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Israeli Court Allows "Targeted Killings":

Earlier this week the Israeli High Court of Justice held that the practice of "targeted killing" of terrorists by the Israeli military is not prohibited by customary international law. As Julian Ku explains on Opinio Juris, the opinion held that international law "does not prohibit all targeted killings of Palestinian terrorists, but that it might prohibit some such killings," and it asserts the right of Israeli courts to review the legality of such actions in the future.

It appears that the Israeli court adopted a position generally in line with that advocated by my colleague Amos Guiora, a veteran of the Israeli Defense Forces and Director of the Case Institute for Global Security Law & Policy. Amos has contended that targeted killings are permissible in certain lmited circumstances as a form of "active self-defense." Specifically, preventative strikes against known terrorists who are preparing for additional attacks, is permissible, provided that such actions are proportional, do not needlessly endanger civilians, and are the result of a process designed to limit the likelihood of mistaken identification of terrorists. This is a controversial view in international law, not least because it rejects the "law enforcement" paradigm for counter-terrorism measures.

It is important to reiterate, however, that the opinion did not give the Israeli military a blank check. Rather, it held that targeted killings as such are not, in and of themselves, contrary to international law, while leaving open the possibility that specific attacks, particularly those that are disproportionate, would violate international law. The LA Times has more on the opinion here.

Related Posts (on one page):

  1. A Moral Code for Counterterrorism:
  2. Israeli Court Allows "Targeted Killings":
ReVonna LaSchatze:
The main concern is that the targeted killings go well beyond killing the targeted.
12.15.2006 12:42pm
MnZ (mail):
The main concern is that the targeted killings go well beyond killing the targeted.


This is an obvious concern about targeted killings. However, couldn't an invasion, occupation, and hunt for the targeted individual kill many more innocent people than even a ham-handed targeted killing? If the only other option is to wait for the terrorist to strike, then a targeted killing might do the least harm to innocent people.
12.15.2006 1:00pm
Jeek:
Remind me why the Israeli High Court cares about "customary international law"? Do they hold international law to be binding on Israel?
12.15.2006 1:04pm
Tom Holsinger (mail):
Ding DING! WE HAVE A WINNER in this week's Unclear On The Concept contest!

Targeted killing is also known as "war".
12.15.2006 1:24pm
guest (mail):
So the Israeli court reserves the right to review any targeted killing to see if it violates international law. I'm sure that makes the guy pulling the trigger feel right at ease.
12.15.2006 1:31pm
Mike BUSL07 (mail) (www):
Contrast this with Israel's decision on torture. Torturing suspects is illegal as an initial matter, but post hoc rationalizations may clear the torturer - typically in the "ticking time bomb" scenario. I do think this is a better standard - shifting the presumption in favor of protecting your personnel, not exposing them.
12.15.2006 1:39pm
Mike BUSL07 (mail) (www):
Sorry, by "this," I mean the targeted killing review standard.
12.15.2006 1:47pm
Richard Aubrey (mail):
The Phoenix Program in Viet Nam was primarily about targeting individual cadre, in order to avoid the killing of scores if not hundreds of conscripts and civilians in a general battle.
Since it did not kill enough civilians to satisfy the anti-war left--who need large numbers of dead civilians (so long as they can be pinned on the US) with which to reproach US policy--the anti-war left demonized the program. The same thing happened to Low Intensity Conflict several decades later, which both worked and failed to kill a sufficiency of civilians, and is similarly demonized for the same reason.

Targeted killing in the context of Israeli self-defense is particularly appropriate since the cannon fodder of the Palestinians are supposed to die, one way or another. Since you can't scare off a suicide bomber, the usual front-line combat or law enforcement tactics aren't as effective. Thus, the leaders become even more important as targets.
12.15.2006 1:54pm
Colin (mail):
I'm sure that makes the guy pulling the trigger feel right at ease.

I presume that's sarcasm? I don't think the court wants the guy pulling the trigger to be at ease. He should be thinking carefully--at least when he receives his orders, if not at the terminal instant--about the propriety of his actions.
12.15.2006 1:55pm
M. Gross (mail):
Did anyone seriously think the request for judicial restraint and approval on all military actions would be approved?
12.15.2006 1:59pm
Colin (mail):
Since it did not kill enough civilians to satisfy the anti-war left--who need large numbers of dead civilians (so long as they can be pinned on the US) with which to reproach US policy--the anti-war left demonized the program.

Can you name programs that the anti-war left supported because they killed a sufficient number of civilians, or are you just spouting an ultra-partisan talking point to get people fired up?

I realize that we're all partisans in our own way, but radical and thoughtless ranting marginalizes your contributions in the eyes of almost all of the other readers of the site. I don't think that I'm alone when I say that I gloss over the truly insane comments that accumulate in some of these more controversial threads. Whatever argument you want to make gets lost in the negative impression that's left by your rabid rhetoric.
12.15.2006 2:01pm
Richard Aubrey (mail):
Colin,

Wrong question.

The anti-war left isn't stupid enough to say, "We want more dead civilians," mostly. When a bunch of lefties thought I was one of them, I got a copy of an article by Sarah (Sally) Miles on Low Intensity Conflict in Central America. She used up the western hemisphere's quota of scare quotes--the usual technique of discrediting something not otherwise notably discreditable--and, toward the end, admitted that those of us used to raising the consciousness of the American people by pointing to large numbers of civilian casualties will have to find new methods of communication. I paraphrase. This is after an article which admits LIC is working and not killing many civilians. So that was an exception to my opening assertion, although she thought she was preaching to the choir, not to the public.

To your question in another venue: In Viet Nam, the US discovered that a couple of right-angle turns at the mouth of a tunnel worked like a cork, and reduced the blast front in the tunnel to a modest overpressure and forcing the bulk of it out the mouth of the tunnel. So the Army came up with the tactic of blowing gasoline vapors into the tunnel. Moving slowly, the turns were no hindrance to the mix. Then, the explosive and the oxidant (air) being mixed throughout the tunnel, the thing was lit off and a good time was had by those outside.
Charlie started bringing civilians down the tunnels, cramping that style. So the US switched to tear gas to run the folks out alive and separated the wheat from the chaff afterwards. The left howled about "chemical warfare". The use of teargas, it should be noted for emphasis, was designed to not kill people. In fact, the left didn't like the use of tear gas in the open, either.

For the skinny on the Phoenix Program and the left, see "War, Ends and Means" by Seabury and Codevilla. By a coincidence, they have dedicated the book to you. Says so right in the preface. Your name and all.

I recall being in El Salvador in 1987 with a bunch of lefties. I may have said this before. When we discovered that the death squad killings were down by about 99%, I was the only one not seeming disappointed and disoriented. When I mentioned this to some university lefties--my wife used to teach university-level foreign language and I went to some faculty parties--they got hostile and insisted that the human rights groups who told us this were US puppets. Can't do without dead civilians.
12.15.2006 3:02pm
American revival:
anti-war left is a misnomer. anti-american left is more accurate.
12.15.2006 3:32pm
Richard Aubrey (mail):
Revival. I agree. Somehow, the anti-war left is pretty selective about which wars it opposes.

The anti-Israel types who pretend to be appalled at the criminality of Israel's self-defense measures aren't at all fazed by the brutality of its opponents. But, to follow my theme in my last post, think about what would happen if the IDF figured out how to take out a terr boss and never, ever, harm a hair on the head of any bystander.
Nobody hurt but the bad guys.
Now, for the rest of us, including the unconvinced, that would be a Good Thing, considering how bad we think terrorist leaders are and how we like to see civilians left alone.
But how would the anti-Israel types feel about trying to sell the cosmic criminality of Israel if only the really demonstrably bad guys got killed and nobody else got a scratch?

The IDF, seeking this happy day, and no doubt wondering how the left will spin it, has built air to ground missiles with smaller warheads than could actually be put on the thing. They figure the accuracy will do for the bad guy and smaller warhead won't hurt as many bystanders.
12.15.2006 3:56pm
Nate F (mail):

The anti-Israel types who pretend to be appalled at the criminality of Israel's self-defense measures aren't at all fazed by the brutality of its opponents.


What about those of us who think they're both wrong?
12.15.2006 4:11pm
Richard Aubrey (mail):
Nate.

If you think they're' both wrong, you're wrong.

But as long as you're on the push, how would you sell the IDF's cosmic criminality if all they did was kill terr leaders and no civilians? We know it isn't the IDF's tactics that bother you. Those are just an excuse. But, if the tactics evolve to become terrorist-only, your excuse goes away. What will you do then?

You ever hear of a force which calls the target and tells them to get out of the house BEFORE it's attacked? That calls off an attack on a terr boss because the house is surrounded by civilians? Your buds in Gaza gonna do that?
12.15.2006 4:19pm
Mark Field (mail):
DougJ, are you posting in this thread under a pseudonym?
12.15.2006 4:26pm
Parvenu:
"Specifically, preventative strikes against known terrorists who are preparing for additional attacks, is permissible, provided that such actions are proportional, do not needlessly endanger civilians, and are the result of a process designed to limit the likelihood of mistaken identification of terrorists."

This raises as many issues as it clarifies, however. Maybe more. First and foremost, since all adjudication is retroactive, how is a sharpshooter or fighter/Apache pilot to know if these criteria have been met? These are all not merely standards rather than rules, but they are extremely fact-driven standards, too, and there is always more variance in facts than in law. It is unrealistic to assume that combat troops will all be international law sophisticates--and even though I have a mild amount of education in international law by now, I would have trouble predicting ex ante how litigation on any given matter under this standard would turn out.

I also wonder what Israel's domestic law regarding disclosure/discovery of classified information is like. Mossad is, I assume, no more eager to divulge its secrets than or CIA or NSA.
12.15.2006 4:39pm
Fub:
The USA conducted at least one "targeted killing" in 1943, a long distance interception of Admiral Yamamoto's personal transport flight over Bougainville.

Good thing it wasn't against international law.
12.15.2006 6:56pm
Nate F (mail):
"We know it isn't the IDF's tactics that bother you."

You must be joking. No, in fact, it is PRECISELY the IDF's tactics that bother me. Among other things. Both sides of any argument can be wrong, and they both are here.


"Your buds in Gaza gonna do that?"

Ad hominem this extreme not only detracts from your argument, it makes you look insane. You have taken my statement that both sides are wrong and somehow drawn the conclusion that I think one of the sides (the Palestinians) are right.
12.16.2006 12:08am
Parvenu:
Both sides of any argument can be wrong, and they both are here.


Except that if the IDF tactics are the "least wrong" in this instance, that's really the most we can ask at any given point in time (even as we try to change the status quo to make better alternatives available). Widespread retaliatory efforts end up getting too many Palestinian civilians civilians killed; simply sitting back and doing nothing ends up getting too many Israeli civilians killed. There can be civilian deaths alongside targeted killings, too, but a single precision weapon (or a sharpshooter, or more sophisticated targeted attacks like planting a bomb in a terrorist's cell phone, which I've heard the IDF has done at least once) does seem likely to be the least deadly of the three, in the aggregate.

I'm not happy about this, in case that wasn't clear. I just don't think it's fair to assign too much blame for choosing the least of evils when there are no good choices.
12.16.2006 1:12am
Richard Aubrey (mail):
Nate. If tactics bothered you, the IDF's tactics wouldn't bother you.
They are, as I say, an excuse, which work well enough when misrepresented.
But, whatcha gonna do when they get the technology and intel to take out terrorist leaders and not a single civilian?
What are you going to do then?
The point about calling ahead is that it is, "nicer" in the humane, short term sense, (and nutty in the long term where winning a war reduces total casualties). But you don't see, or more correctly, claim not to see the difference.
So, since you are not intellectually deficient, we can presume you see the difference, don't care, and hope some of the rest of us can be fooled.

No rational person can think the tactics of each side are morally equivalent. Not in intent, not in result. You are rational. Thus, you know better. That's why I say that the tactics, if properly misrepresented, are an excuse.
12.16.2006 1:18am
Nate F (mail):
You're still misrepresenting my argument, though -- I didn't assign relative values. I think the tactics of the Palestinian extremists are more wrong than the IDF's tactics. That said, I don't have to think the IDF's tactics are okay just because they're not down on the same level as blowing up a bus.
12.16.2006 4:37am
Richard Aubrey (mail):
Okay, Nate.
Give us some tactical suggestions for the IDF which would not include bending over and asking for another.
Some of the ground rules include keeping in mind the Palestinian's goal is the destruction of Israel. Offers to swap this or that minor thing for peace are lies. You probably haven't figured out that the rest of us have figured this out.
Keep in mind that any reasonably educated person knows the Arabs were attacking Israel before 1967 which is when Israel picked up the land it now is supposed to hold illegitimately from its attackers. Keep in mind that we know the first illegal occupation of the now-contested land was by Jordan, in 1948, and nobody objected.

I'm trying to save us both time, here.

And you did assign relative values. "Both wrong" is an equivalent absent a disclaimer that one is worse than the other.


But, anyway, give us some tactics which will allow the Israelis to defend themselves and which will not bother you.
12.16.2006 10:01am
abb3w:
Richard Aubrey:
If you think they're both wrong, you're wrong.
That does not necessarily follow, according to the logic put forth by the court. While the tactics of the terrorists may constitute a violation of the International Laws of War, the court indicates that a disproportionate response by the military might also constitute a violation of the International Laws of War. So, both sides might be in the wrong.

The ruling seems to say that the military must consider whether conventional arrest and trial are practical and safer, check thoroughly to make sure they have the right target, and try to make sure that the collateral damage is proportional to the expected direct military advantage.

It seems they're not forbidding assassination — or any other — tactics outright; but they are warning the military that they may be charged with War Crimes afterwards if they go way overboard. It also does not rule that any specific military actions by Israel are yet "in the wrong" (although as I read it they do seem to say that the failure of terrorists to clearly and visibly identify themselves as combatants is a violation of the laws of war).

So, the Palestinian terrorists are in violation of the laws of war, and in the wrong. The Israeli military aren't established as being in the wrong... but they aren't completely in the clear.

So, if terrorists of Saudi citizenship get their hands on a nuclear weapon, and use it to take out Jerusalem, would Israel's nuking Mecca qualify as a "proportionate" action or not? Hmmm.
12.19.2006 1:20pm