License to Kill

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.

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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.

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