of Civilian Persons in Time of War 1949 (hereinafter –
the Fourth GenevaConvention
), as well as the two additional protocols to the conventions signed in1977. All of this law reflects the norms of customary international law, whichobligate Israel. According to petitioners' argument, the practice employed by statesfighting terrorism unequivocally indicates international custom, according to whichmembers of terrorist organizations are treated as criminals, and the penal law,supplemented at times with special additional emergency powers, is the law whichcontrols the ways of the struggle against terrorism is conducted. Petitioners note, asexamples on this point, Britain's struggle against the Irish underground, Spain'sstruggle against the Basque underground, Germany's struggle against terroristorganizations, Italy's struggle against the Red Brigades, and Turkey's struggle againstthe Kurdish underground.5. Alternatively, petitioners claim that the targeted killings policy violates therules of international law even if the laws applicable to the armed conflict betweenIsrael and the Palestinians are the laws of war. These laws recognize only two statusesof people: combatants and civilians. Combatants are legitimate targets, but they alsoenjoy the rights granted in international law to combatants, including immunity fromtrial and the right to the status of prisoner of war. Civilians enjoy the protections andrights granted in international law to civilians during war.
, they are not alegitimate target for attack. The status of civilians, and their protection, are anchoredin Common Article 3 of the Geneva Conventions. That is the basic principle of customary international law. Petitioners' stance is that this division betweencombatants and civilians is an exhaustive division. There is no intermediate status,and there is no third category of "unlawful combatants". Any person who is not acombatant, and any person about whom there is doubt, automatically has the status of civilian, and is entitled to the rights and protections granted to civilians at the time of war. Nor is a civilian participating in combat activities an "unlawful combatant"; he isa civilian criminal, and in any case he retains his status as a civilian. Petitioners thusreject the State's position that the members of terrorist organizations are unlawfulcombatants. Petitioners note that the State itself refuses to grant those members therights and protections granted in international law to combatants, such as the right tothe status as prisoners of war. The result is that the State wishes to treat themaccording to the worst of the two worlds: as combatants, regarding the justification forkilling them, and as civilians, regarding the need to arrest them and try them. Thatresult is unacceptable. Even if they participate in combat activity, members of terroristorganizations are not thus removed from the application of the rules of internationallaw. Therefore, according to petitioners' position, terrorist organization membersshould be seen as having the status of civilians.6. Petitioners note that a civilian participating in combat might lose part of theprotections granted to civilians at a time of combat; but that is so only when such aperson takes a direct part in combat, and only for such time as that direct participationcontinues. Those conditions are determined in article 51(3) of Protocol Additional tothe Geneva Conventions of 12 August 1949, and relating to the Protection of Victimsof International Armed Conflicts (Protocol I), 8 June 1977 (hereinafter –
The First Protocol
). According to petitioners' position, the provisions of that article reflect acustomary rule of international law. Those provisions have been adopted ininternational caselaw, and they are referred to in additional international documents,as well as in the military manuals of most western states. In order to preserve the clear