July 8, 2020

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The evolution of international law on targeted killings


The evolution of the law of targeted assassinations is interesting. While traditional assassinations have generally not been considered legal under international law, spy agencies have always done them but without admitting it.

When quasi-wars are being fought between nations and terror groups, the circumstances are different – do the laws of war apply? Is it considered a police action? How about when terrorists are not near the war zone? This is all a relatively new scenario in international law, and the answers are bitterly contested.

Israel pioneered the thinking in these circumstances in the 1990s. The IDF’s International Law Department, or ILD, was asked to answer these sorts of questions during the second Intifada. And sometimes, they had to innovate in the legal thinking to be able to deal with these new circumstances.

Gabriella Blum is one of the people who helped the IDF come up with answers at the ILD, while Daniel Reisner was the head of the group. They were interviewed for The Intercept:

The discussions were animated, but in Blum’s recollection, always professional. The politics of those in the room ran the spectrum. But these were lawyers, at the end of the day, and they worked for an army. The soundest legal arguments, not the most humane, would win.

“You had to make stuff up as you went along,” Blum said. “Not in a manipulative way. Not, ‘OK, let’s come up with a story that justifies everything we do.’ But we did feel like we were in a different reality. This blending of combatants and civilians in an occupied territory — this was not something that the history of the regulation of war had fully anticipated.”

The new technologies complicated things further. “It was kind of freaky that you’re using this thing,” Blum said. “Drones? It’s a machine? And nobody can surrender to that machine?”

 Eventually, the ILD established principles to guide the IDF’s targeted killings. The aim was to define the practice as an exception to the norm — a means of last resort.

Their first rule was that targeted killings were not to be used against just any member of an armed group, but only against those who took direct and active roles in hostilities. (Practically speaking, that meant that the commander who ordered the suicide bombing was a valid target, but that the technician who built the bomb itself was not.) Where arrest was a feasible alternative, targeted killings were not to be used. (“That had zero precedent,” Reisner said. “A total invention. It sounds like law enforcement, right?”) And finally, every effort had to be made to avoid civilian injury and death.

Here is a brief description of IDF rules written by Blum in this academic paper:

The process for approving targeted killing operations in Israel involves an intelligence “incrimination” of the target, which identifies the target as a person actively involved in acts of terrorism; a plan for the time, place, and means of the attack (most commonly, an airstrike); consideration of the danger of collateral damage; and a review of potential political ramifications. The complete plan must receive the approval of a top-level political official. There is no external review process, judicial or other. 

The stated Israeli policy is that only members of a terrorist organization who are actively involved in an ongoing and direct manner in launching, planning, preparing, or executing terrorist attacks are lawful targets. In addition, targeted killing operations will not be carried out where there is a reasonable possibility of capturing the terrorist alive. 

The guidelines were accepted by Israel’s High Court with an additional caveat:

A military committee would be formed to review targeted killings that resulted in civilian casualties; that committee would be tasked with determining consequences and possible reparations. (The committee exists to this day, but its decisions are not made public.)

The US policy was very much against this Israeli policy of allowing targeted killings – until September 11, 2001. Then the US realized that things are not as simple as it claimed they were, and over the next decade the US policy on targeted killings has been largely taken from the IDF’s International Law Division.

The United States policy on killing terrorists outside a war zone, written in 2013 under the Obama administration, is:

Lethal force will be used outside areas of active hostilities only when the following preconditions are met:
First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.
Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.
Third, the following criteria must be met before lethal action may be taken:
1) Near certainty that the terrorist target is present;
2) Near certainty that non-combatants1 will not be injured or killed;
3) An assessment that capture is not feasible at the time of the operation;
4) An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and
5) An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons. 

International legal scholars disagree as to the legality of these policies. A synopsis of the viewpoints can be seen here. However, international law evolves based on actual practice and written armed forces policies. It is worthwhile to see how Human Rights Watch looks at the issue, whether in context of a war or as a police action:

The laws of war permit attacks only against military objectives, such as enemy fighters or weapons and ammunition.  Civilians are immune from attack, except those individuals “directly participating in the hostilities.”  While the phrase “directly participating in hostilities” has various interpretations, it is generally accepted to include not only persons currently engaged in fighting, but also individuals actively planning or directing future military operations.  For a specific attack on a military objective to be lawful, it must discriminate between combatants and civilians, and the expected loss of civilian life or property cannot be disproportionate to the anticipated military gain of the attack.  Therefore, not all attacks that cause civilian deaths violate the laws of war, only those that target civilians, are indiscriminate or cause disproportionate civilian loss.

…International human rights law permits the use of lethal force outside of armed conflict situations if it is strictly and directly necessary to save human life.  In particular, the use of lethal force is lawful if the targeted individual presents an imminent threat to life and less extreme means, such as capture or non-lethal incapacitation, are insufficient to address that threat.  The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides that the “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”  This standard permits using firearms only in self-defense or defense of others “against the imminent threat of death or serious injury” or “to prevent the perpetration of a particularly serious crime involving grave threat to life” and “only when less extreme means are insufficient to achieve these objectives.”  Under this standard, individuals cannot be targeted for lethal attack merely because of past unlawful behavior, but only for imminent or other grave threats to life when arrest is not a reasonable possibility. 

Any way you look at it, the laws of targeted assassinations in a scenario where there is a terror group that attacks at times but not in an active war would fall somewhere in between these two scenarios.

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