Targeted Killings</Em>

View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Michigan School of Law Michigan Journal of International Law Volume 39 Issue 2 2018 Targeting the Targeted Killings Case - International Lawmaking in Domestic Contexts Yahli Shereshevsky Hebrew University of Jerusalem Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Comparative and Foreign Law Commons, International Humanitarian Law Commons, and the Military, War, and Peace Commons Recommended Citation Yahli Shereshevsky, Targeting the Targeted Killings Case - International Lawmaking in Domestic Contexts, 39 MICH. J. INT'L L. 241 (2018). Available at: https://repository.law.umich.edu/mjil/vol39/iss2/4 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. TARGETING THE TARGETED KILLINGS CASE – INTERNATIONAL LAWMAKING IN DOMESTIC CONTEXTS Yahli Shereshevsky* INTRODUCTION ................................................. 242 I. THE DEBATE OVER TARGETED KILLINGS ............... 244 A. Three Main Controversies in the International Law Debate over Targeted Killings ....................... 244 B. Targeted Killings in Israel: From the Targeted Killings Case to the 2014 Gaza Conflict ............. 247 1. The Targeted Killings Case ..................... 247 2. The 2014 Gaza Conflict Report ................. 249 II. THREE COMPLEMENTARY EXPLANATIONS FOR THE ADOPTION OF THE FORMAL MEMBERSHIP APPROACH: JUDICIAL DEFERENCE, THE U.S. LEGAL POSITION AND THE INTERPRETIVE COMMUNITY OF MILITARY LAWYERS, AND A PRESSING NEED ................................. 254 A. The ISC’s Deference in Conduct of Hostilities Cases . 255 1. The Move from Activism to Deference in Conduct of Hostilities Cases .................... 255 2. Explaining the Change in the ISC’s Attitude .... 259 a. Explanations of the Court’s Role in the First Period ...................................... 259 b. Possible Explanations for the Change in the Court’s Behavior ........................... 260 3. The ISC’s Deference and the 2014 Gaza Conflict Report ......................................... 267 B. Foreign Military Lawyers and the U.S. Administration Engagement in the Targeting Debate: The “Americanization” of the Israeli Approach ...... 267 1. The Double-edged Sword of Epistemic Communities and the Role of Transnational * Michigan Grotius Research Scholar, The University of Michigan Law School, and the Hebrew University of Jerusalem, Faculty of Law. I am very grateful to Yuval Shany and Steven Ratner for their guidance and support, and to Monica Hakimi and Rebecca Ingber for their challenging and insightful comments. I also wish to thank Gal Cohen, Erin Collins, Olga Frishman, Tamar Groswald Ozery, David Hughes, Rebecca Mignot-Mahdavi, Tal Mimran, Nadiv Mordechay, Julian Davis Mortenson, Lauren Nishimura, Deborah Pearlstein, Sandesh Sivakumaran, the participants of the 11th Annual Minerva-ICRC International Conference on Contemporary Challenges in International Humanitarian Law, and the participants of the 2nd Annual Revisiting the Role of International Law in National Security Workshop at Cardozo Law School for their useful suggestions and comments. 241 242 Michigan Journal of International Law [Vol. 39:241 Actors in the Internalization of International law............................................. 267 2. Foreign Military Lawyers’ Involvement in the Israeli Conduct of Hostilities Policy—from the Gaza Flotilla to the 2014 Gaza Conflict ......... 271 3. Summary ....................................... 274 C. Increasing Death Toll ............................... 275 III. CRITICAL ANALYSIS OF THE CASE FOR THE FORMAL MEMBERSHIP APPROACH ............................... 276 A. You Cannot Have the Normative Symmetry Cake and Eat It Too ..................................... 276 B. The Functional Membership Approach as an Alternative to the Formal Membership Approach under Normative Symmetry ......................... 279 CONCLUSION ................................................... 280 INTRODUCTION The targeting of members of non-state armed groups is perhaps the most debated legal issue in the law of contemporary asymmetric conflicts between states and non-state actors under International Humanitarian Law (IHL). The 2006 Targeted Killings case1 of the Israeli Supreme Court (ISC) is a key reference point in this debate. Recently, without much scholarly or public attention, the government of Israel, in its report on the summer 2014 conflict in Gaza (the 2014 Gaza Conflict Report), dramati- cally diverged from the Targeted Killings case’s definition of legitimate targets in asymmetric conflicts.2 The Targeted Killings case held a conduct- or functional membership-based approach to targeting. This approach allows only the targeting of those individuals who directly participate in the hostilities. The 2014 Gaza Conflict Report, on the other hand, holds a formal membership approach. This approach allows the targeting of all members of the relevant armed group, regardless of their role in the organization or their actual participation in the hostilities. This change widens the scope of legitimate targets in asymmetric conflicts, such as the conflict between the United States and ISIL or between Israel and Hamas, and could significantly influence the continuous debate between the com- peting approaches, in which the Targeted Killings case plays a major role. It signals an increasing support for the formal membership approach, which has thus far been explicitly endorsed only by the United States. This Article offers three complementary explanations for the decision of the Israeli administration to deviate from the ruling in the Targeted Killings case. The first explanation relates to the ISC’s willingness to apply judicial review in military operations cases. In addition to its significance 1. HCJ 769/02 Pub. Comm. Against Torture in Israel v. Gov’t of Israel (Targeted Killings) PD 62(1) 507 (2006) (Isr.). 2. STATE OF ISRAEL, THE 2014 GAZA CONFLICT: FACTUAL AND LEGAL ASPECTS (2015) [hereinafter 2014 GAZA CONFLICT REPORT]. Spring 2018] Targeting the Targeted Killings Case 243 for the debate over the substantive rules of asymmetric warfare, the Targeted Killings case serves as a symbol of the willingness to engage in extensive judicial review of a state’s conduct of hostilities policy. The ac- tivist role of the ISC in such cases from the late 1990s to 2008 was widely recognized, celebrated, and discussed in the international law literature. This Article suggests that the international law literature has ignored a countertrend in which, since 2009, the ISC has appeared to defer to the executive’s positions in conduct of hostilities cases. The court’s deference enabled the Israeli administration to deviate from the Targeted Killings case without fear of judicial intervention. In addition to the explanatory force of the ISC’s deference to the administration’s decision to adopt a formal membership approach, the analysis of the ISC’s cases offers a new theoretical insight on the complex identity of domestic courts as both national and international actors. When facing significant international pres- sure, domestic courts’ national identity might be enhanced, resulting in greater deference to the government’s position. Second, in recent years, the formal membership approach was openly endorsed by international military lawyers and the U.S. administration. This Article suggests that such endorsement of the formal membership approach has strengthened the ability of the Israeli administration to explicitly support it, in what I call the “Americanization” of the Israeli targeting position. This analysis offers a novel account of the relevance of interpretive communities to the internalization and development of international law. It suggests that transnational actors play a complex role that can push towards both limiting and legitimizing versions of international law. The analysis opens the “black box” of the state to show the struggle between different branches of government over the role of IHL in the regulation of asymmetric conflicts. This is part of a broader, universal debate regarding IHL and the role of international law’s interpretive communities in this struggle. Finally, the adoption of the formal membership approach serves the state interest of widening the scope of legitimate targets. While such interest is not unique to the Gaza 2014 conflict, and can generally explain the support for this approach, this Article suggests that the significant rise in the conflict’s death toll provides a stronger incentive for the explicit adoption of a broader definition of legitimate targets. This Article then criticizes the justification for the adoption of the formal membership approach to targeting. Proponents of the formal membership approach suggest that the application of this approach to armed group members is justified since soldiers can be targeted regardless of their role in the military. Thus, in order to adhere to the normative symmetry principle, namely, the equal application of IHL to all parties of the conflict, all members of armed groups should be targetable regardless of their role. This

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