The conflict between Israel and Hamas represents an ongoing competition of two adversaries. It consists of moves and counter-moves. In April 2018, Hamas seized the initiative and started a new episode of innovation in the conflict: the use of incendiary kites, balloons and other imaginative ideas (from the tragicomic use of helium filled condoms, to the sordid abuse of the falcon). This new modus operandi is hardly as deleterious as, for example, the firing of mortars and rockets, yet it is certainly not innocuous. It disturbs daily lives of the Israeli population in the area, and it damages the environment and civilian property. Attentive to their constituents, various Israeli politicians now advocate the use of lethal force against these “arson terrorists.” In fact, some of them call for the renewal of Israel’s targeted killing policy in order to bring these acts to an end. Naturally, some people demur, or even, as I’ve personally heard, question the legality of such a response. In this short piece I expound for those who impugn whether or not the targeting and killing of the arson terrorists is legal, that there is a solid basis which supports its legality.
The arson terrorists acquire materials, build kites, and prepare kites and balloons for launching towards Israeli proper. They most commonly tie flammable materials, such as burning coals, to these objects. Once in the air, the wind carries them to Israel. The terrorists wish to destroy the Israeli environment and property, terrorize the Israeli population and, potentially, kill Israelis. However, some people might argue that this is an act of protest. Yet such an argument is untenable considering the legal framework which applies to the area.
Those arguing it is an act of protest might think the legal framework governing the conflict is Belligerent Occupation, one in which the law enforcement paradigm should generally prevail. However, this is not the case. Israel operates within the framework of an armed conflict since the second Intifada. Moreover, especially since the case at hand takes place between Israel and the Gaza Strip, there is no case to even claim the status of Belligerent Occupation applies as the HCJ already rejected this assertion after the Disengagement (Sept. 2005). As this is an armed conflict, we ought to examine if and when it is legal to target and kill arson terrorists – individuals being the object of lethal force – in an armed conflict.
The mere fact the legal framework is one of armed conflict does not render everybody as legitimate targets. International law provides protection to those individuals with the legal status of civilians (excluding exceptions), while those with the legal status of combatants are legitimate targets (excluding exceptions). For the purpose of this essay, the exceptions and conditions which make a civilian into a legitimate target are: (1) the civilian must take a direct part in hostilities, and (2) be the object of the attack “for such time” as he or she participate in hostilities. During that time, the civilian is no longer protected and becomes a legitimate target.
(1) Direct/Indirect Participation in Hostilities: One might argue the activities of arson terrorists do not constitute a direct participation in hostilities. Yet based on the interpretation of the law in the HCJ 769/02 (“Targeted Killing”) ruling, that is incorrect. Such activities fit the description of direct participation. Moreover, further elaborations – matching the Court’s interpretation – of discerning direct and indirect participation are available in Israel’s report covering Protective Edge. Thus, it is clear arson terrorists participate directly in hostilities.
(2) “for such time”: The most classic and conservative interpretation of “for such time” is the specific time frame in which the civilian participates in hostilities. During that time, the civilian ceases to be protected by the law. Israel, as we saw, targeted and killed arson terrorists while they were sending incendiary kites and balloons. However, it is important to know that the HCJ ruled in the targeted killing case that “for such time” can be interpreted as the entire duration in which a terrorist represents an ongoing threat. Hence, individuals such as those arson terrorists Israel published information on, by repeating the acts and if it knew they plan to continue, then it would be legal to target them even not right during that exact time in which they participate in hostilities.
In addition, there are terrorists who are not civilians. Contemporary interpretations of international law relate to “members of Organized Armed Groups” (OAG) as individuals’ legal status. OAG members do not possess civilian status. Nowadays, as Israel officially adopted the approach of OAG members, it can also perform targeted killings on such terrorists – whether their participation in hostilities is exclusively reserved for the arson activities or the more regular activities we’re all familiar with.
Therefore, the unavoidable conclusion is that since the legal framework is one of an armed conflict, that the activities of arson terrorists is a direct participation in hostilities, and that depending on the particular characteristics of each person – such as the legal status of the person – Israel is able to perform targeted killings against the arson terrorists in a lawful manner, while abiding its domestic law and the laws of armed conflict.