2012 | Did LOAC Take the Lead? Reassessing Israel’s Targeted Killing of Salah Shehadeh and the Subsequent Calls for Criminal Accountability, by A. Margalit, Journal of Conflict & Security Law Vol. 17 (1) 2012
In July 2002, the Israeli’s dropped a bomb on the house of Salah Shehadeh, at the time, the commander of a military wing of Palestinian Hamas. Apart from Shehadeh, the bomb killed 13 innocent civilians, injured many others and destroyed civilian property. There were calls that the attack constituted a war crime but the author concludes that the targeted killing nor the civilian harm it caused, establish a prima facie violation of LOAC that would trigger individual criminal responsibility.
This article delves into the lawfulness of the Israeli targeted killing of Salah Shehadeh under the law of armed conflict (LOAC) by discussing the legitimacy of the selected target and the issues of proportionality and precautions in attack. While testing the requirement to distinguish between civilians (and civilian objects) that are protected and combatants (and other military objectives) which are legitimate targets, the author purports that Shehadeh was a lawful target for he was a military Hamas commander possessing a continuous combat function. The article then deals with the principle of proportionality. As long as the attack was not expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated, the attack is lawful. Given that the in this case, the attack killed 13 innocent victims, the main concern is whether this expected collateral damage was excessive. While concluding that it depends on the merits of the military advantage and that the calculation may be a matter of controversy, the author acknowledged that there is no straightforward answer to the question when collateral damage becomes excessive. Indeed, the Israeli forces predicted a substantial collateral damage but at the same time, the military advantage of Shehadeh’s death was anticipated to be crucial and thus the author concludes that question whether the attack was disproportionate is far from clear-cut.
Lastly, the author addresses the obligation to take all feasible precautions in the choice of means and methods of an attack in order to avoid or at least minimize civilian casualties and damage. Although arguably adherence to this principle is a weakness in this case, the author stipulates that a failure to take precautions in the attack is not classified as a 'grave breach' of the Geneva Conventions, nor as a 'war crime', meaning it probably does not trigger individual criminal responsibility (but may lead to disciplinary, administrative or civil proceedings against the persons involved).
The article further considers the relationship between LOACand human rights law (HRL) emphasizing that LOACis the lex specialis. In the absence of a LOAC violation which triggers individual criminal responsibility, human rights law may play a complementary role in relation to a post-incident remedy, namely, a review of the attack and, in some cases, compensation for victims. Such review may lead to disciplinary measures and/or to compensation by the responsible state for the loss or injury caused by breaches of LOAC, in case the allegations of a non-criminal violation of LOAC are substantiated. In the Shehadeh case, Israel failed to provide an adequate remedy for the victims. Even if there was no apparent element of individual criminal responsibility, a proper examination of the incident was required from the outset due to the severe collateral damage, the acknowledgment of intelligence mistakes and a possible failure to take necessary precautions.