Targeted killings: Operation ‘Pillar of Defence’

One aspect of Israel’s Operation ‘Pillar of Defence’ is a false premise that Israel’s tactic of “targeted killings” is illegal or is tantamount to an “assassination.”

On Wednesday 14 November in Gaza City near the shore of the eastern Mediterranean, forty-six-year-old Ahmad al-Jabari, didn’t hear the incredibly exacting high-tech precision weapon that killed him, launched from a drone hovering overhead. It was an outstandingly accurate shot.

As the London Telegraph enthused, black and white pictures taken from a drone showed a minibus full of passengers drive right past the target’s car to a safe distance, a couple of seconds before the missile exploded. A piece of chassis is seen spinning into the air and then the targeted vehicle lights up. Lights up like fireworks celebrating the Queen’s Diamond Jubilee, I suspect.

The surgical precision of the strike was brilliant, even by the demanding standards of the Israel Defence Forces.

Al- Jabari was the head of Hamas’ military and considered the most dominant figure in the Gaza Strip. Often described as the strongest man in Hamas, more so after his superiors - such as Sheikh Salah Shehadeh, Sheikh Ahmed Yassin and Abdel Aziz Rantissi - were eliminated.

Born in 1960 - and depending on whom you believe - in Shujaiyya, Gaza City, Occupied Gaza (occupied by Egypt that is) or in Hebron, in the Occupied West Bank (occupied by Jordan). From 1982 to 1995 he enjoyed Israeli hospitality at various correctional facilities for numerous terror crimes. While in jail he signed up to the Muslim Brotherhood. This was prior to the formation of Hamas. It was after his release that he met Saleh Shehadeh, a hard working Jihadist and future military leader.

Al-Jabari helped Hamas seize Gaza from Fatah, its less terrorising rival in the West Bank and he became politically and militarily very active. In 2002 an Israeli air strike killed Shehadeh and seriously injured his anointed successor, Mohamed Deif. This was a boon for al-Jabari.

In 2004, he gained control of Hamas’ military and built it into a 10,000-strong force. His troops maintained Hamas’ control over Gaza, triumphing over countless attempts by Fatah to seize power in that territory. He oversaw the planning and execution of homicide bombing attacks against hundreds of Israeli civilians from 2000 to 2005, and for that triumph he was promoted to the rank of Acting Commander of Hamas’ military in 2006.

His underlings were responsible for the kidnapping of Israeli soldier Sgt Gilad Shalit, and he was at Sgt Shalit’s side on 18 October last year when the latter was released in exchange for Israel freeing 1,000 jailed prisoners, including more than 300 convicted killers.

Almost as soon as al-Jabari was killed, many arguedthat his targeted killing was illegal.Those who claimed illegality confused Israel’s legitimate use of targeted killing in its war against Gaza with the harder to accept use of targeted killings by the United States in its global “war on terror”. From a legal standpoint, the former is incontrovertibly allowed while the other’s legality, in some quarters, requires some qualifications.

Terrorism can be viewed through one of two lenses: the Law Enforcement Paradigm (LEP) (that is, as suspected criminals) or through the Law of War Paradigm (LWP).

Under the LEP, a terrorist is protected from lethal force because there is an assumption that the preference of the state is not to use lethal force but rather to arrest him/her and then to investigate and try the person before a court of law.The presumption during peacetime is that the use of lethal force by a state is not justified unless necessary. Where “necessary” is defined as the state using “only the amount of force required to meet the threat and restore the status quo ante”.

Under both domestic and international law, the civilian population has the right to be free from arbitrary deprivation of life.

Crucially it is the individual’s conductat the time of the threat that gives the state the right to respond with lethal force.The presumption is that intentional killing by the state is unlawful unless it is necessary for self-defence or defence of others.

What the law enforcement paradigm never contemplates is a terrorist who works outside the state and cannot be arrested.

The Law of War Paradigm however refers to the rules governing armed conflict where regulations prescribe when an individual can be killed, and these circumstances are starkly different than in peacetime. The LEP does not apply in armed conflict. Rather under the LWP, designated terrorists may be targeted and killed because of their status as enemy belligerents.

Unlike the LEP, the LWP requires neither a certain conduct nor an analysis of the reasonable amount of force to engage belligerents. In armed conflict, it is wholly permissible to inflict “death on enemy personnel irrespective of the actual risk they present.”Killing enemy belligerents is legal unless specifically prohibited, for example, enemy personnel such as the wounded or the sick.

Armed conflict also negates the LEP presumption that lethal force against an individual is justified only when necessary. If an individual is an enemy, then soldiers are not constrained by the law of war from applying the full range of lawful weapons when they see fit.

In Israeli Counter-Terrorism: “Targeted Killings” Under International Law (80 N.C. L. Rev. 1069 2002) J. Nicholas Kendall reminds readers that the State of Israel has been fighting wars and terrorism for much of its fifty-three year existence. For that matter Jews in Palestine have been fighting terror even before the state was established.

One of the tactics in Israel’s toolbox is designed to actively respond to terror attacks and extinguish the threat of future attacks, such as homicide bombings and missile launches, by targeting individuals the state believes were involved or are involved in the planning and carrying out of such violence, such as al-Jabari. This policy aims not only to prevent further attacks on Israeli civilians, but also to minimize collateral damage to Arab civilians when the targeting takes place.

Is Israel’s behaviour legal under international law? Yes.

Kendall reviewed customary international law, current treaties, and the United Nations Charter and concluded that Israel’s policy of targeted killings does not contravene international law. Contrary to the views of the Islamic Lobby, he explains that “targeted killings” are not synonymous with  “assassination” as it is defined by customary international law and the doctrine of anticipatory self-defence renders it a legal, defensible policy in the fight against terrorism.

Kendall offers a hypothetical example. If an Israeli citizen (or an Arab in Gaza for that matter) staged terrorist attacks from within Israeli territory, the use of "targeted killings" in response would likely be considered a law enforcement action. Such action could be considered analogous to domestic police forces setting up snipers to take out murderers without judicial proceedings. Judged in this context, "targeted killings" could be labelled "extrajudicial executions."

However, the reality of the situation does not conform to, or match, this hypothetical. Terrorists launch their attacks from outside of Israel, from Lebanon or Gaza. Be they territories controlled by the Hezbollah dominated Lebanese government or Hamas, its Sunni counterparts in Gaza.

Attacks emanating from a foreign territory snugly fit into a war paradigm like a glove.

Under customary international law, the term "assassination," is held to mean the “selected killing of an individual enemy by treacherous means”, where "treachery” is defined as a breach of a duty of good faith towards the victim.

This understanding has been confirmed time and again. Kendall lists attempts to codify an assassination standard, include: Article 23(b) of the Hague Regulations forbids "kill[ing] or wound[ing] treacherously individuals belonging to the hostile nation or army; the U.S. Army manual, The Law of Land Warfare, explicitly interprets Article 23(b) to apply to acts of assassination; and the Nuremberg Tribunal found that the Hague prohibition, in addition to its binding character with respect to signatory states, had passed into customary international law.

Targeted killings are also justified on the grounds of self-defence in as much as they are a means to prevent terrorist attacks - in their planning stage - that will kill Israeli civilians.Israel very much considers the actions to be self-defence.

Self-defence in the context of international law derives chiefly from three sources: the U.N. Charter, customary international law, and state practice as evidence of custom.

The U.N. Charter was intended to establish a system whereby states would solve their disputes peaceably without resort to the use of force. Article 2(4) of the U.N. Charter states, "All members shall refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any state or in any manner inconsistent with the Purposes of the United Nations." An exception to this prohibition exists however. Article 51 provides: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence, if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

In the context of Israel classifying its actions as self-defence, there are two interpretations of Article 51: the restrictive view and the expansive view.

Champions of the former claim that the Charter, while preserving the inherent right of self-defence, at the same time is limited by the phrase "if an armed attack occurs.” They focus on the words, "if an armed attack occurs," meaning that the "unimpaired customary right is safeguarded only in the situation of armed attack”. Some proponents of the restrictive view argue that self-defence can only be used against an armed attack directed against a state's "territorial integrity or political independence."

In contrast, the counter view holds that Article 51 in no way limits the right of self-defence under customary international law. Furthermore, under this view, states may act in self-defence in cases of armed attacks as well as threats of imminent attacks and to safeguard other rights.  

The related doctrine of anticipatory self-defence constitutes a significant element of this view. This doctrine involves the use of force by states in "anticipation" of an armed attack.It is worth noting that the Charter neither expressly prohibits nor allows anticipatory self-defence.

Under the expansive view of Article 51 and in harmony with customary international law, states can take actions in anticipation of an imminent attack. The concept of anticipatory self defence can be understood from a review of the deeds of United States Secretary of State Daniel Webster when he considered a series of events beginning in 1837 that strained relations between the U.S and Britain. The events are best remembered as the Caroline Affair.

The Caroline Affair began in 1837 when a group of men led by William Lyon Mackenzie rebelled in Upper Canada (what is now the Canadian province of Ontario), demanding a more democratic government. There was much sympathy for their cause in the U.S, and a small steamer, the Caroline, owned by U.S. citizens, carried men and supplies from the U.S. side of the Niagara River to the Canadian rebels on Navy Island just above Niagara Falls.

On the night of 29 December 1837, a small group of British and Canadians loyal to the Upper Canadian government crossed the river to the U.S. side where the Caroline was moored, loosed her, set fire to her, and sent her over the falls. One American was killed in the incident. Americans on the border were aroused to intense anti-British feeling.

This incident has been used to establish the principle of "anticipatory self-defence" in international politics, which holds that it may be justified only in cases in which the "necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation". The Caroline Affair is also now invoked frequently in the course of the dispute around pre-emptive strike (or pre-emption doctrine).

Under Webster's formulation, the Israeli actions must meet the conditions of necessity, proportionality, and immediacy. Israel's actions, Kendall argues, fully meet all three qualifications.

First, the strikes are necessary because of Hamas’ refusal to arrest those planning and carrying out the attack. In fact the matter becomes even clearer when the terrorist holds a position in the government of Hamas.The precision strikes are vital because no better alternative is available. Any other mode of seizing or killing a terrorist like al-Jabari would involve either sending in ground forces or the heavy bombing of buildings, both operations would inevitably lead to more civilians deaths.

Second, the strikes are proportional. The killing of one terrorist who has planned a terror attack or is planning such an attack is proportional when compared to the death and destruction that he has visited to date, or the deaths that he hopes to visit if he is not eliminated. The use of spectacularly well-targeted operations proves Israel studiously avoids harming civilians.

Finally, Israel's actions would likely qualify as defensive armed reprisals, as opposed to the armed reprisals prohibited by the U.N. Charter, given the IDF employs drone strikes as a tool to prevent future attacks by directly eliminating the source of the attack.

It is reasonable to conclude that Israel's tactic of "targeted killings" is lawful and fully complies with international law. Contrary to the commentary of Hamas and others, the tactic of ”targeted killings” differs significantly in a legal sense from a policy of "assassinations".

So long as the Jewish state remains at risk of Islamic terrorists who refuse to accept an independent Jewish presence in the Middle East and fundamentally dedicate themselves to Jihad as the means of erasing the Jewish state then “targeted killings” will surely continue to be employed as a tool of the IDF.