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Journal of International Criminal Justice 2003 1(2):368-405; doi:10.1093/jicj/1.2.368
© 2003 by Oxford University Press
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Justice-Ability: A Critique of the Alleged Non-Justiciability of Israel's Policy of Targeted Killings

Orna Ben-Naftali1 and Keren R. Michaeli2

1 Head of the International Law Division and the Law and Culture Division at the Law School, The College of Management, Tel-Aviv 2 International Law Division, The Law School, The College of Management, Tel-Aviv

The article offers a critique of the 2002 decision of the Israeli High Court of Justice that the Israeli policy of ‘targeted killings’, being a means of warfare against terrorism, is non-justiciable. The critique, resting on the domestic, transnational and international ramifications of the decision, proposes that that decision is (i) inconsistent with the jurisprudence and practice of the court; (ii) inappropriate in terms of judicial policy; and (iii) ill-advised in view of the nascent global (international and universal) criminal legal discourse, which encourages domestic courts to subject alleged crimes to their review. Such review gives domestic courts the opportunity to address both the international and the domestic communities, signalling to the former, that the domestic system participates in the global legal discourse, and to the latter, that normative behaviour may well advance the national interest.


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