From the Editors
[This is the third part of a six-part series associated with a Jadaliyya roundtable discussing targeted killings . Participants include Richard Falk, Nathan Freed Wessler, Pardiss Kabriaei, Leonard Small, and Lisa Hajjar. Click here for the introduction to the roundtable.]
The practice now commonly termed “targeted killing” was, before the turn of the twenty-first century, referred to as “assassination.” Both terms refer to the lethal use of force in a surprise attack against an enemy or foe, whether by a sniper, a surgical-precision drone strike, or a magnetic bomb placed on a vehicle. There are, however, important legal and rhetorical differences between the two terms: Assassination is certainly illegal, whereas targeted killing, at least according to the Israeli High Court of Justice (HCJ), is neither legal nor illegal per se; the legality depends on the circumstances in which it is deployed.
Assassination is part of our cultural landscape, the subject of countless fiction and non-fiction books, films, and documentaries. While some might take a certain pleasure in the fantasy of James Bond's “licence to kill,” in reality the transgressive and deathly nature of assassination is less spectacularly heroic, and far more gruesome. Because assassination is a form of extra-judicial execution, no state ever had admitted to conducting such a policy because it flies in the face of an individual’s right to life, and the right to due process. To admit to an assassination policy would be to disregard the separation of powers that lies at the heart of democracy; the state would be playing the role of judge and executioner.
It came, therefore, as a great surprise to the international community when, in late 2000, Israel announced that it was (and had been for some time) “liquidating” enemy Palestinians. Twelve years later, it is still difficult to assess exactly why Israel chose that moment to acknowledge the policy, especially when such killings had been denied for so long. Speaking on behalf of the Israeli government just days after the initial announcement, Daniel Reisner, former head of the International Law Branch of the Israeli Defence Force (IDF), claimed that the second intifada was responsible. The intifada brought about a shift in Israeli rules of engagement which subsequently led to the declaration of the overt policy of targeted killing. “Prior to the second Intifada,” Reisner told the press, “Israeli soldiers were actually told to wait until they were fired upon, before responding.” But the change in “circumstances” had necessitated that “Israeli soldiers no longer are required to wait until they are actually shot at before they respond.” The second intifada was a game-changer, according to former Israeli Deputy Defense Minister Ephraim Sneh: “For sure, it is a signal. If the game is a guerrilla war, we are the champions of the world,” he told Associated Press.
But perhaps more important than the announcement of the targeted killing policy was the fact that behind the scenes its architects had prepared what they regarded to be a compelling defense and justification. Israeli officials felt confident enough that targeted killings were so imperative to the nation’s security that they were, in fact, legal and legitimate. Because assassination is illegal, the crucial concern for Israel was to find a way to eliminate enemies without appearing to contravene the law. “Extra-judicial” killing had to be brought within the pale of law. This was no small task and involved nothing less than the “legalization” of assassination.
Israel's ingenuity was both legalistic and rhetorical, and it is here that we witness the crucial difference between the terms “assassination” and “targeted killing.” A veritable legal and political armature underscored the move toward an overt assassination program. The CIA realized the essence of the problem as early as 1954, which is why it has always (notwithstanding some recent exceptions vis-a-vis the not-so-secret drone missions in Pakistan, Yemen and elsewhere) opted to keep covert missions covert. The training manual, A Study of Assassination, distributed to agents and operatives at the time of the agency's 1954 coup in Guatemala, noted that “No assassination instructions should ever be written or recorded,” adding, “Assassination can seldom be employed with a clear conscience. Persons who are morally squeamish should not attempt it.” The problem was that assassination was an unsavoury affair, particularly unpalatable for morally squeamish publics as well. For that reason, the practice was difficult to justify.
The first thing that Israeli government lawyers had to do, therefore, was to change the language and terminology. How can assassination be made to sound legal and morally defensible? Israel immediately stopped using the word “assassination,” and dropped all terms which carry a negative and illegal connotation. In 2001, one year into the officially declared policy, Attorney General Elyakim Rubinstein pointed out that the term “liquidation” damages Israel's image and proposed that it was better to use the phrase “targeted killing” to describe the policy. Thus, a new, more neutral, less offensive term was coined. The change in terminology is immensely significant because it changes the act of killing from one that is always-already illegal to one that is, if not persuasively, then at least plausibly, legal and permissible.
Lawfare: An Historical Perspective
This legal ingenuity of Israel is captured by what Lisa Hajjar calls “state lawfare,” and as she rightly points out, targeted killing is but the most recent manifestation of Israel's instrumentalization of the law. Israel paved the way for targeted killing, and has set legal precedent and custom which has proved very useful and expedient in rationalizing the Obama administration's drone wars. However, Israel did not pioneer state lawfare, as suggested by Hajjar; various forms of it have been around for centuries, rather than decades. Indeed, in Palestine, the very same space as these targeted killings are taking place today, the Ottomans issued a series of laws, for example the “dead land” (or mewat) laws, that were every bit as violent as Israel's contemporary lawfare. In fact, there is historical evidence to suggest that international law was founded to legitimize the violence of colonial powers against their subjugated and colonized people.
Post-colonial scholars such as Antony Angie argue that the law not only legitimized colonial exploitation, but also developed many mechanisms to prevent colonial reparations. Lawfare has a much longer history than is suggested by Hajjar and others; we find instances of it - or something very similar to it - in Francisco de Vitoria's justification for Spanish conquest in the Americas in the1500s, just as we find it at the heart of British colonial rule around the world in the nineteenth and twentieth centuries, including the British Mandate in Palestine which brought the modern conflict between Israel and Palestine into being. These acts were justified by law and mandate; they were acts of war (or worse), conducted not only through, but also in the name of law. If lawfare is the use of law as a weapon of war, then do these historical examples not set lawfare precedents?
Historicizing lawfare is important because there is a tendency to overplay the newness associated with contemporary asymmetric wars, especially in the wake of the Bush administration’s war on the rule of law vis-à-vis Guantánamo, torture and extra-judicial rendition. The focus on the recent, as well the obsession with the US and Israel, belies an important historical fact concerning the relationship between law and war. Law is not a recent addition to the arsenal of war. Clausewitz taught us this much. The Lieber code of 1863 permitted all kinds of violence, as did the Hague Convention of 1907, the Geneva Conventions of 1949 and Additional Protocols of 1977 and 2005. International humanitarian law (IHL), the laws which regulate armed conflict and war, do not prohibit killing but rather (and much more modestly) prescribe certain conditions for its execution. Law participates in violence, and has done so for quite some time, and certainly predates Israel's present lawfare campaign.
All this matters because, for Hajjar, there is a form of lawfare that is ultimately a good thing. While I do share her optimism that international legal fora can be leveraged to challenge lethal and inhumane policies, I would caution that a much more careful approach to lawfare is required. If, as I have suggested, lawfare is not new, and is not limited to Israel or the US, those advocates of appropriating lawfare are up against a broader and more complex “enemy” than they may have imagined. They must also be aware that by engaging in lawfare, they are tacitly agreeing to play by the rules set by military calculations. In armed conflict, law has to strike a balance between what is called “military necessity” and humanitarian consideration. These are the great weights at either end of war's colossal scales, and often the balance favors the military. When the language of law is used—i.e., “proportionality,” “distinction,” “necessity”--killing is not prohibited and it is accepted that, in some circumstances, some innocent people will die and will do so in a manner that is entirely consistent with the relevant law. And so while some lawfare practitioners might distinguish what they do from what traditional humanitarians like the International Committee of the Red Cross (ICRC) do, the question remains: at what expense do they use the language of law and lawfare at all? This question goes back to the above point about the relationship between law and violence. The problem is much greater than Israeli and US abuse of the law. The problem might be the law itself, and the legitimacy it confers to actions that would otherwise be thought illegal and immoral.
To suggest that Israel pioneered state lawfare is, therefore, to miss a potentially important critique about the dangerous potential within the law itself. First, it belies the connections between what Israel is doing today and what other colonial powers have done before it. In the same way that Israel paved the way to construct a legal rationale for this practice that the US has also employed, colonial regimes past and present have gone a long way toward legitimizing and providing the tools for Israel's lawfare over the last sixty years. These connections are surely worth making. Second, and what I turn our attention to for the remainder of this piece, it elides those parts of Israeli lawfare which are genuinely new and innovative, and which require careful consideration. Our attention is fixed on the general “newness” of Israeli lawfare, when in reality it is, as one Israeli scholar put it, “old wine in a new bottle.”
Advocating Targeted Killing: A Lawyer’s View
One of the more recent additions to the phenomenon of lawfare is the direct involvement of military lawyers - Judge Advocate Generals (JAGs). The Israeli Military Advocate General (MAG) Corps (formerly the Legal Services Corps) has existed since Israel and the IDF were founded in 1948. Its functions are many, but broadly it is responsible for enforcing the rule of law throughout the military. In this manner, and as Hajjar points out elsewhere in relation to Meir Shamgar, the role of the MAG - the title given to the head of the Corps - includes “preparatory work,” such as writing legal manuals and formulating or revising the rules of engagement.
While the MAG has always played an integral and even intrinsic role in Israeli military affairs, JAGs are now directly involved in targeting decisions. They give direct legal permission to the IDF as to whom, and how many, they can and cannot kill based on the intelligence that they are provided. When targeted killing first appeared as acknowledged state policy in 2000, there was a big debate in the IDF about what role the JAGs should play in the process of “executing targets.” Major General Ilan Schiff, from the military court of appeals, proposed that it would be best if a legal expert were to review the list of terror suspects who are candidates for assassination and authorize specific killings before they are carried out. However, a high-ranking IDF officer told Ha'aretz that he disagrees with Schiff's position, saying that a legal authority does not need to give the green light. Lawyers should stop getting in the way of important security issues. That debate is now settled, and JAGs do indeed have to approve each and every strike.
Amos Guiora is a former JAG who served as Legal Advisor to the Gaza Strip from 1994 to 1997. In this capacity, he was at the seat of “operational counterterrorism operations,” which meant that “when a commander was faced with the decision - yes or no to conduct a targeted killing - the guy who would receive those God-awful phone calls at 3 a.m. in the morning” was Guoira. In a typical targeted killing scenario, the JAG will ask the commander a series of questions to discern whether the suspect in question qualifies as a “legitimate military target.” A criteria-based approach, akin to a checklist, prevents situations of arbitrary killing, Guoira attests. Otherwise “what you are really doing is putting your finger in the air [to see] which way is the wind blowing.” How imminent is the threat? What is the collateral damage estimate? How sure is the commander that they have the right guy, and have they exhausted other, non-lethal means of intercepting him? The situation can be “time sensitive,” which means that decisions have to be made very quickly, often in a matter of minutes. “Is he killable?” the JAG asks himself. The IDF commander does not have to follow the advice of the JAG and the ultimate decision remains the commander’s. However, as Guoira points out, “Those of us who have been in the business know the ropes and how the game works, and if I say no the guy is not killed. If I say yes the guy is killed.”
The JAG’s decision is sovereign: to spare life or take it away. In the above scenario Guoira and those in his position hold the divine decision to let live. On one occasion, Guoira was convinced that the threat to the Israeli body-politic was high enough to warrant execution, but he believed the IDF had the wrong guy. “Don't shoot,” he told the commander, and returned to his wife in bed. The commander called the area commander and told him to call off the strike. The man in blue jeans walked on, unaware that his life had been spared. Since targeted killing became openly declared state policy, 427 other Palestinians have not been so lucky.
JAGs perform a series of difficult tasks, which we might read in two different ways. First, they bring a form of legal reasoning to what is often thought of as the lawless space of war. Their job is to keep militaries in check, to make sure they do not overstep the mark. They oversee what has been referred to as the “humanization of war,” and indeed this is what IHL is all about. The second reading is more critical: it sees the relationship between war and law as instrumental. War needs law, not to tame it but to unleash it. Law confers legitimacy. It is in the space where law and legitimacy meet that the work of the JAGs becomes so powerful. The involvement of lawyers along every step of military operations, right down to the moments before a strike, produces a discourse of legality that is difficult to argue against. The JAGs are an extension of an already pervasive legal apparatus in the IDF, and they have the effect of making the whole process appear legal and legitimate. If there is ever any mistake or breach of the law, the JAGs and the whole legal process are there to exculpate the IDF. As the Saleh Shehadah case demonstrates, this is exactly what happens.
Into the Abyss
Over the last decade, assassination has become a normal part of Israeli and US military doctrine. When reading the news of this or that strike in Gaza or Pakistan, it is sometimes easy to forget that the lawless, murky act of assassination has transformed into one of the key methods used to fight “our” wars. To most, this was unthinkable just ten years ago. A public targeted killing policy was a radical idea which even the Bush administration and Israel's other closest allies opposed. The lawyers of war - the JAGs and the MAGs - have been instrumental in bringing about this radical shift. Customary international law is a slippery slope, and given how much ground the military and its lawyers have already taken, I wonder whether law and lawfare are our most useful weapons and whether we might not think seriously about other alternatives, be they political, ethical or otherwise.
So that we are not left with any doubt as to the magnitude of what was being imagined by Israel, I leave the final words to Daniel Reisner, the man who perhaps more than anyone else should be credited with the very invention of modern assassination: "We [the international legal division] defended policy that is on the edge." The army says, “Here is a magic formula, is it within the bounds of what is possible? To which I will reply, I am ready to try to defend it, but I am not sure I will succeed. If it's white I will allow it, if it's black I will prohibit it, but in cases of grey I will be part of the dilemma: I do not stop at gray [...] We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal moulds. Eight years later it is in the centre of the bounds of legitimacy.”
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