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A Law to Kill the Legal Violence of Targeted Killing

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A Law to Kill the Legal Violence of Targeted Killing Craig Jones CASAR Book Chapter A Law to Kill The Legal Violence of Targeted Killing "The only way this distasteful tool can be preserved, ironically, is by bringing it into the light rather than keeping it in the shadows" - Daniel Byman, Do Targeted Killings Work? (2006) "Law is a travelling phenomenon [...]" - Iza Hussin, Circulations of Law (2008) 1. From Palestine to Pakistan On November 9, 2000, an Israeli Defense Force (IDF) helicopter hovered above the village of Beit Sahour, near the town of Bethlehem. The helicopter reduced height, and launched an anti- tank missile at the Jeep of Hussein Abiyat, a senior member of the Fatah organization. The explosion killed him and two innocent elderly women who happened to be sitting nearby. Later that day, two months after the outbreak of the second Intifada, the IDF Spokesperson released an announcement acknowledging responsibility for the strike: “During an operation initiated by the IDF, in the area of the village of Beit Sahour, missiles were launched from Air Force helicopters towards the vehicle of a senior activist of the Fatah Tanzim. The pilots reported the target was accurately hit. The activist was killed and his deputy, who was with him, was injured." (Quoted in PCATI et al 2002). Over the past decade, such announcements would become commonplace but this seemingly innocuous statement was in fact the first ever public admission of a state-sponsored assassination policy. Israel did not call it assassination of course, but this is clearly what it was1. The E.U. and the U.S. condemned the attacks. British Foreign Secretary Jack Straw claimed that the assassinations were "unlawful, unjustified and self-defeating" (House of Commons 2002). The E.U. said the policy amounted to "extrajudicial killings" (killings outside of the law), while U.S. State Department spokesman Richard Boucher said such action was "heavy-handed". The U.S. government made it repeatedly clear that it opposed targeted killings (American Embassy in Tel Aviv 2002). This chapter tells the story of how Israel sought to legalise and legitimise state-sponsored assassination by giving it a new name: targeted killing. Targeted killing, however, is still widely regarded as an illegal act and has been condemned by human rights organization, scholars and experts alike (see e.g. Anderson 20092; Alston 2010,2012; Melzer 2008; HRW 2009). In light of 1 Different terms are used for what will here be referred to as assassinations (before 2000) and targeted killings (after 2000) . The use of such terms is unavoidably value-laden and already contains a legal prejudice. Official Israeli government statements used the following terms: “hitting Palestinian targets”; “pinpointing attackers”; "Targeted pre-emptive killings"; “neutralizing the organizers of attacks”; "focused obstruction" and, of course "targeted killings" (see Weizman 2007: 244; Otto 2012: 9-10). The last of these won out over the others and is now the preferred term in both Israel and the U.S. 2 Kenneth Anderson, an otherwise outspoken proponent of targeted killing has conceded that "[ ... ]a strategic centerpiece of U.S. counterterrorism policy rests upon legal grounds regarded as deeply illegal—extrajudicial killing Page 1 of 25 Craig Jones CASAR Book Chapter these claims it is perhaps best to read the Israeli invention of targeted killing as a quasi-judicial process that transformed assassination from an always-already illegal act to one that is, if not persuasively, then at least plausibly, legal and permissible. I show how various Israeli actors, including military lawyers and the IDF have used the law of targeted killing in strategic ways to produce what Lisa Haajar (forthcoming) has called an "alternative legality" that comports with Israeli state practice and the continued occupation of Palestine. The chapter begins with a brief history of assassinations conducted by Israel, and focuses especially on the emergence in the 1990s of undercover units which carried them out. This history is seldom told in the Israeli narrative of targeted killing, but as I endeavour to show, the assassinations which took place during this period, and which were certainly illegal, set the foundations for the modern targeted killing policy which was announced in 2000. Next, I examine the moment that the IDF stopped using the terms 'assassinations' and 'liquidations' and began calling them targeted killings. The politics of naming sets the stage for a more detailed discussion of the geo-legal tactics used by Israel in order to justify the policy of targeted killing (section 4). These justifications differ from Gaza to the West Bank and I examine each in turn to reveal a sophisticated matrix of Israel's lethal legal geographies (sections 5 & 6). I show that these tactical justifications are classic examples of lawfare - the use of law as a weapon of war - which utilize old legal arguments that Palestine is unoccupied territory (and therefore not Israel's responsibility) yet hostile (requiring Israeli intervention) (section 7). Such representations of Palestinian territory are based on highly selective legal and historical interpretations designed to relieve Israel of its legal responsibilities to the Palestinian population while legitimizing targeted killing, countless breaches of Palestinian space and sovereignty, and ultimately the occupation itself. By way of conclusion I challenge directly the notion that the Israeli experience of targeted killing is a model that should be emulated3. The law of targeted killing has travelled from its origins in Israel and is currently being used to animate and justify a very different kind of war being waged by the U.S. in the global borderlands of Afghanistan-Pakistan and Somalia-Yemen. However, as I show, law does not travel alone but is carried and protected by a host of actors who are invested in its strategic - and all too often bloody - application. 2. Licence to Kill The first ever assassination in Israel dates back to 1948, the year that Israel was founded. The future Prime Minister of Israel, Yitzhak Shamir (no less), along with three other members of the Jewish nationalist Zionist group known as the 'Stern Gang', assassinated Folk Bernadotte, a Swedish diplomat who had been elected to the position of U.N. Security Council mediator for the Arab-Israeli conflict of 1947-1948. The nefarious history of assassination which began in is one of the most serious violations of international human rights, after all, as well it should be—by large and influential parts of the international community, Pp. 16 3 Daniel Byman (2006) has praised the Israeli approach in using targeted killing to combat terrorism and has urged the U.S. to imitate it. Similarly, Amos Guoria (2009), the former legal Advisor to the IDF on targeted killing in Gaza, advocates the "effectiveness of targeted killings from an operational counterterrorism perspective" and has offered advice to the U.S. which involves borrowing from the Israeli approach. He cautioned the U.S. to root its policy in the "rule of law" (as Israel supposedly did). Page 2 of 25 Craig Jones CASAR Book Chapter 1948 was the precursor to Israel's modern targeted killing policy, yet it is omitted from the official Israeli narrative and those who wish to borrow from the Israeli experience4. In the 1970s Israel initiated 'Operation Wrath of God', a covert operation to assassinate members of the Palestinian armed group 'Black September', the cell that had allegedly planned and carried out the kidnapping and murder of Israeli athletes at the 1972 Munich Olympics. The mission, authorized by Prime Minister Golda Meier, involved the execution of targets up to twenty years after the Olympics in locations deep in Lebanon and across Europe from Paris to Cyprus and Norway5. As Gal Luft boasted of the "chronicle of targeting", the long arm of the IDF, General Security Service (GSS) and Mossad "often reached and surprised terrorists in the most remote locations."6 In April 1988 Khalil al-Wazir (Abu Jihad), a founder of the Palestinian political party Fatah, and assistant to Yasser Arafat was assassinated. In February 1992 the Secretary- General and co-founder of Hezbollah, Sheikh Abbas Musawi, was killed by missiles fired at his car from an Apache helicopter of the Israeli Air Force (IAF) and in October 1995, the leader of the Islamic Jihad in Palestine, Dr. Fathi Shqaqi, was assassinated (PCATI et al 2002; Weizman 2007: 240-244). A concerted assassination policy, however, did not begin until the early in the 1990's, during which time the IDF and the Border Police established undercover units known as 'musta'ribeen' (see B'Tselem 1992; HRW 1993). The units consisted of soldiers disguised as Palestinians so that they could penetrate Palestinian areas; hence their name musta'ribeen, which means 'those who appear to be Arabs' (Merriman 2006), or 'Arab pretenders' (HRW 1993: 2) (see figure 1). At first the IDF denied the units' existence but this became untenable following a very public incident in the district of Hebron in 1988 in which soldiers from one of the units opened fire on an unarmed group, killing two men. Following the killing, Reuters' Steve Weizman published an article exposing the existence of the units, claiming that they had received oral orders permitting its soldiers to "shoot to kill at any wanted Palestinian whose hands were drenched in blood" (B'Tselem 1992: 5). 4 Interestingly, the covert assassination policy of the 1990s was also not discussed in the 2006 HCJ ruling, despite the Courts' hearing of evidence about it filed with the petition. The ruling in-fact begins with what the Court calls the 'factual background', a history which begins only in February 2000 - the start of the second Intifada. 5 The accidental killing of Ahmad Boushiqi in Lillehammer, Norway, proved to be particularly controversial because he was mistakenly identified by Mossad to be a member of Black September.
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