Israel's Targeted Killing Controversy Absolved?

By David Eshel

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After 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.

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.

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.

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...

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



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