License to kill

[As for the importance attributed by the army to the country's image and to
the timing of its activity, the source said, not without a degree of
cynicism, that "the criteria for a 'ticking bomb' change if Condoleezza Rice
is in the country." ]

License to kill

By Uri Blau
Haaretz
November 27, 2008

The announcement made by the Israel Defense Forces' spokesman on June 20,
2007 was standard: "Two armed terrorists belonging to the Islamic Jihad
terror organization were killed last night during the course of a joint
activity of the IDF and a special force of the Border Police in Kafr Dan,
northwest of Jenin. The two terrorists, Ziad Subahi Mahmad Malaisha and
Ibrahim Ahmed Abd al-Latif Abed, opened fire at the force during its
activity. In response the force fired at them, killing the terrorists. On
their bodies two M-16 rifles, a pistol and ammunition were found. It was
also discovered that the terrorists were involved in planning suicide
attacks against the Israeli home front, including the attempt in Rishon
Letzion last February."

The laconic announcement ignores one important detail: Malaisha was a target
for assassination. His fate had been decided several months earlier, in the
office of then head of Central Command, Yair Naveh. As far as the public was
concerned, on the other hand, the last declared assassination carried out by
the IDF in the West Bank took place in August 2006; at the end of that year
the High Court of Justice set strict criteria regarding the policy of
assassinations in the territories.

A Haaretz Magazine investigation reveals for the first time operational
discussions in which the fate of wanted men and innocent people was decided,
in apparent disregard of the High Court decision. Thus it was revealed that
the IDF approved assassination plans in the West Bank even when it would
probably have been possible to arrest the wanted men - in contradiction to
the State's statement to the High Court - and that in cold military
terminology the most senior IDF echelons approve, in advance and in writing,
the harming of innocent Palestinians during the course of assassination
operations. Moreover, it turns out that the assassination of a target the
defense establishment called part of a "ticking infrastructure" was
postponed, because it had been scheduled to take place during the visit of a
senior U.S. official.

Leading legal experts who were asked to react to the documents say that the
IDF is operating in contradiction to a High Court ruling. "Morality is a
very difficult issue," Prof. Mordechai Kremnitzer of Hebrew Univeristy said.
"The thought that there are people who sit behind a desk and determine that
someone is fated to die is a frightening thought."

Another two killings

(at most)

The IDF spokesman refuses to provide precise figures about the number of
targeted assassinations carried out since the start of the intifada in 2000:
"The subject of preventive strikes is concentrated in the hands of the Shin
Bet [security service]." A spokesman for the Shin Bet stated that the
organization "does not publish data of this kind." According to the
human-rights organization B'Tselem, the IDF assassinated 232 Palestinians
between the start of the intifada and the end of October 2008, in operations
that also killed 154 non-targeted civilians.

The most common code names for assassination operations are the acronyms
Pa'amon (peula mona'at - preventive action) and Sakum (sikul mimukad -
targeted assassination). During the past two and a half years the IDF has
not announced the carrying out of assassinations in the West Bank, and when
wanted men were killed there, the official reports stated that these were
"arrest operations" or "exchanges of fire." This was also reported in regard
to the killing of Abed and Malaisha - who has now been revealed as a
previous target for assassination.

On March 28, 2007 a representative of the Shin Bet, a representative of the
Special Police Unit Yamam and several officers from Central Command convened
in Naveh's office. On the agenda was the Two Towers operation (the strike at
Malaisha). "The mission" said the head of the command, "is arrest," but "in
case identification is made of one of the leaders of Palestinian Islamic
Jihad: Walid Obeidi, Ziad Malaisha, Adham Yunis, there is permission for the
force to intercept them, and that is according to the situation assessment
in the course of carrying out the mission." Naveh did not allow an
assassination if there were women or children near the wanted man, and
explained that, "in the event that there are women and children in the
vehicle, the method is arrest."

On April 12 Naveh convened another meeting about Malaisha. This time he
decided that permission would be granted to carry out the assassination of
the target and "another two people at most." On the day of the meeting in
Naveh's office another discussion took place, chaired by the head of the
Operations Directorate, Brig. Gen. Sami Turjeman. At the meeting, the plans
for a preventive operation against Malaisha were presented, and the head of
the Operations Directorate explained that "a preventive strike in Ayush
[Judea and Samaria] is an exceptional sight ... It could be seen as an
attempt to damage the attempts to stabilize, which means that it requires
sensitivity to causing a minimum of collateral damage. Everything possible
must be done to prevent harm to those who are uninvolved." The target of the
operation, he added "leads a 'ticking' infrastructure and meets the required
criteria for a preventive strike."

At this point Turjeman spelled out the conditions of Malaisha's
incrimination, and ruled that only if they existed would the targeted
assassination get a green light. He added that no more than five people
(including the driver) should be assassinated in the operation. Turjeman
approved the operation even if there should be one unidentified person in
the car. Regarding the matter of timing, he said that "in light of the
anticipated diplomatic events, the prime minister's meeting with Abu Mazen
[Mahmoud Abbas] and the visit of the U.S. Secretary of Defense, I recommend
... implementation afterward." In the discussion Turjeman also referred to
the High Court ruling about appointing a committee whose job would be to
examine targeted assassinations after the fact, and said that in light of
the High Court instructions on the matter, the operation should be
documented.

The next day the operation was brought up for the approval of Chief of Staff
Gabi Ashkenazi. A limited number of senior officers convened in his office,
including his deputy, the head of the Operations Directorate, the head of
the Operations Brigade, the chief military prosecutor, a representative of
Central Command and a representative of the Shin Bet. The paper summing up
the meeting says that Ashkenazi "emphasized that due to the High Court
orders regarding the establishment of a professional committee on targeted
assassinations, the composition of the committee should be agreed on with
the Shin Bet as soon as possible."

Although Malaisha was defined as part of a "ticking infrastructure,"
Ashkenazi too was disturbed by the timing of the action and said that "in
light of the diplomatic meetings anticipated during the course of the week,
the date of implementation should be reconsidered." Ashkenazi prohibited
attacking the vehicle in which Malaisha was traveling if it was discovered
that there was "more than one unidentified passenger" in it.

Two months after the Two Towers plan was approved, and long after the
diplomatic visits and meetings that took place in the second week of April
2007, came the operation in which Malaisha was killed in the Jenin area.

Legal approval

At the beginning of 2002, attorneys Avigdor Feldman and Michael Sfard
petitioned the High Court of Justice against the policy of targeted
assassinations on behalf of the Public Committee against Torture in Israel
and the Al-Haq organization. Almost five years later, on December 14, 2006,
the president of the Supreme Court at the time, Justice Aharon Barak, issued
his decision. Barak, with the concurrence of Justices Dorit Beinisch (now
the president of the Supreme Court) and Eliezer Rivlin, rejected the
petition and did not rule out the legality of targeted assassinations in the
territories.

"We cannot determine that every targeted preemption strike is forbidden
under international law, just as we cannot determine that every targeted
preemption is permissible under international law," Barak wrote in the last
judgment he published in his 28 years on the Supreme Court.

According to the High Court ruling, well-founded and convincing information
is necessary in order to classify a civilian as being part of a group of
civilians who are carrying out hostile acts; a person should not be
assassinated if it is possible to use less damaging methods against him; and
he should not be harmed more than necessary for security needs. In other
words, a person should not be assassinated if it is possible to arrest him,
interrogate him and indict him. However, if the arrest involves serious
danger to the lives of the soldiers, there is no need to use this means;
after every assassination a thorough and independent examination must be
conducted regarding the degree of precision, the identity of the man as a
terror activist, and in the case of mistaken identity, the payment of
compensation should be considered; harm to innocent civilians should be
avoided as much as possible during an assassination, and "harm to innocent
civilians will be legal only if it meets the demands of proportionality,"
ruled Barak.

In this context, Barak gave an example according to which "it is possible to
fire at a terrorist who is firing from the balcony of his home at soldiers
or civilians, even if as a result an innocent bystander is liable to be hit.
Such a strike at an innocent civilian will meet the demands of
proportionality. That is not the case if the house is bombed from the air
and dozens of its residents and bystanders are hit."

Barak stated that, "The struggle against terror has turned our democracy
into a 'defensive democracy' or a 'fighting democracy.' However, this
struggle must not overturn the democratic nature of our regime."

According to B'Tselem, since the ruling regarding targeted assassinations
was handed down, 19 Palestinians who were targets of assassination have been
killed in the territories, and 36 Palestinians who were close to the targets
were hit in the course of IDF operations, all of them in the Gaza Strip.

"It turns out that in total contradiction to the High Court ruling, there
are cases in which there is an order to assassinate someone when it is
possible to arrest him," says David Kretchmer, a professor of international
law. "Advance approval to kill civilians who do not take part in hostile
activities makes things even worse. The principle of proportionality, to the
effect that if one strikes at a military target an accompanying strike
against civilians will not be illegal, does not apply in a case when the
attack itself is illegal - for example, in a case where there is an
obligation, according to the High Court ruling, to arrest the suspect."

Prof. Mordechai Kremnitzer: "According to the High Court ruling it is clear
that where it is possible to carry out an arrest, we must carry out an
arrest and avoid what is called a 'targeted assassination' and which I call
'preventive killing.' A substantial part of Judea and Samaria is under the
effective rule of the IDF, and in my opinion, in such an area preventive
killing must be ruled out. The limited interpretation that I am suggesting
for the international law is that an attack must take place in the course of
that person's participation in a dangerous action, because then you are in
effect acting in self-defense based on the situation taking place."

Legal commentator Moshe Negbi: "'Unidentified people' can also be totally
innocent and you are ostensibly giving a license to kill here. The problem
is previous knowledge, because usually when we refer to collateral damage we
are referring to 'after the fact,' but here this is almost certain
foreknowledge. It is very problematic that permission is given to execute an
innocent man deliberately. The question is whether it is proportional. I
think that the High Court was referring to a situation where perhaps among a
mass of people there is one who is innocent, but here it is one on one. It
is very grave to grant permission when you know ahead of time that 50
percent of those you are hitting are innocent. Such a thing must certainly
be discussed at the level of the attorney general and it certainly must be
known to the public and undergo public criticism, if only so that anyone who
thinks it is patently illegal can turn to the High Court."

Regarding the fact that assassinations can wait until the conclusion of
diplomatic meetings, Kretchmer says: "Postponing an operation for diplomatic
reasons is unequivocal proof of the fact that this is not a 'ticking bomb'
situation." Kremnitzer adds: "According to my legal understanding, these
cases [targeted assassinations] must be cases in which you must act
immediately, and if it is not a matter of an immediate need, in my opinion
it is against the law."

Although almost two years have passed since the High Court ruling, a
committee to examine the assassinations after the fact has yet to be
appointed. Last week Aviad Glickman published on Ynet (the website of the
mass circulation paper Yedioth Ahronoth) that Attorney General Menachem
Mazuz had turned to Prime Minister Ehud Olmert demanding the establishment
of such a committee as soon as possible. "This step must be completed
without further delay," wrote Mazuz, "for fear that a continued delay is
liable to constitute contempt of court."

The bad guys

Yair Naveh, who served as head of Central Command from 2005 to 2007,
confirms that occasionally, there is no genuine attempt to arrest wanted
men. "If the guy doesn't put his hands up we don't get into stories, we
immediately establish contact. I don't want to have people hurt for no
reason. If I know that the guy is armed and is a ticking bomb, then I want
him to be hit immediately without fooling around. It's not the preventive
action procedure, it's an entirely different story.

"In my time there were no targeted assassinations. Not a single one, as far
as I recall. In principle, there were no targeted assassinations in Central
Command and none were approved. What I did have was an ability to reach all
of [the wanted men]; therefore there is no reason for a targeted
assassination. It is relevant only when you can't reach someone, but if you
can reach him and arrest him at night or have an exchange of fire with him,
then it is not a targeted assassination."

Is it possible that programs were approved and in the end were not carried
out?

"No. In principle there was no such thing during my time, because in every
operation there were special forces that had to arrive and arrest the guy.
To tell the truth, in some places we knew a priori that there would be
firing. If you know that you are operating against Islamic Jihad or against
Hamasniks or even against some of the jokers who were in the Casbah, then it
was clear to me that there would be engagement."

In the approval of the March 2007 plan regarding Ziad Malaisha you said the
mission was arrest, but if one of the leaders of Islamic Jihad was
identified, the force had permission to carry out interception. What is that
if not targeted assassination?

"Those are guys for whom we received basic confirmation that they are
ticking bombs. Those are guys that if we had contact with them, because we
knew in advance that they were armed, the default choice was not to start
calling on them to halt and then to see whether or not they fled, but right
from the start, if they didn't put up their hands and throw away their
weapons, then we engaged with them. That's not because they had to be
killed. It's also because they are both ticking bombs and armed. That's the
assumption."

That is semantics. You gave permission to fire at them from the moment they
were identified.

"If they don't put up their hands right at the start. You arrive, shout
'IDF, hands up!' You surround them. If the guys don't put up their hands,
then you don't wait to close in on them, to make a declaration. If you
receive confirmation that the guys have received all the relevant approvals,
then we say, 'Friends, I don't want you to get into a pressure cooker here'
[methods used by the IDF to make someone give himself up]. If they don't
surrender immediately then you immediately engage them, so that you won't be
hurt. That's the story. It's not a targeted assassination, where you are
approving their execution even if they put up their hands."

The approval you gave the forces states that if there are women and
children, there is to be an arrest. In other words, it would have been
possible to arrest them.

"That means that if there are women and children we assume another risk and
tell the guys that if they fire at you and begin to flee you don't begin to
exchange fire, but you try to stop the vehicle by shooting at the tires."

The Operations Directorate approval in the case of Malaisha states that this
is a preventive action operation.

"If it was approved as preventive action, that is, as a target for
assassination, it's a different story."

But then it contradicts the High Court orders to the effect that Israel
controls the area and approval of the plan includes the option of arrest.

"Don't bother me with the High Court orders, I don't know when there were
High Court orders and when there weren't. I know that a targeted
assassination is approved and there is a preventive action procedure and I
receive instructions from the Operations Directorate."

What is the difference between the preventive action procedure and people
that you give permission to fire at if they are identified?

"The difference is language. You say 'Hands up. If not, I'm opening fire,'
and here I don't say anything and drop a bomb from a plane."

In the instructions there is no mention of the arrest option, and permission
is given to fire if there is identification of a wanted man.

"I'm not familiar with such a document."

Why in the approvals for targeted assassination is permission given in
advance to harm unidentified people?

"Weren't there people in the Shahadeh case? [Fatah leader Mohammed Shahadeh
was assassinated by Hamas in October 2006]. But those aren't questions that
you should ask me. What is approved as preventive action goes through
approvals all the way to the prime minister, and what is decided is decided.
Usually these guys hung around with bad guys, not good guys."

Linguistic innovations

In the State's reply to the High Court, prior to its ruling, it was claimed
that carrying out a targeted assassination is "an exceptional step" that is
taken "only when there is no other, less severe way of implementing it ...
In the context of these strict instructions it was decided that when there
are realistic alternatives to the action, such as arrest, these alternatives
should be used."

But the most noticeable thing the High Court ruling changed regarding the
assassinations is the language used by the IDF in planning them. On December
13, 2006, a day before the High Court ruling was handed down, wanted man
Muhammed Ramaha was killed in the Ein Beit Ilma refugee camp in the Nablus
area. According to the IDF spokesman's report to the media at the time,
Ramaha was killed in the course of a joint "arrest operation" of the IDF,
the Shin Bet and the Yamam police unit.

Now it turns out that Ramaha's fate had been sealed a month earlier, when
the Central Command conducted a discussion on an operation planned by the
IDF's Maglan special operations unit in the Nablus area. Those in attendance
were presented with orders from Maj. Gen. Naveh, who ruled that the armed
men walking around the area were connected to Mohammed Ramaha's unit and
"should be attacked." There was no option offered of trying to arrest the
members of the squad, and conditions for opening fire were the
identification of two armed men, "conspiratorial" activity involving at
least one armed man, or "when an indication is given" of the presence of
Ramaha in the squad. As mentioned, a month after the discussion Ramaha was
killed.

The Maglan soldiers were also the ones who carried out an operation on
November 8, 2006 that ended in the killing of five Palestinians, two of them
unarmed. The IDF, as usual, did not present it as an assassination mission,
but it turns out that the force's assignment was "to sneak into the center
of the village, up to the observation point overlooking the killing area
that had been designated in advance, to lie in ambush for armed terrorists
and to hit them at short range."

Another example: At the end of September 2006 the then head of the
Operations Directorate, Maj. Gen. Gadi Eisenkot (today GOC Northern
Command), conducted a discussion in which approval was given to assassinate
a Fatah member - an expert on the production of explosives belts - in the
Nablus area. "The Time For Chaos Has Arrived" was the name of this
operation, in which the major general approved attacking the man "in the
context of the procedure of targeted assassination of important figures in
light of the fact that he is a 'ticking bomb.'" As opposed to operations
planned after the High Court ruling, where there are specific instructions
regarding conditions in which the action should not be carried out, in this
case the only instructions were "to try to refrain insofar as possible from
harming innocent people."

"Apparently what happened in the wake of the High Court ruling is mainly
'word laundering,'" says Kretchmer. "In other words, the use of words
referring to arrest when in fact there is no real intention of carrying out
an arrest, but the reference is to assassination." Sfard says that, "whoever
gave the IDF a permit to execute civilians without trial should not be
surprised when the death squads it has created do not adhere to the few
restrictions imposed on this policy. It's a natural, logical and inevitable
process of moral deterioration involved in assassinations."

A military source said that the first years of the intifada were "a period
lacking order. They fired at just about anything that moved." He says that
in recent years, especially after the High Court ruling, the procedure in
Central Command and the Operations Directorate is somewhat different, one
reason being that representatives of the Military Prosecutor's Office "are
breathing down their necks." As for the importance attributed by the army to
the country's image and to the timing of its activity, the source said, not
without a degree of cynicism, that "the criteria for a 'ticking bomb' change
if Condoleezza Rice is in the country."

An investigation by Haaretz indicates that IDF operations that are defined
in advance as arrest operations rather than assassination operations do for
the most part end in arrest. However, there is something disturbing about
the fact that when it comes to the plan to arrest a Palestinian, the
commander in charge of the operation sometimes feels a need to explain that
this is not an assassination assignment and that the wanted man should be
brought back alive. For example, in an operation planned last May for the
arrest of a Fatah activist in Bethlehem, the GOC Central Command explained
to the commander of the Duvdevan undercover commando unit that "the mission
is arrest rather than killing." And in fact, that activist was arrested
alive. In the same operation, incidentally, it was explained to the forces
that "there is no permission to behave aggressively toward foreign media
crews."

When Naveh was asked why he occasionally told the forces that the wanted men
be brought back alive, which should ostensibly be obvious, he explained:
"That means that I am exposing our forces to additional risk, and even if he
opens fire, they do not kill him immediately but try nevertheless to arrest
him." It also turns out that the presence of children is not always an
excuse to cancel military operations. At the end of March 2007, the chief of
staff allowed Duvdevan to carry out the arrest of a wanted man during the
birthday party of one of his children. The name chosen by the IDF for this
action was Kindergarten Party.

http://www.haaretz.com/hasen/spages/1041622.html

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