[This is the second 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.]
There is an emergent Israeli/American controversy on the lawfulness of targeted killing. Although the policy has not yet ripened into a national debate, in the United States at least it is beginning. Lisa Hajjar’s assessment of the “legalization” of targeted killing is compelling in a number of respects, including suggesting the analogy to the torture debate that, in many ways, defined the political and moral identity of the Bush presidency, and even the American people, in the aftermath of the 9/11 attacks. She implies, furthermore, that it was Israel that crossed the threshold of legality in response to the wave of suicide bombings that traumatized Israeli society in the 1990s. In other words, targeted killing became a tactic of choice for both the US and Israel as part of the preventive logic of counter-terrorism. The upsurge in targeted killing seems responsive to the idea that neither defensive strategies nor deterrence, nor massive retaliation are appropriate or effective against a terrorist adversary, especially if the violence is accompanied by a readiness of the perpetrator to die while carrying out the mission.
In reporting on the reliance of targeted killing and the unavailability of judicial remedies, Hajjar confronts us with the plight of rightless and vulnerable Palestinians as well as the adversaries of the US throughout the world, but she refrains from advocacy, or even explicit condemnation (although there is an implicit comparison made between the helpless victim of torture and of targeted killing). In one respect, target killing is worse than torture due both to its finality which deprives the target of any opportunity to tell his story, and because of the collateral damage inflicted on those unlucky innocents who happen to be in the killing zone—or are mistakenly targeted. Hajjar presents us with a legal, political, and moral challenge, but makes no effort to fashion a preferred response, possibly sensing that beyond exposing the practice, it is futile at this point to say more. I am foolish, perhaps, to offer comments on four aspects of Hajjar’s framing of targeted killing.
Lawfare: Hajjar has drawn the distinction between those who view reliance on law and courts as a positive dimension of political democracy and those who view recourse to law as a means to delegitimize states and their security policies. I would develop this distinction by viewing civil society’s recourse to litigation as “constructive lawfare,” while viewing its denigration by governments, specifically Israel and the US, as nihilistic or regressive. Such efforts to deplore recourse to law and international standards of legitimacy aim to insulate state security policy from procedures and discipline of accountability, and deprive society of an absolutely necessary check on the abuse of state power undertaken, generally, in secrecy. Constructive lawfare is one of the few means of redressing the new imbalance between state and society in the post-9/11 world, and in relation to the acute vulnerability experienced daily by a people living under occupation for decades.
Reciprocity: David Cole makes the following cogent observation on his New York Review of Books blog (19 September 2011): “In international law, where reciprocity governs, what is lawful for the goose is lawful for the gander.” He goes further in questioning the approach taken to targeted killing by the Obama administration as being unmindful of setting a precedent that is a prelude to future regret: if we “continue to justify such practices in only the vaguest of terms, we should expect other countries to take them up—and almost certainly in ways we will not find to our liking.”
It is true that international law in many substantive domains, from diplomatic exchange to commerce, substitutes reciprocity for enforcement, and so what is claimed for oneself is granted to others. However, in the domains of national security, the use of armed force, and criminal accountability for gross crimes, international law operates according to an imperial logic, or at best a hegemonic logic, in which equals are not treated equally. It is obvious that losers in wars and leaders of some Global South countries are being held more and more accountable for crimes against humanity, especially since the establishment of the International Criminal Court. But it is equally obvious that leaders of Western countries, including Israel, enjoy de facto impunity despite their evident involvement in crimes against humanity.
The one exception, which irritates those clinging to impunity, is the haphazard efforts to detain and prosecute state officials and agents under the controversial rubric of universal jurisdiction. Hajjar’s article gives a helpful summary of the pull and push pressures associated with attempts to rely on universal jurisdiction in relation to Israeli military and political leaders whose travel carries them to countries in Western Europe that have laws on their books permitting the use of domestic courts to pursue accountability for crimes of state committed beyond normal territorial sovereignty.
Whether the targeted killing precedents being set by the US and Israel will come to haunt these countries is highly uncertain. The US used atomic bombs against Japanese cities at the end of World War II, and escaped any kind of accountability as war crimes prosecutions were limited to the wrongdoing of the Germans and Japanese, the losers in the war. This led critics of such double standards to deride the outcomes at Nuremberg and Tokyo as “victors’ justice.” In the current era, demands for targeted killing reciprocity are inevitable. Fifty countries have drones, and some deploy them for surveillance and reconnaissance missions.For example, Turkey, in fighting against Kurdish insurgents, made use of drones to carry out recent cross-border raids against PKK base areas in northern Iraq.
Surely, Iran would have strong grounds to emulate Israeli and American practice with regard to targeted killing, particularly in view of the alleged Israeli targeting and assassinating of Iranian nuclear scientists in recent years, as well as mounting repeated threats of launching an attack designed to disable Iran’s nuclear program. Such threats are direct violations of Article 2(4) of the UN Charter that categorically prohibits “the threat or use of force” except in situations of self-defense against a prior armed attack (Article 51) or as mandated by a decision of the UN Security Council. But if Iran was to avail itself of the targeted killing precedent to assassinate individuals in Israel or the United States that it deemed to be threatening or responsible for a prior attack on its citizens, such violence would be denounced as “terrorism,” and devastating forms of retaliation would almost certainly follow.
In other words, reciprocity is not likely to shape the future of targeted killing, but rather a regime of double standards that resembles what exists in relation to international criminal accountability or with respect to the possession and proliferation of nuclear weaponry.
Human Rights: It is important to introduce the perspectives of human rights into the legal debate on targeting killing, and not limit inquiry to the applicability of international humanitarian law as set forth in the Geneva Conventions of 1949 and the Geneva Protocols of 1977. Targeted killing of a non-combatant involves a challenge to the right to life, as well as constitutes a flagrant form of extra-judicial execution. UN Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions Philip Alston, in his influential 2010 report to the UN Human Rights Council, legally condemns targeted killing by drones on these bases, especially those taking place outside the combat zone, or as the Obama presidency puts it, far from “the hot battlefield.”
These human rights objections to targeted killing take on added force when extended to individuals who are suspected of inciting terrorist acts, as was the case with Anwar al-Awlaki, but without any disclosure of evidence of either the case against the target or a credible demonstration that such an individual posed an imminent security threat and could not be captured. As Hajjar points out, the difficulties posed by detention constraints and questionable evidence that would hold up in court exert pressure to avoid these complexities by killing the person in question.
Self-defense: The most serious encroachment on relatively settled conceptions of the self-defense exception to the international law prohibition on the use of force is the US reliance on an extended definition of self-defense to validate targeted killing in countries outside an existing combat zone. To view the execution of individuals in Yemen or Somalia on the ground that their activities are to be assimilated to the claim of self-defense associated with the continuing response to the al-Qaeda 9/11 attacks is to undermine the attempts since 1945 to use international law to reduce the discretion available to states when it comes to the use of force. The most articulate legal argument along these lines was expressed by John Brennan, Obama’s official chief counterterrorist advisor, in his speech at the Harvard Law School a few months ago. The irony here is that, just as John Yoo shocked the conscience of liberal America by insisting that practices long assumed to be torture (most notably waterboarding) were not torture (i.e., flagrantly illegal) when employed by the US government, now the Obama administration asserts a similar position that America loves the rule of law, but whatever America wants to do is “legal” even when it flaunts the generally accepted understanding of a rule of international law. In this instance, self-defense is stretched way beyond the accepted consensus among international law specialists as most authoritatively expressed by the majority of the International Court of Justice in its Nicaragua v. United States decision of 1986. Claiming that self-defense entitles the United States to convert the entire world into a global battlefield is certainly bad law, but it is also likely to be bad policy, generating support for extremist expressions of anti-Americanism. And it is scant consolation for Mr. Brennan and other Obama officials to reassure the public that this broad legal authority is used prudently and sparingly, and with a maximum effort to avoid harm to others than those targeted.
A Word in Conclusion
Hajjar’s article provides us with the materials we require to launch a much needed debate on targeted killing. Unlike torture, which has vividness and immediacy that existentially assaults our sense of decency and dignity, the relative novelty of targeted killing, a technologically facilitated innovation in the tactics of state violence, seems more abstract and less in conflict with civilizational values. In some respects, this distinction identifies some real difference. Most legal commentators do not challenge targeted killing if confined to the combat zone, say Afghanistan, but focus their criticisms on its cross-border uses, which in the US case can be anywhere in the non-Western world. In this regard, while torture is primarily of concern as a crime against humanity, targeted killing raises issues of world order, sovereignty, the scope of warfare, and extra-judicial executions.
Jadaliyya Roundtable on Targeted Killings:
Part I: Jadaliyya Roundtable on Targeted Killing: Introduction
Part III: Lawyering and Targeted Killing
Part IV: The Need for Judicial Review of US Targeted Killing Practices
Part V: The Secret Bureaucracy of Targeted Killing
Part VI: Lawfare and Targeted Killing Revisited--A Response