Ministry in Nablus. Our home is in Area A[31] but he was shot from Area C[32], from a distance of about 250 meters. Over 20 bullets hit him; later it was found that three different kinds of ammunition had been used. It is obvious that the aim of the “operation” was to kill him.

I myself heard machine gun fire when I was on my way to work at the dental clinic. I would however never have imagined that what I heard was my husband being gunned down.

Palestinian eyewitnesses confirmed that a unit of Israeli soldiers, hiding in a truck, opened fired on Dr. Thabet while he was reversing his car. They also stated that a car with an Israeli license plate was seen in the area and took off when Dr. Thabet was hit, and that a military helicopter was hovering above the site at the time.

After the incident, the Israeli army did not acknowledge responsibility and said that Dr. Thabet had been killed in an exchange of fire or in the midst of cross fire.[33] However, during a meeting of the Knesset Foreign Affairs and Defense Committee on 2 January 2001, a senior Israeli security official was reported as stating the following with regard to the killing of Dr. Thabet:

“We attack terrorists who set out to shoot at [civilians]; we identify the heads of squads and district commanders, and attack them. This activity frightens and quiets a village; and as a result, there are regions in which [operatives] are afraid of undertaking activities.”[34]  

While the Israeli General Security Services (GSS) claim that Dr. Thabet was a “terrorist” responsible for planning attacks against Israeli civilians[35], leaders of the Israeli Peace Now movement expressed shock at the assassination. “He’s somebody we knew quite well”, said Meretz Knesset Member Naomi Chazan.[36] Dr. Siham Thabet confirmed that her husband had frequently taken part in activities designed to advance reconciliation between Israelis and Palestinians:

My husband was a man in search of peace with Israel. He was a member of the joint Palestinian-Jordanian delegation at the Madrid Middle East Peace Conference in October 1991. For a number of years he was involved with Israeli peace groups and institutions fostering Palestinian-Israeli dialogue and coexistence such as Peace Now and Givat Hagiva. As a matter of fact, Israeli peace activists called or sent condolences when they learnt about his assassination. Some even came to Tulkarem with flowers to pay him last honors but were stopped at the checkpoint because of the ban on Israelis entering area A.

Whatever the truth behind the Israeli allegations against Dr. Thabet, they cannot justify his assassination, which constitutes an extra judicial execution in blatant violation of international law. If the Israeli authorities believed that Dr. Thabet was responsible for attacks on Israeli civilians they should have acted within the framework of domestic and international law. In this regard, Dr. Siham Thabet stressed that her husband could have easily been arrested during one of his regular visits to a mosque located in area C, under full Israeli control:

If the Israeli authorities were suspicious about my husband why did they not arrest him and bring him before a court? It would have been easy to do so. My husband used to go every Friday to Suffarini mosque for prayer, near Faroun village. The mosque is in Area C, under Israeli responsibility for civil affairs and all (internal and external) security. It would have been easy for the Israeli authorities to arrest him there, for example. 

On 9 January 2001, Dr. Siham Thabet filed a petition with the Israeli High Court of Justice asking the court to order Ehud Barak to refrain from “executing people without trial”.[37] The petitioner argued that extra judicial executions are in violation of the 4^th Geneva Convention and therefore illegal.  Dr. Thabet’s wife also asked the High Court to issue an interim injunction banning Barak from ordering any such killings until the end of proceedings. The Israeli High Court has refused to issue such an interim injunction but has ordered Barak, as Defense Minister, to respond to Dr. Thabet’s petition. 

While waiting for the outcome of the petition Dr. Siham Thabet explained to LAW:

Israel claims to be a democratic society where no one is above the law. So I have turned to the Israeli High Court of Justice. I do not want revenge. All I want is justice for my husband who was a brave and courageous man. I want that those responsible for the killing of my husband be brought to trial and punished for what they have done. I also have asked the High Court to order Barak to stop his “liquidation policy”. I am not a politician but I believe that no one should be killed that way. These assassinations are barbaric and should be stopped immediately. There are laws and courts to solve disputes. This is the path I personally have chosen. 

EXTRA-JUDICIAL EXECUTIONS AS WILFUL KILLINGS AND GRAVE BREACHES OF THE 4^TH GENEVA CONVENTION – THE LEGAL CONTEXT

The Israeli government have pursued a policy of directly “eliminating” Palestinian individuals who they deemed to have planned, coordinated or directly carried out armed attacks against its troops and settlers in occupied territory, as well as against civilian targets within its sovereign borders. As a pretext for this policy, the Israeli authorities have categorized the current Palestinian uprising as an armed conflict, under the rationale that such a categorization justifies wide ranging counter-insurgency methods permitted under the doctrine of military necessity than would otherwise be the case.[38]

However, Israel’s assassination policy is deeply problematic within the context of international humanitarian law, and as will be argued below, in fact constitutes wilful killing, which is a grave breach of the Fourth Geneva Convention.

International humanitarian law recognizes two categories of person, combatant and non-combatant. Combatant generally refers to an individual who is part of the armed forces of a state who is a party to a conflict. Non-combatant generally refers to individuals who are civilians who are not part of an organized armed group such as the army of a state and who find themselves in the midst of an armed conflict. Non-combatant also refers to individuals who are residents of a territory that has come under the occupation of hostile forces of which they are not citizens. Under the rubric of international humanitarian law, non-combatants enjoy a special status. They are regarded as protected persons. Article 4 (1) of the Fourth Geneva Convention for the Protection of Civilian Persons in Time of War defines protected persons as: “….. those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” Pursuant to Israel’s occupation of the Gaza Strip and the West Bank in 1967, the Palestinian population are for the purposes of public international law, protected persons.

International humanitarian law is permissive in the sense that it confers upon the occupying power wide ranging powers to administer the occupied territory and ensure adequate safeguards for the protection of its troops and military installations. Protected persons are under an obligation to obey the administrative measures of the occupying power and the occupying power is under a legal obligation to abide by the Convention’s provisions. However, in circumstances as in the case of the Palestinian territories where the occupation has been prolonged and where the occupying power has pursued actions such as settlement construction and extensive land confiscations in order to thwart the legitimate right to self-determination of the Palestinian people, it could conceivably be argued that the protected persons have a legitimate right to resist the actions of the occupying power.[39] Israel’s presence in the Palestinian territories goes way beyond the custodial role assigned to a belligerent occupant in public international law due to its colonizing efforts. A right to resist could also be asserted because the two safe guard mechanisms within the Convention stated in article 1: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances” has not been adhered to by Israel or the other High Contracting Parties, placing an onus on the protected persons themselves to resist the wholesale commission of war crimes against them as well as a concerted policy aimed at denying them the right to self-determination as stipulated in article 1 (2) of the United Nations Charter. The Declaration on the Granting of independence to Colonial Countries and Peoples, adopted in 1960, could be said to have set the terms for the self-determination debate by emphasizing the colonial context. The Declaration stipulates:

All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Protected persons who resist the occupying power should not be deemed to have lost the most salient safeguards to which they are entitled to as civilians under a regime of belligerent occupation, such as the arbitrary denial of the human right to life.   

However, according to article 5 of the Fourth Geneva Convention:

“……Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

This article is extremely important. The occupying power is not given a license to kill those who it suspects are a threat to its security. Nor should an occupying power that violates the fundamentals of international humanitarian law be granted the right to liquidate those who resist those very violations in an extra-judicial manner.

Protected persons who resist the occupying power do not become combatants, but no longer enjoy some of the protective provisions of the Convention. The occupying power is entitled to apprehend them for example, or even kill them in the event of an actual firefight. Those individual protected persons who are killed during active engagement with the occupying power can be said to have been “lawfully killed” if they posed an immanent threat to the life of the occupying troops. However, the occupying power is not permitted to actively seek out for liquidation those individuals that it suspects are engaged in hostile activities. It is instead, under a primary obligation to attempt to arrest and detain.[40] This can be seen to be the gist of article 5. Clearly this construal of article 5 would apply to those individuals who resist the actions of an occupying power. In sum, the occupying is obliged to arrest and detain those that:

A)    It suspects are conducting hostile activities against its occupation.

B)    Those who resist the occupying power.

As illustrated above, Israel could have arrested and detained a number of those individuals who were killed under the remit of the assassination policy. This puts Israel’s assassination policy wholly at odds with international humanitarian law.

As there was a clear intent to kill those who were deemed to be a risk to the security of the occupation rather than apprehend, Israel’s assassination policy constitutes wilful killing. The test for wilful killing is intent and the culpability for these killings rests with the upper echelons of Israel’s security establishment and their political masters. Wilful killing is a particularly grievous crime within the context of international humanitarian law and constitutes a grave breach of the Fourth Geneva Convention subject to international criminal prosecution. Article 146 and 147 of the Convention clearly sets down the grave breaches of the convention and the implications of such breaches. According to article 146:

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.

Article 147 in part stipulates:

Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing………………

The relevant provisions of international humanitarian law that regulates the custodial nature of belligerent occupation insists absolutely on the principles of humanity and proportionality. When dealing with an occupied civilian population the occupying power is under a clear legal obligation to employ the doctrine of military necessity in a judicious fashion. Actions within the rubric of military necessity must be strictly circumscribed by the margin of appreciation conferred upon the occupying power. Israel has long gone beyond the margin of appreciation principle within international humanitarian law. Israel’s liquidation policy has been carried out without clear detailed charges against the marked individuals being furnished to the public domain for scrutiny. Moreover, such a policy lends itself to the possibility of serious errors, and in one clear case, the killing of Hussein ‘Abayat, Israel failed the test of proportionality and discrimination when two bystanders were also killed.

If international humanitarian law is to protect anyone, it cannot merely consider any casual contribution to armed hostile activity as participation, but only the contribution implementing the final element in the chain i.e. the event of the actual application of military violence and even then, the occupying power is bound by the principles of proportionality, discrimination and necessity. The principle of proportionality implies that the force used should not exceed the level required to stop the threat and must be in proportion to the harm threatened. The principle of discrimination implies that every effort must be made to avoid harm, and to minimize harm that cannot be avoided. The principle of necessity means that no choice of means and no moment for deliberation is left. Thus, even though Israel has made allegations about the purported actions of those individuals who were killed and has not furnished evidence, even if the allegations were accurate, there are rules under international humanitarian law that should have governed Israel’s conduct.