Over the last decade, the term lawfare, an amalgamation of “law” and “warfare,” has been adopted and popularized among people engaged in monitoring, judging and debating the legality of a state’s wartime behavior vis-à-vis enemies on and off the battlefield. Today, the dominant theme in debates about lawfare turns on the contested legitimacy of litigation to challenge military and security policies and practices; and efforts to sue or prosecute state agents, government-funded contractors, and corporations who are alleged to have engaged in or abetted serious violations of law in the conduct of war.
While some people (myself included) attach a positive connotation to the term and the activities to which it refers, those who oppose efforts to constrain military and executive discretion in accordance with international law standards disparage it. A vivid example of the latter can be found in the 2005 National Security Strategy of the United States which asserts: “Our strength as a nation-state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes and terrorism.” Israeli officials and supporters of the state’s military ventures in Gaza, the West Bank and Lebanon condemn lawfare as one manifestation of an international campaign to “delegitimize” Israel, in the same despised company with the BDS (boycott, divestment and sanctions) movement.
The Lawfare Project, established in 2010, envisages and promotes a common US-Israeli governmental interest in combating efforts to hold officials and agents of both states accountable for violations of international law. The Project’s website proclaims “Lawfare is an increasingly emergent form of asymmetric warfare, which must be countered both tactically and strategically.” Such remonstrations about the misapplication, manipulation, and perversion of law in the context of conflict belie the fact that Israeli officials pioneered what could be characterized as “state lawfare” decades before the term was coined.
The history of Israel’s control over the occupied West Bank and Gaza has involved prodigious efforts to forge original, international consensus-defying interpretations of international humanitarian law (IHL), specifically the Fourth Geneva Convention (GCIV), in order to “legalize” practices like Jewish settlements and collective punishments. Officials reasoned that the obligations and restrictions of IHL were binding only and exclusively on High Contracting Parties (i.e., state signatories) whose sovereign territory was militarily occupied. Therefore, Israel was not bound by GCIV in this context because Jordan and Egypt were not sovereign in the West Bank and Gaza, respectively, when they were expelled in 1967, and, moreover, stateless human beings (in this context, Palestinians) were not the intended beneficiaries of humanitarian law. This asserted inapplicability constituted the foundation of Israel’s doctrine on the legal status of the occupied territories and the state’s rights within them.
In the 1990s, as a result of the Israeli-Palestinian negotiations, the Israel Defense Forces (IDF) were redeployed from Palestinian population centers (Areas A) and a (non-sovereign) Palestinian Authority (PA) was established. These changes prompted Israel to modify its position on its status and rights in these areas. Although Israel continues to exercise effective control throughout the West Bank and Gaza, including the continuing capacity to arrest and prosecute thousands of Palestinians, Israeli officials asserted that those areas and their inhabitants had become “foreign.”
In September 2000, Palestinians began a second intifada with mass demonstrations to protest the ongoing occupation. From the outset, Israel responded with military force at levels unprecedented since 1967, deploying tanks, helicopter gunships, and snipers to attack protesters. Under conventional interpretations of IHL, this use of massive military force (i.e., disproportionate and non-discriminating) against unarmed civilians in occupied territories (i.e., protected persons) would be categorically illegal. However, Israeli officials contended that, because the army was “out” of Palestinian-inhabited areas—and therefore, riot control and policing were no longer obligations, a militarized response was necessary and legitimate to defend against a foreign “armed adversary.” Israel asserted its self-defense right to attack an “enemy entity,” while denying that those stateless enemies had any right to use force, even in self-defense.
At the start of the second intifada, the US government joined others in the international community to criticize Israel’s “excessive use of force.” However, following the terrorist attacks of 11 September 2001, the US adopted many of Israel’s legal rationales for waging the global “war on terror.” Officials and lawyers in the Bush administration who strove to unfetter the executive branch asserted that the Geneva Conventions did not bear on the “war on terror,” and that human rights and federal laws were unenforceable beyond the sovereign jurisdiction of the state.
In both contexts, such interpretative innovations were devised to frame otherwise clearly illegal practices as legal by contending that the laws that would prohibit them are inapplicable. In these twenty-first century asymmetrical conflicts, officials interpreted the law to assert the state’s operationally and territorially unbounded rights and the rightlessness of its enemies.
Israel also led the way in providing a context for litigation that, in recent years, has been termed lawfare. Since 1967, Palestinians have submitted thousands of petitions to the Israeli High Court of Justice (HCJ) to challenge the legality of the state’s policies and practices in the occupied territories. With few exceptions, the justices have endorsed the government’s interpretations of its rights and duties in those areas. In post-9/11 America, similar results (i.e., permitting the state to do what it was already doing) were achieved when, with few exceptions, US courts either endorsed the legality of state policies and practices or accepted the government’s arguments that the alleged violations were non-justiciable.
Israel instituted a policy of “targeted killing” against Palestinians in the occupied territories during the first intifada in the late 1980s. Initially, undercover units of soldiers and secret agents undertook these operations by perfidiously disguising themselves as Arabs (mista‘aravim) to approach and execute their targets, or snipers killed them from a distance. When Islamists introduced the tactic of suicide bombings in the mid-1990s, these operations increased, spurring a cycle of violence.
At that time, when the territories were indisputably under full control of the Israeli military and Palestinians were being arrested and prosecuted or administratively detained in unprecedented numbers, killing rather than arresting suspects clearly constituted extra-judicial executions. Israeli officials staunchly denied a targeted killing policy, despite mounting deaths that were its result, because willful killing, perfidy and the deliberate attack of civilians are war crimes. For example, in 1992 a government spokesperson said, “There is no policy, and there never will be a policy or a reality, of willful killings of suspects…the principle of the sanctity of life is a fundamental principle of the I.D.F. There is no change and there will not be a change in this respect.”
However, that strategic denial ended two months into the second intifada. On 9 November 2000, Israeli forces targeted a Palestinian militant named Hussein ‘Abayat in an operation that also killed two women bystanders. For the first time, Israeli officials acknowledged the operation. Thus, Israel became the first state in the world to officially proclaim a policy of “liquidation” and “preemptive targeted killing.” Officials argued the legality of targeted killing on the following bases: One, Palestinians were to blame for the hostilities, which constituted a war of terror against Israel. Two, the laws of war permit states to kill their enemies. Three, targeted individuals were “ticking bombs” who had to be killed because they could not be arrested. Four, killing terrorists by means of assassination is a legitimate form of national defense. The deaths of untargeted civilians were termed, in accordance with the discourse of war, “collateral damage.”
By November 2001, forty-seven people had been targeted and eighty deaths had resulted. The most notorious targeted killing operation occurred on 22 July 2002, when an F-16 launched a one-ton bomb to assassinate Salah Shehadeh, a leader of Hamas’s military wing, Izz al-Din al-Qassem. The attack destroyed the three-story apartment building where Shehadeh lived, eight adjoining and nearby buildings, and partially destroyed nine others in the densely populated Gaza neighborhood of al-Daraj. In addition to Shehadeh and his guard, the death toll was fourteen Palestinian civilians, including eight children, the youngest of whom was two months old. More than 150 people were injured in the operation. In this case, the IDF responded to a public outcry about the size of the bomb, the targeting of a residential neighborhood, and the high casualty rate by conducting an investigation into the operation. The finding of this inquiry justified the targeting of Shehadeh as a perpetrator and abettor of terrorist violence against Israel while conceding that there had been “shortcomings in the information available,” namely the presence of “innocent civilians” in the vicinity.
In January 2002, the US adopted the tactic of assassination in the “war on terror,” which had been prohibited by executive orders since 1977. The first such operation killed ‘Ali Qaed Sinan al-Harithi and five others (including a US citizen) in Yemen by a pilotless drone. Officials utilized Israeli-like reasoning, proclaiming that because Harithi was allegedly a member of al-Qaeda and because arrest was impossible, targeted killing was a legitimate tactic, even against a person located in a country not at war with the US (i.e., Yemen).
Lawfare and Targeted Killings: The Israeli Context
In January 2001, the wife of Thabet Thabet, a member of the PA who was killed in December 2000, filed the first HCJ petition to challenge the legality of Israel’s targeted killing policy. HADASH Party Knesset Member Muhammad Barakeh filed a second petition for an interim injunction. Both were dismissed on 29 January 2002, with a brief statement: “The choice of means of warfare, used by the Respondents to preempt murderous terrorist attacks, is not the kind of issue the Court would see fit to intervene in.”
However, the following month the HCJ reconsidered its position on non-justiciability when it accepted a petition filed by The Public Committee against Torture in Israel and LAW: The Palestinian Society for the Protection of Human Rights and the Environment. On 30 September 2003, the Israeli organization Yesh Gvul petitioned the HCJ to order a criminal investigation of those responsible for the Shehadeh assassination. The HCJ accepted the Yesh Gvul petition but suspended any consideration of it until after the targeted killing case had been decided.
The HCJ issued its targeted killing ruling on 15 December 2006. The decision, written by President (Emeritus) Aharon Barak, begins with a summary of the petitioners’ and respondents’ positions. The former include the state’s lack of the right of militarized self-defense (under Article 51 of the UN Charter) against a civilian population by an occupying state, and the prohibition of arbitrary killing and execution without due process as violations of customary norms of international law. Moreover, the practice fails the “imminent threat” and the “proportionality” tests because most individuals were targeted at times when they were not taking a direct part in hostilities, and Israel has a “lesser harm” option of arresting suspects. The petitioners also contended that secrecy compounds the illegality of the policy because targeted individuals are deprived of any opportunity to prove their innocence, a problem exacerbated by numerous “mistakes” (i.e., mis-identifications of targets). The respondents claimed that despite the military’s ability to pursue and arrest people alive, this “exceptional step” is performed only “when there is no alternative.” On the issue of imminence, the respondents claimed that this does not reflect a rule of customary international law and that the concepts of “direct part” and “hostilities” must be given wide berth to include planning, assisting, soliciting, and abetting and not be limited to active engagement in violence or the carrying of arms at the time of the operation.
In its judgment, the HCJ refers to the occupied territories as “the area” and “outside the bounds of the state,” thereby evading the question of whether Palestinians are “protected persons” in territories still effectively controlled by Israel. The “armed conflict” at issue is described as between Israel and “terrorist organizations.” The conclusion that the HCJ reaches in regard to the “the ‘targeted killing’ – and in our terms, the preventative strike causing the deaths of terrorists, and at times also of innocent civilians” is that neither are “such strikes…always permissible or that they are always forbidden.” While some operations might be unlawful if, for example, a disproportionate amount of force was used to eliminate a legitimate target, the policy as such is not illegal.
Based on its decision that the legality of each targeted killing operation must be examined retrospectively, on 2 January 2007, the HCJ lifted its suspension of the Yesh Gvul petition and requested the state to investigate whether the Shehadeh operation comported with the ruling. A Special Investigatory Commission was established the following year. On 27 February 2011, Prime Minister Binyamin Netanyahu’s office announced that the commission had concluded that the operation was a “legitimate targeted killing” but that, “in hindsight,” the “difficult collateral consequences” were “disproportionate.” However, those consequences were “unintended, undesired and unforeseen” and, therefore, no disciplinary offences were committed and no criminal charges are warranted.
Litigating Israeli Targeted Killing Abroad
In the US legal system, there is no avenue for privately-initiated criminal investigations for gross crimes under international law. However, in a 1980 landmark decision in Filártiga v. Peña-Irala, the Second Circuit Court of Appeals ruled that foreign victims can pursue civil suits against foreign nationals under the Alien Torts Statute (ATS), a federal law dating to 1789, and the 1992 Torture Victims Protection Act (TVPS) which prohibits extra-judicial execution as well as torture “so long as the court has personal jurisdiction over the defendant.”
On 8 December 2005, the Center for Constitutional Rights (CCR) filed Matar et al v Dichter, a class action lawsuit against Avraham (Avi) Dicther, former head of Israel’s General Security Service, who was living in Washington, DC at the time. The suit alleged Dichter’s responsibility for the Shehadeh operation and for his central role in escalating Israel’s practice of targeted killings. The plaintiffs were Ra’ed Matar, whose wife, three children and three other relatives were killed; Mahmoud al-Huweiti, whose wife and two children were killed; and 150 others who had been injured. The Gaza-based Palestine Center for Human Rights (PCHR) represented the victims. The US government submitted a “Statement of Interest” arguing that Dichter is immune under federal common law and customary international law for any official acts. In May 2007, the case was dismissed. The plaintiffs appealed on the grounds that there is no immunity for war crimes. However, on 16 April 2009, the Second Circuit affirmed the dismissal.
On 10 September 2005, Doron Almog, who had been head of the IDF Southern Command from 2000-2003, landed at Heathrow airport in the United Kingdom. While he was still on the plane, he was advised that a warrant had been issued for his arrest on charges connected with the Shehadeh operation, and that police were waiting at the immigration section to take him into custody. However, as a result of British and Israeli governments’ political interference, Almog was permitted to depart the country without disembarking. Once he was gone, the warrant was cancelled.
On 27 November 2006, a New Zealand judge issued an arrest warrant for Moshe Ya’alon, Israeli Chief of Staff from 2002-2005, when he traveled to the country. He was accused of grave breaches of the Geneva Conventions in connection with the Shehadeh operation. But rather than acting on the warrant, the police sought the advice of the Solicitor General, who in turn consulted the Attorney General who quashed the warrant the following day.
On 24 June 2008, four Spanish lawyers filed a lawsuit in the Spanish National Court (Audiencia Nacional) on behalf of victims of the Shehadeh operation against Almog; Dichter; Ya’alon; Dan Halutz, former commander of the Israeli Air Force; Benjamin Ben-Eliezer, former Defense Minister; his former military advisor, Michael Herzog; and Giora Eiland, former head of the Israeli National Security Council. The Spanish Prosecutor pressured the court to dismiss the case on the grounds that Israel has jurisdiction. However, the investigating judge ruled that because Gaza is occupied territory (i.e., not a sovereign part of Israel), Spanish criminal law does not accord Israel primary jurisdiction over suspected Israeli war criminals.
This prompted more intense political pressure to insulate Israelis from criminal investigations. On 19 May 2009, the Spanish Parliament passed a resolution calling on the government to draft legislation that would limit the country’s universal jurisdiction mechanisms to cases with a direct nexus to Spain, namely those involving Spanish victims or accused who are present in the country. This law was rushed through Parliament without any public debate or opportunity for opponents to lobby against it, and went into effect in November 2009. However, on 31 October 2010, Spanish authorities refused to grant Dichter a grant of immunity prior to a planned visit because his presence in Spain, even under the narrowed law, would provide a basis for enforcing the warrant.
On 30 June 2009, the Spanish Appeals Court issued a decision concurring with the Prosecutor’s position that Israel has jurisdiction and voted to close the Shehadeh investigation. The Spanish Supreme Court upheld the decision on 13 April 2010. The case was appealed to the Constitutional Court, where, as of this writing, it is pending. Meanwhile, another quest for Israeli accountability was mounted in Spain, this one connected to allegations of war crimes perpetrated during “Operation Cast Lead” in Gaza in December 2008 and January 2009. Because at least 1000 Gazans hold Spanish nationality or residency, they have standing to bring cases under the revised law.
Lawfare and Targeted Killing: The US Context
In the global “war on terror,” the strategic choice between killing and capturing suspects began to shift in 2006. This coincided with the Supreme Court decision in Hamdan v Rumsfeld, one element of which concluded that Common Article 3 of the Geneva Conventions does govern the treatment of prisoners in US custody and that violations are prosecutable offenses. The CIA black sites were emptied in September. Transfers to Guantanamo tapered off, then halted in 2008, and there was a 90 percent increase in the use of drones from the year before.
When Barack Obama took office in 2009, he signed executive orders to end torture and to close Guantanamo. Right-wing criticism of these changes and ongoing calls to resurrect Bush-era interrogation tactics had the paradoxical effect of making the capture and transfer of new suspects a political and legal liability. Under Obama, drone warfare and other types of kill operations have increased and spread geographically to Africa. Targeted raids by the elite and clandestine Joint Special Operations Command (JSOC), first introduced in Iraq in 2006-07, were transported, along with the drones, to Afghanistan in 2009. Between May and November, the number of targeted raids increased from twenty to ninety per month, jumping to 250 by the following spring and to 600 by the summer of 2010. By April 2011, they were occurring at a rate of 1000 a month. According to John Rizzo, former acting general counsel for the CIA, “The Predator is the weapon of choice, but it could also be someone putting a bullet in your head.”
Government lawyers have defended the legality of targeted killing. To the extent that challenges have been mounted in court, judges have deferred to executive claims of non-justiciability on the ground that kill operations constitute “traditional military activities.” The other route to legal immunity derives from the clandestine nature of these operations and the invocation of states secrets.
On 1 May 2011, Special Forces mounted a raid deep into Pakistan to the compound where Osama bin Laden was living. Several hours later, President Obama addressed the nation, stating, “Tonight, I can report to the American people and to the world that the United States has conducted an operation that killed Osama bin Laden, the leader of al-Qaeda, and a terrorist who’s responsible for the murder of thousands of innocent men, women, and children…Justice has been done.”
After the operation, most Americans, including many experts in the laws of war, endorsed its legality because bin Laden was a legitimate military target, although some bemoaned that putting him on trial would have been a better form of “justice.” Thus, the bin Laden operation did not resolve debates about the legality of the policy in general. A more salient example of the dubious legality of targeted killing is the government’s authorization, by secret process, to extra-judicially execute US citizens overseas. The first name on the “hit” list was Anwar al-Awlaki, an American-born radical Muslim cleric residing in Yemen who was accused—but never indicted—of being a leader of al-Qaeda in the Arabian Peninsula (AQAP). Yemen experts spurned this claim as overblown if not baseless.
On 7 April 2010, “high level officials” made it publically known that the National Security Council had authorized a lethal attack on al-Awlaki. The plan was justified by claims that he was implicated (not indicted) as an instigator of the 2009 Fort Hood shooting by a US soldier, Maj. Nidal Malik Hasan, who killed twelve and wounded thirty-one people. Al-Awlaki was also alleged (not indicted) to have provided inspiration for Umar Abdulmutallab’s underpants bombing attempt on a transatlantic flight on 25 December 2009, although according to anonymous government sources, this was based on “patchy” and “partial” evidence based on “suspicion” rather than “knowledge.”
On behalf of al-Awlaki’s father, Nasser, the ACLU and CCR brought a lawsuit challenging the legality of executive authorization to assassinate a citizen (al-Aulaqi v Obama). The plaintiffs’ contention was that this policy exceeds the president’s legal authority under both the Constitution and international law. The government’s brief contended that the father lacks standing (the government was not planning to kill him) and urged the court to dismiss on the grounds that the claims would require the court to “decide non-justiciable political questions.” Alternatively, the information necessary to litigate the claim is “properly protected by the military and state secrets privilege.” The court deferred to the government and dismissed the case on 7 December 2010.
After investigative journalist Dana Priest of the Washington Post reported that the Obama administration had added the names of at least three other US citizens living abroad to the kill list, the ACLU again sued the Obama administration to compel disclosure of the standard used to assign people to this list. The government invoked state secrets in its refusal to comply.
On 6 May 2011, five days after the bin Laden operation, the US launched a drone attack in Yemen targeting al-Awlaki. That mission failed to kill him but two others died. On 30 September, a US drone killed al-Awlaki and another US citizen, Samir Khan. Khan had not been targeted on purpose, so his death was regarded as collateral damage. Two weeks later, another drone attack killed al-Awlaki’s 16-year-old son Abdulrahman and his 17-year-old cousin. Because the CIA operates the drones and all CIA operations are technically covert, the Obama administration refused to comment or acknowledge its role in these attacks.
On 8 October 2011, Charlie Savage published an exposé in the New York Times, based on anonymous sources, about the contents of a secret 2010 memo authored by David Barron and Marty Lederman, who worked in the Office of Legal Counsel. According to Savage, “The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.” This legal reasoning about the state’s self-defense right to kill someone outside of a context of direct participation in hostilities (and far from any battlefield) on the assertion that he poses an imminent threat and therefore is a lawful target, and because he ostensibly cannot be arrested echoes the official Israeli position articulated a decade earlier. Also like Israel, the US government refused to make public any information after the fact that would substantiate the allegation that al-Awlaki’s role, in the words of one official, had changed from “inspirational to operational.”
To contest such stonewalling and secrecy, on October 19, the ACLU filed a Freedom of Information Act request for information about the legal and factual basis for the targeted killing policy that already had resulted in the deaths of three citizens. On another front, the British organization Reprieve is devising a strategy to bring a class action lawsuit on behalf of the civilian victims of US drone warfare in Pakistan.
These types of initiatives resemble the earliest efforts to challenge the US interrogation and detention policy in court, and involve some of the same lawyers. If the trajectory and expansion of anti-torture litigation provides any indication of what is likely to transpire, lawfare that focuses on the targeted killing policy will become a more visible part of the legal landscape in the years to come.