Targeted killings: Operation ‘Pillar of Defence’

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.