License to Kill
When I advised the Israel Defense Forces, here's how we decided if targeted kills were legal -- or not.
Washington is abuzz over a recent report in the Wall Street Journal saying that former U.S. President George W. Bush had authorized the "capture or kill al Qaeda operatives," and that "the CIA also examined the subject of targeted assassinations of al Qaeda leaders," though it's not clear if the two initiatives are related.
Washington is abuzz over a recent report in the Wall Street Journal saying that former U.S. President George W. Bush had authorized the "capture or kill al Qaeda operatives," and that "the CIA also examined the subject of targeted assassinations of al Qaeda leaders," though it’s not clear if the two initiatives are related.
The revelations are sure to set off a renewed debate in the United States over the legality, utility, and morality of killing terrorists. I know a few things about this topic, because between 1994 and 1997, I advised Israel Defense Forces’ (IDF) commanders regarding targeted killings as the IDF legal advisor to the commander of the Gaza Strip. To be clear: the decision to strike was the commander’s. As the legal advisor, I provided just that: legal advice.
So, here’s my legal advice for the United States as the Washington debate heats up: Counterterrorism, in civil democratic regimes, must be rooted in the rule of law, morality in armed conflict, and an analysis of policy effectiveness. There can be no "ifs, ands, or buts."
Targeted killings are indeed legal, under certain conditions. The decision to use targeted killing of terrorists is based on an expansive articulation of the concept of pre-emptive self defense, intelligence information, and an analysis regarding policy effectiveness. According to Article 51 of the U.N. Charter, a nation state can respond to an armed attack. Targeted killing, however, is somewhat different because the state acts before the attack occurs. In addition to self-defense principles, the four critical principles of international law — alternatives, military necessity, proportionality, and collateral damage — are critical to the decision-maker’s analysis.
The basis for the attack is intelligence information that meets a four part test: Is it reliable, credible, valid, and viable? Given the stakes, corroborated information is significantly preferable to information that comes from a single source.
Israel instituted its targeted killing policy in large part in response to Palestinian suicide-bombing attacks. But it’s not just the bombers themselves that are a threat. Four actors — the bomber, the planner, the driver/logistics person, and the financier — form the basis of the suicide bombing infrastructure. Determining which of the four is a legitimate target, and when, is the critical question decision-makers face. As not all four are legitimate targets at all times, the commander is limited against whom he can act; that reality reflects the limits of self–defense.
This rearticulation of expansive self-defense is insufficient on its own, however, because the decision to authorize the "hit" is not made in a vacuum. Implementing the four international law principles referenced above requires the commander to ascertain that the "hit" is essential to national security and therefore proportional to the risk the individual presents. Furthermore, the commander must determine that any alternatives, such as capturing and detaining the individual, are not operationally possible. The commander must also seek to minimize the collateral damage — harm to innocent civilians — that is all but inevitable in such attacks.
When asked by a particular commander to authorize a targeted killing, I would ask the following factual questions:
»Who is the source?
»How reliable is the source?
»How timely is the information?
»What is the relationship between the source and the potential target?
»How precise is the information? (I was once told, for example, "he is wearing a blue shirt and blue jeans," but it was nighttime and the commander had night-vision equipment)
»When was the last time the unit conducted a nighttime ambush?
»How confident was the commander in his unit’s capabilities?
»Did the commander receive the intelligence directly from the intelligence community and had he discussed the issue with a case officer?
Although I have advocated the effectiveness of targeted killings from an operational counterterrorism perspective and supported its legality as an expansive articulation of self-defense, in the case of the blue jeans I did not authorize the requested attack. The information about the individual unequivocally indicated that the danger posed to Israeli national security was palpable. I was also convinced that detaining him was operationally unfeasible. However — and this is the core of the issue — I was not convinced that the individual in the commander’s scope was the right man.
Aggressive operational counterterrorism is lawful, but that is not enough. It must also be effective and moral. Understanding and implementing the limits of power is an essential aspect of aggressive self-defense; uncertainty is a fact of life in the counterterrorism business. Precisely for that reason, the four pillars of counterterrorism must include the applicable law, but also morality, policy effectiveness, and careful and cautious operational decisions.
Targeted killings decisions are among the most complicated and complex aspects of operational counterterrorism. The decision-maker literally faces an overwhelming amount of information. Before authorizing and firing, the commander must ascertain who the target is; otherwise, the policy is illegal, ineffective, and immoral. But if you’re sure you’ve got the right guy, and you have no other viable options, fire away. The nation’s safety may depend on it.
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