The Disproportion in the Shehadeh Commission’s Proportionality Test

by Adv. Ady Niv

Publication date: 29 November 2012

Type: Op-Ed

עברית

Introduction

On 22.7.02, Hamas activist Salah Mustafa Shehadeh was killed by a one-ton bomb, dropped on a house on Darge street where Shehadeh was staying at the time. In addition to Shehadeh, his wife, his 15-year-old daughter and another Hamas activist staying with him, 13 civilians were killed, including women and children, dozens nearby were injured and a number of houses were ruined.

The deaths and injuries of innocent civilians provoked great criticism of targeted killing in general, as well as its specific use and the means used in the targeted killing of Shehadeh by the IDF.

The issue of targeted killings received the attention of the Israeli High Court of Justice (HCJ) in the Public Committee Against Torture v. Government of Israel et al,1 wherein it was determined that the practice of targeted killing is not prohibited per se, according to public international law, and that a specific targeted killing operation’s legality ought to be determined on a case by case basis.

An additional petition regarding the collateral damage of Shehadeh’s targeted killing, HCJ 8794/03 Yoav Hass and others v. the Judge Advocate General and others,2 was also submitted. This case was suspended until the ruling of the case regarding the general legality of targeted killings was released. Given the High Court of Justice ruling that a preventive action in the form of a targeted killing cannot be prohibited per se, the proceedings in Yoav Hass case were continued. In the course of these HCJ proceedings, the State of Israel agreed to appoint an external and objective commission to examine the legality of the consequences of Shehadeh’s targeted killing - the “Special Investigatory Commission for the Examination of the Targeted Killing Operation of Salah Shehadeh”3 - (hereinafter “the Commission”). Needless to say, the very establishment of a commission to investigate a targeted killing operation ex post facto is rare in the international arena and is not to be taken for granted.

After the Commission heard a great volume of testimony, which included those of the directors of the Israeli security agencies that took part in approving the operation (inter alia the former Director of General Secret Service and his deputy, the former IDF Chief of Staff and his deputy, the former Chief of IDF Intelligence Branch, the former Air Force Commander and the former Minister of Defense), it published, in February 2011, its findings and conclusions in a public report spanning over 112 pages.4

In a nutshell, the Commission held in its report that Shehadeh’s targeted killing was justified and legitimate, and conformed with the rules of Israeli and international law. The Commission also held that “the harsh incidental effects of the attack on Shehadeh ... retrospectively turned out to be disproportional under the given circumstances”,5 but emphasized that according to the evidence and the testimonies before it, the scope of civilian harm was unintentional and unforeseeable at the time of the operation’s approval and execution and, accordingly, the Commission found no suspicion of a criminal act on the part of those involved in the operation.

The Proportionality Test

Before turning to the Commission’s application of the proportionality test, an explanation regarding what the proportionality test consist of is warranted. The proportionality test is formulated in the 1977 First Additional Protocol to the Geneva Conventions of 1949.6 The proportionality test, as it is formulated in the Protocol, constitutes part of customary international law, and as such binds all States, regardless of whether or not they are party to the Protocol.

The test’s formula can be found, inter alia, in Article 57(2) of API:

(a) those who plan or decide upon an attack shall:

(b) ...

(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;7

In the words of Israel’s High Court of Justice, “an attack is proportional if the military advantage achieved from the attack’s success is balanced in relation to the harm to innocent civilians resulting from the attack. This is a test of values.”8

The formula comprising the proportionality test raises several essential questions that must be answered before it can be applied - How is the military advantage and accompanying collateral damage to be translated into measurable terms? What values are to be included in the test’s calculation? Does the term ‘military advantage’ include estimated direct advantages or future military advantages? And so on.9 The difficulty of the mathematical formula for proportionality reveals itself by implementation, particularly in those complex gray-area cases where harm to civilian lives can be expected during an attack on a military target.10

In this article, I will address the Commission’s conclusion - according to which the incidental effects of Shehadeh’s targeted killing were, retrospectively, disproportional - and differ.

It should be noted that this article deals with the proportionality test as formulated in the First Additional Protocol (in other words, proportionality “in the narrow sense”11), and has no intention to deal with the additional subtests to which the Israeli High Court of Justice refers, such as proportionality in the choice of means and methods.

Implementation of the Proportionality Test by the Commission on the Shehadeh Case

In order to examine the ratio between the resulting collateral damage and the direct military advantage of Shehadeh’s killing, it is necessary to understand who Shehadeh was. The Commission notes in its report that during the Second Intifada, the Hamas organization was the predominant organization that executed suicide bombings. According to the report, at the time Shehadeh was among the organization’s senior figures and functioned as the head of the military-operational apparatus:

“Between the years 2000-2002, Shehadeh was perceived by Israeli security forces as commander of Hamas’ military wing and as second (if not first) in the hierarchy after Shiekh Yassin, who was considered to be the spiritual leader of the movement ... Shehadeh was the mastermind, organizer, director and orchestrator of murderous terrorist activity.” (unofficial translation)

The Commission concludes that as a result of his involvement in terrorist activities during one single year (between July 2001 and July 2002), 474 civilians and soldiers were killed and thousands were injured.12

Notwithstanding, the Commission concludes regarding the proportionality of the harm inflicted (which, as aforementioned, was unforeseen by decision-makers) that:

“the harsh incidental effect of the attack on Shehadeh, which took the lives of 13 innocent civilians, most of which were women and children and injured many others, was revealed to be in retrospect disproportional in the given circumstances. This is the view of the Commission, as well as the retrospective opinion of the vast majority of senior officials involved in the operation’s planning and execution, who have said that, had they foreseen the extent and severity of the operation in real time, the operation would not have been undertaken.”13 (unofficial translation)

The Commission neither specifies its line of thinking nor lays down the legal analysis which underpins its determined decision. It appears that the Commission relies primarily on the fact that most of the security officials who testified before it, stated that had they known the consequences of the attack in advance they would not have executed it, as, in their opinion, the said result is not proportional.

My position regarding the abovementioned decision of the Commission is based on three preliminary points: (a) legal review cannot substitute the position of the security professionals as long as it remains within the 'zone of reasonableness'; (b) in order to define the bounds of reasonability it is necessary to turn to the legal norms and practice; and (c) the security professionals' viewpoint does not necessarily reflect a legal position. I will turn to these issues below.

The Bounds of Legal Review

Legal review cannot replace the position of the military-professional in the determination of the degree of military advantage from a target's attack. Moreover, the legal review is not fit to replace the military-professional in the “test of values” and determine whether the ratio between the damage caused and the military advantage is proportional - that is, so long as the military-professionals’ decision does not exceed the 'zone of reasonableness':

“The Supreme Court, when sitting as the High Court of Justice, exercises judicial review over the legality of the discretion exercised by the military commander. In doing so, the premise guiding this court is that the military commander and those carrying out his orders are public officials carrying out a public office according to law (Almashulia v. IDF Commander in Judaea and Samaria [4], at p. 809). In exercising this judicial review, we do not appoint ourselves as experts in security matters. We do not replace the security considerations of the military commander with our own security considerations. We do not adopt any position with regard to the manner in which security matters are conducted (cf. HCJ 3114/02 Barake v. Minister of Defence [27], at p. 16). Our role is to ensure that boundaries are not crossed and that the conditions that restrict the discretion of the military commander are …. We will consider the legality of the military commander’s discretion and whether his decisions fall into the “zone of reasonableness” determined by the relevant legal norms that apply to the case.”14

The Commission also ruled similarly:

“The Commission does not replace the professional discretion of the professionals in the security forces nor does it convert it with the discretion of the Commission members. The purpose of the review is to determine whether: "the military operation satisfies the national and international standards determining the legality of such actions".”15 (unofficial translation)

Hereinafter I will examine these "international standards".

International Standards - Legal Practice

As mentioned in the introduction, rare are the cases where a public legal analysis of the proportionality test is as sharp and clear as is the case with targeted killing - wherein the military target and the incidental harm are relatively clear and where the military commander has a considerable amount of time to assess them.

The opinion of either a national or international body can shed light or pave the parameters of international law, according to which it will be decided whether the results of the targeted killing were proportional.16 Nevertheless, as we will see below, it appears as though the Commission has failed to rely on the assistance of or base itself upon such non-binding precedence.

In the Commission’s report we can find reference to the opinion of the committee of experts which the Prosecutor of the International Criminal Tribunal of former Yugoslavia put together in order to determine the legality of the NATO forces bombing in 1999.17 The committee of experts examined a number of problematic cases in which the result of the attack caused significant damage to civilian targets. One of the cases which the committee of experts examined is very interesting to the case before us - that is the attack on the Serbian radio station at the center of the city of Belgrade during which 10-17 civilians died. The committee of experts agreed with NATO forces that the radio station had a dual-use, i.e. a civilian and military use, and was part of the military command and control communications system. The committee also stated that NATO forces estimated that the bombing would disrupt communications for only a short period of time. Once the committee of experts determined that the radio station was a legal target, the committee concluded, with regards to the proportionality test, that:

"Assuming the station was a legitimate objective, the civilian casualties were unfortunately high but do not appear to be clearly disproportionate."

The committee of experts explained that the attack on the radio station must be seen as part of the wider attacks against the military communications system, and accordingly the attack’s proportionality must be evaluated in relation to the overall military advantage.

Another case that can serve as a guideline for the case in question (although it is not cited in the Commission’s report), is the opinion from the office of the Attorney General at the Bundesgerichtshof Court, where it was examined whether there were grounds to try a German officer and a soldier for bombing two fuel trucks in Kunduz, in September 2009, which caused the deaths of dozens of people.18 The background to the bombing was the kidnapping of fuel trucks by Taliban rebels, who got stuck in a river a couple of hours later with a few hundred people around them. The intelligence at the time of the operation indicated that the vast majority of locals present around these trucks were Taliban rebels. Additionally, it is important to cite that, according to intelligence, there was a concern that the Taliban was planning to use these trucks in order to execute an attack against a German military base. After the bombing, a number of reports were received stating that during the attack, dozens of civilians were killed in addition to the rebels (it should be noted that the reports were inconsistent regarding the final figure19). In deciding not to try the German military decision-makers, it was said regarding the proportionality test that:

“even if the attack was expected to result in the deaths of dozens of civilians who were protected by the law of international armed conflict (a likely outcome here), from a tactical military standpoint this would not have been excessive in relation to the concrete and direct military advantage anticipated…” (unofficial translation)

It is interesting to quote, in the margin of things, that regarding the scope of legal review:

“Hence in view of the extreme pressure that those who planned or decided upon the attack were under in this situation, a violation of the tenet of excessive measures in relation to the concrete and direct military advantage anticipated can only be presumed to have occurred insofar as an egregiously excessive action was taken and those who planned or decided upon the attack in question failed to act “honestly”, “reasonably”, and “competently”.” (unofficial translation)

Decision-Maker’s Stance

The standpoint of the security official regarding the proportionality of the results of the attack does not necessarily reflect international law. Thus, for example, and I would like to argue that this is the case before us, it may be the case that the security official set for himself a higher test of values than required according to the proportionality test set forth by international law. In the event, if the result of the bombing exceeded the value threshold set by the security official, but not that set forth by international law, then it cannot be said that the result was disproportional from a legal standpoint.

Of course by contrast, one could argue that, in the event that the moral threshold of the security official is higher than the one dictated by the proportionality test set by customary international law, that threshold can crystallize over time into customary law, which would also be in accordance with the general developing trend of international law over the past century, to promote the protection of civilians in times of armed conflict. However, first, it is hard to claim the consolidation of customary rules on the basis of an individual case. Second, as could be seen in the examples above, the high value threshold of the security forces in Israel is not necessarily consistent with the legal opinions published following the bombings of 1999 and 2009. Therefore, it is hard to claim that the practice of creating a particularly high value threshold has consolidated to the point of binding custom. Moreover, in accordance with the legality principle, the promotion of a high value threshold as part of customary law is primarily a forward-looking exercise and it cannot be applied retroactively. Equally, the Commission has stated that the legality of the operation has to be examined according to “the normative framework recognized at the time of the event and its application to the situation at the time the preventive attack was executed on Shehadeh.”20

Conclusion

If we insist on applying the aforementioned to the case of the Shehadeh targeted killing, it would be hard to understand how the Commission decided that the deaths of 13 civilians and the wounding of dozens was not proportional when the target was a master terrorist who was responsible, in one year alone, for the deaths of hundreds of civilians and soldiers and the wounding of thousands - which seems to illustrate the military advantage in his elimination.

As we saw above, the limited legal practice publicized in this matter does not support the conclusions of the Commission. The Committee of Experts that examined the bombing of the radio station in Belgrade - an attack whose goal was to damage the military communications ability - that caused the deaths of 10-17 civilians, found it to be proportional. Similarly, the Prosecution in Germany determined that the attack on the trucks in Kunduz was proportional, even if the decision-makers anticipated that the bombing of the fuel trucks (that would assist the Taliban in an attack against the German military forces) and the killing of dozens of rebels would cause the deaths of dozens of civilians.

Moreover, if the Commission wanted to determine that the accompanying incidental harm was disproportionate in relation to the military advantage because the Israeli security forces and decision-makers held that opinion, then the Commission erred and translated the security professionals’ high value threshold into customary international law. The moral standpoint of the Israeli security forces cannot become binding customary international law, any more than the morally-bankrupt and valueless view of decision-makers (e.g. finding that killing hundreds of civilians in the destruction of a factory creating military socks is proportional) can reflect humanitarian law.

Not only this, but the Commission also states in its report that security officials refrain from carrying out attacks when it is known that children are nearby. We also learn from the report that the operation to kill Shehadeh was delayed twice because of the high likelihood of Shehadeh’s daughter’s proximity to her father, and once more because of the appearance of two children nearby who could have been injured. Will even this position of the security officials become binding international law? Will it be prohibited from now on to attack any military target when a real concern arises that a minor will be harmed as a result of the military operation?

Beyond this, even in the case at hand, it is hard to see how the deaths of a low number of minors, painful and tragic though it may be, can be disproportional when the target is the elimination of a senior military terrorist who is responsible for the deaths of hundreds of civilians, among them children and infants (and accordingly from which it could be expected that his death will save the lives of dozens of other minors). Will the fact that senior officials of Israel’s security forces deviated from the value standards imposed upon themselves - standards far higher than those dictated by international law - render the operation disproportional? It appears that the answer is negative. The very fact that the professional decision-maker binds himself to a high value standard does not change a situation, where the result deviated from that same high standard, into an illegal operation according to international law.

In all fairness, I shall admit that the Commission’s legal position does not stand alone. Apart from the public’s criticism of the operation, Professor Cassese, for example, discussed the proportionality test in the targeted killing of Shehadeh in the context of a civil lawsuit in the United States against Avi Dichter21 (who was the Director of Israel Security Agency [Shabak] at the time of Shehadeh’s targeted killing), and wrote that:

"Finally, there can be no doubt that the damages caused were awfully out of proportion to the advantages gained: nobody would deny the manifest disproportion between the death of 15 innocent civilians, the injury of 150 persons and the destruction of 9 buildings, on the one hand, and the objective to kill one single individual, however dangerous he might have been, on the other.”22

But with all due respect to Professor Cassese and the legal context within which he presented his position, Professor Cassese does not support his statement with factual or legal analysis. What’s more, his determined position that the deaths of 15 civilians and injuries of 150 will never be proportional in the frame of an attack on one individual’s life is difficult to digest. Thus, it is doubtful if there is anyone who would claim that the killing of Hitler during WWI, of Saddam Hussein during the Gulf War, of Milosevic throughout the fighting in Yugoslavia, or of Bin-Laden throughout the fighting in Afghanistan, accompanied by the deaths of dozens of civilians and wounding of hundreds, would be necessarily considered disproportional in the eyes of international law as it stands today.

Lest it be forgotten, the absence of proportionality in an action must be expressed so that the collateral damage is excessive in relation to the direct military advantage anticipated, while the term “excessive” is to be interpreted as “undoubtedly disproportionate”.23

Summary - the Proportionality Test in the Future

In this paper I endeavored to show why the position of the Commission regarding the proportionality (in the narrow sense) of the results of Shehadeh’s targeted killing is erroneous, or was at least without basis. Of course, in saying so, I am in no way trying to minimize the tragic weight of the harm to innocent civilian lives as a result of Shehadeh’s targeted killing. But while harm to civilians in times of armed conflict will always be painful, it is not necessarily disproportional. However, even in the event that security officials had foreseen the anticipated incidental harm that ensued and still decided to proceed with the operation, one cannot rule out that the operation would have failed the other subtests of the proportionality test, such as the choice of the least harmful means. But it would depend on the circumstances at hand and the various operational alternatives at the disposal of the decision-makers.

We saw above that the military advantage test, collateral damage estimation, and the examination of the balance between them that goes into evaluating the proportionality of incidental harm is a test of values. This is a test for the professional body authorizing the execution of an attack - and his or her test alone. The law lays down a formula for the value test and leaves it to the military commander to translate and apply it to the given situation. The law can be used as an additional tool in testing the proportionality of an operation - both in retrospect and looking into the future. In retrospect, the courts and other legal bodies can examine whether the decision of the military commander was within the "zone of reasonableness". Looking into the future, the legal opinions and judicial reviews of past cases can assist in outlining the zone of proportionality which, if crossed, may become a criminal offense.

Regarding the proportionality test in future cases of targeted killing, the Commission concludes that:

“One cannot establish hard and fast rules regarding the numerical threshold of anticipated civilian harm from preventive attack operations. As the anticipated harm from the target becomes clearer, more immediate and more significant, so the risk that may be taken regarding harm to uninvolved civilians increases.”24

It is hard to fully comprehend how the Commission in this case was not setting a “numerical threshold of anticipated civilian harm from preventive attack operations”. From the moment the Commission determined that the deaths of 13 civilians and the injuries of dozens of others is not proportional when security forces seek to eliminate one of the most senior terrorists in a murderous organization, it is hard to see how a future military operation to eliminate a mid-level terrorist that might cause the deaths of two civilians (or even one minor) would ever be proportional. The Commission’s position on the proportionality test is unsustainable. Not only this, but the Commission’s position may encourage terrorists to hide amongst kindergartens or amongst families with many children, thereby immunizing themselves form nearly any attack which may jeopardize the lives of these minors.

It appears as though in the future, one will have no choice but to address the Commission’s position on the permissible threshold for incidental harm in targeted killings as applicable only to the special circumstances of Shehadeh’s targeted killing.

*Adv. Ady Niv is an ALMA member and a lawyer specializing in International Humanitarian Law. The author is thankful to Mr. Adam Broza for his help in translating the article.

Notes

1. HCJ 769/02 Public Committee Against Torture v. Government of Israel et al is available in English at: http://elyon1.court.gov.il/Files_ENG/02/690/007/A34/02007690.A34.pdf (Targeted Killing Case).

2. HCJ 8794/03 Yoav Hess and others v. the Judge Advocate General and others is available in English at: http://www.geneva-academy.ch/RULAC/pdf_state/HCJ-decision-8794-03-1-.pdf (unofficial translation)

3. The Commission is also known as “Inbar Commission”, named after its chairman, advocate Zvi Inbar, former Judge Advocate General, who passed away during his tenure in the Commission. The Commission is also known as the “Strasberg-Cohen Commission” named after former Supreme Court Judge Tova Strasberg-Cohen who was appointed as chairwoman following advocate Zvi Inbar death.

4. A summary of the report from the Israeli Ministry of Foreign Affairs is available in English at:

http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Salah_Shehadeh-Special_Investigatory_Commission_27-Feb-2011.htm?DisplayMode=print.

5. Page 97 of the Commission’s Report (unofficial translation; all emphases are not in the original).

6. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; available at

http://www.icrc.org/ihl.nsf/full/470?opendocument.

7. Ibid.

8. Section 45 in Targeted Killing Case (fn 1).

9. See for example paragraph 49 of the “Final Report of the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia”, available at

http://www.icty.org/sid/10052.

10. Ibid.: "The main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied. It is relatively simple to state that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral effects. For example, bombing a refugee camp is obviously prohibited if its only military significance is that people in the camp are knitting socks for soldiers. Conversely, an air strike on an ammunition dump should not be prohibited merely because a farmer is plowing a field in the area. Unfortunately, most applications of the principle of proportionality are not quite so clear cut. It is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values. One cannot easily assess the value of innocent human lives as opposed to capturing a particular military objective.”

See also pages 132-133 in Professor Dinstein’s book, “The Conduct of Hostilities under the Law of International Armed Conflict”, 2nd Ed, (Cambridge University Press, 2010).

11. See paragraph 41 in HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel, translation available at http://elyon1.court.gov.il/files_eng/04/560/020/A28/04020560.a28.pdf

12. Page 59 of the Commission's Report.

13. Page 97 of the Commission's Report.

14. HCJ 7015/02 Ajuri v, IDF Commander, translation available at:

http://elyon1.court.gov.il/files_eng/02/150/070/A15/02070150.a15.pdf

15. Page 19 of the Commission's Report.

16. See article 38(b) of the International Court of Justice's Statute, available at

http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0.

17. Final Report of the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. (fn. 9).

18. The Office of the Attorney General at the Bundesgerichtshof court, Karlsruhe, 16 April 2010.

19. The exact number of casualties is unknown and varies between 50 to 150 people approximately.

20. Page 28 of the Commission's Report (unofficial translation).

21. United States District Court, Southern District of New York, Ra’ed Mohamad Matar et al. v. Avraham Dichter.

22. The declaration of Professor Cassese is available at

http://ccrjustice.org/files/Professor%20Cassese%20declaration.pdf.

23. Dinstein, (at fn 9), page 131: "'Excessive' means that the disproportion is not in doubt".

24. Page 100 of the Commission's Report (unofficial translation).