ASIL Insights

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            The April 18^th killing in Gaza of Hamas leader Abdel Aziz Rantisi, following on the heels of the killing of his predecessor, Sheik Yassin, provoked an international outcry about Israel's policy of targeted killing.  Such tactics have been widely condemned as unlawful under international law.  In contrast, the United States, while occasionally uncomfortable with Israel's policy, has acknowledged that Israel has a right to self- defense that could be used in some circumstances to target leaders of terrorist groups -- much as the United States has asserted its own right to target Osama Bin Laden.  From a legal standpoint, there are three critical issues that determine the validity of this policy: the law of self-defense; international humanitarian law; and the principle of proportionality.  A good faith analysis can lead to differing conclusions on the legality of Israel's policy.

I.          Self-Defense

            A key determinant in assessing Israeli policy is whether it is for the purpose of self-defense or whether it is a reprisal.  Armed reprisals are illegal under international law, which prohibits the use of armed force for the purpose of revenge.

            The concept of self-defense in international law has two primary sources.  First, there is an explicit reference to self-defense in Article 51 of the U.N. Charter, which states:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Those who argue in favor of Israel's right to self-defense in this situation hold that Hamas's numerous suicide bombings against Israel constitute an armed attack, much as the United States has argued that the use of civilian airliners to destroy the World Trade Center constituted an armed attack.  Furthermore, they note that Hamas has openly declared its intention to strike Israel again.  Israel faces an ongoing threat and the Security Council has not yet acted.  Consequently, they argue that Article 51 provides Israel with a right to employ military force against Hamas's leaders.

            Those who dispute Article 51's applicability generally do not dispute that the number of Israeli casualties is substantial.  However, the issue for them is that an armed attack within the meaning of Article 51 is an armed attack from a state.  Hamas is not a state.  It cannot even be argued to constitute a de-facto state.  Although other states provide aid and support to Hamas, it is not accepted that Hamas is the organ of a state or under the direct control of another state.  According to this view, Hamas's attacks are more akin to the acts of a violent gang, which must be dealt with as a law enforcement problem.  Consequently, Article 51 would be inapplicable and the targeted killings would be unlawful reprisals or extrajudicial acts of homicide.

            The other legal source of self-defense is customary international law.  In particular, many scholars cite the Caroline doctrine, which sets forth the standard for anticipatory self-defense in customary international law.  The Caroline doctrine arises from an incident in the 1840s where British soldiers crossed into the United States to destroy a ship ferrying arms to insurgents in Canada.  Both the United Kingdom and the United States agreed that anticipatory action was allowed only when the "[n]ecessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." [1]   After World War II, the Nuremberg Tribunal reaffirmed the Caroline doctrine.

            It should be noted that after the advent of the United Nations Charter, the Caroline doctrine is not universally accepted; many reputable scholars have argued that Article 51 of the UN Charter supercedes it.  Even conceding its validity, though, reasonable individuals can come to differing conclusions on its applicability in various situations. 

            For example, most would agree that missiles being fueled for launch are an imminent threat under the Caroline Doctrine.  Few would concede, however, that mere discussions on the construction of such weapons constitute a threat under this standard.  However, reasonable people could come to differing conclusions about whether the actual shipment and emplacement of such weapons, for example during the Cuban Missile Crisis, gives rise to a right of self-defense.  In that instance, the United States chose not to justify its interdiction of Soviet missiles bound for Cuba as a measure of anticipatory self-defense.

            In the present situation, some of the recently targeted individuals such as Rantissi and Sheik Yassin were not killed while in the process of carrying out an attack.  However, they were presumed to be in a position to order future attacks at short notice and Hamas had previously carried out attacks.  Whether there was time to deliberate and to consider other means is uncertain.  The more one agrees with Israel's assessment that the targeted individuals were "ticking bombs," the more one would believe that a right under the Caroline doctrine arises.  One could also argue that since Hamas has already carried out attacks, the Caroline doctrine is inapplicable in a strict sense, even though it remains relevant to show that customary international law recognizes a right of self-defense.

II.        International Humanitarian Law

            Another legal issue about Israel's policy is whether it comports with international humanitarian law.  International humanitarian law comprises the rules that govern the conduct of armed conflict.  Under international humanitarian law, one question that needs to be resolved is whether those targeted are combatants.  The Geneva Conventions on the Law of War, particularly common Article 3, prohibit the intentional killing of civilians.  Common Article 3 prohibits:

"(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;" and "(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Other international human rights instruments, such as the International Covenant on Civil and Political Rights, state that arbitrary execution is unlawful. 

            Individuals who belong to the military wing of Hamas, such as Rantissi, are likely to be considered combatants.  Individuals like Sheik Yassin, who was a quadriplegic and supposedly a spiritual rather than military leader, may be subject to more debate on their status as a combatants.

            Targeted killings also implicate the Regulations annexed to the Hague Convention of 1907, which are widely viewed as customary international law.  It is believed that most targeted individuals have been killed in helicopter strikes.  The Hague Regulations prohibit the killing or wounding treacherously of individuals belonging to a hostile nation or army. [2] Killing or targeting particular individuals during an armed conflict is not illegal in itself under international law, nor is it accurately described as assassination, if the individuals are members of a hostile force.  For example, the United States' targeted attack on Admiral Yamamoto during the Second World War was widely considered to be legitimate. 

            The key issue in deciding legality in such cases is whether or not perfidy or treacherous means were employed.  The employment of treachery is what distinguishes assassination from a traditional killing.  Killing individuals by a helicopter strike is generally an accepted tactic of warfare.  More stealthy means, however, could be considered as acts of treachery.  Some would also argue that persons at mosques or in prayer have no means of defense and thus are impermissible targets.  The question becomes murkier, though, if such individuals are inciting followers or giving orders at those facilities for hostile acts against an enemy.

III.       Proportionality

            The last key issue regarding Israel's policy is whether it violates the basic international law principle of proportionality.  Proportionality holds that any given action by a state must be substantially proportional to the given threat or wrong.  This principle also finds support in the Hague Regulations of 1907 which prohibit the use of arms, projectiles, or material calculated to cause unnecessary suffering.

            Israel's policy of targeted killing has resulted in the deaths of multiple civilians.  Were those deaths avoidable if different tactics were utilized?  Proportionality analysis depends upon the circumstances and the situation.  Many have suggested that Israel had a less violent option at its disposal: an arrest.  As the occupying power, Israel could potentially deploy troops or police to arrest these individuals.

            Proportionality is an important rule that could distinguish Israel's policy from the American attack on terrorists in Yemen last year via a predator drone.  An arrest may be infeasible in the middle of a lawless dessert in Yemen.  Civilians are also unlikely to be wounded in such an attack; thus the attack is likely to be proportional under the circumstances.

             Whether Israel's policy is proportional is not an open and shut case.  Deploying soldiers or police to apprehend suspects in hostile urban areas is a dangerous affair.  Whether more lives are put at danger through an attempted arrest or a helicopter strike is debatable; hence the proportionality of Israel's policy is unclear.

 IV.      Conclusion     

            Israel's policy of targeted killings raises serious questions of international law, but the answers are not obvious.  Although many observers view the policy as contravening international law, there is a substantial amount of uncertainty regarding the application of the relevant law to the situation at hand.  Thus, good faith analysis could lead to starkly different conclusions on the legality of any such policy.

About the Author:
Mayur Patel will be joining the law firm of Dewey Ballantine LLP this fall. 

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