When the question, is it right?, is made subordinate to the question, is it legal?, we succumb to the tyranny of law.

Once in a while a rare individual when confronting a contradiction between these two will refuse to be tyrannized. Anat Kam might be just such an individual, though as Richard Silverstein (who has covered this story in greater detail than anyone else) speculates, she may have simply been “an aspiring journalist who found herself in a position to advance her career.”

The story of her house arrest and impending trial have been the focus of huge attention inside and outside Israel but within the current media frenzy the real story is getting much less attention. That is the story which Kam revealed and which was reported in Haaretz two years ago.

But in case anyone is naive enough to imagine that a Haaretz report might inhibit the sense of impunity that guides Israel’s security forces, another report from less than four months ago makes it clear that those acting in the name of the state see few limitations on how they exercise their power. On December 26 Haaretz reported:

An investigation into an overnight Israel Defense Forces operation in the West Bank city of Nablus early Saturday suggests that Israeli soldiers may have executed two of the three Palestinian militants who were killed, the left wing rights group B’Tselem said Saturday.

In the operation, the IDF killed three Al Aqsa Martyrs Brigades operatives, whom officials said were responsible for a shooting attack on Thursday which killed 40-year-old father of seven Meir Hai of the settlement of Shavei Shomron. The troops surrounded the homes of the three and called for them to exit, and killed them when they refused to surrender.

According to B’Tselem, in two of the three cases the troops behaved as if they were preparing for an execution, not an arrest. Relatives and eyewitnesses told B’Tselem that the two were unarmed and did not attempt to flee, and that the soldiers weren’t trying to stop them, but rather shot them from close range once their identity was revealed.

Little has changed since the story that triggered the Anat Kam affair was first reported.

License to kill

Uri Blau, Haaretz, December 4, 2008

The Israeli Defense Forces highest commanders approved the killing of innocent people while targeted assassinations were being carried out, in spite of an Israeli High Court ruling that prohibited such operations. Moreover, the claim that the targets of such operations represented “ticking time bombs” was exposed as a fraud when an inconvenient scheduling conflict — the visit of a senior American official — required that a murder be postponed.

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.