web analytics
September 22, 2014 / 27 Elul, 5774
At a Glance
InDepth
Sponsored Post
Meir Panim with Soldiers 5774 Roundup: Year of Relief and Service for Israel’s Needy

Meir Panim implements programs that serve Israel’s neediest populations with respect and dignity. Meir Panim also coordinated care packages for families in the South during the Gaza War.



PRINT ARTICLE

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, strategic and military affairs columnist for The Jewish Press, is professor of Political Science at Purdue University. Educated at Princeton (Ph.D., 1971), he lectures and publishes widely on international relations and international law and is the author of ten major books in the field. In Israel, Professor Beres was chair of Project Daniel.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

No Responses to “On Targeted Killing and International Law”

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
ISIS Released Map
The Ally No One Wants In War Against ISIS: The Jews
Latest Indepth Stories
ISIS Released Map

Israel would love to be in the coalition,but it’s never going to happen, because, in the end, most of America’s allies would walk away if Israel were on board officially.

IDF lone soldier and  David Menachem Gordon (z"l).

Why has his death been treated by some as an invitation for an emotional “autopsy”?

Starck-091914

SWOT analysis: Assessing resources, internal Strengths&Weaknesses; external Opportunities&Threats.

Kohn-091914

Strategy? For the longest time Obama couldn’t be bothered to have one against a sworn enemy.

Seventeen visual skills are needed for success in school, sports, and everyday life.

We started The Jewish Press. Arnie was an integral part of the paper.

Fear alone is substantial; without fusing it to beauty, fear doesn’t reach its highest potential.

Fortunate are we to have Rosh Hashanah for repentance, a shofar to awaken heavenly mercy.

Arab leaders who want the US to stop Islamic State are afraid of being dubbed traitors and US agents

National Lawyers Guild:Sworn enemy of Israel & the legal arm of Palestinian terrorism since the ’70s

A little less than 10 percent of eligible Democratic voters came out on primary day, which translates into Mr. Cuomo having received the support of 6.2 percent of registered Democrats.

The reality, though, is that the Israeli “war crimes” scenario will likely be played out among highly partisan UN agencies, NGOs, and perhaps even the International Criminal Court.

Peace or the lack of it between Israel and the Palestinians matters not one whit when it comes to the long-term agenda of ISIS and other Islamists, nor does it affect any of the long-running inter-Arab conflicts and wars.

Rather than serving as a deterrent against terrorist attacks, Israel’s military strength and capabilities are instead looked at as an unfair advantage in the asymmetrical war in which it finds itself.

More Articles from Louis Rene Beres
Louis Rene Beres

President Obama’s core argument on a Middle East peace process is still founded on incorrect assumptions.

Louis Rene Beres

Once upon a time in America, every adult could recite at least some Spenglerian theory of decline.

President Obama’s core argument is still founded on incorrect assumptions.

Specific strategic lessons from the Bar Kokhba rebellion.

Still facing an effectively unhindered nuclear threat from Iran, Israel will soon need to choose between two strategic options.

For states, as for individuals, fear and reality go together naturally.

So much of the struggle between Israel and the Arabs continues to concern space.

An undifferentiated or across-the-board commitment to nuclear ambiguity could prove harmful to Israel’s’s overall security.

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/on-targeted-killing-and-international-law/2013/11/21/

Scan this QR code to visit this page online: