Sunday, December 11, 2005

Israel Defends Legality of Targeted Assassinations

The Israeli Defense Forces has long used targeted assassinations to eliminate alleged terrorists, as Steven Spielberg's newest film Munich reminds us. Interestingly, the government of Israel is currently defending the legality of the practice, invoking the customary international law of war to justify its recent killing of two alleged Palestinian terrorists. The theory here is that after Israel withdrew from the Gaza strip, any assassinations in Gaza are legal attacks on Israel's military enemies on their own territory.

I have to admit I haven't thought much about the legality of assassinations or killings like this. The U.S. also engages in this practice, although I think the favored term is "killing" since assassinations are prohibited by Executive Order 12333 . Unlike Israel, though, the U.S. has not (to my knowledge) defended the legality of killings or assassination. I imagine, though, that when and if that time comes, the U.S. will look to Israeli courts for legal precedents.

8 Comments:

Blogger Anthony Dworkin said...

I did an interview three years ago with Charles Allen, Deputy General Counsel for International Affairs at DoD for the Crimes of War website (www.crimesofwar.org) which I edit.

In light of the recent CIA missile strike against a car carrying al-Qaeda suspects in Yemen, I asked Allen about when the US considered that it could shoot to kill terrorist suspects -- e.g. must the US exhaust all options for peaceful arrest?

He said that the rules were the same as in any war -- you can lawfully target enemy combatants at any time except when they are hors de combat -- e.g. wounded, or indicating an intent to surrender.

His words: "When we have a lawful military target that the commander determines needs to be taken out, there is by no means a requirement under the law of armed conflict that we must send a warning to these people, and say, ‘You may surrender rather than be targeted.’"

My story about the interview is at http://www.crimesofwar.org/onnews/news-pentagon.html.

12/12/2005 5:00 AM  
Blogger randomopinion said...

As you very well know (since you blogged about it last September 12), there is no need to do any case-law international shopping here. John “Voodoo Law” Yoo wrote the relevant DOJ memo (and this one hasn’t yet been put aside as “unnecessary”), so we’re covered:

http://www.post-gazette.com/pg/05255/570140.stm

Reminder: it’s the lives of innocent (until proven guilty) human beings we’re talking about here, not the usual Byzantine discussion over the enforceability of a trade-related international treaty. The coldness of your analysis seems to indicate you are having some difficulties making the difference. Are you sure you don’t want to edit the first phrase of the second paragraph? If I were your employer, I’d be a bit troubled with it.

12/12/2005 5:30 AM  
Blogger Julian Ku said...

Anthony - Thanks for the link. That is helpful although, as you suggest in your story, it is very unclear what is a "lawful military target."

randomopinion: Thanks for reminding me about the Yoo article. Again, I think the obsession with Yoo is blurring the ability of people to analyze these questions usefully.

The legality of assassinations has been debated for many years, and it is a debatable question for policymakers. Why shouldn't it be a debatable question for academics as well? The easy case: If President Roosevelt had a way to assassinate Hitler during WWII, shouldn't it have been legal for him to do so?

Of course, every other case is harder than that, but some are not so different. If the U.S. knew where Osama bin Laden is right now, shouldn't it be able to try to kill him without arresting him first?

No doubt there are many cases where assassinations would be immoral and probably illegal. And that the real cost are the innocent people who might get killed. But I hardly think that talking about the subject's legality (as they are doing in Israel) is out of bounds.

12/12/2005 8:55 AM  
Blogger randomopinion said...

Common, Prof. Ku, you can do better than that … It’s obvious that I’m not saying you (or anyone else) can’t discuss the subject; quite the contrary, what I’m saying is that this is an issue the legality of which has already been determined - at the executive (Bush administration) level at least –, and that you should have acknowledged this fact in your post, because it’s useful AND because it already came up in a previous post of yours. On the other hand, when dealing with a topic as sensitive as this one (some would argue that life is the most basic of human rights?), a tone a little bit more elevated would seem appropriate.

And about demonizing the author of the blueprints for killing and torturing innocent (until proven guilty) human beings, one who boasts about it, one who makes a very good living out of it … well, I’m just an anonymous commentator, perhaps a bit obfuscated with such behavior. Sorry. Perhaps the ABA and a long list of prominent colleagues of yours in the area of international law (including some of your fellow bloggers at OpinioJuris), all extremely critical of Yoo’s analyses, are also completely out of line.

12/12/2005 10:23 AM  
Blogger petefreans said...

I wonder if Abu Musab al-Zarqawi is owed the benefit of the doubt, as innocent until proven guilty? Should Osama Bin Laden be granted the same protection the U.S. Constitution bestows on its loyal citizens? Due process for terrorists who have openly called for our destruction and advocate killing civilian men, women, and children? Absurd...

I am well aware of the dangers of preemptive assassinations and its political ramifications. Placing the unfortunate anti-Bush, anti-Israel undercurrent aside, we are engaged in a war that cannot be fought with elitist sentimentality. As other bloggers have suggested, if Hitler were assassinated before his march into Poland, how many lives could have been saved? Would 3000 of our friends be alive today if the Clinton administration had the political courage to pull the trigger when Osama Bin Laden was in the daylight?

Israel has been in a continuous state of war and the words and actions of Hamas, the PLO, Iran, etc. only underscore the threat it faces. Until all Arab nations unilaterally recognize Israel's right to exist as a Jewish state, all options to defend themselves must be considered.

12/12/2005 10:25 PM  
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