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

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.

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.

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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.

 
January/February 2010