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.