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A Development of Modest Proportions: The Application of the Principle of Proportionality in the Israeli Supreme Court Judgment on the Lawfulness of Targeted Killings

15 Pages Posted: 9 Apr 2007  

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Amichai Cohen

Ono Academic College - Faculty of Law; Israel Democracy Institute

Abstract

The comment critically discusses the application of the principle of proportionality by the Israeli Supreme Court in the Targeted Killings case. While the judgment confirms the customary status of the principle and its applicability to all IDF military operations during armed conflicts, its substantive contents remain, as might have been expected, unclear, and the application of the 'least-injurious alternative' sub-test with relation to all civilians taking a direct part in hostilities, unsubstantiated. Still, the reference by the Court to ex ante and ex post review mechanisms to monitor the application of proportionality principle constitutes a positive contribution to its development under IHL that might also have some implications for criminal prosecutions of soldiers and commanders involved in unlawful targeted killing operations.

Keywords: targeted killings, proportionality, israeli supreme court, belligerent occupation, developments in humanitarian law

Suggested Citation

Shany, Yuval and Cohen, Amichai, A Development of Modest Proportions: The Application of the Principle of Proportionality in the Israeli Supreme Court Judgment on the Lawfulness of Targeted Killings. Hebrew University International Law Research Paper No. 5-07. Available at SSRN: https://ssrn.com/abstract=979071 or http://dx.doi.org/10.2139/ssrn.979071

Yuval Shany (Contact Author)

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology ( email )

Mount Scopus, 91905
Israel
972 2 5882541 (Phone)
972 2 5823042 (Fax)

Israel Democracy Institute ( email )

4 Pinsker St.
Jerusalem
Israel

HOME PAGE: http://www.idi.org.il

Amichai Cohen

Ono Academic College - Faculty of Law ( email )

104 Zahal St.
Kiryat Ono, 55000
Israel

Israel Democracy Institute ( email )

4 Pinsker St.
Jerusalem
Israel

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