Does fair play pay off? Israeli Targeted Killings Permissibility and Effectiveness

Targeted killings are premeditated acts of lethal force used by states in peacetime or during armed conflicts to eliminate specific individuals outside their custody, reports a UN special report on the subject. “Targeted killing” is not a well-defined term in international law, but it gained currency in 2000 after Israel made public a policy of targeting suspected terrorists in the Palestinian territories. The particular act of lethal force, usually undertaken by a nation’s intelligence or armed services, can range widely – from cruise missiles to drone strikes and special operations raids. The main focus of US targeted killings, especially through drone strikes, has been al-Qaeda and Taliban leadership networks in Afghanistan and remote tribal regions of Pakistan. 

As stated by Ophir Falk, despite the controversies and associated legal challenges, targeted killing has become the countermeasure of choice for the United States and Israel in confronting suicide terror and other forms of terrorism.

Israeli targeted killings

The Israeli case study provides one of the most compelling theatres for the analysis of targeted killings, not only because of the country’s extensive experience with terrorism, but more importantly because it has openly pursued a policy of targeted killings against terrorist threats. Israel’s policy, based on the laws of war, has been codified by the Israel Defense Force (IDF) and is supported by Israeli jurisprudence. 

Israel has killed many of its adversaries in a targeted manner. Indeed, Ronen Bergman counts more than 2,000 such cases carried out worldwide by Israel since its inception – more than any other country. involved in infiltrating Israel in the 1950s, targets have included German scientists who were developing ballistic missiles for Egypt’s Nasser regime  in the 1960s and Palestinian members of “Black September” in the aftermath of the Munich Olympics massacre in 1972. 

On 16 February 1992, Israeli attack helicopters targeted the then-Hezbollah leader, Abbas al-Musawi, in southern Lebanon. It was the first time this modus operandi was implemented in the region and served as a future operational model, adopted, and further developed by the IDF and other militaries. This, in essence, pioneered helicopter-borne warfare and unmanned aerial systems (UAS), both to be widely applied more than a decade later. 

Following the outbreak of the Second Intifada in October 2000, marked by an escalation of Palestinian suicide bombings, the IDF carried out its first targeted killing in Palestinian Authority-controlled Bethlehem. In 2002, shortly after an unprecedented wave of suicide bombings against Israel, targeted killings became a declared Israeli policy to deal with this lethal terrorism.

The overarching goal of Israel’s targeted killings was to stop suicide terrorism. It carried out 213 targeted attacks in the territories between 2000 and 2010, affecting 239 people. When suicide bombings declined, Palestinian organisations turned to firing rockets at Israeli cities, mainly from Gaza. This threat was also met with targeted killing attacks. Data on Israel’s targeted killings in the territories are well-documented and readily available. According to B’Tselem, Israel targeted 269 Palestinians between 2000 and 20013, resulting in a total of 453 Palestinian deaths. The actual number of civilians killed in these attacks is debatable, but it is agreed that there was no error in terms of “distinguishing” the individuals targeted. 

The most prominent Israeli targeted killings include Yahya Abdel-Tif Ayyash, a Hamas bomb-maker known as “the engineer”, killed in 1996 in Beit Lahya, Gaza; Hamas founder and military leader Sheik Salah Mustafa Muhammad Shehade, killed in July 2002 in Gaza; and Hamas founder and spiritual leader Sheik Ahmed Ismail Yassin, killed in March 2004 in Gaza. 

Permissibility

Concerning their lawfulness, targeted killings are permissible under certain conditions and circumstances, and within certain international and national frameworks. The concepts of ‘distinction’, ‘military’, ‘necessity’ and ‘proportionality’ are guidelines to be respected in any targeted killing that can be considered legal under the laws of armed conflict. 

The extent of unintentional deaths (civilian casualties) caused by targeted killing may violate a key aspect of the principle of proportionality, as perceived by the attackers, the attacked, or the international community. It is conceivable that the amount of unintentional deaths may be considered as a parameter to determine the legal permissibility of a given case of targeted killing. 

In line with the above criteria, the legal and moral criteria for compliance of targeted killing that ought to be applied to any case-by-case analysis include that the targeting must be of military necessity, the targeting must distinguish military targets from civilians, there is no alternative means that would minimise the suffering required, and that the targeting is assessed to cause collateral damage that is proportional to the expected benefit to be gained from the attack.

A major challenge that arises in this context is the largely ambiguous and often unclear application of international law and guidelines in the context of targeted killings. While various treaties, military manuals, UN resolutions and jurisprudence have addressed the legality of targeted killings to some extent, ambiguity is broad and widespread, and discrepancies and disputes abound. 

The United States and Israel appear to have adhered on paper to the principles that premise targeted killing according to the criteria, but in practice there are discrepancies in implementation. The discrepancies are most apparent in the implementation of the principles of distinction and proportionality. In particular, the US, Israel and the ICRC differ on the interpretation of direct and indirect participation, as well as on the very idea of ‘unlawful combatant’. This is crucially relevant because distinction and proportionality are essential in assessing the legality of a specific operation. One potential explanation for the divergence is that the US has defined the theatre in which it has operated as a ‘war on terror’, while Israel has defined its theatre as an ‘armed conflict without war’. 

Whereas targeted killings by Israel and the United States have not been declared illegal by any authoritative court, there have been cases of targeted killings that have raised more questions than others – especially regarding the criteria of proportionality and distinction. Some have been seen as overstepping the bounds of the law or at least the tacit rules of the game. 

Ultimately, complete adherence to every principle, by everyone’s standards, is difficult if not impossible. Therefore, beyond formal legality, the principle that justice must be pursued should be the approach embraced by all. Governments should do their utmost to respect the principles of distinction, minimum suffering and proportionality. 

Effectiveness of targeted killing

Effectiveness can be seen as the degree to which a certain measure achieves its objective. If the purpose of a counter-terrorism campaign is to reduce ‘terrorism’ in general, then certainly all targets of terrorism and the specific terrorist group targeted should be considered when measuring whether there is an impact and decline in such terrorism. It is important to look at how certain countermeasures affect the various targets of terrorism – whether these targets create victims or create fear. However, it is also crucial to evaluate the effectiveness of a specific measure against a specific target. 

What was the effectiveness of Israel’s counterterrorism measure of targeted killings in terms of its goal? 

Israel has been using targeted killing in the West Bank and Gaza from 2000 to 2010 with the specific aim of preventing suicide terrorism and its subsequent victims. 

The assessment of the effectiveness of a counter-terrorism tactic or strategy depends on the objectives set by the decision-makers implementing such a countermeasure. In the case of Israel, the targeted killing was intended to mitigate suicide terrorism. Consequently, the measurement of policy effectiveness in the context of this study was based on an assessment of whether suicide attacks and their subsequent deaths actually decreased as a result of such targeted killing. Exactly what constitutes an ‘effective’ and ‘successful’ counter-terrorism tactic is very subjective. Daniel Byaman has suggested that a decrease in the morale of a terrorist group is an indicator of success, although this is difficult to evaluate and prove. There are many ways to define and measure effectiveness, but the one highlighted in this article is to measure the impact of targeted killings, given their stated purpose by policymakers. 

Victims of attacks are also quantifiable and therefore accessible as a unit to measure the impact of counter-terrorism actions and the severity of specific terrorist attacks during a specific period, compared to a general campaign of terrorism over a long period. 

A major additional problem occurs when looking at whether other factors may have played a role in the decline of suicide terrorism, aside from the tactic of targeted killing. It is very arduous to isolate or control factors that may play a role in the effectiveness of specific counter-terrorism measures, be they political processes or other counter-measures in place. Such operations do not exist in a vacuum. Indeed, when measuring the effectiveness of targeted killings in Israel, other counterterrorism tactics – such as security fencing, security checks, arrests, economic sanctions, other offensive and defensive measures, or even soft power approaches – may have influenced the increase or decrease in suicide attacks over time. 

In conclusion, minimizing unintentional deaths is in the interest of counterterrorism. As a consequence, while the principle of proportionality is in line with legal constraints, the principle of minimal unintentional deaths may carry more weight.

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