Israel's Policy of Targeted Killing
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Repinted from Ethics & International Affairs 17,no.1. © 2003 by Carnegie Council on Ethics and International Affairs. DEBATE Israel’s Policy of Targeted Killing Steven R. David* ince the eruption of the second intifa- sense to emulate it. If Israeli policy is funda- da in September 2000,Israel has open- mentally flawed, however, better to under- Sly pursued a policy of targeted killing. stand that now, especially when voices The Israelis have identified, located, and demanding that terrorists be hunted down then killed alleged Palestinian terrorists with and killed have grown so loud. Either way, helicopter gunships, fighter aircraft, tanks, learning from the Israeli experience is cen- car bombs, booby traps, and bullets. tral to those seeking to combat the threat Approximately eighty Palestinian militants from terrorism. and about fifty innocent bystanders have If it can be directed against military, albeit been killed through fall 2002,prompting irregular, combatants as opposed to political international condemnation, domestic soul- adversaries as determined by a formal, open searching, and bloody retaliation.1 Given its process, targeted killing is acceptable under controversial nature and obvious costs, it is the international law governing warfare. worth considering whether this policy is Targeted killing has not appreciably dimin- defensible. Why has Israel embarked on a ished the costs of terrorist attacks and may policy of targeted killing? Has the policy have, in the short term, even increased them. been effective in reducing Palestinian But if those targeted cannot or will not be attacks on Israeli civilians? Is targeted killing apprehended by the Palestinian Authority permitted by Israeli and international law? (PA) or the Israeli armed forces, the policy is Can it be justified in moral terms? the only way to mete out justice to perpetra- For Israel, it is necessary to know whether tors of violence against Israeli civilians. Over its policy is pragmatically and ethically jus- the long term, the policy may reduce the tified. If it is, it makes sense for Israel to con- capacity of terrorist networks to carry out tinue this approach. If there are serious attacks. So long as Israel’s adversaries target shortcomings, they need to be highlighted civilians as a prime goal of their operations, so that the policy can be modified or dis- carded. For countries other than Israel, and * especially the United States, assessing the This paper is adapted from Steven R. David, “Fatal Choices: Israel’s Policy of Targeted Killing,” Mideast worth of targeted killings is hardly less sig- Security and Policy Studies,no.51 (Ramat, Israel: The nificant. Ever since September 11,much of Begin-Sadat Center for Strategic Studies, Bar-Ilan Uni- the world, with the United States in the lead, versity, 2002). 1 Karin Laub, “‘Targeted Killings’ Claim Civilians,” has sought ways to counter terrorism. If the Associated Press, September 27, 2002;available at Israelis have a successful approach, it makes www.acj.org/Daily%20News/Sep_02/Index.htm#1. 111 the Israeli government will have little choice This executive order has been reaffirmed but to continue this practice. by each succeeding American president. Although pertaining only to the United THE NORM AGAINST ASSASSINATION States, given America’s leading role in the world, the executive order contributed to Targeted killing is the intentional slaying of the general agreement that assassination is a specific individual or group of individuals unacceptable.2 undertaken with explicit governmental There is a consensus that assassination approval. Whether targeted killing consti- violates international law, but the Israeli tutes assassination is a critical issue not only policy of targeted killing can be distin- because of the pejorative connotation of guished from assassination. There is no assassination, but because both internation- universally accepted legal definition of al treaty and customary law outlaw assassi- assassination, but there is general agreement nation. The 1937 Convention for the that it involves the killing of a specific indi- Prevention and Repression of Terrorism, the vidual who is politically prominent and who UN Charter, and the 1973 New York Con- is targeted because of that prominence. vention on the Prevention and Punishment Assassination also customarily involves the of Crimes Against Internationally Protected use of treacherous means to carry out the Persons, Including Diplomatic Agents, are killing. And targeted killing of an individual prominent examples of efforts undertaken by the state has more often been understood to codify the illegality of assassination. as assassination when the countries involved Philosophical and political norms against are at peace.3 assassination have been even more influen- The question of whether Israel is at war or tial than written law. The notion that assas- engaged in armed conflict is not easily sination is not an accepted practice of answered. As the head of the international statecraft became prominent with the writ- law branch of the Israeli army’s legal division ings of Hugo Grotius and Emmerich de Vat- remarked, “International law actually only tel in the seventeenth and eighteenth recognizes two situations: peace or war. But centuries. The prohibition against assassina- life isn’t as simple. Israel is not at war since tion was strengthened in the mid-1970s fol- war is between two armies or two states and lowing congressional investigations into the Palestinians have neither. But since Israel activities by American intelligence agencies. is in armed conflict with Palestinians, you are The Church and Pike congressional com- allowed to target combatants.”4 If it is accept- mittees were outraged by CIA efforts to assassinate several world leaders, including 2 See, e.g., Ward Thomas, The Ethics of Destruction: Patrice Lumumba of the Congo and Cuba’s Norms and Force in International Relations (Ithaca, Fidel Castro. The committees’ findings led N.Y.: Cornell University Press, 2001), p. 49; and Tim President Gerald Ford to issue an executive Weiner, “Rethinking the Ban on Political Assassina- tions,” New York Times,August 30, 1998,sec.4,p.3. order in 1976 prohibiting assassination or 3 See Michael N. Schmitt, “State-Sponsored Assassina- the conspiracy to commit assassination by tion in International and Domestic Law,” Yale Journal employees of the U.S. government, which of International Law 17,no.2 (1992), pp. 632–42; and Thomas, The Ethics of Destruction. was broadened by President Jimmy Carter 4 Tim Weiner,“Making Rules in the World Between War in 1978 to include those acting on its behalf. and Peace,” New York Times,August 19, 2001,pp.A1,A4. 112 Steven R. David ed that Israel is in fact engaged in armed con- ly and admittedly killed by the United States flict with terrorists, then its policy of target- in its ongoing war against terrorism.7 ed killing becomes legally defensible. Law The legal question also rests on whether professor John Norton Moore explains, “If Israel is using treacherous means when it one is lawfully engaged in armed hostility, it kills suspected terrorists. Since assassination is not ‘assassination’ to target individuals is defined as “murder by treacherous who are combatants.” American military means,” how one is killed is as important as lawyer Charles J. Dunlap, Jr., agrees: “Con- who is killed. Politically, the question of trary to popular belief, neither international what constitutes treachery can be decisive in law nor U.S. domestic law prohibits the determining whether a killing is justifiable. killing of those directing armed forces in war. The United States had little trouble defend- Nations have the right under international ing its efforts to kill Muammar al-Qaddafi in law to use force against terrorists.”5 1986 or Osama bin Laden in 1998 using All states are afforded the general right of bombs and cruise missiles. Precisely because self-defense as affirmed in Article 51 of the they were military operations and not car- UN Charter. This right is consistent with ried out under false pretenses, the ban Israel’s obligations under the 1993 Oslo against assassination did not apply. Similar- Accords and international law concerning ly, if the United States makes war on Iraq and the obligations of occupying powers. When kills Saddam Hussein in a bombing raid, it a state is negotiating with a political body in would not be considered assassination. an occupied territory, in this case the PA, In some of their killings, the Israelis have that will not or cannot stop those who used deception, disguising themselves as threaten its security, international law allows women or Arabs to facilitate getting to their it to take steps necessary to protect itself.6 targets. Not all the killings have been justifi- Just as a soldier can legally fire on an oppos- able, but the point here is to outline a policy ing army in wartime before it attacks, so that would pass legal muster. What distin- Israel is legally justified in preemptively guishes many of the killings in the second killing terrorists, even if they are not in the intifada from those in the past is their open act or have not previously attacked Israel. and military nature. Although it has some- War—or armed conflict—is a legal license times involved greater collateral damage, the to kill whether it is targeted killing or more use of helicopter gunships or F-16s to kill sus- traditional combat. Israel is not alone in claiming the right to 5 Harry Levins, “Military Experts Debate Moral Rami- target individuals. The United States has fications of Killing Leaders,” St.Louis Post-Dispatch, August 3, 2001,p.A10. also adopted this view. Despite the executive 6 The failure of the PA to stop suicide bombings against order banning assassination, the Bush Israel is well documented. See Human Rights Watch, administration has reserved the right to kill Erased in a Moment: Suicide Bombing Attacks against those it believes are terrorists.