Targeted killings: Operation ‘Pillar of Defence’

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.