I. Israel's Targeted Killing Program
Since its founding in 1948, Israel has conducted targeted killing operations in Europe and the Middle East. After the Second Intifada in September 2000, the human rights group B’tselem argues, the number and frequency of these operations has risen. Michelle Lesh asserts that public and legal scrutiny of Israel’s targeting program have likewise increased.
The protocol by which Israel’s targeted killing decisions are made was largely shaped by a 2006 opinion of the Israeli High Court of Justice (HCJ), Public Committee Against Torture in Israel v. Government of Israel, which yielded what Blum and Heymann described as “probably the most comprehensive judicial decision ever rendered addressing the legal framework of the ‘war on terrorism.’”
Of particular note, the HCJ opinion applied an International Humanitarian Law (IHL)---rather than a domestic law---framework, classified targets as “belligerent civilians,” and promulgated a four part test used to determine the legality of a targeted killing.
First, the HCJ found that a state of international armed conflict existed between Israel and Palestinian terrorist organizations and, thus, the laws of war governed the legality of targeted killings. Contrast Hamdan v. Rumsfeld, 548 U.S. 557, 562-63 (2006) (expressly holding that the conflict between the United States and Al-Qaeda was not of an international nature).
Then, having determined that IHL applied to the question of targeted killings’ legality, the HCJ then rejected the Israeli government’s contention that Palestinian terrorists were unlawful combatants who were entitled to no IHL or domestic legal protections. The HCJ found that there was no support in customary international law for the addition of an “unlawful combatant” category to the traditional binary distinction between “civilians” and “combatants.” Thus, the HCJ determined that members of Palestinian terrorist organizations must be categorized as civilians, subject to the protections of Article 51(3) of Additional Protocol I to the Geneva Conventions.
The HCJ then explained, however, that these protections are nullified once and while an individual takes a direct part in hostilities (which the HCJ broadly defined). Yet, the nullification of Article 51(3) protections did not, in the HCJ’s view, leave those taking direct part in hostilities entirely without legal status. But, nor did they automatically gain the protections afforded to lawful combatants under the Geneva Conventions. Instead, Public Committee promulgated a four-fold test to be used in determining whether the targeted killing of such persons would be lawful:
1. “The State must have strong evidence that the potential target meets the conditions of having lost their protected status;”
2. “If less drastic measures can be used to stop the potential target posing a security threat, such as arrest, the State must use them, unless this alternative poses too great a risk to the lives of its soldiers”
3. “An independent and thorough investigation must be conducted immediately after the operation to determine whether it was justified. In appropriate cases, the State should compensate innocent civilians for harm done;”
4. “The State must assess in advance whether the expected collateral damage to innocent civilians involved in a targeted killing is greater than the anticipated military advantage to be gained by the operation. If it is, the State must not carry out the operation.” Public Committee, at 386-87.
Lesh, and others, have opined that these four criteria are very broadly stated and are thus susceptible to bad faith interpretations. Likewise, Richard Murphy and Afsheen John Radsan argue that this more public approach may yield negative consequences, and thus question the utility of the United States’ attempting to adopt Israel’s approach.
However, in a different article, Murphy and Radsan claim that this test gives the government the flexibility it needs to respond to security threats effectively. And, the test been lauded by Lesh, Philip Alston, and other scholars as an important first step in balancing humanitarian concerns against modern national security realities. Thus, they argue that the United States can and should adopt Israel’s oversight approach embodied in Public Committee. While some have criticized the Israeli approach for allowing judges lacking in foreign policy and military experience to rule on the reasonability of decisions made by experts, Murphy and Radsan and others counter that rigorous review of U.S. targeting decisions need not be performed by courts. Rather, “independent” or even “external” review does not unequivocally specify review by the judiciary and could potentially be conducted by other institutions. Among the alternative candidates proposed is the Inspector General of the CIA, an officer thought to balance the attributes of transparency, independence, and expertise desired.
II. Further Reading
- Philip Alston, The CIA and Targeted Killings Beyond Borders, 2 Harv. Nat’l Security J. 283, (2011).
- Gabriella Blum & Philip Heymann, Law and Policy of Targeted Killing, 1 Harv. Nat’l Security J. 145 (2010).
- B’tselem, Statistics of Fatalities 29.09.2000-31.12.2011.
- Michelle Lesh, Note, Public Committee Against Torture in Israel v. Government of Israel, 8 Melb. J. Int’l Law 373 (2007).
- Richard Murphy & Afsheen John Radsan, Due Process and Targeted Killing of Terrorists, 31 Cardozo L. Rev. 405 (2009).
- Public Committee Against Torture in Israel v. Government of Israel, HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel (Targeted Killings Case) .
- Afsheen John Radsan & Richard Murphy, Measure Twice, Shoot Once: Higher Care for CIA Targeted Killing, 2011 U. Ill. L. Rev 1201 (2011).