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Home , Ahmed Yassin, Assassination, Passover massacre, Second Intifada, Targeted killing

Repinted from Ethics & International Affairs 17,no.1. © 2003 by Carnegie Council on Ethics and International Affairs.

DEBATE ’s Policy of Steven R. *

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 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, , 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 . 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 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 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 , assessing the This paper is adapted from Steven R. David, “Fatal Choices: Israel’s Policy of Targeted Killing,” Mideast worth of 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 , 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 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 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 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 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 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: of the Congo and Cuba’s Norms and Force in International Relations (Ithaca, . The committees’ findings led N.Y.: Cornell University Press, 2001), p. 49; and Tim President 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 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 “ 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 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 , 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 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 , disguising themselves as threaten its security, international law allows women or 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 bombings against order banning assassination, the Bush Israel is well documented. See , administration has reserved the right to kill Erased in a Moment: Suicide Bombing Attacks against those it believes are terrorists. Strikes are Israeli Citizens (New York: Human Rights Watch, 2002). 7 “Fleischer Backs Hussein’s Slaying: ‘One Bullet’ Less authorized by a collection of classified pres- Costly than War, Bush Spokesman Says,” Washington idential findings, legal opinions, and policy Post,October 2, 2002,p.A12;David Johnston and David directives, some of which predate the Sep- E. Sanger,“Fatal Strike in Was Based on Rules Set Out by Bush,” New York Times,November 6, 2002,p.A1; tember 11, 2001, attacks. At least two senior and Eric Schmitt,“U.S.Would Use Drones to Attack Iraqi operatives of al-Qaeda have been deliberate- Targets,” New York Times,November 6, 2002,p.A14.

israel’s policy of targeted killing 113 pected terrorists has fit the conventional rationale mirrors the Israeli justification modes of warfare more than the shadowy, for targeted killing. deceitful world that characterizes assassina- In sum, in the majority of cases during the tions.As such, international lawyers may dis- , the Israeli policy of targeted approve of the Israeli actions, but so long as killing has not been tantamount to assassi- conventional military means are employed nation because Israel is engaged in armed to kill those engaged in terrorism, few would conflict with terrorists, those targeted are argue they violate the ban on assassination.8 often killed by conventional military means, Finally, for targeted killing to be legal, and the targets of the attacks are mostly the targets must be combatants. Under the combatants or are part of the military chain laws of war and armed conflict, combatants of command. In those cases in which the tar- are subject to attack, raising the question of geted killings did not fit these criteria, they just what constitutes a combatant. It is true may indeed be considered . that the Palestinians, lacking a state, do not Nevertheless, the thrust of the Israeli prac- field a regular army with uniformed sol- tice of targeted killing is consistent with a diers. This does not mean, however, that country’s right to target specific individuals terrorists cannot be considered combat- in the pursuit of self-defense and is thus not ants. What is critical is whether the objects a policy of assassination. of the targeted killings pose an armed Within Israel, targeted killing is not a threat to Israeli security. If they do, then secret, extralegal policy. There is a body of they are combatants, regardless of whether case law within the Israeli courts concerning they wear a uniform. Since most of the tar- the policy, and the general finding has been gets of Israeli strikes have been members of that it can be carried out in a legal way. It is militant organizations that call for the true that Israel does not allow capital punish- destruction of Israel through military ment for its citizens. It is also true that Israel’s struggle, they present an armed threat and Basic Law: Human Dignity and Liberty, are subject to attack. Moreover, most adopted in 1992, guarantees that “There shall experts on international law argue that be no violation of the life, body or dignity of even civilians can be considered combat- any person as such.” However, the Basic Law ants if they are part of the military chain of does allow these rights to be suspended “by a command that poses a threat to your coun- law fitting the values of the State of Israel, try.9 Here again the United States appears to be supportive of Israeli policy in deed, 8 For general discussions of why conventional attacks though not in word. In November 2002, the on individuals during armed conflict do not consti- tute assassination, see Schmitt, “State-Sponsored United States used an unmanned Predator Assassination in International and Domestic Law”; aircraft to launch a missile that killed a and Patricia Zengel, “Assassination and the Law of senior al-Qaeda operative traveling with Armed Conflict,” Mercer Law Review 43 (1991), p. 627. five associates by car in Yemen. In com- I am grateful to Ward Thomas for alerting me to these citations. menting on the killing, a Pentagon official 9 See, e.g., Louis R. Beres, “The Permissibility of State- remarked, “We’re at war with Al Qaeda. If Sponsored Assassination During Peace and War,” Tem- we find an enemy combatant, then we ple International and Comparative Law Journal 5,no.2 (1991), p. 237. should be able to use military forces to take 10 James Risen,“CIA is Reported to Kill a Leader of Qaeda 10 military action against them.” This in Yemen,” New York Times,November 5, 2002,p.A1.

114 Steven R. David designed for a proper purpose, and to an harm done to innocents. The support of extent no greater than required or by such a assassination dropped precipitously, howev- law enacted with explicit authorization there- er, in the 1600s. Both in terms of rhetoric in.”Israeli law has allowed for just such a sus- and practice, assassination became frowned pension. In February 2002 Menachem upon. The norm against assassination Finkelstein, the judge advocate general of the became so strong that even as odious a char- Israeli Defense Forces (IDF), issued three acter as was not seen as a legit- conditions under which targeted killing can imate target by the British, who deemed any take place. Before suspected terrorists are effort to kill him unsportsmanlike.12 killed the PA must first ignore appeals for What changed? According to Ward their arrest, the Israelis must conclude that Thomas, norms stem not only from moral they would be unable to arrest the individu- considerations, but also from the interests of als themselves, and the killing must be done the great powers. Moral concerns regarding to prevent an imminent or future terrorist assassination existed before the seventeenth attack—not for or retribution. The century, but so long as assassination served the Israeli High Court has supported these con- interests of the major states, those concerns ditions in a strongly worded opinion on Jan- did not constitute a norm against its practice. uary 29, 2002, that rejected petitions calling The rise of the sovereign state and the begin- for an end to targeted killing. Provided these nings of the mass army in the mid-1600s conditions are followed, targeted killing is changed the thinking about the acceptability consistent with Israeli law.11 of assassination.By limiting legitimate conflict Norms are broad guidelines of behavior to clashes of large military forces, the leaders of that are largely followed by states and other the great powers established rules that actors. There is no established norm against increased their advantages while sidelining the targeted killing, but there is one against weaker states that could not muster mass assassination. Although there is a substantial armies. Similarly, the norm against assassina- difference between the two concepts, they are tion protected leaders of great powers by related in public perceptions. Understanding depriving the weak of an instrument that the difficulty Israel has had in justifying the allowed them to threaten those leaders. So practice of targeted killing stems, in part, long as there was general agreement that the from the norm against assassination. More way to resolve violent conflicts was through important, continued Israeli employment of conventional war and that assassination was targeted killing can work to erode that norm unacceptable,the hierarchy of the internation- in people’s minds, with negative conse- al system and the interests of the leaders of the quences for Israel and the world community. major powers would be preserved.13 The norm against assassination is rela- tively new. Before the seventeenth century, 11 assassination was regarded as a normal Amos Harel and Gideon Alon,“IDF Lawyers Set ‘Con- ditions’ for Selective Assassination Policy,” Ha’aretz, means for states to conduct their business, February 4, 2002;available at www.haaretzdaily.com/ similar to diplomacy and war. Statesmen, hasen/pages/ShArt.jhtml?itemNo=125404; and Muham- philosophers, and even the mad Baraka v. the Prime Minister and the Minister of Defense, HCJ 5872/01. approved of the practice as a method for 12 See Ward Thomas, The Ethics of Destruction,pp.56, 60. states to pursue their interests while limiting 13 Ibid., pp. 60–62.

israel’s policy of targeted killing 115 The reasons for the emergence of the Norms may not be determinative, but nei- norm against assassination illustrate some ther are they irrelevant. Rather than simply of the costs Israel could be expected to bear disregarding norms because they interfere if the norm were eroded. Assassination is a with its war on terrorism, Israel needs to act of the weak. It benefits those with in a way that preserves its right of self- limited resources but fanatical devotion to a defense without bringing about future harm cause. In other words, it plays to Palestinian to itself and the international community. strengths. So long as conventional military The emergence of new laws and institutions operations hold sway, Israel is in an unas- to deal with war crimes will be an addition- sailable position. Its use of multimillion- al constraint on Israeli behavior. In fighting dollar jet fighters and modern tanks terrorism, Israel and other states will have to manned by trained crews makes it the play by new rules, but no state, especially strongest power in the Middle East. But one that is not a great power, such as Israel, when the arena switches to the world of is totally free in acting against the wishes of assassination, young men and women the international community. armed with a couple of hundred dollars of explosives and eager to achieve martyrdom THE SECOND INTIFADA are able to inflict grievous harm on Israel. Insofar as Israel erodes the norm against The policy of targeted killing is not entire- assassination, it transforms the rules of con- ly new. Three major efforts at targeted flict in a manner that benefits its most fer- killing took place in the 1990s. The first vent adversaries. operation killed Palestinian Islamic It is of course true that norms do not head Fathi Shikaki in Malta in October determine behavior. Terrorists, almost by 1995.No competent successor emerged to definition, are not constrained by established replace Shikaki, producing disarray in norms. The long history of plane hijackings Islamic Jihad.14 In January 1996 Yahya and other attacks against civilians by terror- Ayyash was killed in Gaza while speaking ists gives testimony to their willingness to on a mobile telephone that had been violate established codes of conduct. In con- booby-trapped by the Israeli domestic fronting this problem, states have also had to , . Ayyash had depart from the usual norms. Terrorists typ- been one of ’s most skilled and pro- ically do not appear in identifiable uniforms lific bomb makers whose handiwork or hold clear swaths of territory, making proved critical to many terrorist attacks conventional responses to their threats all against Israel. Ayyash’s death, however, but impossible. Insofar as Israel and other also unleashed four suicide bus bombings states make war on terrorism, traditional in the next two months, killing more than norms of combat will have to change. fifty Israelis. Finally, in an embarrassing, These changes may not all be to Israel’s almost comic episode, the Israelis failed to and other countries’ benefit. When a major kill Khaled Meshal, the chief of Hamas’s regional power such as Israel openly pro- claims its right to pursue a policy of target- 14 Michael Eisenstadt, “‘Pre-Emptive Targeted Killings’ ed killing, it helps to create a new standard as a Counter-Terror Tool: An Assessment of Israel’s of behavior that may work to its detriment. Approach,” Peacewatch,August 28, 2001,p.1.

116 Steven R. David political bureau in Amman, in September ously, although it still refuses routinely to 1997.Two agents succeeded in poi- claim responsibility for its operations.17 soning Meshal, but were captured by Jor- The specific procedures for determining danian authorities before they could leave who is to be targeted have not been made . In order to secure the return of the public, but an overall sense of how these two operatives, Israeli prime minister Ben- decisions are made has emerged. Typically, jamin Netanyahu agreed to provide the Israeli intelligence agencies, often relying on antidote for the and released the testimony of collaborators, will identify Hamas’s founder, Sheik , individuals who pose a terrorist threat. The from an Israeli prison. As a result of this agencies prepare a report detailing the past episode, Israel damaged its relations with activities of the suspect and assess the poten- Jordan and infuriated Canada when it was tial for him or her to engage in future attacks. revealed that the Mossad agents had used This information is evaluated by a group in Canadian passports.15 the Israeli Defense Forces that includes the A wave of targeted killing began in commander of the region and military November 2000 as a response to the second lawyers. A recommendation is then made to Palestinian intifada. Following the failure of the chief of staff. If the recommendation is to the in the summer of target the individual, the Israeli cabinet is 2000 and Israeli prime minister Ariel brought in to approve or disapprove of the Sharon’s visit to the in late action. Once approval is given, the IDF usu- September, the Palestinians unleashed a vio- ally does not seek additional approval to lent revolt against Israel. While in the first make the strike. However, if innocent casual- intifada the ratio of Palestinians to Israelis ties could occur as a result of the operation, killed was roughly twenty-five to one, well- the IDF will again seek the approval of the armed Palestinian groups making use of sui- minister of defense and the prime minister cide bombers had now reduced that before launching the attack. The operations proportion to three to one.16 Israel respond- are carried out by specially trained forces, ed to these increasingly lethal attacks with not the regular military. The Israelis claim military incursions into Palestinian con- that they only target those who are on their trolled areas, increased use of checkpoints to way to a terrorist attack or are actively plan- control Palestinian movements, the reoccu- ning one. During the early months of the pation of the , and a dramatic rise second intifada, when the Israelis had ongo- in the slaying of Palestinian militants. ing talks with the PA, they would first hand What was new during the second intifada over a list to the PA of the suspected terror- was the scale of the effort—never have so ists for apprehension. If the PA did not arrest many been killed in such a short span of the individuals, and Israel determined that it time. Also new were some of the tactics, par- ticularly the use of helicopters and war- 15 Barton Gellman, “For Many Israelis, Assassination Is planes. Because of the extent of the Only as Bad as Its Execution,”Washington Post,October campaign and the obvious use of Israeli mil- 12, 1997,p.A1. 16 itary forces, the Israeli government has been James Bennet, “Mideast Balance Sheet,” New York Times,March 12, 2002,p.A1. forced to acknowledge its role in targeted 17 Samantha M. Shapiro, “Announced Assassinations,” killings to a much greater extent than previ- New York Times Magazine,December 9, 2001,p.54.

israel’s policy of targeted killing 117 could not arrest them, they were killed.18 It is not difficult to understand why tar- Once talks broke down with the PA in the geted killing has not been more effective. spring of 2002, it has not been clear if the Organizations promoting terrorism against Israelis attempted to provide a list for the Israel such as Hamas, Islamic Jihad, and the Palestinians before taking action. al-Aqsa Martyrs Brigades, a paramilitary Several high-ranking Palestinians have offshoot of PA chairman Yasir Arafat’s been killed during the second intifada. They faction, are very decentralized. They are include the head of the Popular Front for the made up of many cells, the destruction of Liberation of , , one some having little or no impact on others. of the leaders of the movement,Raed Moreover, the number of young men and al-Karmi, and a senior official of Hamas, women who are willing to be suicide Salah Shahada. Most of those killed, howev- bombers appears to be practically limitless. er, were mid-level fighters, important Outfitting these self-described martyrs with enough to disrupt a terrorist cell but not so primitive bombs capable of wreaking mur- important as to provoke retaliation.19 The derous appears to be relatively easy. targets of the attack usually knew they were There is also no doubt that targeted killing, being sought.It is not known how many mis- at least in some instances, increases the ter- takes Israel has made by targeting the wrong rorist threat against Israel by producing individual because Israel usually does not retaliation. The killings of Ayyash, Karmi, acknowledge such mishaps. Given that the and Shahada all resulted in dramatic escala- decision to kill individuals is made without a tions in attacks against Israelis with revenge trial, there is little question that innocent explicitly cited as the motivation. Targeted people are sometimes slain. In addition, even killing also hurts Israeli interests by remov- when the right individual is targeted, inno- ing current adversaries who may prove to be cent bystanders are often killed in the opera- useful negotiating partners in the future. On tions. Nevertheless, most of those killed are many occasions, Israeli leaders have publicly acknowledged, or celebrated, as having been lamented the lack of moderate, pragmatic active anti-Israeli fighters. Palestinian leaders with whom they could negotiate. It is a problem that the Israeli pol- IS TARGETED KILLING EFFECTIVE? icy of targeted killing is partially responsible for creating. For example, when Israel killed There are strong arguments that targeted Arafat’s second in command, Abu Jihad, in killing is an ineffective and possibly harmful 1988 it eliminated not only an individual policy. During the second intifada, Israel behind several bloody operations, but also embarked on more targeted killings than at someone on the right wing of the Palestin- any time in its history. At the same time, ian Liberation Organization whom many record numbers of Israeli civilians have saw as a pragmatist capable of making become victims of Palestinian attacks. It is peaceful compromises. possible that even more Israeli civilians would have been killed if not for the policy 18 of targeted killing, but given the roughly 600 Harel and Alon, “IDF Lawyers Set ‘Conditions’ for Selective Assassination Policy”; and Shapiro,“Announced Israelis killed, it is clear that targeted killing Assassinations,”p. 54. has been unable to stop terrorism. 19 Shapiro, “Announced Assassinations,”p. 54.

118 Steven R. David By diverting scarce resources away from the exceedingly difficult for Israel to defend or collection and analysis of intelligence on the deter terror attacks from Palestinians. In threat posed by adversarial states, Israel runs terms of defense, there are literally tens of the risk of paying less attention to existential thousands of targets in Israel for Palestin- threats in order to combat pressing but less- ian terrorists. Power stations, government than-vital challenges to its security. Following bureaus, bus depots, airports, skyscrapers, the 1972 Munich Olympics, Israel focused open-air markets, sport stadiums—the list much of the attention of its intelligence serv- is endless. It is impossible to defend them ices on hunting down the terrorist organiza- all, especially against a determined adver- tion Black September. This effort may have sary that can choose the time and place of led, in part, to diverting Israel’s attention away attack. Although some level of deterrence from the growing threat posed by and of terrorism is achievable, dissuading , which led Israel to being caught by sur- potential terrorists is not easy when they prise at the outbreak of the 1973 Yom Kippur are eager to die for their cause. In such sit- War.20 Even where the effect is not so grave, uations, the best response to terrorism is to targeted killing can hurt Israel’s ability to eliminate the threat before it can be gather critical intelligence. Locating and launched. One of the most successful killing key Palestinian terrorists requires time- means of eliminating terrorists before they ly intelligence, much of which can only be can strike is targeted killing.22 supplied by informers. Given that a limited Israel has achieved some notable success- number of people will know the whereabouts es in its policy of targeted killing. In the of the targets, it will not be difficult to isolate 1950s, terrorist infiltration from Egypt less- those who have collaborated with Israel. ened as a result of the killing of Egyptian Increasing reports of informers being killed intelligence officers in charge of the opera- during the second intifada may partly be a tion. In the 1960s, Egyptian president result of their identities becoming known as a Gamal Abd al-Nasser’s plan to build ballis- result of the targeted killing policy.21 Finally, tic missiles capable of reaching Israel col- Israel’s policy has been condemned by Arab lapsed when his German scientists fled in countries, Europe, the , and the wake of Israeli mail bomb attacks. Black even the United States.Clearly,targeted killing September was all but destroyed as a func- is a policy with serious shortcomings. tioning terrorist organization in the 1970s following the Israeli campaign to avenge the UPROOTING TERRORIST Munich . The 1995 assassination of NETWORKS Islamic Jihad leader Shikaki undermined

There are nonetheless strong arguments supporting the effectiveness of targeted 20 Dan Raviv and , Every Spy a Prince: The killing. There is little question that Israel’s Complete ’s Intelligence Community (Boston: Houghton Mifflin, 1990), p. 194. policy has hurt the capability of its adver- 21 Joel Brinkley,“Israel Promises a Pullback as Death Toll saries to prosecute attacks. Terrorism is Keeps Rising,” New York Times,March 15, 2002,p.A9. 22 essentially an offensive action, making For a similar view regarding dealing with terrorism in general, see Richard K. Betts,“The Soft Underbelly of counteroffensive actions such as targeted American Primacy: Tactical Advantages of Terror,” killing an especially effective response. It is Political Science Quarterly 117 (Spring 2002), p. 33.

israel’s policy of targeted killing 119 the effectiveness of this group for several Palestinians who have not been told they are years as successors struggled over policy being hunted, the very possibility they and power.23 might be targeted is likely to cause a change Several other benefits of Israel’s policy of in behavior. Time and effort undertaken to targeted killing became apparent from its avoid Israeli dragnets are time and effort not heightened practice during the second undertaken to plan or carry out operations. intifada. First, targeted killings have imped- Targeted killing also acts as a deterrent. ed the effectiveness of Palestinian terrorist Deterrence refers to the ability to persuade organizations where leadership, planning, someone not to do something they are and tactical skills are confined to a few key capable of doing by confronting them with individuals. There is a limited number of unacceptable punishment. It is distinct people who have the technical ability to from preventing someone from acting by make bombs and plan attacks. If these peo- hindering their ability to do so. Seen in this ple are eliminated, the ability to mount light, it appears virtually impossible to deter attacks is degraded. There is some evidence people willing and even eager to lose their that targeted killings have reduced the per- lives. After all, what punishment could be formance of terrorist operations. Israelis employed to dissuade suicidal attackers? estimate they stop over 80 percent of But behind every suicide bomber are others , and the incidence of poorly who might not be as ready for martyrdom, planned attacks, such as suicide bombers some of whom have shown signs that the who appear with wires sticking out of their policy is working. Prime Minister Sharon bags or detonations that occur with little met with three PA leaders on January 30, loss of life, indicates that there have been 2002.When he asked for their negotiating problems either with the organization of the position, first on their list was an end to tar- operations or with those available to carry geted killings.26 Islamic Jihad and Hamas them out. There are individual leaders agreed to refrain from launching attacks in whose charisma and organizational skills pre-1967 Israel in December 2001 so long as keep a group together. If they are eliminat- Israel refrained from killing its leaders. ed, they are not easily replaced.24 Although the cease-fire eventually broke Targeting killing also keeps potential down, their willingness to abide by the bombers and bomb makers on the run. When the Israelis informed the PA whom 23 See Nachman Ben-Yehuda, Political Assassinations by they were after, this information was often Jews: A Rhetorical Device for Justice (Albany: SUNY passed to the targeted individuals so that Press, 1993), pp. 304, 307, 318; and Eisenstadt,“‘Pre-Emp- tive Targeted Killings’ as a Counter-Terror Tool,”p. 1. they knew they were being hunted. Some 24 See Eisenstadt, “‘Pre-Emptive Targeted Killings’ as a voluntarily chose to place themselves in cus- Counter-Terror Tool,” p. 2; and Brian Michael Jenkins, tody to avoid being slain. The threat they Should Our Arsenal Against Terrorism Include Assassina- posed to Israel was consequently dimin- tion? (Santa Monica: Rand, 1987), p. 4. 25 See, e.g., the account of a target in Yael Stein,“Israel’s ished. There are numerous accounts of oth- Assassination Policy: Extra-Judicial Executions,” ers on the hit list taking precautions against B’Tselem position paper, trans. Maya Johnston being killed, such as sleeping in a different (: B’Tselem, January 2001), p. 6;available at www.btselem.org. location every night and not letting others 26 See William Safire, “Sharon Enters Armistice Talks,” 25 know their whereabouts. Even for those New York Times,February 4, 2002,p.A27.

120 Steven R. David cease-fire, even temporarily, indicates the has emphasized the need for armed conflict deterrent power of targeted killing. to be discriminate and proportionate in the In sum, the policy of targeted killing has pursuit of legitimate ends for the use of prevented some attacks against Israel, weak- force to be moral.27 Targeted killing can be ened the effectiveness of terrorist organiza- done in a way that meets these criteria. It is tions, kept potential bomb makers on the discriminate in that it upholds noncombat- run, and deterred terrorist operations. It has ant immunity and minimizes collateral not prevented all acts of terrorism, nor can damage. It is proportionate in that only it. But as part of a larger array of policies, enough force is used to accomplish the including blockades, checkpoints, and task. Targeted killings do not employ large incursions, it is a successful response to an numbers of troops, bombers, artillery, and intolerable threat. other means that can cause far more destruction than they prevent. And target- REVENGE, RETRIBUTION, AND ed killing serves a legitimate end by striking JUSTICE at those who threaten the lives of inno- cents. Since the policy is applied against Despite many problems, a policy of targeted those carrying out or assisting in terrorist killing makes sense for Israel for five reasons. attacks, targeted killing enables Israel to First is the question of morality. There is protect its civilians by eliminating those widespread agreement that targeted killing who would murder them. raises disturbing moral issues. After all, Targeted killing also serves Israel’s inter- Israel is killing individuals without any trial ests because it affords the Israeli public a cal- or due process. Innocent people are some- ibrated form of revenge. Revenge is seen by times killed in these operations. It offends many as a destructive and even evil motiva- the moral sensibilities of many when gov- tion that should be avoided at all costs. This ernment officials are reduced to the role of explains the 2002 decision by the IDF judge hit men, as if they were part of some crimi- advocate general that allowed targeted nal organization. The bedrock of Western killings but prohibited those undertaken for democracy established by liberal philoso- vengeance. But revenge is also a natural phers such as John Locke has been limited desire by an individual or society for obtain- government. How can that principle recon- ing justice when other means are not avail- cile itself with a government that deprives able. Achieving revenge can bring about a people of their life without proper judicial sense of fulfillment and justice for people proceedings? The moral squeamishness that who believe they have been wronged. Failing the policy entails is demonstrated by the to achieve revenge can lead to despair, frus- reluctance of Israel to comment on various tration, and anger. Politically, this can lead to killings for which it is clearly responsible. the downfall of governments unwilling or Its qualms notwithstanding, the Israeli unable to avenge attacks on its people. More policy of targeted killing, if it is carried out fundamentally, withstanding repeated attacks strictly against combatants in the legal sense outlined above, can be defended from a 27 See Michael Walzer, Just and Unjust : A Moral moral perspective. Just war tradition from Argument with Historical Illustrations (New York: Basic the time of Saint Augustine to the present Books, 1977).

israel’s policy of targeted killing 121 without responding can lead to a sense of motivated by deterrence or a need to satisfy impotence and malaise that could weaken a the demands of an aggrieved population. If society’s ability to protect itself. Israel, like it can be shown that deterrence will not be other states, has a moral right to exist. One enhanced by retaliation or that the commu- of the greatest immoralities a state can com- nity has no wish to strike back, retribution mit is to behave in a way that results in its still demands the punishment of the guilty. own destruction. Insofar as vengeance Retribution is driven by the belief that against terrorist acts contributes to Israel’s offenders need to be punished because such security by reassuring the public, its practice punishment is warranted. This concept of is morally justifiable. Revenge becomes just deserts is compellingly put forward by problematic when there are no guidelines for the theorist Michael Moore, who writes, how to act and against whom. If there is too “Retributivism is the view that punishment much space for arbitrary retaliation, revenge is justified by the moral culpability of those can indeed get out of hand and become dis- who receive it. A retributivist punishes ruptive. That is why states regulate and over- because, and only because the offender see the exercise of revenge. For domestic deserves it.”30 infractions, revenge is realized through the Israel’s policy of targeted killing, stripped rule of law. In the international realm, of its utilitarian justifications, is retribution, revenge is pursued through foreign policy, plain and simple. Palestinian suicide ranging from diplomatic rebukes to war.28 bombers seek out the most innocent of Israel’s use of targeted killing is a form of Israeli civilians—old men, women, and chil- controlled, state-sanctioned revenge. Since dren—and to kill as many of them the government decides who is to be killed as they can. Stopping these operations according to established criteria, the issue of before they can inflict their horrific harm is arbitrary retaliation is resolved. Because the of obvious importance and provides some killers of Israeli civilians are themselves of the justification for targeted killings. But killed, the desire for revenge from both fam- what of those who plan the attacks—arm ilies of the victims and the society at large is the bombers and send them on their way? met. Anger at the government is dissipated How are they to be punished? The PA claims as the perpetrators of terrorism receive as it is unable to stop the perpetrators, some of punishment the same fate as their victims. whom, such as those in the al-Aqsa Brigades, A July 2001 poll by the Tami Steinmetz Cen- have links to Arafat’s Fatah faction. Who, ter for Peace Research at University found that 70 percent of Israelis support 28 29 For an interesting discussion of revenge as it applies targeted killing. to , see Ernest van den Haag and Retribution is a further justification for John P. Conrad, The Death Penalty: A Debate (New the Israeli policy of targeted killing. Retribu- York: Plenum, 1983), pp. 247, 250. 29 tion, in its purest sense, has no utilitarian Ephraim Yaar and Tamar Hermann, “70% of Support Assassination Policy,” Ha’aretz,August 8, component. It is not motivated by vengeance. 2002;available at www.acj.org/august/August_8. Even if the victims do not care about the htm#11. 30 offense committed or are opposed to pun- Michael S. Moore, “The Moral Worth of Retribu- tion,” in Jeffrie G. Murphy, ed., Punishment and Reha- ishing the aggressors, punishment neverthe- bilitation, 3rd ed. (Belmont, Calif.: Wadsworth, 1994), less must be carried out. Nor is retribution pp. 94, 97.

122 Steven R. David then, aside from the Israelis, will provide the against terrorism.32 As discussed, Israel has just deserts to these terrorists? Even if the responded to Palestinian terrorism in sever- policy of targeted killing does not reduce al ways, all of which have major drawbacks. Israeli casualties, such a policy is justified Checkpoints humiliate and inconvenience because it is only through this approach that large numbers of the Palestinian popula- the terrorists get what they inflict on tion, producing resentment. Israeli raids to others—a violent death. arrest militants result in large numbers of There is a danger that retribution, like civilian casualties. For both of these revenge, can get out of hand. In order to pre- responses innocent Palestinians are hurt in vent this from happening, two limits on ret- the effort to get at the guilty. Not only is this ribution need to be imposed. First, the morally repugnant, it also plants the seeds punishment must fit the . Retribu- for future terrorism. tivists emphasize that the response to an Major incursions into Palestinian territo- action must be proportionate to that action. ry to root out the terrorist infrastructure Since Palestinian terrorists are bent on have been especially controversial. In the killing Israeli civilians, killing them in return spring of 2002, the Israelis carried out two is a fitting reaction. Second, the punishment massive interventions producing thunder- must be focused on those who are commit- ous international condemnation. Following ting the offense, with innocents spared. As the Israeli incursion of early March 2002, the moral philosopher Judith Lichtenberg UN secretary-general , who writes, “while the principle of retribution opposes Israel’s policy of targeted killing, says that the guilty must be punished, equal- sent a letter to Prime Minister Sharon that ly important is its demand that only the was sharply critical of Israel’s actions. The guilty may be punished. Punishment must text of the letter nonetheless suggests that be tailored to reach those who have done more discrete, focused actions would be wrong and leave untouched those who have preferable to the policy of mass intervention: 31 not.” Targeted killing, when done properly, In the process [of incursions] hundreds of achieves this goal by focusing retaliation on innocent non-combatant civilians—men, the actual perpetrators of terrorism. To be women, and children—have been injured or sure, targeted killing that also produces killed and many buildings and homes have been damaged and destroyed....Israel is fully innocent casualties weakens the retributive entitled to defend itself against terror....It is rationale. But given the greater risks of inno- incumbent on all parties to take urgent steps cent Palestinians being killed by other forms to de-escalate the level of violence. Israel of retaliation such as military strikes against should contribute to this effort by ensuring urban areas, targeted killing best fits the ret- that the IDF uses only and methods that minimize the danger to the lives and ributive model of appropriate punishment property of Palestinian civilians, in conformi- for the guilty. ty with its humanitarian obligations . . .33 Aside from revenge and retribution, tar- geted killing is morally defensible because 31 Judith Lichtenberg, “The Ethics of Retaliation,” Phi- although it would be preferable to have a losophy and Public Policy Quarterly 21 (Fall 2001), p. 5. 32 negotiated peace, such an outcome has not For a similar view, see Eisenstadt,“‘Pre-Emptive Tar- geted Killings’ as a Counter Terror Tool,”p. 3. proved possible so far. It may therefore be 33“Kofi Annan’s Blunt Words Criticizing Israeli Tactics,” the least bad option Israel can mount New York Times,March 19, 2002,p.A12.

israel’s policy of targeted killing 123 Targeted killing is a policy that meets these for the Middle East Peace Process, Terje criteria of minimizing the danger to Pales- Roed-Larsen, an architect of the Oslo tinian civilians. Similarly, the New York Accords, called the destruction wrought by Times, which had editorialized against tar- the Israeli army in the West Bank city of geted killings, seemed to endorse a similar “horrifying beyond belief.”The Israelis policy when confronted with Israeli mili- found themselves defying U.S. president tary incursions. A March 14, 2002,editorial Bush’s order to withdraw their troops “with- stated,“Israel must cut way back in its use of out delay,” while Secretary of State Colin military force as Washington urges, and Powell criticized Israeli actions.35 During direct its actions against suspected terror- the second intifada about twenty times as ists rather than against the broader Pales- many Palestinians have been killed as a tinian civilian population. Its current result of Israeli incursions as have been methods are causing great civilian suffering killed by targeted killing.36 and unnecessary humiliation. With Pales- Some argue that Israel can protect itself tinian police failing to make arrests, Israel is from terrorism by withdrawing from the justified in sending its own forces after spe- occupied territories. In this view, a more cific terrorist suspects.”34 This statement flexible and forthcoming Israeli approach to clearly calls for a carefully defined policy its negotiations with the Palestinians would targeting terrorists. halt terrorism without the need to resort to The far greater Israeli intervention into targeted killings. The continued refusal of the West Bank following the , 2002, Israel to abide by UN resolutions 242 and 338 massacre produced even more calling for Israeli withdrawal from land international opposition. This intervention occupied since 1967, the increasing number saw a massive call-up of Israeli reserves as of Israeli settlements since the inception of key Palestinian cities, including Jenin, the in 1993, and the denial of , , and , were statehood to the Palestinians have clearly attacked and reoccupied in an effort to contributed to a climate of despair that destroy terrorism at its roots. However justi- drives some to suicide bombing and other fied the intentions may have been, the oper- extreme acts. Why not give the Palestinians ation produced casualties in the hundreds what they justifiably seek and thus end ter- and widespread destruction of civilian rorism at its source? areas. Both sides acknowledged that inno- cents were killed, though they differed great- 34“Israel’s Unwise Offensive,”New York Times,March 14, ly on the numbers. Inevitably, the Israeli 2002,p.A30. 35 James Bennet, “Israeli Forces Pull Back from Jenin, action provoked harsh international criti- But Blockade Still Remains,” New York Times,April 19, cism to the point where only the United 2002,p.A10;James Bennet, “Powell Ends Trip; Sees No States stood by Israel and even American Cease-Fire before a Pullout,” New York Times,April 18, support was called into question. The Euro- 2002,p.A1; and Patrick Tyler, David E. Sanger, Todd S. Purdum, and Eric Schmitt, “With Time Running Out, pean Union for the first time threatened Bush Shifted Mideast Policy,” New York Times,June 30, sanctions against Israel. Public opinion polls 2002,p.A12. 36 revealed greater support for Palestinians As of December 2002, 1,794 Palestinians and 673 Israelis have been killed. The International Policy Insti- than Israelis in such countries as , tute for Counter-Terrorism, “Fatalities in the Palestin- Italy, and England. UN special coordinator ian-Israeli Conflict”; available at www.ict.org.il.

124 Steven R. David This contention is not persuasive for need to provide an alternative. Aside from three reasons. First, the wave of violence— anti-Israeli extremists and pacifists, few the second intifada—began after the Camp counsel Israel to simply endure suicide David meetings of the summer of 2000. bombing attacks and do nothing. The ques- Although there has been some controversy tion then becomes what for Israel is the cor- as to just what the Israeli-American propos- rect response to terrorism. For hawks, al was, virtually everyone acknowledges that Israeli incursions into Palestinian areas it offered unprecedented Israeli concessions along with continued occupation are on Jerusalem and a withdrawal from most of attractive options, though not so much to the occupied territories. At the very least, it replace targeted killings as to supplement warranted a counteroffer from Chairman them. For Israel’s international critics, there Arafat, which never came. What emerged are few suggestions for how Israel should from the Palestinians instead was a wave of combat terrorism, only condemnation of terrorism, perhaps expected to extort addi- whatever armed response Israel undertakes tional concessions. Second, the latest intifa- along with demands for Israeli political con- da was launched when Prime Minister Ehud cessions. As we have seen, targeted killing Barak—not Sharon—led Israel. Following may achieve international approval in retro- the failure of Camp David, Barak’s govern- spect not so much for what the policy has ment, which was committed to a diplomatic achieved, but rather because it is less objec- settlement with the Palestinians, continued tionable than the alternatives. Although not to negotiate with the PA at Taba,where addi- a ringing endorsement, targeted killing may tional progress was made. Throughout this survive because it is indeed the least bad process, terrorism mounted, giving scant choice for a state confronted with the threat hope that a diplomatic settlement would of terrorism. stem the violence. Finally, most of the sui- I have conceded that there has been no cide bombings launched against Israel have clear benefit from this approach as record been carried out by Hamas and Islamic numbers of Israeli civilians have been killed Jihad. These organizations have openly pro- in terrorist attacks at the same time that tar- claimed their goals to be the destruction of geted killings have also reached unprece- the state of Israel. It is difficult to see what dented levels. But the absence of a short- or kind of political compromise from Israel, even medium-term benefit does not mean short of national dissolution, would pacify that targeted killings will not, over the long these groups. It is certainly true that only a haul, eventually undermine the infrastruc- political settlement with the Palestinians ture of terrorism. As noted above, leaders of will end terrorism against Israel. But the Palestinian organizations have acknowl- notion that what is required to bring about edged that the slaying of their leaders and such a settlement is a more accommodating operatives has hurt them and that they are Israeli position, as opposed to a change in prepared to modify or cease attacks if Israel the Palestinian leadership, is not borne out would suspend its practice of targeted by the experience of the past two years. killings. Over time, the relentless elimina- As this review of Israeli policies suggests, tion of the foot soldiers and planners of ter- it is not enough to oppose Israel’s policy of rorism may well have an impact that is not targeted killing. Critics of this approach discernible at present. It is far too early to

israel’s policy of targeted killing 125 declare targeted killing an ineffective or killings are carried out. Operations such as failed policy. the one that killed Hamas leader Shahada in Gaza along with sixteen bystanders must not CONCLUSION be approved. Third, Israel must refrain from killing There is little doubt that Israel will continue political leaders. Granted, the distinction to pursue targeted killing, raising the ques- between political leaders and those who tion of how this policy can be improved. I plan terrorist attacks is at best ambiguous. suggest four improvements, all designed to Nevertheless, for the norm against assassi- make certain that the benefits of targeted nation to survive—a norm that Israel needs killing are not overwhelmed by the very real as much as any state—a distinction must be dangers that such a policy can bring about. drawn between political leaders and com- First, Israel should be open and unapolo- batants. Just as the Israeli government has getic about its pursuit of targeted killings. announced it will not kill Chairman Arafat, Targeted killing is a legitimate and moral despite its assertion that he is an active response to terrorist attacks. There is no backer of terrorist operations, so too must it need for Israel to evade responsibility for avoid the targeting of lesser leaders provid- carrying out this policy, especially when ed their main activities are political. The Israeli involvement is obvious. Denial or killing of Palestinian leaders such as Shikaki refusal to comment leaves Jerusalem open to and Mustafa must stop. Finally, Israel needs the charge that it is behaving improperly or to announce publicly that the policy of tar- has something to hide. Neither is the case geted killing is a temporary expedient while and Israel should not behave like it is. it is engaged in armed conflict with terror- Second, Israel needs to make sure that its ists. Israel must unambiguously declare that pursuit of targeted killing does not degener- if a Palestinian leadership makes peace with ate into lawlessness and savagery that makes Israel and proves itself capable and willing to it undistinguishable from the threat it seeks curb terrorism, targeted killing will cease. to counter. The guidelines that Israel has Targeted killing makes sense and is justifi- already instituted for targeted killing need to able only as a weapon of war. Once that war be strengthened and made the subject of is over, the policy must end. open debate.Along with following the direc- Targeted killing is an unsavory practice tive that targeted killing should be carried for an unsavory time. It can never take the out only against combatants on their way to place of a political settlement, which is the committing terrorist acts or who are known only solution to the terrorism that confronts to be behind them, Israel must also do more Israel. Until such a settlement is achieved, to ensure that decisions on actual killings are however, targeted killing stands out as a overseen by elected officials. As a democra- measured response to a horrific threat. It is cy, Israel needs to entrust the monumental distinctly attractive because it focuses on the decisions on whom to kill to those who are perpetrators of terrorism while largely spar- responsible to the Israeli people. In addition, ing the innocent. For a dangerous region in an Israel must do more to ensure that innocent imperfect world, targeted killing is the worst casualties are minimized when targeted possible policy—except for all the others.

126 Steven R. David