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five years of deliberations, a panel of three Supreme Court
of Justice judges ruled unanimously Thursday, December 14, against
a petition asking it to declare that the controversial policy
of "targeted killings" conducted by the army, since
the beginning of the second intifada, was illegal. The court
determined that civilians who were on their way to commit an
attack against the IDF or civilians, had planned an attack-
or were in between carrying out a series of attacks, in other
words, designated "ticking bombs", were fair targets
for neutralization. The court stressed, however, that an individual
could only be considered a target if strong evidence had been
gathered of his, or her, involvement in hostilities. Moreover,
if any other method of stopping the attack was available, such
as arrest, then it should be used before considering killing.
Only if trying to make an arrest poses such great risk to soldiers'
lives can the army employ other means to neutralize him but
collateral damage should be avoided, or be proportional to the
attack mode.
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Active self-defense (in the form of 'targeted
killing'), if properly executed, not only enables the
State to more effectively protect itself within a legal
context but also leads to minimizing the loss of innocent
civilians.
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Over the years, this kind
of warfare has had many definitions. Officially, Israel
refers to it as " pre-emptive attacks on terrorists
operating out of the areas under Palestinian control",
regarding such operations as necessary measures to eliminate
individuals engaged in the preparation or commission of
acts of terrorism. Amnesty International, on the other
hand, calls it " extra-judicial execution",
which it claims contravenes both the Fourth |
Geneva Convention and UN Principles on extra-legal
killings. However, international law has its own definition:
As expressed in Article 51(3) of the 1977 Additional Protocol
I to the Geneva Conventions which states as follows: "Civilians
shall enjoy the protection afforded by this section, unless
and for such time as they take a direct part in hostilities",
gives a clear message for the right interpretation.
Professor David Kretzmer of Hebrew University
of Jerusalem, argues that neither international humanitarian
law (IHL) nor human rights law precisely fits the challenge
posed by highly organized, persistent non-state terrorist organizations
and movements: "An armed conflict between a state and a
transnational terrorist group is not an international armed
conflict", he claims. The necessity requirement for targeting
of suspected terrorists must be restricted to cases in which
there is credible evidence that the targeted person is actively
involved in planning or preparing terrorist attacks against
the victim state and no other operational means of stopping
those attacks are available."
Other academics define that active self-defense (in the form
of 'targeted killing'), if properly executed, not only enables
the State to more effectively protect itself within a legal
context but also leads to minimizing the loss of innocent civilians
caught between the terrorists (who regularly violate international
law by using innocents as human shields) and the State.
In 21st Century " asymmetric warfare" against global
terrorism and inevitable physical elimination of terrorists,
in contrast to killing soldiers in battle, does indeed raise
difficult legal issues, which so far have not been resolved
to meet the new military requirements. Unlike states, terrorist
do not declare war, neither do they wear uniforms or distinctive
insignia. However, it is internationally agreed, that terrorists
should not be treated as mere civilians and thus a formative
judicial process should apply to their neutralization before
innocent civilians or solders on active duty, come in their
harm's way. For example, there seems little disagreement between
even the most outspoken adversaries , that high profile targets,
such as Osama bin Laden, or the late top terrorist Abu Musab
al-Zarqawi who was killed by an air strike last June, should
be spared, if the opportunity should arise for a clear shot
to do the job properly and finitely.
Whether Israel is responsible for the first use of targeted
killing in a counter-terrorist or counter-insurgency role is
debatable. In 1967, during the Vietnam War, the CIA created
the so-called "Phoenix Program". Established principally
as an internment and interrogation program, this huge operation
also used US special forces to "neutralize" Viet Cong
(VC) leaders, in an effort to eliminate the VC infrastructure.
Phoenix remained classified for 25 years until it was finally
revealed in the early 90's. And the CIA was not alone in its
use of covert elimination processes. The French Army practiced
it widely in Algeria, and even British forces also used such
methods in Palestine, against both Jewish and Arab terrorist
leaders. The killing of Sheikh Izzadin el- Qassem, one of the
most well-known Arab rebel leaders during the 1936-38 riots,
became so famous that the present Hamas organization adopted
his name for its military wing.
Avi Dichter, former chief of Shin Bet, is unquestionably a
major source for in- depth experience in successful counter-terrorist
warfare. Under his leadership, in tight co-operation with IDF
special forces and pin-point air strikes against high-profile
terrorist leader targets, have reached maximum effect in reducing
the notorious suicide bombings, which claimed over a thousand
Israeli lives, mostly civilians, to near zero after five years
of incessant Intifada fighting. Dichter advocates that in order
to adequately fight terrorism, policymakers must recognize that
there is a finite number of effective terrorists. If, however,
politicians , or intelligence officials believe that there is
no bottom to the barrel of terrorists, then they will never
defeat terrorists nor render them ineffective
But, Dichter stresses that by "emptying the barrel"
of terrorists, it is not essential to capture or kill every
last terrorist. Rather, the focus should be on arch-terrorists,
or the main generators of terror. By cracking down on the upper
echelons of a terrorist group, the authorities can immobilize
the group and render it ineffective. The period of calm that
was announced by Hamas in January 2005 came into being because
Israel had succeeded in destroying Hamas' infrastructure.
Avi Dichter emphasizes, that in his experience, arrests are
preferable to targeted killings. In fact, in describing the
process of approving targeted assassinations, Dichter writes
that this method is usually less effective than arrests, which
yield information under interrogation. But if targets are key
people in terror organizations, the brains behind the attacks,
who are hard to arrest without exposing the security forces
to substantial risk since they are surrounded by bodyguards
or else by innocent citizens- then targeted killings normally
remain the only way to prevent serious attacks.
Despite being a perhaps brutal, imperfect, and highly controversial
method, targeted killing is viewed by some experts in the Israeli
security apparatus as a valuable counter-terrorist tactic which
cannot easily be replaced - though it offers no solution in
isolation and is seen only as most effective when combined with
other counter-terrorist operations as part of a long-term strategy.
On the other hand, adversaries argue, that in some cases in
the past, targeted killings have proved counter productive,
as they snowballed revenge terrorist attacks, which cost far
more innocent lives, that could perhaps been spared.
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However, a clear benefit of
targeted killing, its exponents claim, is keeping the
terrorists constantly on the run. The threat of assassination
forces terrorist leaders to focus more on their own security,
leaving less time and resources for planning, training
and controlling operation.
Pin-pointing the target and prevent, or reduce collateral
effect on innocents, is a major prerequisite to a successful
elimination of terrorist targets. In Israel's new joint
counter- |
A basic lesson we drew in fighting
terrorists, was the importance of preemption. We cannot
wait until suicide bombers are on their way to the target
or rockets are launched at our cities...we pursue them
ranging from where they operate, to where commanders and
planners are lurking at their hideouts...
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terror/insurgency warfighting doctrine, the basis is the IDF
"Army Digitalization" Program (ADP) which aims at
linking "sensors" and "shooters" across
all command levels, using UAV links transmitting real-time "live"
information down to the single soldier.
Under its motto being "See first Understand first Decide
and Act first", the new concept has already become combat
proven. By "closing the loop" between sensor and shooter,
this becomes a vital element in targeted killing, also avoiding
media sensitive collateral damage and killing innocents.
In the words of Brigadier General Ido Nechustan: "A basic
lesson we drew in fighting terrorists, was the importance of
preemption. We cannot wait until suicide bombers are on their
way to the target or rockets are launched at our cities. We
proved that the level of terrorist acts became dramatically
reduced once we pursued them ranging from where they operate,
to where commanders and planners are lurking at their hideouts.
But such engagements require very precise and actionable intelligence,
clear proof of the target's intent, and surgical response with
the measured effect necessary to neutralize the target without
causing collateral damage."
Read David Eshel's past commentary here |
