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On Targeted Killing and International Law

It is, after all, difficult for any civilized people to acknowledge self-defense imperatives that could allow killing as remediation.
Louis Rene Beres

Louis Rene Beres

A Review of Legitimate Target: A Criteria-Based Approach to Targeted Killing by Amos N. Guiora (Oxford University Press, 2013)

This is a book on assorted matters of genuinely urgent importance. Although explicitly jurisprudential in orientation (the author teaches Criminal Procedure at the University of Utah), the implications are much broader in scope. Indeed, for anyone who has been paying attention to world news on “routine” matters of war and terrorism, it is reasonable to say that the book’s argument will resonate authoritatively on virtually all current matters of peace and security.

This is not a book about assassination. As Professor Guiora makes very clear at the outset, targeted killing is a particular expression of “aggressive, preemptive self-defense” by a nation-state. Its legality, he continues, requires that the intended victim pose “an immediate future threat,” and that it not be in “retaliation for a past act….” Operationally, as is increasingly evident from our daily news sources, targeted killings are, “in the main, conducted through UAVs (referred to as drones), manned helicopters firing missiles, or, `on the ground,’” hit teams.”

Guiora is a distinguished legal scholar, one who served for 19 years in the Israel Defense Forces as commander of the IDF School of Military Law, and also as legal adviser to the Gaza Strip. Written with the understanding that nation-states have increasingly sought alternatives to traditional warfare, his meticulous study fashions a coherent strategy, both lawful and effective, against an expanding enemy that is apt to be “borderless, amorphous, and ruthless.”

In the end, this developed strategy recommends “person-specific operational counterterrorism,” a plan – unlike all-out classical battles between fully-armed military forces – that relies on “intelligence gathering and analysis,” and that seeks to protect democratic societies from “specific individuals who pose a danger to national security.”

Under international humanitarian law, every use of force must always be judged twice, once with regard to the justness of the cause, and once with regard to the justness of the means. Regarding the first criterion, the author invokes and clarifies the doctrine of “pre-emptive self-defense,” a rationale for permissible force that requires identifying enemy preparations for attack that are recognizably “imminent.” As I have written myself in law journals and The Jewish Press, international law is not a suicide pact. Guiora is correct to claim that states sometimes have a residual right to act in self-defense before they are attacked (anticipatory self-defense, explained primarily at customary international law), and that doing so via a limited strategy of targeted killing can substantially minimize collateral casualties among noncombatants.

This brings the author to the second critical legal standard on the use of force – the core issue of properly defining and identifying legitimate targets. Here he offers a “criteria-based decision-making process,” a complex intellectual enterprise, reflecting multiple imperatives (law, policy, morality, and operations), and pertinent expectations of both national and international law. Above all, we can learn here that a policy of targeted killing is permissible only if a legitimate target, a direct participant, and self-defense are all “narrowly defined and specifically applied.”

By its very nature this is not an easy subject to write about, especially where the core genre is intended to be very conspicuously jurisprudential. It is, after all, difficult for any civilized people to acknowledge self-defense imperatives that could allow killing as remediation. Nonetheless, Guiora is right that “The fog of operational counterterrorism has replaced the relative clarity of traditional war,” and that “It is both moral and legal to kill a terrorist when that is the only recourse to prevent him/her from killing innocent individuals.”

For this reviewer, who writes extensively on assassination, the most interesting aspect of Professor Guiora’s excellent book is perhaps his precise and meaningful distinction between assassination and targeted killing. In claiming they are not the same, he is able to sharpen and refine relevant decisional options. He is also on very solid ground in distinguishing targeted killing from extrajudicial execution. The latter reflects any government policy to kill presumed enemies of the state as a means of punishment, and not, looking forward, for national self-defense.

Almost immediately, these vital distinctions brought to my mind the relatively recent case of Anwar al-Awlaki, an American citizen successfully targeted for execution by a CIA drone in Yemen. By definition, this was (and remains) an exceedingly complex legal and moral case, especially because it has involved the very subtle and intersecting tributaries of both U.S. law and international law.

For the most part, as Guiora acknowledges, public discussion of the case has focused on the legality of killing an American citizen without “due process of law,” in other words, entirely on the domestic legal aspects.

Interestingly, however, from a purely international law perspective, says Guiora, the killing was also problematic. In other words, despite U.S. Attorney General Holder’s March 5, 2012, justification of the killing under U.S. law, there is ample evidence that al-Awlaki was eliminated not because of his potential involvement in anti-American terrorism but merely as “payback” for his past acts. Using Professor Guiora’s specific targeted killing paradigm, it would appear doubtful that reliable intelligence had pointed to any al-Awlaki involvement in future terrorist activity. Hence, within the author’s own template of evaluation, the presumably exclusive U.S. focus here on retributive justice was both immoral, and in evident violation of international law.

The very last paragraphs of Guiora’s book deal with Iran, arguably an authentically existential issue for Israel and also a major security concern for the United States. As chair of Project Daniel in Israel in 2003, I have been personally interested, for more than a decade, in all permissible self-defense options that might still be available to Jerusalem and Washington in the uniquely difficult matter of Iran. Now, despite President Obama’s initial but altogether tentative success in bringing Tehran into the diplomatic fold, it is nonetheless still obvious that Iran remains fully determined to proceed with its long-term policy of nuclear military development.

What, if anything, can be done to stop, or even slow down, this development, by means of a criteria-based approach to targeted killing? In the past, it is plausible that Israel resorted to certain uses of targeted killing as preemptive self-defense, most likely, in its very early days, against German scientists then making rockets for Egypt, and later against French scientists working for Saddam Hussein’s Osiraq effort in Iraq. Indeed, it would seem that Israel may even have made some relatively recent use of this same strategy against selected nuclear scientists in Iran.

On Iran, Professor Guiora’s targeting paradigm is quite clear and relatively promising. From the standpoint of “proportionality,” for example, Israel should have little to worry about. After all, identifying an individual or individuals in Iran who could sometime acquire enough power to annihilate Israel altogether is, prima facie, legitimate. This legitimacy could be enhanced, moreover, by recalling Iran’s openly genocidal threats against Israel, over the past dozen or so years.

Also plainly on the mark is Guiora’s assertion that a valid application of targeted killing, one that is both proportionate, and attentive to the minimization of collateral harms, would be “preferable from an operational perspective to full military engagement fraught with extraordinary unknowns.” In other words, the author alleges, it would be far more sensible (and hence, more lawful) to keep Iran from “going nuclear” by selectively killing a small number of critical individuals, than by occasioning the deaths of thousands or even tens of thousands of ordinary soldiers and civilians in war. And this rationale would be enhanced, rather than diminished, to the extent that the targeting state’s objective was “to postpone, rather than prevent,” an Iranian bomb.

This last point is subtle, yet relevant and compelling. By reducing the ambitiousness of the strategic objective – in this case, from stopping the bomb to merely slowing it down – the state that embarks on a targeted killing approach to Iranian nuclearization would, by definition, reduce the prospects for incurring mission failure. In turn, this would also mean raising the expected benefits of all associated risks. Of course, in this particular case, the legal argument for resorting to any policy of targeted killing in Iran could be strengthened; yet, this policy would still not have any meaningfully direct or long-term bearing on actually removing the existential nuclear threat.

International law is not a suicide pact. In Legitimate Target, Amos Guiora has articulated and defended an impressively nuanced strategy of preemptive self-defense. Although it is always difficult to support any sort of killing as remediation in human affairs, Guiora has managed to do this admirably, effectively, and with commendable erudition. It follows that his latest book, part of Oxford’s Terrorism and Global Justice Series, should now be read with attention and care, especially in Jerusalem and Washington.

About the Author: Louis René Beres (Ph.D., Princeton, 1971) is professor of political science and international law at Purdue University and the author of many books and articles dealing with international relations and strategic studies.


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