License to Kill

When I advised the Israel Defense Forces, here's how we decided if targeted kills were legal -- or not.

BY AMOS N. GUIORA | JULY 13, 2009

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.

MAHMOUD ZAYAT/AFP/Getty Images

 

Amos N. Guiora is professor of Law at the SJ Quinney College of Law at the  University of Utah; he served for 19 years in the Israel Defense Forces, Judge Advocate General's Corps. He can be reached at guioraa@law.utah.edu.

BKUWATLI

10:14 AM ET

July 15, 2009

Listen to the Israelis and turn the whole world into a big Gaza

So far, the Israeli policies proved ineffective and illegal in all aspects, so why we should take their advice on how to run the world. The best way to deal with terrorism is by setting the example on how the rule of law and democracy works, and by helping youth around the world not to fall a pray for radical ideas.

 

SABABA03

9:48 PM ET

July 15, 2009

The agony of decisions.

Considering the sever circumstances under which Israel and the Israelis have been living vis-a-vis its Islamist neighbors for past 60 years, it is astonishing to witness that, no one more critical, and demand more accountability of IDF's activities throughout the WB & Gaza, then the Israeli themselves.

In addition to those four pre-requisites mentioned in the article, Indirectly Prof. Guiora also points out the agony and, many times the emotional deliberations under which each Israeli leader, commander, or solder undergoes before he decides to order, or pull the trigger, which result with death of young adversary with all his life ahead of him.

Nonetheless, this is what happens when leaders like Hamas and Hizbollah face Israel with only two ominous choices. Either us, or you.

 

EXOTTOYUHR

9:20 AM ET

July 17, 2009

Listen to Israel, by all means.

As this article reveals, the Israelis have become more moral, not less, over the course of the wars. Recent events have led me to believe that the average American would have few compunctions about blowing away an aspiring suicide bomber, his controller, his driver, his immediate family, his fifteen closest friends, and his little dog too (which does much to explain why I am less than completely proud of the United States); by contrast, the Israelis have forbidden torture, they have sharply limited their rules of engagement, and, as this article shows, they have been extremely careful about attacks even on suspected suicide bombers, even with the full knowledge that someone, if not necessarily the person they're aiming at then possibly him, was a suicide bomber and on the way to his objective.

Blame for the Gaza Strip's conditions rests with the same people who are to blame for the whole conflict. The Jewish settlers in the Mandate of Palestine, 1920-1939, got along well with the Arabs; the mentality was that both were fellow Semites, and while the Grand Mufti of Jerusalem enthusiastically sided with the Nazis against the Jews, the "Arab Street" did not, but supported the Jews against the Nazis wherever they had the chance. The modern hostility of the Arab world is a post-WWII phenomenon, and the PLO and the postcolonial Arab governments are culpable for it -- they found an external enemy to distract their subjects from their dictatorial rule, wagging the dog so forcefully that Clinton looks like JFK by comparison. There is a faction that has done much to escalate and continue this conflict, but it's not the Hebrew-speaking one.