Blog of the International Journal of Constitutional Law

“Targeted killings” yet again?

An interesting story from Israel. Compliance with judicial scrutiny of “process-light” measures adopted by governments to combat terrorism is certainly not limited to the post-9/11 context. Spain (ETA), Britain (Northern Ireland), or Peru (Shining Path) are merely few examples. In 1999, the Israeli Supreme Court banned the use of torture in interrogations by Israel’s General Security Services, but allowed the use of what it termed “moderate physical pressure.” In 2006 it ordered the weighing of security considerations against potential harm to civilians in determining the legality of “targeted killings” (the controversial practice of assassinating suspected Palestinian terrorists by Israel’s security forces). The Court also held that a sincere effort must be made to arrest suspects before an order to kill is issued. Since that ruling, the official line has been that “targeted killings” are illegal and no longer practiced. Or are they?

On April 7, a story broke out in the Israeli media after it had been censored for a few months but eventually leaked to numerous foreign media outlets. It goes something like this: In 2007, a secretary at the office of a senior Israeli army general, during her mandatory military service (in most cases, 3 years for men, 2 years for women), collected and kept hundreds of documents, including “top secret” ones, which upon finishing her military service she transferred to an investigative journalist in Ha’Aretz (arguably, Israel’s most respected newspaper). The documents, dated after the Supreme Court ruling in 2006, appear to indicate that the IDF continued to approve the de-facto “killing upon encounter” of Palestinian Islamic Jihad militants that are included in the IDF’s “most wanted” list. These documents also appear to indicate an a-priori approval of killing of Palestinian civilians that happen to be at the scene. (As an aside: allegations of that nature were made in the Goldstone Report investigating alleged international law and human rights violations during the Israel-Hamas conflict in Gaza in early 2009). In late 2008, the journalist published an article accussing the army of disregarding the Court ruling. A year later, security services asked the journalist to reveal his sources. He refused, but agreed to hand in the documents and his computer. Days later, the source was detained, put in a 4-month house arrest, and is now facing charges of severe espionage with an intention to harm national interests. Conviction as charged carries a possible life sentence. The matter was kept in the dark for months.

So several issues arise, among them: 1) the obvious tension between freedom of the press and security needs, or what’s the role of censorship in such situations; 2) the shaky moral foundations of the “targeted killings” practice used by “rule of law” states; 3) the ethical and legal rules of engagement with respect to the source-journalist-security services triangle; and 4) the army’s apparent disregard, or at least loose interpretation, of Supreme Court rulings. The source, herself working for a local news website, says the documents were circulating around freely in the general’s office, with dozens of low-ranked personnel with little or no security clearance having access to them. She says she had no intention to harm national security interests, just to alert the media to the situation. Intentions aside, the story has now turned into a whole espionage-censorship-is the army above the law kerfuffle. Did top army generals, perhaps even pertinent political authorities, blatantly ignore an unwelcomed Supreme Court ruling? Please stay tuned.



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