Regulating Anti-Terror Warfare: New Policy

Barak Medina*
Is it permissible to extra-judicially detain a person or even intentionally kill him, based on information that he is a member of a terror organization? The prevailing approach calls for applying the international laws of war, where the answer is based on determining the status of the targeted-person. Once it is established that a persons involvement in the hostilities meets some threshold, he loses the protection afforded to civilians and may thus be targeted or detained. This Article questions this approach. It suggests that the unique characteristics of the fight on terror require imposing a duty to justify, on an individualized basis, targeting and detaining persons. Anti-terror warfare is an armed conflict of a special type in two main aspects: the terrorists often disguise themselves among civilians, thus creating an enhanced risk that anti-terror warfare will result in mistakenly targeting innocent people; and the terrorists are not acting as part of a political entity, which may be reasonably held responsible for the terrorists choice to employ this practice of blurring the distinction between combatants and civilians. Consequently, a state that fights terror is required to further mitigate the risk of targeting or detaining innocent people. For this purpose, the power to target or detain suspected terrorists should be subject to the constraints that result from human rights law. The Article presents the conditions of the permissibility of employing anti-terror measures: The purpose of the action must be preemption rather than retribution or deterrence, the risk posed by the targeted person should be sufficiently high, in terms of the probability that he will be involved in a terror attack if not thwarted, and the measure taken should be the least harmful alternative to achieve its aim. The Article discusses this doctrine of individual dangerousness, and presents the plausibility of its implementation through a discussion of the Israeli Supreme Court anti-terror jurisprudence, which already applies, to some extent, this doctrine.

Lawrence D. Biele Professor of Law, Law Faculty, the Hebrew University of Jerusalem; Visiting Professor, University of California at Berkeley School of Law (2012/13). I thank David Enoch, David Kretzmer, Russell Korobkin, Liav Orgad, Ilan Saban, Eyal Zamir, and participants at workshops held at the Hebrew University, UCLA, and UC Berkeley for helpful comments and suggestions.

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Regulating Anti-Terror Warfare: New Policy

INTRODUCTION 2 I. REGULATING ANTI-TERROR WARFARE 8 II. THE INDIVIDUAL DANGEROUSNESS DOCTRINE .. 15 A. PERMISSIBLE AIMS OF EXTRA-JUDICIAL ANTI-TERROR WARFARE 15 B. DANGEROUSNESS, MORAL CERTAINTY, AND PROBABILITY-THRESHOLD 1. GENERAL 18 2. THE MAGNITUDE OF THE PROBABILITY-THRESHOLD . 21 3. IMMINENCE 22 4. ACTING AGAINST MEMBERS OF A TERROR ORGANIZATION .. 24 5. ACTING AGAINST A GROUP WHEN AT LEAST SOME OF ITS MEMBERS ARE INNOCENT 27 C. MINIMAL IMPAIRMENT . 28 III. THE ISRAELI SUPREME COURT JURISPRUDENCE ON PREEMPTIVE MEASURES .. 30 A. TARGETING MEMBERS OF A TERROR ORGANIZATION .. 31 1. THE TARGETED KILLINGS CASE (2006) 32 2. THE INTERNMENT OF UNLAWFUL COMBATANTS CASE (2008) . 34 B. MEASURES THAT ARE DIRECTED AGAINST A GROUP OF PERSONS . 37 1. MASS CURTAILMENT OF FREEDOM OF MOVEMENT CASE (2009) . 38 2. THE BAN ON PALESTINIAN FAMILY UNIFICATION CASES (2006, 2012) 40 CONCLUDING REMARKS 43

INTRODUCTION
Targeting suspected terrorists through pre-planned drone operations, as well as employing other preemptive measures such as extra-judicial detentions and information gathering activities, are extensively debated in recent years. It is hardly disputed that in the face of threats of terror, governments are permitted to employ not only traditional law enforcement measures, using the criminal justice system to try suspected terrorists, but also take extrajudicial preemptive measures. But the over-arching difficulty is how to address the unavoidable uncertainties associated with this policy, which are translated into unintentionally harming innocent people. One concern is that of harming innocent persons that happen to be in physical proximity to the targeted person (collateral damage). Another concern, which is at the heart of the current discussion, is of mistakes in selecting whom to target.1 Importantly, the latter type of risk exists not only regarding targeted killings but also when non lethal means are used, including detentions and other curtailments of freedom of movement and privacy. The debate is how to resolve this uncertainty: Is information that a person is a member of a terror organization sufficient to make it permissible to target this person or should it be subject to additional information, for instance about the risk posed by
Hundreds of civilians were killed by the U.S. in air strikes in recent years, but there is no clear breakdown of the number of those that were killed as a result of collateral damage and those that were killed due to mistaken identification or other wrong information. See, e.g. HUMAN RIGHTS CLINIC, COLUMBIA LAW SCHOOL, THE CIVILIAN IMPACT OF DRONES: UNEXAMINED COSTS, UNANSWERED QUESTIONS (2012).
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the targeted person if not neutralized? Additionally, under what conditions is it permissible to act against a group of persons, for instance curtailing their freedom of movement or breach their privacy, based on information that some (or even just one) of them might be involved in terror? The answers to these and related questions are shaped, to a large extent, by the choice between two competing approaches regarding the legal status of anti-terror warfare. One position classifies it as an (international) armed conflict, which is regulated (if at all) by the laws of war.2 According to these laws, the permissibility of targeting or detaining a person is essentially a matter of classifying him as civilian or non-civilian (which may include combatants, and illegal combatants or unprotected civilians). Whenever a person takes part in hostilities, for instance by providing an immediate support to military operations, or being otherwise involved in the activities of a terror group, he loses the legal status of civilian, and it is thus permissible to kill him or hold him in detention.3 It is essential to establish a persons classification as a non-civilian on information which substantiates this conclusion with high probability. However, once ones such status was established, it is irrelevant what the scope of the risk that this person poses is, or whether there is a less harmful way to achieve the aim of neutralizing him (minimal impairment). Other anti-terror actions, which harm interests such as privacy or freedom of movement, are either not regulated or subject to very lenient requirements of rationality or proportionality. Importantly, at least as long as the targeted persons are non-citizens, the anti-terror warfare is mostly beyond the scope of (domestic) judicial scrutiny and does not require legislative authorization. However, this approach is contested. According to an alternative position, in addition to international laws of war anti-terror warfare is also regulated through human rights law. Most importantly, it entails that the governments power to target or detain suspected terrorists is subject to an individual-based justification. It is permissible to target a person or detain him only when this person is an aggressor, that is, one which poses a sufficiently high risk of inflicting harm on others by launching a terror attack, and the preemptive measure taken meets the requirement of minimal impairment. Specifically, while a persons affiliation with a terror organization, including information about his activities in the past and about his current connections with a terrorist organization, is relevant in establishing the magnitude of risk that this person poses, this type of information is often insufficient to justify targeting him. In order to establish a persons responsibility for the purposes of extrajudicial measures it is essential to connect him, with very high probability, to some specific terror and insurgency activity. Targeting a person who takes a direct part in hostilities can be justified only if he is involved in a concrete, on-going or planed, act of terror. Sam Issacharoff and Rick Pildes have recently identified a transformation of paradigm, from a position that the justification of targeting persons in armed conflicts turns on their
Some scholars dispute whether the international laws of war apply outside of the battlefield. See, e.g., Jennifer C. Daskal, The Geography of the Battlefield: A Framework for Detention and Targeting Outside the 'Hot' Conflict Zone, 161 U. PENN. L. REV. 1165 (2013). YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 149-52 (3rd ed., 2010).
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status, namely the persons affiliation with an opposing army and his classification as combatant, to a world which requires the individuation of personal responsibility.4 The latter position is in line with the new approach presented by President Obama in his May 2013 remarks on national security,5 and codified in a Presidential Policy Guidance.6 This new policy sets four main limits to the use of lethal force against suspected terrorists: (1) its purpose should be preventive rather than punitive, (2) it can be used only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively, (3) this measure may be used only against a target that poses a continuing, imminent threat to U.S. persons, and (4) a lethal action can be taken only when there is near certainty that non-combatants will not be injured or killed.7 This new policy marks a substantial shift of the U.S. anti-terror policy, from the first approach mentioned above to the second one. At the same time, it does not make the debate moot, for several reasons. Primarily, the decision to adopt the new approach was justified on merely pragmatic, operational considerations, while insisting that it is legally permitted to apply the previous policy, in force since 2001, just as well.8 It is thus important to evaluate this premise. In addition, the scope of the new policy is rather limited. For instance, it does not apply to anti-terror warfare conducted in areas of active hostilities.9 President Obama explicitly excluded the Afghan theater, noting that there the U.S. will continue to take strikes against high value al Qaeda targets, [and] also against forces that are massing to support attacks on coalition forces,10 effectively applying the status-based approach described above. Moreover, the new policy applies exclusively to

Sam Issacharoff and Richard H. Pildes, Targeted Warfare: Individuating Enemy Responsibility __ N.Y.U. L. REV. _ (forthcoming, 2013). President Obama speech on national security, delivered on May 23, 2013, at National Defense University in Washington, D.C. The full text is available at http://www.nytimes.com/2013/05/24/us/politics/transcript-ofobamas-speech-on-drone-policy.html?partner=rss&emc=rss&_r=0. The written policy standards and procedures were not published, but the White House published certain key elements of these standards and procedures: U.S. POLICY STANDARDS AND PROCEDURES FOR THE USE OF FORCE IN COUNTERTERRORISM OPERATIONS OUTSIDE THE UNITED STATES AND AREAS OF ACTIVE HOSTILITIES (May 22, 2013). http://www.whitehouse.gov/sites/default/files/uploads/2013.05.23_fact_sheet_on_ppg.pdf. This publication notes that it provides information regarding counterterrorism policy standards and procedures that are either already in place or will be transitioned into place over time, without indicating what parts are already in place. Id. An earlier document, leaked to the press, imposed these requirement only to instances of targeting U.S. citizens. See Department of Justice White Paper on Lawfulness of a Lethal Operation Directed against a U.S. citizen who is a Senior Operational Leader of Al-Qaida or an Associated Force. (unsigned and undated, made public on February 4, 2012). Available at http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf. The new policy does not distinguish between citizens and non-citizens. President Obama noted, in referring to the previous policy, that Americas actions [since 9/11] are legal. And yet, as our fight enters a new phase, Americas legitimate claim of self-defense cannot be the end of the discussion. To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance. Id.
9 8 7 6 5

U.S. POLICY STANDARDS AND PROCEDURES FOR THE USE OF FORCE IN COUNTERTERRORISM, supra note President Obama speech, supra note 5.

6.
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the use of lethal force, while it leaves open the question what doctrine applies to the use of non-lethal measures, most notably detentions.11 This Article offers principled justifications of the new policy and argues for its broader implementation. It provides a detailed account of the content of the doctrine of individual responsibility in anti-terror warfare. It also presents and critically evaluates the (extensive) body judicial decisions of the Israeli Supreme Court scrutinizing anti-terror warfare, which is at the edge of this transformation, to demonstrate the new doctrines applicability and limitations. Two main arguments support the individual dangerousness requirement and the position that anti-terror warfare should be subject to human rights law. One argument refers to the prohibition against targeting innocent people. International laws of war sufficiently protect against one type of risk of inflicting harm on innocent persons, namely the risk of collateral damage. The prohibition on indiscriminate attack and the legal doctrine of proportionality, that prohibits exposing civilians to the risk of collateral damage when this risk is not proportional to the expected military benefit of the attack, along with related doctrines, reflect the awareness of the international community to the importance of minimizing the harm to civilians.12 However, the laws of war are deficient regarding the other risk of harm to innocent persons, the risk of being mistakenly identified as combatants. As indicated, this risk is especially high in the current context due to the terrorists practice of disguising themselves as civilians. At the same time, terrorists often act independent of the relevant political entity, and it is thus unjustified, at least in these instances, to impose the costs of the risk of these mistakes on the innocent population of the enemy. Governments fighting against terror are required to take further precautions to mitigate the risk of mistakenly targeting or detaining innocent persons. This aim is achieved by insisting on the individualbased justification for taking measures against suspected terrorists. A second argument in support of the view that targeted killings and extra-judicial detentions amount to an infringement of constitutional human rights is an institutional one. It refers to the role of the legislature in determining what measures can be employed. In Hamdan (2006), in which the Supreme Court ruled that a suspected terrorist cannot be tried by military commission, Justice Breyer pointed-out that the Courts holding rests upon a single ground: Congress has not issued the Executive a blank check.13 According to this position, [w]here no emergency prevents consultation with Congress, the Court would insist requiring the President [to return] to Congress to seek the authority he believes
In his speech, the President noted that we bring law of war detention to an end, and we are committed to prosecuting terrorists wherever we can, but admitted that his administration has not resolved yet how to deal with the detainees held at Guantanamo Bay: [O]ne issue will remainjust how to deal with those GTMO detainees who we know have participated in dangerous plots or attacks but who cannot be prosecuted, for example, because the evidence against them has been compromised or is inadmissible in a court of law. I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law. Id. The policy document is similarly cryptic in this respect, noting that [c]apture operations are conducted only against suspects who may lawfully be captured. U.S. POLICY STANDARDS AND PROCEDURES FOR THE USE OF FORCE IN COUNTERTERRORISM, supra note 6.
12 13 11

See, e.g. DINSTEIN, supra note 3, at 113-28. Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006) (joined by Justices Kennedy, Souter, and Ginsburg).

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necessary.14 However, the scope of this doctrine is very limited. In the absence of explicit legislation (or applicable norm of international law) prohibiting the use of a certain antiterror measure, the government may probably employ the relevant measure to target noncitizens even without explicit legislative authorization.15 It is desirable that anti-terror warfare will be regulated through explicit legislation,16 based, among other reasons, the role of the legislative process in inducing the representatives to deliberate what aims and means of anti-terror warfare are permissible, and in ensuring that the government acts on the basis of general, predefined norms. At the same time, legislators are often reluctant to initiate legislation which restricts or otherwise delineates the powers of the Executive Branch in its fight against terrorism. The stakes are high, and imposing restraints on the use of certain types of military force is typically perceived as a politically unrewarding activity, especially when the measures are directed against foreigners. The solution is to classify anti-terror warfare as human rights infringements. It would require obtaining explicit legislative authorization to employ the relevant measures. In addition, it will also serve to remove the considerable legal ambiguity about the permissibility of targeting or detaining suspected terrorists. The deficiency in authoritative legal answers is the result of the fact that the laws of war were not originally designed to regulate armed conflicts in which combatants purposely disguise themselves among a not necessarily supportive civilian population.17 Applying human rights law would substantially contribute to remove some of this legal ambiguity. This aim can also be achieved through greater judicial scrutiny of anti-terror warfare, as would be more probable once actions such as targeted killings and detentions are classified as human rights infringements. Classifying targeted killings and detentions, and possibly other anti-terror preemptive measures as human rights infringements does not entail that such measures are necessarily impermissible. This legal regime leaves room for quite an effective anti-terror warfare, as the Israeli case demonstrates.18 However, it does require a state to justify its choice of measure in fighting terror. Indeed, at the heart of this approach lays the duty to provide justification

14 15

Id.

See Barak Medina, Legislating Responses to Security Threats: The Requirement of Legislative Authority to Take Anti-Terrorist Measures, in THEORY AND PRACTICE OF CONSTITUTIONAL INTERPRETATION 1, 6-27 (Liu Ford ed., 2013). As suggested by Justice Scalia in Hamdi, [i]f civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires . Hamdi v. Rumsfeld, 542 U.S. 507, 578 (2004). See, e.g., Christopher A. Ford, Introduction, in RETHINKING THE LAW OF ARMED CONFLICT IN AN AGE xi, xii (CHRISTOPHER A. FORD AND AMICHAI COHEN EDS., 2012) (describing the indeterminacy of international law in the wake of the First Additional Protocol to the Geneva Conventions when it comes to irregular combatants.)
OF TERRORISM
17 16

For a similar view see, e.g., Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Addendum: Study on Targeted Killings 11 (2010) ([It is wrong] to imply, as some erroneously do, that law enforcement is incapable of meeting the threats posed by terrorists and, in particular, suicide bombers. Such an argument is predicated on a misconception of human rights law, which does not require States to choose between letting people be killed and letting their law enforcement officials use lethal force to prevent such killings.).

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of the form of public reason, one which is not based exclusively on the states (that is, its citizens) interests but also those of would-be innocent victims of its anti-terror warfare.19 The remainder of the Article is organized as follows: Part I presents the principled position, that anti-terror warfare should be subject to the individual responsibility paradigm, rather than the status-based approach of international laws of war. It addresses one main argument in support of this position, namely the prohibition against targeting innocent people. Part II presents the content of this paradigm. It addresses three main aspects. First, it is permissible to take extra-judicial anti-terror measures only for the purpose of preemption, but not retribution or deterrence. There is a growing consensus on this position as far as targeted killings are concerned.20 However, it is not applied yet to taking non-lethal measures, most notably holding persons in detention.21 I question this latter position, and suggest that retribution, even in response to war crimes, is an impermissible aim of intentionally inflicting harm by the state outside the criminal justice system (Section II.A). Employing preemptive measures is subject to an even more stringent limitation. It is permissible to intentionally harm a person if inflicting the harm is necessary to preempt a threat of a terrorist attack imposed by the targeted individual. The state may target a person only if the likelihood that the relevant person would have taken part in a terror attack if not neutralized is sufficiently high. This probability-threshold is set according to the severity of the harm the state aims to inflict on the suspected terrorist. The implementation of this condition requires addressing several difficult issues. I address four of them: setting the magnitude of the probability-threshold, the temporal element of this requirement (including the concept of imminence), implementing the probability-threshold doctrine when the targeted person is a member of terror organization, and its application to the case of targeting a group when it is certain that at least some of its members are innocent (Section II.B). Finally, inflicting harm as a preemptive measure must be narrowly tailored. Based on the concern of inflicting harm on innocents, the state must employ a measure which is the leastharmful one among all possible means. The evaluation of an infringement must include a comparison to a less harmful alternative even if it is less effective in tackling the risk, in
For a more general discussion on the morality of anti-terror warfare see, e.g., MICHAEL WALZER, ARGUING ABOUT WAR (2004); MICHAEL IGANTIEFF, THE LESSER EVIL: POLITICAL ETHIC IN AN AGE OF TERROR (2004); EYAL ZAMIR & BARAK MEDINA, LAW, ECONOMICS, AND MORALITY 127-76 (2010); Haque, supra note 36.
20 21 19

See Issacharoff and Pildes, supra note 4, at 8 (manuscript).

Harold Koh, Legal Adviser of the U.S. Department of State, Remarks at the Annual Meeting of the American Society of International Law in Washington D.C. on March 25, 2010 available at http://www.cfr.org/international-law/legal-adviser-kohs-speech-obama-administration-international-lawmarch-2010/p22300 (noting that the U.S. policy is based on the position, which was approved by courts decisions, that individuals who are part of an organized armed group like al-Qaeda can be subject to law of war detention for the duration of the current conflict.); Jeh Johnsons Speech on National Security Law, Lawyers and Lawyering in the Obama Administration (2012), available at http://www.cfr.org/nationalsecurity-and-defense/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obamaadministration/p27448 (In the detention context, we in the Obama Administration have interpreted this authority to include: those persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners.).

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order to determine whether the actions marginal benefit is large enough to justify the harsher measure (Section II.C). Part III presents and critically evaluates the implementation of the doctrine presented here by the Israeli Supreme Court. Israel fights against terrorism for several decades. A unique characteristic of this warfare is the relatively extensive judicial review of the various activities. The Israeli Supreme Court ruled that all anti-terror activities are justiciable and recognized the right of all persons, including non-citizens, who are subject to Israels military power to petition the Court to challenge the legitimacy of both general practices and specific military actions. Most importantly for the current purpose, the Court reviews Israels anti-terror warfare according to Israeli constitutional law, mainly human rights law. International laws of war are considered relevant too, as the Court enforces the prohibition to launch an indiscriminate attack that risks the lives of civilians. However, to a great extent, these norms are viewed as setting necessary but not sufficient conditions for permissible anti-terror actions. As indicated, the Court has developed an individual-based requirement, which partially aligns with the paradigm discussed in this Article. This discussion illustrates the plausibility of the alternative paradigm and its limitations.

I. REGULATING ANTI-TERROR WARFARE

According to the prevailing approach, anti-terror warfare is regulated by explicit domestic legislation (such as the Non-Detention Act of 1971),22 and international laws of war, but not by human rights law. It is often argued that the laws of war serve as lex specialis in determining the legal status of human rights infringements during armed conflicts.23 At the same time, as discussed above, a doctrinal shift has recently occurred, applying the requirement personal dangerousness. This new approach is not grounded in international laws of war, and to a great extent is not required by domestic legislation as well. Indeed, as mentioned above, the Obama administration presented the decision to apply the new policy as a self-imposed restriction, based on operational, pragmatic considerations, rather than one dictated by the applicable legal norms. Accordingly, it is assumed that the government enjoys a full discretion in determining what parts of its anti-terror activities should be subject to the more stringent requirement. This Section questions this premise. I argue that the government is legally bounded by the individual dangerousness requirement, based on the position that inflicting harm or otherwise restricting peoples freedoms in anti-terror warfare should be considered as human rights infringements, and are permissible only subject to meeting the terms of this requirement. Elsewhere I elaborated on one reason justifying this approach, namely that applying exclusively the laws of war results in insufficient involvement of Congress in

This Act states that [n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress. Another example is the Uniform Code of Military Justice, which prohibits trying suspected terrorists in military commissions for crimes which do not amount to war crimes. See, e.g., International Court of Justice, The Legality of the Threat or Use of Nuclear Weapons (8 July 1996), para. 25; David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence? 16 EUR. J. INTL L. 171, 186 (2005).
23

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determining what anti-terror measures are permissible, while regulating anti-terror warfare through human rights law can serve the aim of greater democratic accountability in this respect.24 In what follows I focus on another policy considerations substantiating this position, namely that the laws of war do not provide sufficient protection to the interests of innocent people, at least in the context of anti-terror warfare. Regulating anti-terror warfare exclusively through international laws of war raises several difficulties. Among these are the indeterminacy of the classification of suspected terrorists, and the insufficient protection that these laws provide to the interests of innocent people. These concerns are better resolved by addressing anti-terror warfare as infringement of human rights. Consider first the indeterminacy concern. According to international laws of war, the enemy is grouped into two categories, civilians and combatants, a classification which determines the permissibility of warfare activities. Applying this approach to anti-terror warfare proved to be problematic. On the one hand, terrorists typically fail to meet the formal conditions for recognizing persons as combatants, set forth in the 1907 Hague Conventions, and in Article 4 of the 1949 Third Geneva Convention, mainly the condition of wearing a fixed distinctive sign.25 At the same time, it is improbable to classify as civilians those who are involved in hostilities. It cannot be justified to award terrorists greater protection (at least in terms of the permissibility of targeting them or holding them in detention) than that given to enemy soldiers. The customary solution to this difficulty is to look for a middle ground between these two categories. One approach calls for classifying terrorists as unlawful combatant, separating the status of combatants into two elements: the terrorist is not entitled to the rights awarded to combatants (mainly the immunity from prosecution once captured, and the status of prisoner-of-war), but may nevertheless be considered as a combatant for the purpose of denying him the protection awarded to civilians, thus legitimizing targeting him.26 A second solution uses a category of unprotected civilians. It classifies terrorists as civilians, and denies them the protection from military actions only for the period in which they take part in hostilities.27 Interestingly, while these categories are not explicit in the laws of war, both
Medina, supra note 15; Barak Medina, The Role of the Legislature in Determining Legitimate Responses to Security Threats: The Case of Israel, in ISRAELI CONSTITUTIONAL LAW MAKING 445, 450-460 (Aharon Barak, Daphne Barak-Erez, and Gidon Sapir eds., 2013). According to Article 1 of the Regulations Annexed to the Hague Convention Respecting the Laws and Customs of War on Land (October 18, 1907), 36 Stat. 2295, individuals who are not members of the regular armed forces of a state are considered combatants if (1) they are members of an armed group otherwise belonging to a state, and (2) they fulfill all of the following conditions: (a) being under responsible commander; (b) wearing a fixed distinctive sign recognizable at a distance; (c) carrying arms openly; and (d) conducting their opperations in accordance with the laws and customs of war. A similar definition may be inferred from the categories of persons who have the right to the status of prisoner of war according to Article 4 of the Third Geneva Convention Relative to the Treatment of Prisoners of War (August 12, 1949), 6 U.S.T. 3316. See, e.g. John C. Yoo and James C. Ho, Exploring the Limits of International Law: The Status of Terrorists, 33 VA. J. INTL L. 207, 216 (2003) (al Qaeda members fall within the category of illegal combatants.); Tamar Meisels, Combatants, Lawful and Unlawful, 26 LAW & PHIL. 31 (2007). See, e.g., Michael Bothe, Direct Participation in Hostilities in Non-International Armed Conflict Expert Paper, ICRC (2004), available at http://www.icrc.org/eng/assets/files/other/2004-05-expert-paper-dph-icrc.pdf.
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have some basis in the 1977 First Additional Protocol of the Geneva Conventions,28 which was designed primarily to address conflicts between a state and a non-state entity, mostly guerilla combatants. On one hand, one may infer from Article 43 to the First Protocol that terrorists can be targeted as combatants, as this provision extends the status of combatants to all organized armed forces, groups and units.29 On the other hand, the position that terrorists should be viewed as civilians, unprotected only during the time they participate in hostilities, is also rooted in the same First Additional Protocol, as Article 51(3) states that civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.30 Both solutions raise difficulties. The unlawful combatants approach fails to provide the details for determining what involvement in hostilities is sufficient to recognize a person as an (unlawful) combatant. Similarly, the prohibition to act against suspected terrorists beyond the time in which they are actually engaging in combat provides terrorists an unjustified shield from preemptive warfare. The result is a considerable ambiguity regarding the applicable norms.31 Employing human rights law analysis, where the permissibility of targeting a person is determined by an explicit reference to the necessity and proportionality requirements, implemented on an individualized basis, helps to considerably resolve this indeterminacy.32 Another concern, which is even more troubling than the indeterminacy about the legal conditions in which a person should be considered as (unlawful) combatants, is the difficulty in determining whether these conditions are met in a specific case. It is often challenging to determine with sufficient level of accuracy whether a certain person is indeed involved in terror.33 Terror groups are distinct from militias or guerilla fighters that form a military-like organization, as terrorists not only act clandestinely but they purposely disguise themselves as civilians. The problem is the magnitude of the likelihood of mistakes in this identification.
Protocol Additional of the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Protocol I, June 8, 1977, 1125 U.N.T.S. 3. There is some irony in the use of this provision to justify targeting terrorists as combatants while at the same time denying them the protections afforded to (legal) combatants, as this Additional Protocol was designed to protect guerilla fighters from prosecution if captured. Ariel Zemach, The Law that Turned against Its Drafters: Guerilla-Combatants and the First Additional Protocol to the Geneva Conventions, in RETHINKING THE LAW OF ARMED CONFLICT IN AN AGE OF TERRORISM 1 (CHRISTOPHER A. FORD AND AMICHAI COHEN EDS., 2012).
30 31 29 28

Article 51(3) to the First Protocol to the Geneva Conventions, supra note 28.

See, e.g., Emily Crawford, Regulating the Irregular: International Humanitarian Law and the Question of Civilian Participation in Armed Conflicts, 18 UC Davis J. Intl L. & Policy 163 (2012) (reviewing the history of international humanitarian law and regulation of irregular participation in armed conflict as a case study to demonstrate the increasingly difficult task of achieving international consensus on the rule of law during armed conflict). See Report of the Special Rapporteur, supra note 18, at 10 (To the extent that IHL does not provide a rule, or the rule is unclear and its meaning cannot be ascertained from the guidance offered by IHL principles, it is appropriate to draw guidance from human rights law.). See, e.g., Matthew C. Waxman, Detention As Targeting: Standards of Certainty and Detention of Suspected Terrorists, 108 COLUM. L. REV. 1365, 1382-83 (2008); Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2113 (2005).
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Military-wise, the main concern is that terrorists will be successful in disguising themselves (false negatives), but the legal difficulty in employing the laws of war is the prospect of mistakenly targeting innocents (false positives). This is the central normative concern of anti-terror warfare, namely the fact that the likelihood of mistakenly targeting innocent persons is much higher than in classic warfare.34 Applying the laws of war paradigm imposes the would-be innocent victims of the antiterror warfare the burden of bearing a substantial part of this risk of false positives. The requirement to verify that the targeted person is sufficiently involved in hostility mitigates the risk of mistake, but the exemptions from the requirements to demonstrate that the specific persons expected future behavior poses a high risk of a terror attack, and the minimal impairment doctrine, leave considerable room for mistakes. The underlying assumption of the laws of war is that this assignment of risk is justified. The risk is the result of the enemy states decision that its combatants will disguise themselves as civilians and avoid wearing a fixed distinctive sign recognizable at a distance. The laws of war are based on the presumption that the civilians and combatants are part of the same political entity, and that it is thus reasonable to impose at least part of the costs of the enhanced risk of mistakenly targeting civilians on the state whose military tactics induce this risk. However, this rationale is relevant only when the combatants operate on behalf of a political entity. Typically, terror groups operate independent of, or even in conflict with the civilian population. The relevant political entity cannot be reasonably held responsible for the terrorists strategy. The state that fights against the terrorists is not to be blamed for the difficulties in distinguishing between terrorists and civilians. At the same time, it is its own military actions that might inflict harm on innocent people. The civilians, as a group and as individuals, do not bear political or moral responsibility for the terrorists decision to avoid distinguishing themselves from civilians. Consequently, the state that fights against the terrorists is required to bear a greater part of the cost of the enhanced risk of mistakenly targeting civilians.35 It should take additional precautions, in addition to those that result from the discrimination principle (and from the rules governing collateral damage) to further mitigate the risk of mistakenly targeting or detaining innocent persons. Specifically, the targeted persons specific actions and intentions and the risk that he poses, rather than his affiliation to a group which poses a risk, should determine what actions, if at all, the
See, e.g., Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminal and Military Detention Models, 60 Stan. L. Rev. 1079, 1099 (2008) (associational status as a detention trigger is difficult to apply to an amorphous clandestine network such as al Qaeda.); GABRIELLA BLUM & PHILIP B. HEYMANN, LAWS, OUTLAWS, AND TERRORISTS: LESSONS FROM THE WAR ON TERRORISM 3-4 (2010) (when targeting unlawful combatants the suspect would be far more likely to be no danger at allto be mistakenly suspectedthan would be a uniformed soldier of a hostile government.). The same reasons apply to refute the view that targeting terrorists is permitted on the basis of the right to use force in (collective) self-defense (based on Article 51 of the UN Charter). For this view see, e.g., Kenneth Anderson, Targeted Killing in US Counterterrorism Strategy and Law (working-paper, 2009). The applicability of this collective right to self-defense to launch warfare against non-state actors is contested, following the position of the International Court of Justice (in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, I. C. J. Reports 136, 194 (2004)), that such warfare is not covered by this right. See, e.g., MARY E. OCONNELL, INTERNATIONAL LAW AND THE USE OF FORCE 7 (2002).
35 34

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government is allowed to take against him. For this purpose, the power to target or detain suspected terrorists should be subject to the constraints that result from human rights law. According to this constraint, the fact a person has some involvement in terror is insufficient to justify targeting him. Requiring a proof of only some involvement in acts of terror raises the risk of targeting innocents. Some involvement in terror may well be sufficient for judicial proceedings, within the criminal justice system, but not for extra-judicial anti-terror warfare.36 The above rationale for rejecting the exclusive applicability of the international laws of war to the fight against terror serves to delineate the scope of the proposed approach. As indicated, the rationale is not based on the specific nature of the attacks conducted by terrorists, including the fact that they commit war crimes. The crucial element in defining terrorism for the current purposes is the dual characteristics discussed above: the perpetrators who take part in hostilities disguise themselves among civilian, innocent population, thus creating an enhanced risk that anti-terror warfare will result in mistakenly targeting innocent civilians; and this group is not acting as part of a political entity, which can be reasonably held responsible for the terrorists choice to employ this practice of blurring the distinction between combatants and civilians. Accordingly, the decision which set of norms applies in a given armed conflict requires a detailed inquiry of the nature of the relations between the relevant terror group(s) and the political entity in which it operates. The required distinction is between an armed group acting on behalf of a state (or some other viable political entity) and one which is not, as this distinction is relevant in determining the legitimacy of taking the risk of mistakenly targeting civilians. In the former case, the prohibition on indiscriminate attack and other norms of humanitarian law that protect civilians are considered as sufficient; whereas in the latter case a more stringent approach is required, to further mitigate the risk of mistakenly targeting innocent people. For instance, in the armed conflict between Israel and Hamas, a Palestinian terror organization, one may distinguish between the Gaza strip, in which Hamas holds a defacto political control, and its activities in the West Bank, where it defies the Palestinian Authority, who is the (partial) political sovereign, and those of Israel itself, the occupying power in the area. Consequently, while it may seem plausible to apply only the laws of war in regulating Israels anti-terror activities in Gaza, at least after Israels withdrawal from this territory in 2005, not so with respect to such warfare in the West Bank. In Afghanistan, the U.S. is in conflict with two groups, the Taliban and Al-Qaeda. The former organization is associated with the same group that was, in the eve of the war, in de-facto control of most of the country. However, at least since the beginning of the war (if not beforehand, given the oppressive ruling of the Taliban) it does not seem plausible to hold the civil population in Afghanistan responsible for the Taliban or Al-Qaedas choice to employ the practice of blurring the distinction between combatants and civilians. As a result, and given that members of these groups do not wear uniforms nor do they display any other fixed

For a similar view, based on other reasons, see Monica Hakimi, International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide, 33 YALE J. INTL L. 369 (2008); Adil Ahmad Haque, Criminal Law and Morality at War, in PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW 481 (R.A. DUFF, & STUART P. GREEN, EDS., 2010).

36

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distinctive emblem,37 which increases the risk of mistakenly targeting innocent people, the exclusive application of the laws of war to regulate the anti-terror warfare is hard to sustain.38 Subjecting anti-terror warfare to individual-based conditions is not based on the view that terrorists should benefit from the protection afforded by human rights law. The protected interests are those of innocent people, who might be mistakenly targeted in antiterror warfare. There may be circumstances in which the involvement of a certain person in hostilities is certain, for instance if he is identified during a fight, targeted while launching rockets, or if he wears military uniforms and openly carries arms. In these cases it can be justified to exclusively apply the laws of war, and thus, given the classification of the relevant person as combatant, it is permissible to target or detain him, and avoid the requirement to verify the existence of an individualized justification. The basis of this approach is not the position that an aggressor forfeits his right to life,39 which states that a person possesses the right to life only so long as he does not pose an unjust, immediate threat to others.40 Several scholars justly questioned this premise, and submit that the right to life and other basic liberties are inalienable, and thus even when the targeted person is an aggressor, taking action against him is subject to certain limits, most notably those that constitute the proportionality requirement.41 The permissibility of targeting a terrorist in these circumstances is based on his involvement in hostilities and the general paradigm of the laws of war. As argued above, there is no good reason to distinguish in this respect between regular combatant and an unlawful one. The focus of the discussion here is, however, on instances in which there is uncertainty regarding the blame of the targeted persons, and it seems that this is often the case. The protected interests are those of innocent people, who might be mistakenly targeted in the anti-terror warfare. It is the commitment to avoid targeting persons who are not involved in hostilities, based on the (moral) prohibition against targeting innocent people, which requires individuating anti-terror warfare.

See Rudiger Wolfrum & Christiane E. Philipp, The status of the Taliban: Their Obligations and Rights under International Law, 6 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 559 (2002). Note that the current discussion does not address the eligibility of the Taliban and Al-Qaeda fighters to the status of prisoners-of-war. Given that they do not fulfill the conditions of lawful combatants, the answer is clearly that they are not entitled to the privileges of prisoners-of-war. See, e.g., DINSTEIN, supra note 3, at 55-57. The discussion here addresses the permissibility of targeting or detaining them. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 279 (PETER LASLETT ED., 1988) (1690) (arguing that by his own actions, the aggressor expose[s] his Life to the others Power to be taken away by him). Judith Jarvis Thomson, Self-Defense, 20 PHIL. & PUB. AFF. 283, 302 (1991); SUZANNE UNIACKE, PERMISSIBLE KILLING: THE SELF-DEFENCE JUSTIFICATION OF HOMICIDE 213 (1994); FIONA LEVERICK, KILLING IN SELF-DEFENCE 62 (2006). See, e.g., Sanford H. Kadish, Respect for Life and Regard for Rights in the Criminal Law, 64 CAL. L. REV. 871, 883 (1976) (The presumption that the aggressor actually chooses to forfeit his right to life is hard to sustain); George P. Fletcher, The Right to Life, 13 GEORGIA L. REV. 1371, 1382-83 (1979); BOAZ SANGERO, SELF-DEFENCE IN CRIMINAL LAW 44 (2006) (the presumption is incompatible with the notion that the right to life is inalienable). See also Cheyney C. Ryan, Self-Defense, Pacifism, and the Possibility of Killing, 93 ETHICS 508 (1983); Tziporah Kasachkoff, Killing In Self-Defense: An Questionable or Problematic Defense? 17 LAW & PHIL. 509, 517 (1998).
41 40 39 38

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Finally, note that the doctrine of individual responsibility reflects a fundamental change regarding the nature of combatants moral and legal responsibility for their actions. The laws of war prohibit states from imposing criminal liability on enemy combatants (as long as the soldiers do not commit war crimes).42 A soldier is not held personally liable (criminally or in torts) toward the enemy state for his activities during the conflict. Respectively, the enemystate is not required to justify inflicting harm on a soldier based on his individual responsibility.43 The use of the criminal justice system in the fight on terror rejects the first element of this paradigm. The state may subject suspected terrorists not only to its military power but also to its legal jurisdiction. Suspected terrorists can be (and often are) charged for their involvement in terror activities. Indeed, recognizing this power to individuate responsibilityto hold suspected terrorists individually responsible for their actions by employing the criminal justice systemis insufficient to justify recognizing that the state is also under a duty to justify targeting terrorists on the basis of their individual actions and intentions when acting extra-judicially. As indicated, this duty is justified based on the concern of mistakenly targeting innocents, and it is thus independent of the power to indict suspected terrorists. But this latter power is an important indication of the paradigm transformation. It reflects the introduction of the states duty to treat those targeted as moral agents, and thus of the idea of individual responsibility. To sum, the required approach is one of individuating the inquiry of the permissibility of taking a specific anti-terror measure. Determining whether the targeted person takes part in hostilities is relevant. But unlike the international laws of war paradigm, in which the result of this inquiry is decisive in evaluating the permissibility of employing a specific anti-terror measure, under the suggested approach this inquiry is relevant but not sufficient. In the circumstances discussed here, the risk of mistake is substantial, such that even though there is sufficient evidence to reasonably determine that a person takes part in hostilities, the possibility of mistake cannot be ruled-out. A government that fights terror should take seriously the risk of mistake, by subjecting the permissibility of employing an anti-terror measure to an individually-based inquiry. It should consider whether, given the relevant circumstances, the targeted-persons role in the activities of a terror group is sufficient to justify taking the specific action. It should consider the scope of the risk of harm that this individuals activities poses, to verify that targeting him is necessary and that the scope of harm inflicted on him is proportional. Stated differently, instead of an all-or-nothing approach, where all actions are permissible once a person is classified as (unlawful) combatant, the alternative approach requires a sliding-scale approach, which takes into account the severity of the specific measure which the government considers taking and the

42 43

DINSTEIN, supra note 3, at 35-39.

See, e.g., MICHAEL WALZER, JUST AND UNJUST WARS 77-9 (3d ed. 2000); GEORGE FLETCHER, ROMANTICS AT WARGLORY AND GUILT IN THE AGE OF TERRORISM 108 (2003). For a critique of the traditional position see, e.g., JEFF MCMAHAN, KILLING IN WAR (2009); Gabriella Blum, The Dispensable Lives of Soldiers, 2 J. LEGAL ANAL. 69 (2010) (suggesting that combatants who pose no real threat should be spared from direct attack, and that the principle of military necessity should serve to introduce a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible.).

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scope of risk posed by the suspect. The next Part offers a more detailed account of these principles.

II. THE INDIVIDUAL DANGEROUSNESS DOCTRINE

The individual responsibility paradigm imposes on the government a duty to justify employing measures that inflict harm on suspected terrorists. It consists of three main elements. The first focuses on legitimate purposes (section II.A). Employing extra-judicial measures can be justified only for the purpose of preempting the danger posed by the targeted person, but not for retribution or deterrence. The second issue addresses the scope of the risk posed by the suspected person (II.B). The government is required to demonstrate that this risk is sufficiently high, to exceed a probability-threshold which is set according to the severity of the anti-terror means. Lastly, it is permissible to employ only the least harmful measure among the ones possible to eliminate the risk (II.C). These conditions determine the permissibility of targeting a person given the uncertainty about his dangerousness.44 A. Permissible Aims of Extra-Judicial Anti-Terror Warfare In general, anti-terror measures may serve three main goals: preemption, retribution, and deterrence. All three purposes can justify, at least in principle, a governmental action directly and intentionally inflicting harm on a person. However, the extra-judicial nature of the antiterror warfare limits the scope of legitimate purposes. It seems that there is a growing consensus that as far as targeted killings are concerned, the exclusive legitimate purpose is preemption. States may not extra-judicially execute a terrorist for purposes other than preemption, irrespective of the relevant persons past wrongs.45 It is debated, however, whether this constraint applies when states consider taking other anti-terror measures, most importantly detention.46 May a government impose some harm for the purpose of general deterrence, for instance demolishing the houses of a suicide bomber in an attempt to deter others from acting similarly, as Israel did for several years? Can a state hold a person in

An additional requirement refers to the risk of inflicting unintended harm on bystanders. This requirement of proportionality is not unique to the paradigm presented here, as it applies under the laws of war as well. This aspect is thus beyond the scope of the current discussion. See, e.g., Michael Schmitt, State-Sponsored Assassination in International and Domestic Law, 17 YALE J. INTL L. 609 (1992). Harold Koh, Legal Adviser of the U.S. Department of State, remarks at the Annual Meeting of the American Society of International Law in Washington, DC on March 25, 2010 available at http://www.cfr.org/international-law/legal-adviser-kohs-speech-obama-administration-international-lawmarch-2010/p22300 (noting that the U.S. policy is based on the position, which was approved by courts decisions, that individuals who are part of an organized armed group like al-Qaeda can be subject to law of war detention for the duration of the current conflict.); Jeh Johnsons Speech on National Security Law, Lawyers and Lawyering in the Obama Administration (2012), available at http://www.cfr.org/nationalsecurity-and-defense/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obamaadministration/p27448 (In the detention context, we in the Obama Administration have interpreted this authority to include: those persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners.).
46 45

44

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detention (without charge and trial) as a retribution for his wrongs, regardless of the risk that this persons poses if released? Consider retribution. Retributive punishment presupposes guilt and must be proportional to the degree of the wrongdoers guilt.47 The determination of guilt and the apportionment of punishment require reliable procedures, such as a fair trial and impartial judges. These constitutive elements are typically lacking in a military or administrative action conducted as part of the fight against terrorism. The requirement that retributive sanctions would follow a judicial finding of criminal liability reflects not only the concern of a wrong, and possibly biased attribution of guilt in the absence of judicial proceedings, but also a normative judgment about fairness and rights of the accused. A person can justifiably be subject to harm based on retribution only if his blame was determined in a way that meets the requirements of procedural justice.48 The bundle of rights of the accused to a fair trial limits the powers of the government not only when a person stands to trial but whenever the government aims to harm him for the purpose of retribution. Imposing a sanction through military tribunals can be justified only as long as the proceedings fully respect the procedural rights of the accused.49 Indeed, there are instances in which it is impractical to bring a wrongdoer to justice. However, the right to a fair trial prohibits the government from targeting a person for the purpose of retribution, save possibly only extreme circumstances, in which the targeted persons guilt is not contested and his activities are especially severe. For similar reasons, general deterrence too cannot serve as the exclusive or even the main purpose of targeting a person. Indeed, the fight against terrorism may require dynamic military tactics to affect terrorists motivation and willingness to fight. However, the aim of deterrence is based on an attribution of guilt to the targeted person, and the above reasons that question the permissibility of harming a person for the aim of retribution apply here as well. Moreover, more often than not it is impossible to scrutinize the claim that an action is efficient in achieving deterrence, as it requires evaluating counterfactual scenarios and controlling for other potentially relevant factors.50 It is also impractical to evaluate the marginal contribution of each instance of inflicting harm to achieving a certain level of deterrence, and thus to determine the necessity of each anti-terror action.51 As a result, it is hard to distinguish between a policy whose actual motivation is retribution from one aimed at deterrence.

See, e.g., Thomas E. Hill, Kant on Wrongdoing, Desert and Punishment, 18 LAW & PHIL. 407, 409 (1999).
48 49

47

See, e.g., Erwin Chemerinsky, The Constitution and Punishment, 56 STAN. L. REV. 1049 (2004).

For a discussion of the alleged violations of procedural rights in U.S. military tribunals for detainees in Afghanistan see, e.g. DAPHNE EVIATAR, HUMAN RIGHTS FIRST, DETAINED AND DENIED IN AFGHANISTAN: HOW YO MAKE U.S. DETENTION COMPLY WITH THE LAW (2011). See, e.g., Mark Tunick, Efficiency, Practices, and the Moral Point of View: Limits of Economic Interpretations of Law, in THEORETICAL FOUNDATIONS OF LAW AND ECONOMICS 77, 7779, 9091 (MARK WHITE ED., 2009). Adil Ahmed Haque, Torture, Terror, and the Inversion of Moral Principle, 10 NEW CRIM. L. REV. 613, 642-43 (2007).
51 50

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It is also impermissible to inflict intended harm, expose a person to the risk of harm, or even threaten to do so, for the purpose of forcing suspected terrorists to call off a terror attack or to surrender or provide information. These are cases where a person is used as a means for achieving an end. Thus, for instance, an army must neither use enemy civilians as human shields, nor take hostages as bargain chips.52 Accordingly, siege is a legitimate means of anti-terror warfare if it serves a specific preemptive military objective, but not if it aims at starving a civilian population in order to force the enemy to surrender.53 Preemption is the only legitimate aim of extra-judicial anti-terror warfare measures. Preemptive measures are acts that aim at directly thwarting terror attacks of would-be terrorists, by capturing the would-be perpetrators, killing or physically disabling them, obtaining information, and so forth. It is often difficult to determine the actual purpose of a specific anti-terrorist measure. It may be difficult to ascertain the decision-makers true motive. Another difficulty arises when an anti-terrorist measure is taken for more than one purpose. Punitive measures ordinarily serve both backward-and forward-looking aims. When a person who committed a terrorist act is contemplating another attack, targeting him may be retributive, preventive, and deterring, all at the same time. Notwithstanding this possible multiple purposes, in most cases it is possible to determine what the actions dominant subjective and objective purpose is. Assuming that the anti-terror measure is aimed at preemption, the unintended potential benefit of such action, mainly the indirect effect of reducing terror attacks through general deterrence, can count in evaluating the acts permissibility. But it cannot serve as the measures (dominant) aim.54

B. Dangerousness, Moral Certainty, and Probability-Threshold 1. General

On the prohibition to use human shields see, e.g., DINSTEIN, supra note 3, at 152-55; and the Israeli Supreme Court decision in HCJ 3799/02 Adalah v. Head of the Central Command, IDF 60(3) PD 67, 80 (2005). English trans. available at http://elyon1.court.gov.il/files_eng/02/990/037/A32/02037990.a32.htm. The Court prohibited even the solicitation of a local residents assistance, for the purpose of relaying an early warning when that resident gives his consent and when performance of the role will cause him no damage. On the prohibition to detain suspected terrorists for the purpose of using them as bargain chips See the Israeli Supreme Court decision in CrimFH 7048/97 John Does v. Ministry of Defence, 54(1) PD 721 (2000). English trans. available at http://elyon1.court.gov.il/files_eng/97/480/070/a09/97070480.a09.htm. See also Orna BenNaftali & Sean S. Gleichgevitch, Missing in Legal Action: Lebanese Hostages in Israel, 41 HARV. INTL L.J. 185 (2000).
53 54 52

See, e.g., Yuval Shany, The Law Applicable to Non-Occupied Gaza, 42 ISR. L. REV. 101 (2009).

See, e.g., Robert Cryer & A.P. Simester, Iraq and the Use of Force: Do the Side-Effects Justify the Means?, 7 THEORETICAL INQ. L. 9 (2006). The Israeli Supreme Court ruled that the military commander is empowered to issue an order assigning a place of residence only when it can demonstrate that the person is dangerous. However, in its decision the court stated that once this element is proved, the discretion whether to exercise this power is subject to the proportionality requirement, and in this respect there is no defect in the military commander taking into account considerations of deterring others in deciding whether to issue the order. HCJ 7051/02 Ajuri v. IDF Commander in West Bank, 56(6) PD 352 (2002), 27. An English translation is available at http://elyon1.court.gov.il/files_eng/02/150/070/A15/02070150.a15.htm.

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When is it legitimate for the state to intentionally harm a person to preempt a terror attack? The general answer is that while certain action are absolutely prohibited (the central among these is the use of torture), other inflictions of harm, including even intentional killing, may be permitted, as far as such actions are necessary to save the lives of would-be victims of the terror attack (and they are not expected to result in an non-proportional collateral damage). In particular, given the uncertainty about the targeted persons responsibility and the lack of judicial proceedings that would have, morally and legally, resolved this uncertainty, intentionally inflicting harm for the purpose of preemption is subject to the condition that the expected benefit of taking this measure is sufficiently high. Hence, acting despite the risk of mistakenly targeting innocent persons is justified only if compelling state interests are at stake. It seems as if this condition is easily met, since the expected harm that the action aims to prevent is the loss of lives and other harms caused by terror. However, this requirement is more stringent. Taking an anti-terror measure against a certain person is permissible only if this person poses a sufficiently high risk, in terms of the likelihood that he will be involved in terror unless thwarted.55 This probability-threshold requirement rejects the notion that the state may target a person whenever the potential harm of a terror attack is sufficiently high. Under the latter approach, the interest in preventing substantial harm as a result of a terror attack is considered as sufficiently compelling to justify taking an anti-terror measure, notwithstanding the uncertainty whether the targeted person is involved in terror, and thus whether the action is indeed necessary. It resembles the standard of due care in torts according to the Learnd Hand formula, where the duty to take precautions necessary to prevent an accident is determined on the basis of the expected harm of an accident, and may thus be imposed even if the probability of an accident is very low. The position presented here is different: the likelihood of harm, that is, the probability that the targeted person is involved in a possible terror attack, must meet, as of itself, a certain threshold in order to justify employing the preemptive measure. The probability-threshold requirement is well known in the context of criminal proceedings, where the guilt of the accused must be proven beyond a reasonable doubt, regardless of the severity of the actions a person is accused of.56 This requirement also applies in the context of forward-looking measures, as in the case of curtailing freedom of speech.57 In what follows I offer three main grounds for imposing this probability-threshold requirement in the context of anti-terror warfare.

For a related argument see David Luban, Preventive War, 32 PHIL. & PUB. AFF. 207, 230 (2004). (preventive war can be justified, if at all, only against states that exhibit clear evidence of a military buildup with aggressive intentions. [In addition] If a state seems likely to develop WMD and give them to terrorists, the case readily assimilates to the restricted doctrine of preventive war.); Monica Hakimi, A Functional Approach to Targeting and Detention, 110 MICH. L. REV. 1365, 1385-91 (2012) (States must try to verify that (1) the specific person being targeted or detained (2) poses a sufficiently serious threat (3) that cannot reasonably be contained less intrusively.); Haque, supra note 19.
56 57

55

See, e.g., ALEX STEIN, FOUNDATIONS OF EVIDENCE LAW 141-53 (2005).

Brandenburg v. Ohio 395 U.S. 444, 447 (1969) (proscribing advocacy of the use of force or of law violation is unconstitutional except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.).

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One reason is based on an analogy from self-defense. Intentionally targeting a person can be justified when this person is an aggressor. If a terrorist has made it inevitable that either he or the potential victim(s) will be harmed, fairness requires that it be the terrorist.58 Instances of preempting a (blameworthy) aggressor, who poses a risk to others, give rise to a unique type of justifiable infringement of the aggressors rights. For instance, targeting blameworthy aggressors can be justified even if the number of targeted aggressors exceeds the number of their intended victims.59 But this justification is not based (at least not fully) on the high expected harm that the person will cause if he is indeed an aggressor. This justification to target a person exists only when it is certain, or very close to it, that he is an aggressor, one which intends to harm others. Thus, the justification exists only when there is sufficient information to establish that the targeted person is indeed an aggressor, i.e. when the probability that this is the case is very high, one which provides what is known as moral certainty.60 If the probability that the targeted person is blameworthy is lower than the threshold, taking action to preempt an attack can be justified, if at all, only in extreme circumstances. There is some similarity between this case and that of an innocent aggressor, in which a blameless person imposes a risk to others (for instance, someone who is the unknowing carrier of a bomb). In the latter context, only the avoidance of catastrophic consequences can justify scarifying vital interests of one innocent person (the innocent attacker) to save those of others.61 The case of targeting a person where the probability that he poses a risk is lower than the threshold is analogue to that of the innocent aggressor in the sense that
See, e.g., Michael S. Moore, Torture and the Balance of Evils, 23 ISR. L. REV. 280, 321-2 (1989); David Wasserman, Justifying Self-Defense, 16 PHIL. & PUB. AFF. 356 (1987); Shlomit Wallerstein, Justifying the Right to Self-Defense: A Theory of Forced Consequences, 91 VA. L. REV. 999, 1027-32 (2005); Jeff McMahan, Torture, Morality, and Law, 37 CASE WEST. RES. J. INTL L. 241 (2006). See, e.g., Jeff McMahan, Self-Defense and the Problem of the Innocent Attacker, 104 ETHICS 252, 261 (1994) ([A]ccording to commonsense morality, an Innocent Victim is permitted to kill a [culpable aggressor] irrespective of differences in age, quality of life, or usefulness to society . . . . She may kill any number of [culpable aggressors] if this is necessary for self-defense.); GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 85758 (1978); Paul H. Robinson, A Theory of Justification: Societal Harm As A Prerequisite For Criminal Liability, 23 UCLA L. REV. 266, 27273 (1975). Adil Ahmad Haque, Killing in the Fog of War, 86 Southern Cal. L. Rev. _ (2013) (arguing that soldiers are prohibited from intentionally killing an individual whom they do not reasonably believe is a combatant, to establish a minimum threshold of certainty). See also Frank Jackson & Michael Smith, Absolutist Moral Theories and Uncertainty, 103 J. PHIL. 267, 275 (2006); Ron Aboodi, Adi Borer, and David Enoch, Deontology, Individualism, and Uncertainty: A Reply to Jackson and Smith, 105 J. PHIL. 259 (2008). According to one view, the prohibition against targeting innocent persons, who unintentionally expose others to risk, is an absolute one. See, e.g., the German Constitutional Court decision in the hijacked aircraft case, in which the court stroke down a statute authorizing the shooting down of an aircraft intended to be wielded as a lethal weapon, as it infringes the right to dignity of the passengers on board, even if these people are doomed to die anyway.Judgment of the Bundesverfassungsgericht [BVerfG] [German Federal Constitutional Court] Feb. 15, 2006, BVerfGE, 1 BvR 375/05, 130 available at http://www.bundesverfassungsgericht.de/entscheidungen/rs20060215_1bvr035705.html. According to another view, intentionally targeting innocent attackers can be justified when necessary to prevent a catastrophe. DAVID ORMEROD, SMITH & HOGAN CRIMINAL LAW 322 (11th ed. 2005); Michael Bohlander, Of Shipwrecked Sailors, Unborn Children, Conjoined Twins and Hijacked AirplanesTaking Human Life and the Defence of Necessity, 70 J. CRIM. L. 147, 158 (2006).
61 60 59 58

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targeting that person is not based on attributing blame to him. From a deontological perspective it is thus essential to distinguish between instances in which the probability that the suspect will launch a terrorist attack if not preempted is sufficiently high and instances that do not meet this requirement. A second ground for the probability-threshold requirement is the distinction between the moral costs of two different types of mistakes. Faced with uncertainty regarding the threat imposed by a suspect, a decision-maker must weigh the risk of a false negative, that is, inaction that would result in a terror attack, against that of a false positive, namely, an infringement of ones liberties when the suspect would not have attacked anyhow. When punitive measures are concerned, providing a probability threshold (the requirement that the guilt of the accused be proven beyond a reasonable doubt) reflects a normative judgment regarding the appropriate weight of each of these errors. It embodies the notion that the harms generated by false convictions of innocent people greatly exceed, morally speaking, the harms generated by acquitting guilty criminals.62 Applying a probability threshold in the case of preemptive measures reflects a related rationale. The normative weight of the harm that results from a false positivean active and intended infliction of harmexceeds that of harms generated by a false negativea passive, unintended failure to prevent harm. A states failure to eliminate threats of terror is normatively less significant than an erroneous active and intended harming of people.63 The view that one type of errors (false positive) is morally worse than the other (false negative) entails that the government can justifiably act only when the probability of a terror attack by or with the essential assistance of the suspect is sufficiently high, such that the likelihood of a false positive is lower than that of a false negative. For this reason, notions such as the Precautionary Principle, which requires the government should employ measures to address even remote risks of terror attacks,64 are not helpful in the current context. The idea of addressing even remote risks is a plausible one only as long as taking these measures is costless in terms of the possibility of inflicting harm on innocents. When this condition is not met, and this seems to be the more typical case, the precautionary principle may actually require, as discussed above, a tendency to avoid, rather than employ anti-terror measures when the targeted persons blameworthiness is in doubt.65 Finally, the probability-threshold requirement may also serve important second-order considerations. The concern is that when certain preemptive measures can be employed according to the magnitude of the expected harm, even if the probability of a terror attack is low the use of such measures might become standard policy, implemented on a regular basis.66 The probability-threshold requirement is aimed at mitigating the risk of erroneous
See, e.g., ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 96-108 (1974); STEIN, supra note 56, at 14153, 172-83.
63 64 62

See, e.g., ZAMIR & MEDINA, supra note 19, at 166-69.

See generally CASS SUNSTEIN, LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE (2005); Jonathan B. Wiener & Jessica Stern, Precaution Against Terrorism, 9 J. RISK RESEARCH 393 (2006). See Haque, supra note 60 (calling to apply Deontological Precaution, which requires that soldiers take as much risk as necessary to reach the required level of certainty that the targeted person poses a risk). For the use of this argument in the broader context of preventive war see WALZER, supra note 43, at 77-79; Luban, supra note 55, at 225.
66 65

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evaluation of the legitimacy of the anti-terror action. One may expect systematic overestimation of threats, driven by cognitive bias,67 and by the governments possible tendency to give a higher weight to one type of error (inaction that results in a terror attack) over the other (inflicting harm on innocent persons).68 The decision to target a certain individual is often based on information obtained through human intelligence, that is, informants who provide information for various private motives. It is information that is not subject to cross examination and in the case of targeted killing may not be verified even expost. Setting probability thresholds may serve as a necessary corrective mechanism. On these grounds, targeting a person in anti-terror warfare can be justified only when it is (morally) certain that this person is involved in terror. The permissibility of these measures is subject to the existence of reliable information that the probability that this person is dangerous is sufficiently high, and the state is thus under a duty to develop fair, rational procedures for its use of targeted killing, detentions, and similar anti-terror measures.69 The implementation of this condition requires addressing several difficult issues. In what follows I address four of them: setting the magnitude of the probability-threshold; the temporal element of this requirement (including the concept of imminence), implementing the probability-threshold doctrine when the targeted person is a member of terror organization, and its application to the case of targeting a group when it is certain that at least some of its members are innocent. 2. The Magnitude of the Probability-Threshold The more severe the harm that the state aims to inflict in taking a certain anti-terror measure, the more stringent is the probability-threshold requirement. Intentionally killing a person can be justified only when the probability that the action is required to preempt this person from launching a deadly attack is very high, that is, only when it is almost certain that the action is required. For other anti-terror activities, such as detention, the probability-threshold is somewhat lower, but it still has to be highly likely, given the concern that the state inflicts harm on innocent persons. While the concrete level of probability cannot be accurately measured, and setting specific numerical threshold values might be arbitrary, it is justified to determine the range of the required probability. Similar to instances of determining the burden of proof in
67

See, e.g., W. Kip Viscusi, Valuing Risks of Death from Terrorism and Natural Disasters, 38 J. Risk & Uncertainty 191 (2009) (reporting that nationally representative sample values preventing terrorism deaths at about the same level as preventing deaths from traffic accidents, although the latter poses a much greater personal risk); Moshe Cohen-Eliya & Gila Stopler, Probability Thresholds as Deontological Constraints in Global Constitutionalism, 49 COLUM. J. TRANSNATL L. 75 (2010) (the imposition of the judicial requirement that the government meet a certain pre-defined probability threshold after engaging in means-ends analysis and prior to engaging in balancing serves as a useful and important deontological constraint that secures the priority of rights.). See also John Monahan, The Individual Risk Assessment of Terrorism, 18 Psych., Pub. Polcy & L. 167 (2012).
68 69

Jonathan S. Masur, Probability Thresholds, 92 Iowa L. Rev. 1293 (2006-2007).

John Radsan & Richard W. Murphy, Due Process and Targeted Killing of Terrorists, 31 CARDOZO L. REV. 405 (2009).

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criminal proceedings and human rights law, in the current context too expressions such as highly likely, very high probability, and near certainty provide important guidelines regarding the permissibility of taking certain measures.70 3. Imminence In the context of the criminal law justification of self-defense, the probability-threshold requirement contains a temporal, in addition to a probabilistic element. A threat is considered one which can justify targeting the aggressor only if it is imminent, that is only if it is expected to materialize within a very short period of time.71 The idea is that when the risk is remote, it is normally less likely that inflicting harm on the aggressor is necessary to prevent the attack. However, this more stringent approach to the requirement is questionable. An often-cited example in the criminal law literature is that of a battered woman, who kills her abusive partner when the threat to her life is not immediate but still inevitable, as she lacks any meaningful alternatives to the use of deadly force.72 In the international relations context, a typical example is that of launching an attack against a hostile state that does not yet possess weapons of mass destruction, but is highly likely to gain such weapons and to wield them against the state in the near future.73 In the fight against terrorism, it is often the case that a terrorist can be preempted only before the harm becomes immediate. While some scholars insist that if the risk is not imminent the self-defense justification does not apply,74 others argue that in some or all of these examples, the infringement of the aggressors right to life may well be justified.75 According to the latter view, the imminence requirement should be subsumed within necessity (the so-called immediately necessary standard),76 so that the relevant issue is not the immediacy of the harm, but the immediacy of the response necessary to neutralize it.77 In addition, one may argue that the requirement of imminence in the criminal law self-defense justification primarily aims at restricting the use of self-help.

70 71 72

See, e.g., ZAMIR & MEDINA, supra note 19, at 108-10. LEVERICK, supra note 40, at 87-89.

LEVERICK, supra note 40, at 89-93; Richard A. Rosen, On Self-Defense, Imminence, and Women Who Kill Their Batterers, 71 N.C. L. REV. 371 (1993); Kimberly Kessler Ferzan, Defending Imminence: From Battered Women to Iraq, 46 ARIZONA L. REV. 213, 231-37 (2004). Ferzan, id., at 218-31; ALAN M. DERSHOWITZ, PREEMPTIONA KNIFE THAT CUTS BOTH WAYS 76-104 (2006).
74 75 73

WALZER, supra note 43, at 79; UNIACKE, supra note 40, at 159.

See, e.g., Rosen, supra note 72; PAUL H. ROBINSON, CRIMINAL LAW DEFENSES 131(c) (1984); Anthony Clark Arend, International Law and the Preemptive Use of Force, 26 WASH. Q. 89, 98 (2003).
76 77

ROBINSON, id., at 77.

Id., at 77; Abraham D. Sofaer, On the Necessity of Pre-emption, 14 EUR. J. INTL L. 209 (2003); MICHAEL N. SCHMITT, COUNTER-TERRORISM AND THE USE OF FORCE IN INTERNATIONAL LAW 65 (2003) (Imminency is not measured by the objective time differential between the act of self-defense and the attack it is meant to prevent, but instead by the extent to which the self-defense occurred during the last window of opportunity.).

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It reflects the presumption that when the risk is not imminent one may call the police for help. This rationale does not apply to the case of state action in anti-terror warfare.78 Consider in this respect the rule set forth in Article 51(3) to the First Additional Protocol, which states that civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.79 According to one view, this rule provides that a civilian might be permissibly targeted only if the attack against him is carried out while he is directly participating in the hostile activities, such as when he shoots a rocket or plants a bomb.80 For instance, Antonio Cassese argued that persons can legitimately be targeted only while they are actually engaging in combat, or while carrying arms openly during a military deployment preceding an attack in which they participate .81 I find this restriction unjustified. A person may take a direct part in hostilities in numerous other ways than actually shooting at others. A person who is involved in terror activities by organizing an attack, recruiting suicide bombers, providing substantial logistic help required to execute an attack, as well as other related activities imposes a threat that the government may justifiably act to neutralize.82 Accordingly, the crucial question is not how close to completion the threat is, but rather when the preemptive measure should be taken. Sometimes, to be effective, one must act before the threat is imminent in the temporal sense. Otherwise, the would-be victims would have to bear the risk that when the attack is imminent it will be too late to take an effective measure to prevent the harm.83 It thus seems that the decisive factor is the probability of the

Assuming, that is, that an action by the United Nations Security Council under chapter VII of the Charter of the United Nations is not a viable option.
79 80

78

Article 51(3) to the First Protocol to the Geneva Conventions, supra note 28.

See, e.g., Kristen E. Eichensehr, On Target? The Israeli Supreme Court and the Expansion of Targeted Killings, 116 YALE L.J. 1873, 1877 (2007) (This narrow reading assures that the target poses an immediate threat (the timing of the attack signals the proximity of the threat)); Georg Nolte, Preventive Use of Force and Preventive Killings: Moves into a Different Legal Order, 5 THEORETICAL INQ. L. 111 (2004). Antonio Cassese, Expert Opinion on Whether Israes Targeted Killings of Palestinian Terrorists Is Consonant with International Humanitarian Law, in the matter concerning HCJ 769/02 The Public Committee Against Torture v. The Government of Israel (2003), available at http://www.stoptorture.org.il/files/cassese.pdf. For a review of different positions about the interpretation of this requirement see, e.g., W. Jason Fisher, Targeted Killing, Norms, and International Law. 45 COLUM. J. TRANSNATL L. 711, 723-24 (2007). See George P. Fletcher, The Law of War and Its Pathologies, 38 COLUM. HUMAN RIGHTS L. REV. 517, 528 (2007) ([S]elf-defense depends on how much imminent risk is posed to the victim. If the civilian taking direct part in hostilities creates an imminent risk to either combatants or civilians, those exposed to the risk could rely on the doctrine of self-defense without invoking the law of war. To make a difference, therefore, the law of war must apply to cases below the threshold of imminent risk to others.); DINSTEIN, supra note 3, at 147-49; AVERY PLAW, TARGETING TERRORISTS: A LICENSE TO KILL? 135-37 (2008); Amos Guiora, Targeted Killing as Active Self-Defense, 36 CASE W. RES. J. INTL L. 319, 325 (2004). Jeremy Horder, Killing the Passive Abuser: A Theoretical Defece, in CRIMINAL LAW THEORY: DOCTRINES OF THE GENERAL PART 283, 292 (S. SHUTE & A.P. SIMESTER EDS., 2002); DERSHOWITZ, supra note 73, at 105-52.
83 82 81

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attack in the absence of preemption, rather than its timing.84 Indeed, permitting the government to inflict harm only in instances of imminent threat, or target persons exclusively while they are actually engaging in combat, would prevent almost entirely the risk of targeting innocent people. But this would come at a too high cost in terms of the ability to preempt terror attacks, a cost that cannot be justified. This is not to say that the temporal element of the risk is irrelevant. Ignoring the temporal element may raise the problem of cumulative likelihood over time. Occasionally, even relatively improbable attacks can attain a high cumulative likelihood within several years.85 It may also raise difficult evidentiary problems.86 The assessment of imminence should thus take into account both the likelihood of harm and the period for which this likelihood is calculated.87 The probability-threshold should be interpreted as referring to the likelihood that the targeted person will be involved in a terror attack within a reasonable time period, which should not be measured in seconds or minutes, but possibly days and even weeks. What time period is reasonable should be determined based on the assessment of the necessity of targeting the person at a given time. 4. Acting against Members of a Terror Organization The central application of the condition that the targeted person poses a sufficiently high risk is the rejection of the position that it is permissible to target a person based, exclusively, on information that he is identified with a terror organization. Specifically, it was argued that governments should be permitted to use lethal force against persons who are members of terror organization,88 and may also detain them for the duration of hostilities.89 This position can be framed in two ways. One is based on a formal classification of a person who is a member of a terror group as a combatant, for the purpose of the civilians-combatants laws of wars distinction. A second approach accepts the paradigm of individuating responsibility, but views a persons membership in a terror organization as a sufficient evidence for the conclusion that he poses a risk that justifies targeting him. The view presented here questions
Luban, supra note 55, at 233-4. Kretzmer, supra note 23, at 203 (lethal force may be used against the suspected terrorists only when a high probability exists that if immediate action is not taken another opportunity will not be available to frustrate the planned terrorist attacks.).
85 86 84

Luban, supra note 55, at 234.

W. Michael Reisman & Andrea Armstrong, The Past and Future of the Claim of Preemptive SelfDefense, 100 AM. J. INTL L. 525, 526 (2006) (arguing that in anticipatory self-defense the interpretive latitude of the unilateralist becomes wider, yet the nature and quantum of evidence that can satisfy the burden of proof resting on the unilateralist becomes less and less defined and is often...extrapolative and speculative); Michael Bothe, Terrorism and the Legality of Pre-emptive Force, 14 EUR. J. INTL L. 227 (2003). On this issue see, e.g., Waxman, supra note 33 (suggesting an escalating standard of certainty as time in detention elapses). For a related position see Michael N. Schmitt, State-Sponsored Assassination in International and Domestic Law, 17 YALE J. INTL L. 609, 648-49 (1992). In the context of detentions, the Supreme court came close to this approach, by finding legal authorization for the detention at least of persons who were part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in armed conflict against the United States there. Hamdi v. Rumsfeldi, 542 U.S. 507, 516 (2004). See also supra note 21. For a critique see Waxman, supra note 33.
89 88 87

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both of these arguments. A persons affiliation with a terror group is an important element in evaluating the risk that he poses, but more than that is required to justify using lethal force against person and even detaining him.90 Consider the first approach, which views members of terror groups as unlawful combatants, based on an interpretation of Article 51(3) of the First Additional Protocol that was discussed above. Arguably, a member of a terror organization is, by definition, one who takes a direct part in hostilities, and may thus be targeted regardless of his specific activities or the risk that he poses. This approach raises several difficulties. As a matter of interpretation, Article 51(3) specifically refers to a persons activities, the fact that he takes a direct part in hostilities, rather than to his formal membership or affiliation with some organization. As already discussed above, this is not a coincidence. It reflects an awareness of the difficulties in identifying which persons are members of armed forces, and thus the concern that persons who are not taking active part in the hostilities will be targeted. The very notion of membership in a terror group is often vague. Typically, persons are not drafted to an organization and serve there for a designated period, as a full time insurgents or terrorists.91 In addition, these groups may be involved in both terror and nonterror related activities, and it is difficult to distinguish in what aspect of the organizations activities a person is affiliated with. Information about a persons membership might be based merely on his past activities, rather than his current involvement in terror.92 Thus, there is no sufficient basis for the view that information about a persons membership in a terror group should be sufficient to classify him as combatant, and to justify targeting him based on the laws of war.93
90

It should be noted that the current discussion focuses on extra-judicial measures. A separate issue is the legitimacy of employing the criminal justice system to impose prohibitions on becoming a member of a terror organization. Examples include, in the U.S., 18 U.S.C. 2339A-B, a statute making it a felony to provide material support or resources to a designated foreign terrorist organization; and in the U.K., sections 11 of the Terrorism Act 2000, prohibits belonging to a proscribed organization. This path is sometimes used to bypass limits on permissible detention of terrorists, and it raises considerable difficulties. See Liat Levanon, Criminal Prohibitions on Membership in Terrorist Organizations, 15 NEW CRIMINAL L. REV. 224 (2012). See, e.g., Chesney & Goldsmith, supra note 34; BLUM & HEYMANN, supra note 34, at 70 (The identity and culpability of an individual not wearing a uniform but suspected of involvement in terrorism is far less easily ascertained. While combatants should not benefit from defying the obligation to distinguish themselves from civilians (wearing civilian clothes does not give a soldier legal immunity from direct attack), the lack of uniform does raise concerns about the ability to identify individuals as belonging to a hostile force. Moreover, joining a military follows a distinct procedure that allows for a bright-line rule distinguishing between those in the military and those outside it ... Joining a terrorist organization does not necessarily have a similar on/off switch; individuals might join the organization or support it in some ways or for some time, but then go back to their ordinary business without any ritual marking their joining or departing.). See, e.g., Kretzmer, supra note 23, at 200 (the view that classifying members in terror groups as combatants would amount to a licence to kill all persons suspected of being active members of the international terrorist group. How can we be sure that the targeted persons are indeed real terrorists?). Some scholars suggest that named targeting, as opposed to the practice of un-named killing in traditional warfare, is more troubling from a moral perspective, as it amounts to assassinations. Michael Gross, Fighting by other Means in the Mideast: A Critical Analysis of Israels Assassination Policy, 51 POLITICAL STUDIES 350, 362-63 (2003). I find this position unjustified, since insisting on individual responsibility provides greater protection to human rights.
93 92 91

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The more plausible position is the one which refers to a persons affiliation with a terror organization as an indication of this persons dangerousness. Information about a persons activities in the past, and mainly about his current connections with a terrorist organization is relevant in establishing the magnitude of risk that this person poses. Thus, the fact that a person is a member of a terrorist organization is relevant in inquiring the magnitude of this risk. At the same time, in most cases this type of information should not be viewed as sufficient to justify targeting a person. To meet the probability-threshold requirement it is typically essential to connect the targeted person to some specific terror and insurgency activity. In order to establish a persons responsibility for the purposes of extra-judicial measures it is insufficient to point at ones past involvement in terror, since, as already discussed, it is permissible to take extra-judicial measures for the purpose of preemption but not for retribution. As indicated, while the imminence requirement is not applied in its strict sense, it does limit the scope of permissible actions, for the reasons discussed above. It addresses the necessity of targeting a person to preempt a terror attack. Referring to a persons involvement in terror activities in general may not meet this requirement. Targeting a person who takes a direct part in hostilities can be justified only if he is involved in a concrete ongoing or planed act of terror. The type of involvement that can justify targeting a person is of the kind that can establish ones individual dangerousness. This is not the case when the available information refers to a persons involvement in terror activities in general, without reference to some specific, on-going or planed act of terror. Accordingly, President Obamas new policy on this issue is justified. As mentioned above, under this policy the use of lethal force can be justified only against a target that poses a continuing, imminent threat to U.S. persons.94 One may also justify, at least in the context of high-officials, the DOJs view (presented at a (leaked) White Paper) that the conclusion that a person can be presumed to pose an imminent threat when the al-Qaida member in question has recently been involved in activities posing an imminent threat of violent attack and there is no evidence suggesting that he has renounced or abandoned such activities. 95 My disagreement is about the scope of anti-terror warfare that is subject to this policy. It is unjustified to limit its application to instances of the use of lethal force. Inflicting severe harm, including in the form detention, should be limited according to the above standards. As discussed above, the rationale of imposing these limitations is the protection of innocents from severe harm, not only killing. The same is true with respect to the area in which the targeting takes place. International law scholars debate whether the international laws of war apply out of the battlefield, and therefore whether different rules of the permissibility of targeting suspected terrorists should apply within and without the battlefield, for instance in Afghanistan and Yemen, respectively.96 The approach presented here refer to the nature of events that are taking place in the area in which the anti-terror measure is to be employed, not as a yes/no element that
94

U.S. POLICY STANDARDS AND PROCEDURES FOR THE USE OF FORCE IN COUNTERTERRORISM, supra note Department of Justice White Paper, supra note 7. See, e.g., Daskal, supra note 2.

6.
95 96

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determine the permissibility of targeting members of terror groups, but as an additional relevant indication about the scope of risk posed by the targeted persons. 5. Acting against a Group when at least some of its Members are Innocent Governments often lack reliable information about prospective terror attacks, and impose restrictions on all persons who are classified as part of a group that is considered dangerous, based on some generalizations. A prominent example is profiling policies applied in checkpoints and airports. Other examples are curfew and similar means of curtailing the freedom of movement of a group of people, limits on entry to the country of individuals, including family members of citizens, based on their nationality, and search and other infringements of the right to privacy in attempts to obtain information. These are instances in which it is certain that at least some of those that are subject to the anti-terror measures are innocent, and such activities too must be subject to scrutiny. It is debated, however, what should be the proper way of implementing the probability-threshold requirement in these instances. According to one view, the probability-threshold requirement can be applied for the entire group. It is permissible to target an entire group of people whenever the probability that at least one of those who belong to it will be involved in a terrorist attack exceeds the applicable probability-threshold.97 Consider, for example, a case in which it is known, with certainty, that one person (but only one) out of a certain group of one hundred people is expected to be involved in a terror attack. Suppose further that the only way to preempt the would-be perpetrator is by curtailing the freedom of movement of the entire group for some limited period. Under these assumptions, limiting the freedom of the whole group will, in certainty, saves lives. Under the above approach, the group imposes sufficiently high risk to justify targeting its members.98 This position is questionable. Addressing exclusively the risk posed by the entire group circumvents the requirement of individual responsibility.99 The reasons offered above in support of the individual responsibility requirement and probability-threshold apply when the anti-terror measure is directed against an entire group just as in the case of targeting only one person. This is clearly the case when targeted killings are concerned, as expressly reflected in the fundamental premise of the laws of war, which prohibits an indiscriminate attack. But this idea also applies when less harmful actions are concerned, such as those mentioned above.100

97 98

See, e.g., Jackson & Smith, supra note 60.

Along these lines Richard Posner suggested that while [e]ven in radical Islamist communities the percentage of people willing to commit terrorist acts or even assist in terrorism in meaningful ways is smallwhen one reflects that there are several million Muslims in the United States and that a tiny number of terrorists may be able to cause catastrophic harm to a nation, the government should not have to stand by helplessly while radical imams convert a multitude to their radical creed. RICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY 124 (2006).
99

For a related view see Aboodi et al., supra note 60.

See, e.g., Edmond v. Goldsmith, 183 F3d 659 (7th Cir 1999), affd, City of Indianapolis v. Edmond, 531 U.S. 32 (2000). In this case, the court enjoined the Indianapolis police department from setting up roadblocks to catch drug offenders. Judge Richard Posner stated that if the roadblocks were assessed at the level of the

100

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It is required to justify taking a certain measure on the basis of evaluating the risk posed by each of the individuals in the group affected by it. In the typical case, in the lack of reliable information about each persons dangerousness, the evaluation may be based on the average risk. Thus, for instance, in the above example, if it is known that only one person out of a group of one hundred people is involved in terror, the probability that each of the group members will be involved in the act of terror if his liberty is not infringed is only one percent, and it is this value that should be compared to the probability-threshold. In determining the probability-threshold in these cases, one should take into account not only the scope of harm imposed by the anti-terror measure. When the relevant action inflicts only nominal harm, such as search in the bags of those who enter certain places, the applicable probability-threshold may well be set at a very low level. However, in setting this value it is required to also take into account the criteria of selecting the group that is targeted. Specifically, the threshold is higher when the selection is based on some suspect classification. C. Minimal Impairment As indicated, a permissible anti-terror action is subject to additional condition, namely the minimal impairment doctrine. According to this doctrine, inflicting harm as a preemptive measure must be narrowly tailored. According to some views, this requirement may be inferred, at least with respect to certain cases, from international laws of war.101 Be that as it may, I suggest that, similarly to the constraints discussed above, imposing this requirement can be justified on the concern of inflicting harm on innocents. To further mitigate the risk of inflicting harm on innocent persons due to mistakes in identifying the targeted person, a state must employ a measure which is the least-harmful one among all possible means. Accordingly, it is impermissible to kill a suspected terrorist if the state can preempt the terror attack by detaining the person.102 According to some suggestions in the legal literature, an infringement meets the minimal impairment requirement if a less harmful measure that is equally effective in thwarting the risk is not available.103 This qualification is quite substantial, as it is almost
entire programthese roadblocks probably are legal, given the high hit rate and the only modestly intrusive character of the stops. However, he held that the reasonableness of a search must be determined by the existence or nonexistence of individualized suspicion of wrongdoing, since if the court were to adopt a program-level analysis, then the court would perform a cost-benefit analysis. Id., at 661. See also Bernard E. Harcourt, Judge Richard Posner on Civil Liberties: Pragmatic Authoritarian Libertarian, 74 U. CHI. L. REV. 1723 (2007). Ryan Goodman, The Power to Capture or Kill Enemy Combatants, 24 Euro. J. Intl L. __ (2013); Blum, supra note 43. For the opposite position see Jens David Ohlin, The Duty to Capture, 97 Minn. L. Rev. __ (Forthcoming). Cf. McCann v. UK, (1995) 21 EHRR 97 (holding that killing terrorists was justified as a means to thwart an immanent risk of a deadly terrorist attack, yet that the anti-terrorist operation as a whole was unjustified, since the government could have used alternative measures to thwart the risk, such as arresting the suspects at an appropriate stage). See, e.g., the decision of the Canadian Supreme Court in R. v. Oakes, [1986] 1 S.C.R. 103. See also, Guy Davidov, Separating Minimal Impairment from Balancing: A Comment on R. v. Sharpe (B.C.C.A.), 5 REV. CONST. STUD. 195 (1999).
103 102 101

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never the case that an alternative measure is equally effective to the one considered. For instance, an attempt to detain a person is almost always more risky that a drone operation aimed at killing him. In fact, however, the evaluation of an infringement must also include a comparison to less harmful alternatives that are possibly somewhat less effective in tackling the risk. This view is based on the premise that in evaluating an infringement it is necessary to inquire not only whether its benefit exceeds its harm, but also whether the actions marginal benefit is large enough to justify the harsher measure. State differently, the required evaluation is of the scope of the difference between the risk of a terror attack if the less harmful course of action is pursued, and the magnitude of this risk under the harsher measure. To illustrate, assume that the targeted person poses an imminent risk of killing others, as the probability of attack in the next few days is 95%. Consequently, it may seem justified to employ this measure, as it satisfies the conditions discussed above. Assume, however, that the government can also try to capture the terrorist, and that the probability of success of this measure is 80% (in comparison to the assumed certainty that the targeted killing will thwart the attack). Thus, there is a 19% chance that the terrorist will escape and carry out his terrorist plans.104 Trying to capture the terrorist would not be justified if it involves too high a risk to bystanders and to the soldiers. If so, the targeted killing should be evaluated in comparison to the alternative of inaction, where the risk of a terrorist attack is very high. If, however, the attempt to capture the terrorist does not impose substantial risk of injury to bystanders and to the soldiers, and it can thus be justified, as of itself, the killing may not be a permissible course of action. In this case, the relevant risk of harm due to a terrorist attack, according to which one should evaluate the permissibility of targeted killing, is the marginal one, namely 19%. This magnitude of risk of harm may be insufficient to justify taking the harsher measure. In addition, it is for this reason that the government is required to obtain, whenever possible, the aim of anti-terror warfare through the criminal justice system. Only when this path is not available, as when the possibility of bringing a terrorist to justice is insufficient to deter terrorists, the social interest in preempting future terror attacks can justify infringing the prohibition against harming a person without a judicial proceedings to evaluate whether the targeted persons dangerousness justifies taking the measure under consideration.105 As already discussed, the infringement of the constraint against targeting a person extrajudicially can be justified only if the danger posed by the targeted person is sufficiently high.

The chances that the would-be terrorist will escape (20%) and launch a terror attack (95%), assuming that the probabilities of the two events are independently distributed, are 0.2x0.95=0.19. For a more stringent approach see Alec Walen, A Unified Theory of Detention, with Application to Preventive Detention for Suspected Terrorists, 70 MD. L. REV. 871 (2011) (preventive detention of suspected terrorists can be justified only in those cases in which they would be effectively unaccountable for their future actions, but not because they are predicted to pose a threat larger than that of other criminals).
105

104

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III. THE ISRAELI SUPREME COURT JURISPRUDENCE ON PREEMPTIVE MEASURES

Israel fights against terrorism for several decades. This fight intensified in the wake of the terrorist attacks launched by Palestinians against Israeli citizens in the mid 90s of the 20th century and in the years 2000-2003, during the second Intifada (the Palestinian uprising against the Israeli occupation of the West Bank and the Gaza Strip), which resulted in the killing of more than one thousand Israelis and seriously wounding many more. Israel employed extensive measures to prevent terrorist attacks, including military campaigns to detain and if not possible to kill terrorists, the detention of hundreds of suspected terrorists for periods of a few months to several years, targeted killings of leaders of terror organizations in pre-planned operations, construction of a separation barrier, and more, activities that claimed the lives of several-thousands Palestinians. A unique characteristic of the Israeli fight against terrorism is the relatively extensive judicial review of the various activities. The Israeli Supreme Court, sitting as the High Court of Justice (the first and final instance for judicial review of, among other things, military actions), recognized the right of residents of the Occupied Territories, as well as Israeli citizens and NGOs, to petition the Court to challenge the legitimacy of both general practices and specific military actions. The Court ruled that all military activities, regardless of their location in Israel or outside it, are justiciable.106 The Court reviews the military activities according to Israeli constitutional law, mainly human rights law, and according to international law, mainly international humanitarian law dealing with international armed conflicts. In referring to the latter body of norms the court ruled that the fact that the terrorist organizations and their members do not act in the name of a state does not turn the struggle against them into a purely internal state conflict. Confronting the dangers of terrorism constitutes a part of the international law dealing with armed conflicts of international character.107 However, in most cases the Court does not view the laws of war as exhausting the legal regulation of Israels anti-terror warfare. This body of norms serves mostly as a formal authority to employ certain measures. According to Israeli Constitutional law, the government is empowered to take measures that infringe human right only if explicitly authorized to do so in legislation, and the norms of international humanitarian law are recognized as a valid alternative to domestic legislation for this purpose.108 The basic premise is that all governmental activities are subject to the constraints set by human rights law, regardless of the nationality of the people affected by these activities or the territory in which they take place.109
For instance, HCJ 201/09 Physicians for Human Rights v. Prime Minister of Israel (2009), para 11-13 (President Beinisch). English translation available at http://elyon1.court.gov.il/files_eng/09/010/002/n07/09002010.n07.pdf. HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel (2006), para 21 (President Barak). English translation available at http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.pdf.
108 109 107 106

For a discussion see Medina, supra note 24.

For a critical evaluation of this position see Galia Rivlin, Constitutions Beyond Borders: The Overlooked Practical Aspects of the Extraterritorial Question, 30 BOSTON U. INTL L. J. 135 (2012).

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In the first decade of the current century the Israeli Supreme Court decided hundreds of cases in which the legality of various anti-terrorist measures was evaluated.110 While the court rejected a large proportion of the petitions, a closer look at the Courts practices, mainly those of informal advice to the state during the hearings, reveals that the Court employs a tighter scrutiny than is evident from reading only its formal judicial decisions.111 These judicial decisions established fundamental legal aspects of the fight against terrorism. Among these issues: what types of measures are impermissible, regardless of their effectiveness in thwarting terror attacks;112 and what is the appropriate balance between inflicting unintended harm on innocent persons, as a mere side-effect of an activity that is aimed at thwarting a terror attack, and the benefit that such activity is expected to yield.113 As indicated above, this Article focuses on the other conditions in which it is permitted to inflict harm on suspected terrorists, namely the individual-based paradigm. The applicability of this doctrine and its content are dealt with, either explicitly or implicitly, in a considerable number of decisions. This Part discusses the central among these cases, and provides an overview of the prevailing approach of the Israeli Supreme Court. The discussion is divided into two categories of anti-terror measures: activities that target specific individuals (Section III.A), and those that target a group which includes both innocent persons and ones that pose risk (III.B). A. Targeting Specific Individuals One type of anti-terror warfare consists of measures directed against individuals, whoare identified as posing a risk of launching terror attacks, and the activities under consideration aim at thwarting them. I discuss here the Israeli Supreme Court decisions regarding the

For an English translation of some of these cases see 1 JUDGMENTS OF THE ISRAEL SUPREME COURT: FIGHTING TERRORISM WITHIN THE LAW (2005); 2 JUDGMENTS OF THE ISRAEL SUPREME COURT: FIGHTING TERRORISM WITHIN THE LAW (2006); 3 JUDGMENTS OF THE ISRAEL SUPREME COURT: FIGHTING TERRORISM WITHIN THE LAW (2009). All volumes are available online. See, Yoav Dotan, Judicial Rhetoric, Government Lawyers, and Human Rights: The Case of the Israeli High Court of Justice During the Intifada, 33 Law & Society Rev. 319 (1999); Yoav Dotan, Legalising the Unlegaliseable: Terrorism, Secret Services and Judicial Review in Israel 19702001, in JUDICIAL REVIEW AND BUREAUCRATIC IMPACT: INTERNATIONAL AND INTERDISCIPLINARY PERSPECTIVES 190 (Marc Hertogh and Simon Halliday eds., 2004); Menachem Hofnung and Keren Weinshall-Margel, Judicial Setbacks, Material Gains: Terror Litigation at the Israeli High Court of Justice, 7 J. E. LEG. STUD. 664 (2010). Among these decisions: The prohibition on the use of force in interrogating suspected terrorists. HCJ 5100/94 Public Committee against Torture in Israel v Government of Israel, P.D. 53(4) 817 (1999); The prohibition to use human shields and even the solicitation of a local residents assistance, for the purpose of relaying an early warning to suspected terrorists that the IDF tries to detain. HCJ 3799/02 Adalah v. Head of the Central Command, supra note 52; and more. In addressing this issue in the context of targeted killings, the court applied the proportionality requirement: [An] attack is proportionate if the benefit stemming from the attainment of the proper military objective is proportionate to the damage caused to innocent civilians harmed by it. Performing that balance is difficult. [A] meticulous examination of every case is required. HCJ 769/02 The Public Committee Against Torture v. The Government of Israel, supra note 107, para. 45-46 (President Barak). For a discussion of this and related issues see, e.g., Michael Bohlander, Of Shipwrecked Sailors, Unborn Children, Conjoined Twins and Hijacked AirplanesTaking Human Life and the Defence of Necessity, 70 J. CRIM. L. 147, 158 (2006); Alison McIntyre, Doing Away with Double Effect, 111 ETHICS 219, 221-23 (2001).
113 112 111

110

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legitimacy of the use of two of the most severe of these measurestargeted killings and administrative detentions. 1. The Targeted Killings Case (2006) Israel adopted a policy of targeted killings of Palestinians alleged to be involved in organizing, promoting or executing terrorist attacks in Israel and the Occupied Territories.114 The Israeli Supreme Court reviewed this policy (HCJ 769/02, decided in 2006), and upheld it.115 In its judgment, the court determined, among other things, the conditions in which it is permissible to intentionally target, in a pre-planned operation, a person who is suspected to be involved in terror, in an attempt to kill him.116 The Court did not review a specific incident of targeted killing but rather the general policythe conditions in which targeting a person is permitted. It ruled that the army is required to establish an inquiry commission, which would perform an objective retrospective inquiry of the permissibility of the action after each attack.117 The Court may then review the conclusions of this commission.118 This decision of the Court was subject to numerous academic reviews. Most commentators have read the decision as ruling that the government may target a person whenever there is sufficient evidence that he is involved in the activities of a terror organization.119 Although the Court explicitly rejected to the position that members of terror organization should be classified as unlawful combatants, as it is a category not yet recognized by international law,120 the decision is usually read as a de-facto endorsement of
According to BTselemThe Israeli Information Centre for Human Rights in the Occupied Territories (an Israeli NGO)in the period between 2000 and 2012, the Israeli military killed 437 Palestinians in targeted killings operations, out of which 262 were the object of the operation. All cases of targeted killings took place outside Israel, in the Occupied Territories. See http://www.btselem.org/English/Statistics/Casualties.asp. For an overview of Israels policy see, e.g., PLAW, supra note 82, at 61-89; BLUM & HEYMANN, supra note 34, at 7477. HCJ 769/02 The Public Committee Against Torture v. The Government of Israel, supra note 107. Earlier, the Supreme Court refused to subject this policy to judicial review, deeming it to be non-justiciable. HCJ 3114/02 Barakeh v. Minister of Defense, 56(3) P.D. 11 (2002). English translation available at: http://elyon1.court.gov.il/Files_ENG/02/140/031/A02/02031140.A02.HTM. For a critique of this earlier decision see Orna Ben-Naftali & Keren R. Michaeli, We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 CORNELL INTL L. J. 233 (2003). As indicated, the Court also determined the permissible scope of unintended harm on innocent persons, which is expected as a side-effect of the action. See supra note 113.
117 118 116 115 114

HCJ 769/02, supra note 107, para. 59.

See, e.g., HCJ 8794/03 Hess v. Attorney General (2008), in which the Court dismissed a petition to indict IDF commanders for their responsibility to a targeted killing operation in which, in addition to the targeted person, 13 innocent persons were also killed. The Court ruled that the appointment of an investigatory commission is the appropriate way. See also infra note 130. See, e.g., Eichensehr, supra note 80, at 1875-76 (criticizing the Court for not requiring the military to ask what the terrorist is doing at the time that he is targeted, but only whether he is still an active member of a terrorist organization. The military does not have to show that the target poses an immediate threat rendering the use of force necessary.); Orna Ben-Naftali & Keren Michaeli, International Decisions: Public Committee Against Torture in Israel V. Government of Israel, 101 A.J.I.L. 459, 465 (2007); PLAW, supra note 82, at 14752.
120 119

HCJ 769/02 The Public Committee Against Torture v. The Government of Israel, supra note 107, para.

28.

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the status-based approach criticized above. However, a close reading of the decision reveals that the Courts position is much closer to the individual dangerousness doctrine. One clear indication that the Court did not fully apply the status-based approach of the international laws of war is the emphasis that it gave to the third condition discussed above, of minimal impairment. The Court ruled that when targeting suspected terrorists, who cannot be classified as combatants because they have no fixed emblem recognizable at a distance, the government must consider alternative measures. In President Baraks words, a civilian taking a direct part in hostilities cannot be attacked 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.121 Similarly, Justice Beinisch ruled that targeted killing is not to be carried out when it is possible to arrest a terrorist taking a direct part in hostilities, without significant risk to the lives of soldiers.122 The application of the dangerousness requirement is more nuanced. The judgment consists of three separate opinions, which offer different positions in this respect. The concurring opinion of Justice Beinisch, that succeeded Justice Barak as the President of the Court, clearly applied the doctrine of individual dangerousness. Justice Beinisch ruled that a person can be targeted only if there is well based, strong, and convincing information regarding the risk the terrorist poses to human life, risk including continuous activity which is not merely sporadic or one-time concrete activity.123 She explicitly employed a probability-threshold requirement, noting that a minor possibility is insufficient; a significant level of probability of the existence of such risk is required.124 Accordingly, she ruled that not all involvement in terrorist activity constitutes taking a direct part in hostilities pursuant to Article 51(3) [of the First Additional Protocol], but only activity at the core of the hostilities themselves, activity which, on the one hand, is not limited merely to the physical attack itself, but on the other hand does not include indirect aid.125 Justice Beinisch did not require that the threat imposed by the targeted person will be immediate, in the strict temporal sense, but rather that the risk is sufficiently high in terms of likelihood of conducting a terrorist attack unless thwarted. On the other hand, the positions of President Barak and Justice Rivlin may seem to be closer to the status-based approach. They referred to Article 51(3) of the First Additional Protocol, which provides that civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities. Article 51(3) served primarily to reject an argument about absolute prohibition of targeted killings according to the international laws of war. It is not clear, however, whether according to the approach of President Barak and Justice Rivlin this provision also exhausts the conditions in which taking this measure is permitted. There are some indications in their decisions to this

121 122 123 124 125

Id., para. 40. Id. (Justice Beinisch). See also id, para. 7 (Justice Rivlin). HCJ 769/02, supra note 107 (Justice Beinisch) (emphasis added). Id. Id.

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position,126 but at the same time they emphasized the applicability of human rights law in addition to the laws of war.127 President Barak and Justice Rivlin also provided a relatively narrow definition of the meaning of the language of Article 51(3), ruling that it is permitted to target a person only when he is performing the function of a combatant,128 which may be interpreted as implying the individual dangerousness requirement.129 Interestingly, the decision has been interpreted by the IDF along the lines of Justice Beinischs decision. It is permissible to target a suspected terrorist only for the purpose of preempting a terror attack, in circumstances in which the person presents a very high risk that he will be involved in a launching a terror attack if not thwarted and there is no reasonable alternative to preempt the attack.130 The permissibility of a targeted killing is determined according to an evaluation of the risk posed by the targeted person, based on information about his concrete actions and intentions. 2. The Internment of Unlawful Combatants Case (2008) A measure that Israel uses extensively in its fight against terrorism is administrative detention.131 In this context too the Supreme Court enforces the individual-based approach. The Court even prevented an attempt by the legislature to shift to a status-based approach. The Courts underlying position is that the detention of a person, even of a suspected terrorist, infringes the detainees basic liberties, and is thus subject to human rights law, rather than merely the laws of war.

See, e.g., id. para. 31 (President Barak): A civilian who violates that law and commits acts of combat does not lose his status as a civilian, but as long as he is taking a direct part in hostilities he does not enjoy during that timethe protection granted to a civilian. He is subject to the risks of attack like those to which a combatant is subject. Id. para. 18 (President Barak): Alongside the international law dealing with armed conflicts, fundamental principles of Israeli public law, which every Israeli soldier carries in his pack and which go along with him wherever he may turn, may apply. See also id., para 1 (Justice Rivlin).
128 129 127

126

Id. para. 31 (President Barak).

For a similar understanding of President Baraks approach see BLUM & HEYMANN, supra note 34, at 80 (by refraining from labeling terrorists as combatants, the [Israeli Supreme Courts] ruling ensured that unlike combatants on the battlefield, who were all legitimate targets regardless of rank, role, or threat, terrorists would not be targeted on the basis of mere membership in a terrorist organization; instead, an individual culpability of the targeted person, by way of direct participation in instigating and executing terrorist acts, would have to be proven.). See, for instance, SPECIAL INVESTIGATORY COMMISSION OF THE TARGETED KILLING OF SALAH SHEHADEH (2011), synopsis available at http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Salah_ShehadehSpecial_Investigatory_Commission_27-Feb-2011. The Commission found that it was permissible to target Shehadeh since there was concrete information that the threat he posed to Israels population, the lives of its citizens and all those in the territories under its control was certain, immediate and significant. As of December 2012, Israel was holding about 178 Palestinians in administrative detention in facilities in Israel. See the report of BTselem, The Israeli Information Centre for Human Rights in the Occupied Territories, Statistics on Administrative Detention, http://www.btselem.org/administrative_detention/statistics.
131 130

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The power to detain suspected terrorists is set in legislation.132 The language of this legislation is quite broad, as it authorizes the military commander (or the Minister of Defense) to order to detain a person whenever there is a reasonable basis to suppose that the security of the area [or that of the State] or of the public necessitates a certain person to be held in detention.133 However, in a long line of decisions the Court ruled that this power can only be used as a forward-looking preventive measure, against a person who poses an individual threat, and may not be used as punishment for past acts.134 The Court held that a person should not be detained merely because he has been detained during warfare. The circumstances of his detention must be such that they raise the suspicion that hehe individually and no one elsepresents a danger to security.135 The Court emphasized that the state may not detain in administrative detention any other than the one that himself poses a risk, with his own actions, to national security,136 thus explicitly rejecting the statusbased approach of the laws of war. Along these lines, the Court invalidated a decision to hold a person in detention merely as a bargaining chip.137 Moreover, in establishing the above rule of individual dangerousness the Court set a high probability-threshold of the risk posed by the detainee to justify a detention, often defined as highly likely.138 The Court has also held that administrative detentions are permissible subject to the minimal impairment requirement, and only if it is not possible to prevent the danger posed by the detainee through criminal proceedings.139 These doctrines were also applied with respect to the power to issue an order of assigning a place of residence (which prohibits a person from living in a designated area).140

The central provisions in this respect are the Administrative Detention Order (Temporary Provision) (Judea and Samaria) (no. 1226), 1988 (hereinafter: the Detentions Order), which is part of the military legislation applicable at the West Bank, and the Emergency Powers (Detentions) Law, 1979 (hereinafter: the Detentions Law), which applies within Israel. These provisions empower the military commander and the Minister of Defense, respectively, to hold a person in detention for the period of up to six months. Administrative detention orders may then be extended repeatedly.
133 134

132

Section 1(a) of the Detentions Order.

See, e.g., HCJ 5784/03 Salama v. Israel Defence Forces Commander in Judea and Samaria (2003), para. 7 (President Barak): The basic premise is that administrative detention is meant to prevent future danger to the security of the state or to the public safety. Administrative detention is not meant to be a tool used to punish previous acts, or to be used in place of criminal proceedings. English translation available at: http://elyon1.court.gov.il/Files_ENG/03/840/057/A05/03057840.A05.HTM. HCJ 3239/02 Marab v. IDF Commander in the West Bank (2003) (President Barak), para. 23. The Court added in this respect that the army is not authorized to make mass detentions. Id. English translation available at http://elyon1.court.gov.il/Files_ENG/02/390/032/A04/02032390.A04.pdf.
136 137 138 135

CrimFH 7048/97 John Does v. Ministry of Defense, supra note 52, para. 19. Id.

See, e.g., ADA 4/94 Ben-Horin v. Ministry of Defence, PD 48(5) 329 (1994) (issuing an administrative detention order can be justified only if it is highly likely that a substantial harm to the national security will be realized if the order is not issued).
139 140

See, e.g., id., para. 8; ADA 16/88 Baransy v. The Minister of Defense (1988).

HCJ 7015/02 Ajuri v. IDF Commander, supra note 54, para. 24 (President Barak): The basis for exercising the discretion for assigning residence is the consideration of preventing a danger presented by a person whose place of residence is being assigned. one may not assign the place of residence of a person

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The issue was recently reexamined after the enactment of a new legislation, the Internment of Unlawful Combatants Law, 2002. Contrary to the previous legislation (which is still in force), internment under the Unlawful Combatants Law is not limited to six months, and must come to an end only when the chief of staff declares that the terror organization with which the detainee is affiliated has stopped carrying out hostilities against Israel.141 As the laws title tells, it was aimed at authorizing the state to intern persons who are classified as unlawful combatants, to bypass the requirement of proving the detainees individual dangerousness and thus employ a status-based approach. The law provides that the IDF Chief of Staff may issue an internment order of an unlawful combatant142 only if there is a reasonable basis for believing that releasing this person will harm the security of the state (section 3(a)). However, the law qualifies this requirement by adding that a person who is a member of a force that carries out hostilities against the State of Israel or who took part in the hostilities of such a force, whether directly or indirectly, shall be regarded as someone whose release will harm state security as long as the hostilities of that force against the State of Israel have not ended, as long as the contrary has not been proved (section 7). In reviewing this legislation the Israeli Supreme Court ruled that in order to be valid, a detention according to the Internment of Unlawful Combatants Law must be justified on the basis of the individual dangerousness requirement, practically invalidating the presumption of risk set forth in section 7.143 The Court ruled that an internment, even of unlawful combatants can be justified only on the basis of individual dangerousness.144 Interestingly, while Section 1 of the Law provides that [the Law] should be interpreted in a manner that is consistent, in so far as possible, with the norms of international law to which the State of Israel is committed, the Court held that the individual dangerousness approach, rather than the status-based one, is the approach which is compatible with the international laws of war. The Court avoided from explicitly invalidating section 7 of the law, which creates a presumption of dangerousness, but it explained that this deference is based on the

who carr[ied] out acts that harmed security, when in the circumstances of the case he no longer presents any danger. The Court added that [the order] may usually only be exercised if there exists administrative evidence that shows clearly and convincingly that if the measure of assigned residence is not adopted, there is a reasonable possibility that he will present a real danger of harm to the security of the territory. Id. para. 25. The Unlawful Combatants Law does require, however, holding a periodic judicial review every six months, to examine whether it is still justified to intern the detainee (section 5(c)). This law defines an unlawful combatant as a person who is not entitled to the status of prisoner of war under international humanitarian law, and who meets at least one of the two following conditions: he or she took part, directly or indirectly, in hostilities against the State of Israel; or he or she is a member of a force carrying out hostilities against the State of Israel (section 2). CrimA 6659/06 A v. The State of Israel (2008). English Translation available at: http://elyon1.court.gov.il/Files_ENG/06/590/066/n04/06066590.n04.htm. See id, para. 18 (President Beinisch) (It is one of the first principles of our legal system that administrative detention is conditional upon the existence of a ground for detention that derives from the individual threat of the detainee to the security of the state. The requirement of an individual threat for the purposes of placing someone in administrative detention is an essential part of the protection of the constitutional right to dignity and personal liberty.).
144 143 142 141

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governments statement that it will not employ this presumption in establishing the basis of internment but will rather be committed to the principle of individual dangerousness.145 Like other forms of administrative detention, the internment must be for a preventive purpose and not as punishment for a past act. The Court ruled that the state should show that the detainee belonged to a terrorist organization and made a significant contribution to the cycle of hostilities, such that his administrative detention is justified in order to prevent his returning to the aforesaid cycle of hostilities. A single piece of evidence with regard to an isolated act carried out in the distant past is insufficient.146 This decision and subsequent judgments that reviewed concrete internment orders,147 present an unequivocal endorsement of the individual dangerousness requirement to justify detaining members of terrorist organizations. It should be noted, however, that it is debated whether the actual scope of review is sufficient. In addition, the government can partially bypass the limits on employing administrative detentions by criminally incarcerating suspected terrorists as a sanction for violating the prohibition on membership in a terrorist organization.148 B. Measures that are Directed against a Group of Persons Governments often lack reliable information about prospective terrorists, and are thus required to base their preemptive activities on statistical evidence. The most natural generalization is persons national affiliation. Individuals, who are enemy-nationals or otherwise affiliated with it, are more likely to take part in terrorist attacks than a person who is not similarly affiliated with the enemy. At the same time, the probability that such individuals are or will be involved in terror is often close to zero. In the current context, applying the individual-dangerousness requirement amounts to strict in theory, but fatal in fact,149 since the cases under discussion are ones in which the inability to establish individual dangerous is the very reason for taking such collective measures in the first place. As the following discussion shows, the Israeli Supreme Court was not consistent in

Id., para. 24 (President Beinisch): The [state] declared before us that, as a rule, the state acts in order to present a broad and detailed basis in evidence with regard to the threat presented by detainees... The significance of this claim is that de facto the state refrains from relying on the probative presumption provided in section 7 of the law and it proves the individual threat presented by detainees on an individual basis, without making use of the aforesaid presumption. The Court added that if the state chooses to make use of the presumption provided in section 7 of the law in the future rather than proving the threat to the required degree, it will be possible to bring the [question of the validity of this section] before the court, since it will be necessary to decide them concretely rather than theoretically.
146 147

145

Id. para. 22 (President Beinisch).

See, e.g., ADA 9256/09 A. v. The State of Israel (2009) (Justice Vogelman), para. 2: The [Unlawful Combatants] Law applies only to persons whose individual dangerousness was proved; ADA 886/10 Atamna v. The State of Israel (2010) (Justice Procaccia), para. 7-8: To classify a person as an unlawful combatant it is required that there will be an individual dangerousness posed by this person.
148 149

See, e.g., Levanon, supra note 90.

Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972) (strict scrutiny is strict in theory and fatal in fact.)

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imposing the individual dangerous requirement in scrutinizing measures that restrict freedom of movement and related infringements of groups of persons. 1. Curtailment of Freedom of Movement Case (2009) The legitimacy of curtailment of freedom of movement of groups of people was analyzed by the Israeli Supreme Court in dozens of decisions. I start by briefly describing the prevailing approach in these decisions, and address, in some more details, one recent decision. The Court reviewed several anti-terror activities that infringe the freedom of movement of residents of the Occupied Territories. Among the measures reviewed by the Court, curfew on the residents of a certain village in the,150 closure, which sometimes last for months,151 siege on the Gaza Strip, to prevent importing into the area materials that may be used to produce weapons and to build bonkers,152 denying all Palestinians who live in the Gaza Strip the freedom to visit the West Bank or to travel abroad,153 constructing the separation barrier which prevents, or at least substantially obstructs entry to certain agriculture fields,154 and denying all Palestinians who are residents of the Occupied Territories the permission to drive motor vehicles in Israel.155 In the decisions scrutinizing these measures the Court presented a similar approach, which consists of two main elements. First, the state is empowered to impose these measures only for preventive purposes. Measures such as curfew and closure may not be implemented for punitive purposes.156 The Court also held that the only permissible purpose of constructing the separation barrier east to the Green Line (that is, within the Occupied Territories) is security reasons. The government may not set the route of the barrier in an attempt to determine unilaterally Israels border.157 Second, all these measures are

See, e.g., HCJ 854/03 Sultan v. The Commander of the IDF in Judea and Samaria (2003); HCJ 1113/90 Shawa v. The Commander of the IDF in the Gaza Stript, PD 44(4) 590 (1990). See, e.g., HCJ 2410/03 Al Arja v. The Commander of the IDF in Judea and Samaria (2003); HCJ 2847/03 Aloona v. The Commander of the IDF in Judea and Samaria (2003). See, e.g., HCJ 201/09 Physicians for Human Rights v. Prime Minister of Israel, supra note 106; HCJ 9132/07 Al-Bassiouni v. The Prime Minister of Israel (2008). English translation available at: http://elyon1.court.gov.il/files_eng/07/320/091/n25/07091320.n25.pdf. For a discussion see, e.g., Yuval Shany, The Law Applicable to Non-Occupied Gaza, 42 Isr. L. Rev. 528 (2009).
153 154 152 151

150

HCJ 11120/05 Hamdan v. IDF Head of the Southern Command (2007).

The two main decisions in this respectout of close to one hundred decisionsare HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel (2004). English translation available at: http://elyon1.court.gov.il/Files_ENG/04/560/020/A28/04020560.A28.pdf; and HCJ 7957/04 Maraabe v. The Prime Minister of Israel, PD 60(2) 477 (2005). English translation available at: http://elyon1.court.gov.il/Files_ENG/04/570/079/A14/04079570.A14.pdf.
155 156

HCJ 5539/05 Atalla v. Minister of Defense (2008).

See, e.g., HCJ 1113/94 Shawa v. The Commander of the IDF in the Gaza Stript, supra note 150 (the army commander is not authorized to impose curfew for punitive purposes). HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel, supra note 154, para. 31, 45 (President Barak). The Courts conclusion that the actual purpose is the latter one was the basis of its ruling that the state was authorized to construct the barrier on the Occupied Territory, in contradiction to the International Court of Justice Advisory Opinion on this matter. See Advisory Opinion on the Legal
157

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permissible only if their expected overall benefit, in terms of mitigating the risk of terrorist attacks, is sufficient to justify the harm they inflict. On this basis the Court ruled, for instance, that considerable parts of the route of the separation barrier are illegal, and order the state to choose an alternative route to mitigate the harm inflicted on the Palestinian population.158 In most instances the Court approved the mass curtailment of freedom of movements, mainly in cases reviewing the imposition of curfews or closures.159 However, as indicated above, the Courts involvement, mainly through its informal advices to the state during the hearings, provided a meaningful check of employing these powers.160 In all these decisions the Court did not apply the requirement of individual dangerousness. The Court often acknowledged the fact that almost all those whose freedoms are infringed are innocent, and pose no threat,161 and consequently that the probability that any given individual out of the group poses a danger is almost zero. However, according to the prevailing doctrine, it is sufficient that the relevant groupbe it the residents of the village who are under curfew or closure, or the community of all Palestinian residents of the Occupied Territoriesposes, as a collective, a threat, to justify, at least in principle, the curtailment of the freedom of movement of all persons who belong to this group. This aspect was reevaluated in a recent decision, in which the Court invalidated an order of the military commander that certain roads will be closed to traffic of vehicles of all Palestinian residents of the Occupied Territories, following terrorist attacks against passengers in these roads, which were committed by Palestinians.162 While the Court invalidated the order, it avoided from explicitly applying the individual dangerousness requirement. The above policy was declared illegal for two other reasons. First, the road was paved on lands expropriated from residents of the Occupied Territories, and according to the laws of belligerent occupation, an expropriation of land is permitted only if it serves the needs of the local population or military needs. The military commander is unauthorized to expropriate land to cater for the exclusive interests of the residents of the Occupying Power, in this case the state of Israel, and thus the military commander cannot ban Palestinians from using the road.163 Second, the ban imposes a too heavy burden on the freedom of movement, as alternative, less harmful measures are available, such as establishing security check-points
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 35; HCJ 7957/04 Maraabe v. The Prime Minister of Israel, supra note 154, para. 15-16 (President Barak). HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel, supra note 154; HCJ 7957/04 Maraabe v. The Prime Minister of Israel, supra note 154.
159 160 161 158

See, e.g., HCJ 854/03 Sultan v. The Commander of the IDF in Judea and Samaria, supra note 150. See supra note 111.

See, e.g., HCJ 2847/03 Aloona v. The Commander of the IDF in Judea and Samaria, supra note 151 (Justice Cheshin): We heard the petitioners, but with all the empathy that we feel toward themas all of them, or at least most of them certainly done no wrongwe did not find a basis to determine that the [Armys] actions are un-proportional. HCJ 2150/07 Abu Safiyeh v. Minister of Defence (2009). English translation available at http://elyon1.court.gov.il/files_eng/07/500/021/m19/07021500.m19.pdf. Id., para. 26. For a related decision, in which the Court upheld an order to expropriate land to pave a road that will be used for the exclusive use of Israeli citizens who come to pray in Rachels Tomb, near Bethlehem, see HCJ 1890/03 The City of Bethlehem v. The State of Israel, PD 59(4) 736 (2005).
163 162

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along the road.164 Again, the basis of invalidating the policy was that the level of the collective threat (the risk that some Palestinians will use the road to attack Israelis) is insufficient to justify the infringement. The decision did not rule-out, however, the possibility that in appropriate circumstances the level of collective threat will suffice to justify such measure, as was found, for instance, when the court upheld curfews and closures. As indicated, the requirement of sufficiently high level of individual threat was not applied in this decision. 2. The Ban on Palestinian Family Unification Cases (2006, 2012) In a pair of decisions the Israeli Supreme Court reviewed the constitutionality of the Citizenship and Entry into Israel Law (Temporary Provision) 2003. This law denies all Palestinians residents of the Occupied Territories, whose age is under 35 (for men) or 25 (for women), entry to and residency in Israel, even if such persons spouse and children are Israeli citizens who live in Israel. In two 6 to 5 decisions the Court upheld the law.165 These decisions were subject not only to an extensive academic discussion,166 but also to an intense political debate, and the Knesset reacted to the first decision by (marginally) revising the Law.167 In both cases a majority of the Justices ruled that the decision about the validity of the policy under consideration should be based on the individual dangerousness doctrine. In this respect these are important precedents, as they applied this doctrine to a policy which is directed against a group rather than against individuals.

HCJ 2150/07 Abu Safiyeh v. Minister of Defence, supra note 162, para. 31-36. A similar approach was applied in another recent case that dealt with a similar measure, HCJ 3969/06 Dir Samet v. The Military Commander of the IDF in the West Bank (2009), para. 22-34. Interestingly, in another decision the Court approved a decision to prevent Israeli citizens, including those who live in settlements in the Occupied Territories, from using certain roads. The Court accepted the claim that the order is required to prevent infringement of the freedom of movement of Palestinians in these roads, an infringement that will be inevitable if Israelis had used the roads too. HCJ 6379/07 Dolev v. The Commander of the IDF in Judea and Samaria (2009) para 11 (Justice Gronis). HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior (2006). English translation available at: http://elyon1.court.gov.il/files_eng/03/520/070/a47/03070520.a47.pdf; HCJ 466/07 Galon v. Attorney General (2012). See, e.g., Nimrod H. Aviad, Liberty and Higher Risk-Taking: The Nationality Law Case and the Supreme Court of Israels Jurisprudence of Risk (2006), available at http://works.bepress.com/nimrod_aviad/3; Yoav Peled, Citizenship Betrayed: Israels Emerging Immigration and Citizenship Regime, 8 Theoretical Inquiries in L. 603 (2007); Naama Carmi, The Nationality and Entry to Israel Case Before the Supreme Court of Israel, 22 ISRAEL STUDIES FORUM 26 (2007); Daphne Barak-Erez, Israel: Citizenship and Immigration Law in the Vise of Security, Nationality, and Human Rights, 6 INTL J. OF CON. L. 184 (2008); Daphne Barak-Erez, Terrorism and Profiling: Shifting the Focus from Criteria to Effects, 29 CARDOZO L. REV. 1 (2007); Michael G. Kagan, Destructive Ambiguity: Enemy Nationals and the Legal Enabling of Ethnic Conflict in the Middle East, 38 COLUM. HUM. RTS. L. REV. 263, 310-316 (2007); Liav Orgad, Love and War: Family Migration in Time of National Emergency 23 GEO. IMMIGR L. J. 85 (2008). See also Barak Medina & Ilan Saban, On Human Rights and Risk-Taking: Democracy, Ethnic Profiling, and the Requirements of the Limitation Clause, 39 MISHPATIM (Hebrew University Law Review) 47 (2009) (in Hebrew). Under its current version, a committee is authorized to grant a permit of entry or residency in special cases, while the prohibition was expanded to all residents of Iran, Lebanon, Syria, and Iraq, in addition to those who live in the West Bank and the Gaza Strip.
167 166 165

164

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The Courts underlying assumption in reviewing the Citizenship and Entry Law was that its exclusive purpose is the prevention of risk of terrorist attacks posed by Palestinian foreign spouses.168 A majority also held that the ban imposed by law infringes the Israeli spouses constitutional right to human dignity, as this right extends to the right of an Israeli [citizen] to establish a family unit and realize it in Israel.169 Additionally, a majority held that the ban also infringes the constitutional right to equality of the Israeli spouse, since its effect is focused on Israelis who are Arab-Palestinians.170 Consequently, the Court examined whether the infringement of these constitutional human rights can be justified. The five minority Justices ruled that the infringement is impermissible. They referred to the availability of the previously employed practice of checking the background of each of the individuals who ask for entry permit.171 The minority concluded that the added benefit of imposing a complete ban, in terms of preventing and only two-dozen of Palestinians who were granted entry permits to Israel on the basis of family unification (our of several ten-thousands) which over a period of several years were involved in terror, is insufficient to justify the harm on so many innocent people. These Justices ruled according to the individual dangerousness requirement. In the words of Justice Beinisch:172 The figures presented to us indicate a very smallnegligiblepercentage of the spouses who abused their status in Israel in order to become involved in terror activity. These figures do not put us in the position of the need to decide upon a direct conflict between the risk to life and the violation of the right to live in dignity by realizing the right to have a family. When there is a direct confrontation and there is a concrete risk to security and life, the public interest indeed overrides protected human rights, and the same is the case where there is a concrete
See, e.g., HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior, supra note 165, para. 79 (President Barak). The majority rejected the claim that the laws primer aim was demographic, namely to prevent mass immigration of Palestinians into the Jewish State, and thus avoided the difficult question, to what extent can such an aim be a legitimate one. Id., para. 42 (President Barak). See also id., para. 43 (President Barak) (The right to have the family unit is the right to realize the family unit in the country of the Israeli spouse. That is where his home is, that is where the rest of his family is, that is where his community is. That is where his historical, cultural and social roots are. The family unit does not exist in a vacuum. It lives in a specific time and place. Indeed, it is the right of the Israeli spouse that his family should live with him in Israel; it is his right to plant the family roots in the soil of his country; it is his right that his child will grow up, be educated and become an Israeli in Israel.). Id., para. 46 (President Barak) (The law violates the ability of Israelis who marry spouses who are Palestinians living in the territories to realize their right to family life in Israel. Who are these Israelis? The vast majority of the Israelis who marry Palestinians living in the territories are Arabs who are citizens or residents of Israel. The focus of the violation caused by the law is therefore Israeli Arabs. The conclusion is that the Citizenship and Entry into Israel Law de facto restricts the right of Israeli Arabs, and only Israeli Arabs, to realize their right to family life.). In reviewing these individual decisions in previous cases the Court ruled that it is insufficient to point at the involvement in terrorism of the spouses relatives to establish the spouses dangerousness. Rather, the state must also substantiate the claim that the relatives might coerce the spouse to assist them in their illegal activities. See, .e.g., HCJ 2028/05 Amara v. minister of Interior (2006); HCJ 7444/03 Daka v. Minister of Interior (2010). HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior, supra note 165, para. 11.
172 171 170 169 168

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likelihood of a risk to life. But the aforesaid likelihood must be more concrete that the mere fact that the applicant for the entry permit is a Palestinian who is a resident of the territories. [T]here are certain levels of risk which Israeli society is prepared to take and with which it is prepared to contend, by adopting security measures.173 Similarly, Justice Levi ruled that the law is invalid since it is based on a categorical classification, which avoids an evaluation of the individual risk posed by a person.174 While the majority opinion in both cases ruled that the law is valid, based on the benefit in saving the lives of potential victims of terror attacks thanks to the blanket prohibition, which is sufficient to justify the harm inflicted on the Israeli spouses and children of Palestinians, several of the Justices that joined this result agreed with the principled approach of the minority opinion about the applicability of the individual dangerousness requirement. In contrast, other Justices, among them the current President of the Court, Justice Grunis, ruled that the only relevant evaluation is a collective one. According to this position, assuming that the data from the previous years is a reliable source of information to predict the future, it is certain that at least few of those Palestinians who will be permitted to enter Israel will be involved in terror. It is sufficient that this certainty meets the probabilitythreshold requirement to make the policy permissible.175 As indicated, I find this approach unjustified, as it is incompatible with basic premises of human rights law. It seems that one may find a basis in these decisions for the position that an anti-terror measure that is taken against a group of persons is permissible only if the risk posed by each of the members of this group is at least non negligible. Only in extreme instances, when employing the restrictive measure subject to an evaluation of the risk posed by each individual cannot reduce an otherwise high risk of a terror attack, a group-based policy can

Justice Procaccia too ruled that the risk posed by each Palestinian foreign spouse is too low to justify the blanket prohibition: The consideration of security takes precedence where there is a certainty or almost certain likelihood that if an action that involves a reduction of a human right is not carried out, then human life will be harmed. The state must persuade the court that the probability of the security danger occurring is so high that it requires measures to be taken that violate rights. Where the probability that the risk will be realized is low, it is possible that the value of security will not justify any violation of the human right, or it is possible that it will justify a lesser violation. Id., para 8-9. See also HCJ 7444/03 Daka v. Minister of Interior, supra note 171, para. 15 (Justice Procaccia) (the public interest in security can justify an infringement of the basic right to family life only when the probability of substantial harm to the public safety if the measure is not taken is close to certainty.).
174 175

173

466/07 Galon v. Attorney General, supra note 165, para. 29.

HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior, supra note 165, para. 5 (Justice Grunis): [I]n the matter before us it is my opinion that no question of probability arises with regard to injury to human life. The figures that were presented to us show that twenty-six Palestinian spouses who entered Israel lawfully by virtue of the family reunification process were involved in terror attacks. On the basis of these figures, I believe that it can be said that there is a certainty that the entry of thousands of additional spouses will lead to harm to human life, even if a security check is carried out with regard to each individual. Of course, there is no way of saying what will be the scope of the harm, and with regard to this question of scope we are not dealing with probability but with a mere guess. The equation is not made up, therefore, of a probability on one side and a certainty on the other, but of two certainties: harm to human life as opposed to harm to family life.

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be justified on the basis of the cumulative risk posed by the entire group. An indication that such policy is impermissible is a recent decision of the Court regarding the policy of profiling in airport security checks. The petitioners argue that Palestinian Israeli citizens are subject to a harsher security checks that Jewish citizens. While the Court avoided issuing a final decision, as the government denied that it applies the alleged policy and informed that it implements a new technology for security checks, the Court did state that a policy of profiling which is based on group-based distinctions is impermissible.176

CONCLUDING REMARKS
The debate about the proper legal regulation of anti-terror warfare addresses two main aspects. One is doctrinal and the other institutional. The classification of the conflict as subject to the laws of war results in a more permissive legal environment, both in terms of the applicable legal doctrines and the scope of legislative and judicial scrutiny. The main risk in conducting the war on terror is that of unintentionally inflicting harm on innocent civilians. This risk is enhanced primarily due to the tactics used by terrorists, who disguise themselves among the civil population. International laws of war mostly address one aspect of this risk, namely the risk of unintentional collateral damage. However, it does not include suitable doctrines to address the concern on targeting civilians that are mistakenly identified as combatants. Addressing this concern is essential, primarily based on morality, but also for consequentialist reasons, as inflicting unjustified harm on innocent persons increases, rather mitigates the risk of terror attacks. Applying human rights law to regulate the anti-terror warfare involves several concerns. Among other things, narrowing the gap between regular law enforcement activities and anti-terror warfare might induce the government to employ anti-terror measures on a routine basis. A close judicial review also raises the concern of providing greater legitimization to such actions, as a ruling that taking a certain measure is permissible is often mistakenly understood as also a ruling that doing so is wise or effective, thus creating an adverse effect on political and popular discourse on these issues.177 But these concerns are hardly unique to the current context, and at the very least they cannot justify applying norms that permit imposing unjustified risk on innocent civilians. Moral considerations require states that fight terror to take extensive measures to minimize the risk of harm to innocent civilians. The Israeli experience suggests that narrowing the gap between morality and the legal norms governing anti-terror warfare is possible.

176 177

HCJ 4797/07 Association for Civil Rights in Israel v. Aviation Authority (2012).

Several scholars have raised this concern regarding the case of Israel. See, e.g., DAVID KRETZMER, THE OCCUPATION OF JUSTICE: THE SUPREME COURT OF ISRAEL AND THE OCCUPIED TERRITORIES 115-185 (2002); Rivlin, supra note 109.