Reciprocity, lawfare and self-defence: Targeted killing

By Richard Falk

This post is a modified and expanded text of a contribution to a Jadaliyya roundtable on targeted killing posted on March 5, 2012, and responding to the article by Lisa Hajjar referred to in the opening paragraph.


There is an emergent Israeli/American controversy on the lawfulness of targeted killing. Although the policy has not yet attained the status of being a national debate, there are signs that it may be about to happen, especially in light of the Attorney General, Eric Holder’s Northwestern Law School speech on March 5, 2012 outlining the Obama’s administration’s controversial approach to targeted killing in some detail. Lisa Hajjar convincingly narrates how the “legalization” of targeted killing has evolved over the course of the last twenty years. [Hajjar, “Lawfare and Targeted Killing Developments in the Israeli and U.S. Contexts,” Jadaliyya, Jan. 15, 2012] She there calls attention to the analogy to the torture debate that, in many ways, defined the political and moral identity of the Bush presidency in the aftermath of the 9/11 attacks, and even caused moral and legal fissures to develop that divided the American people unto this day.

Hajjar shows that it was Israel that first crossed the threshold of legality in response to a wave of suicide bombings that traumatized Israeli society in the 1990s. In other words, targeted killing became a tactic of choice for both the Israel and the United States as part of the preventive logic of counter-terrorism, that is, placing a premium on eliminating threats before harm is inflicted rather than the reactive logic of striking back and retaliating. The upsurge in targeted killing seems responsive to the belief that neither defensive strategies nor deterrence, nor massive retaliation are appropriate or effective against a terrorist adversary, especially if the violence might accompanied by the readiness of a perpetrator to die while carrying out a mission.

By so doing, it gives up on the struggle to restrict the discretion of states to claim self-defense as an open ended justification for the use of force. This is a major setback for war prevention efforts resting on international law that can be traced back at least to the Kellogg-Briand Pact of 1928 that outlawed recourse to war, and was later reinforced and elaborated at the Nuremberg trials and in the core provisions, Articles 2(4) and 51, of the UN Charter. In other words, from an international law perspective the stakes are higher than they might seem in the context of authorizing target killing by invoking the alleged security necessities of the ‘war’ occasioned by the 9/11 attacks.

Holder framed his defense of the tactics, including targeted killing, relied upon by the Obama presidency in the terms initially laid down by George W. Bush in his September 20, 2001 speech to a joint session of Congress: “We are a nation at war.” How different might the last decade have been, and likely for the better, if Bush had opted back then in that feverish atmosphere for a policy of enhanced law enforcement, not a global war on terror. And one can only wonder, and question the failure of Obama to take advantage of the changed climate in 2009 when he moved into the White House, or after the execution of Osama Bin Laden, to indicate that the war was at an end, and from now on the guidelines of law enforcement would prevail. Earlier terrorist organizations operating in Europe poses much greater threats to the security of societies than is posed by the remnants of Al Qaeda, and never insisted on the governmental prerogatives of warmaking.

In considering the victims of targeted killing we are dealing with one aspect of the plight of rightless Palestinians and alleged American enemies scattered around the world, with an inevitable skepticism about the degree to which this unaccountable authority to kill individuals is exercised in a responsible manner as claimed by its apologists, most recently by Eric Holder.

Looking at the Israel record with respect to Palestinian prisons or the American treatment of its detainees at Abu Ghraib or Guantánamo Bay there is every reason to doubt whether the claims of great care exercised in the approval of targets are to be trusted at all. Certainly, those selected for torture were often persons without information and sometimes without any real involvement with terrorist activities. In important respects, target killing is worse than torture due both to its finality which deprives the target of any opportunity to tell his or her story, and because of the collateral damage inflicted on those unlucky innocents who happen to be in the killing zone—or are mistakenly targeted.

Hajjar draws an instructive distinction between those who regard reliance on law and courts as a positive dimension of political democracy and those who view recourse to law as a means to delegitimize states and their security policies. I would develop this distinction by viewing civil society’s recourse to litigation and legal arguments as “constructive lawfare,” while viewing the denigration of law’s role by governments, specifically, Israel and the US, as nihilistic or regressive, and an effort to free themselves from all forms of legal accountability that they cannot fully control.

Such efforts to deplore recourse to law and international standards of legitimacy aim to insulate state security policy from procedures and discipline of accountability, and deprive society of an absolutely necessary check on the abuse of state power undertaken in secrecy and insulated from even post-facto investigation. Constructive lawfare is one of the few means available in a democratic society to redress the new imbalance between state and society in the post-9/11 world, and in relation to the acute vulnerability experienced daily by a people living under occupation for decades.

Instead of seeking to invalidate ‘lawfare,’ governments that took seriously their own insistence on the importance of living according to cherished values would move to allow citizens to have greater access to courts to raise questions of international and constitutional law flowing from governmental security policies.

More specifically, it would be a meaningful gesture in this direction if the U.S. Government were to foreswear procedural copouts from accountability by renouncing the political questions doctrine, executive privilege, and sovereign immunity. Holder quotes Obama several times to the effect that adhering to the rule of law is the right thing to do, but also because it is more effective in upholding security interests.

As Obama expressed it at the National Archives in 2009: “[w]e uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps it safe. Time and again, our values have been our best national security asset.” If that were genuinely believed, then a different approach would have been long ago adopted both in relation to targeted killing, and more generally, to security: less secrecy, more accountability, and more readiness to recognize and address the legitimate grievances of foreign adversaries.

David Cole makes the following cogent observation on his New York Review of Books blog (19 September 2011): “In international law, where reciprocity governs, what is lawful for the goose is lawful for the gander.” He goes further in questioning the approach taken to targeted killing by the Obama administration as being unmindful of setting a precedent that is a prelude to future regret: if we “continue to justify such practices in only the vaguest of terms, we should expect other countries to take them up—and almost certainly in ways we will not find to our liking.” In effect, he is adopting the view that Obama embraces, which is the convenient convergence of virtue and practical benefit.

It is true that international law in many substantive domains, from diplomatic exchange to commerce, substitutes reciprocity for enforcement, and so what is claimed for oneself is granted to others. However, in the domains of national security, the use of armed force, and criminal accountability for gross crime, international law operates more characteristically according to an imperial logic, or at best a hegemonic logic, in which equals are not treated equally.

It is obvious that losers in wars with the West and leaders of some Global South countries are being held more and more accountable for crimes against humanity, especially since the establishment of the International Criminal Court a decade ago. But it is equally obvious that leaders of Western countries, including Israel, enjoy de facto impunity despite their evident involvement in crimes against humanity.

The one exception, which irritates geopolitical actors clinging to impunity, is the haphazard efforts to detain and prosecute state officials and agents under the controversial rubric of universal jurisdiction. Hajjar’s article gives a helpful summary of the pull and push pressures associated with attempts to rely on universal jurisdiction in relation to Israeli military and political leaders whose travel carries them to countries in Western Europe that have laws on their books permitting the use of domestic courts to pursue accountability for crimes of state committed beyond normal territorial sovereignty.

What is most notable is that these attempts to extend the reach of international criminal law beyond what is possible at a global level are furiously resisted by the United States and Israel, claiming the potential disruption of diplomatic interaction. True, the imposition of law can be disruptive, but the refusal to apply law is also disruptive in a different way by discrediting fundamental claims about animating values.

Whether the targeted killing precedents being set by the US and Israel will come to haunt these countries is highly uncertain, and they will do what they can to persuade public opinion that such claims made by hostile states are undisguised terrorism. Israel can assassinate Iranian nuclear scientists with impunity, while an alleged Iranian threat to kill a Saudi Arabian diplomat, which never materialized, is treated as a heinous instance of international terrorism is never questioned in the mainstream media. In other words, the language of law will be used in contradictory ways to deal with our acts and theirs’.

The US used atomic bombs against Japanese cities at the end of World War II, escaped any kind of accountability as war crimes prosecutions were limited to the wrongdoing of the Germans and Japanese, the losers in the war, which led critics of such double standards to deride the outcomes at Nuremberg and Tokyo as “victors’ justice.”

In the current era, practices of targeted killing are certain to spread. Fifty countries have drones, and some deploy them for surveillance and reconnaissance missions. For example, Turkey, in fighting against Kurdish insurgents, made use of drones to carry out recent cross-border raids against PKK base areas in northern Iraq. The future will almost surely witness a strong effort by the United States to impose geopolitical discipline on attack uses of drone aircraft. Whether such an effort will be successful is uncertain as the relative high accessibility of drone technology as compared to nuclear weaponry may make it impossible to implement a non-proliferation approach.

Surely, Iran would have strong grounds to emulate Israeli and American practice with regard to targeted killing, particularly in view of the alleged Israeli targeting and assassinating of Iranian nuclear scientists in recent years, as well as mounting repeated overt threats of launching an attack designed to disable Iran’s nuclear program.

Such threats would appear to be direct violations of Article 2(4) of the UN Charter that categorically prohibits “the threat or use of force” except in situations of self-defense against a prior armed attack (Article 51) or as mandated by a decision of the UN Security Council. But if Iran was to avail itself of the targeted killing precedent to assassinate individuals in Israel or the United States that it deemed to be threatening or responsible for a prior attack on its citizens, such violence would be denounced as “terrorism,” and devastating forms of retaliation would almost certainly follow.

In other words, reciprocity is not likely to shape the future of targeted killing, but rather a regime of double standards tailored to the specific realities of the spread and use of drone weaponry. If such a one sided regime is established it would have the effect of giving a new meaning to military superiority in the 21st century, and widen the opportunities for geopolitical management of international conflict. It is hard to imagine that China or Russia, and perhaps others, would acquiesce in this event, and new dangerous, costly, and unstable rivalries among leading sovereign states might likely ensue.

Human Rights:
It is important to introduce the perspectives of human rights into the legal debate on targeting killing, and not limit inquiry to the applicability of international humanitarian law as set forth in the Geneva Conventions of 1949 and the Geneva Protocols of 1977. Targeted killing of a non-combatant involves a challenge to the right to life, as well as constitutes a flagrant form of extra-judicial execution. UN Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions Philip Alston, in his influential 2010 report to the UN Human Rights Council, legally condemns targeted killing by drones on these bases, especially those taking place outside the combat zone, or as the Obama presidency puts it, far from “the hot battlefield.”

These human rights objections to targeted killing take on added force when extended to individuals who are suspected of inciting terrorist acts, as was the case with Anwar al-Awlaki, but without any disclosure of evidence of either the case against the target or a credible demonstration that such an individual posed an imminent security threat and could not be captured. As Hajjar points out, the difficulties posed by detention constraints and questionable evidence that would hold up in court exert pressure to avoid these complexities by killing the person in question.

The most serious encroachment on relatively settled conceptions of the self-defense exception to the international law prohibition on the use of force is the US reliance on an extended definition of self-defense to validate targeted killing in countries outside existing combat zones. To view the execution of individuals in Yemen or Somalia on the ground that their activities are to be assimilated to the claim of self-defense associated with a continuing urgent response to the al-Qaeda 9/11 attacks is to unilaterally expand the option of recourse to international force beyond what international law had attempted to impose on states after 1945.

True, over the years state practice has nibbled away at the red lines written into Article 51, especially the insistence that a valid claim of self-defense could only be made in response to a prior armed attack, but the Obama administration’s legal rationale for targeted killing cuts the use of force off from any legal mooring, including the procedural requirement in the Charter that a claimant state must submit its use of force to the Security Council for review.

What becomes clear, and without any indication of forethought, is the abandonment of that effort memorialized in the words of the Preamble to the UN Charter “to save succeeding generations from the scourge of war.”

Additionally, Obama has done nothing to restore the constitutional balance when it comes to war, failing to seek a declaration of war before its involvement in the NATO War against Libya. The Legal Advisor, Harold Koh, sought to justify this failure by claiming that the hostilities didn’t rise to the level of war mainly because there was little prospect of American casualties or troops on the ground. Apparently, the devastation wrought by thousands of bombing sorties does not count in Koh’s thinking as ‘war.’ Whether such a sensibility should be described as Orwellian or imperialist is mainly a matter of taste.

The most comprehensive legal justifications for targeted killing have been made by Eric Holder and John Brennan, Obama’s official chief counterterrorist advisor, in his speech at the Harvard Law School a few months ago. The irony here is that, just as John Yoo shocked the conscience of liberal America by insisting that practices long assumed to be torture (most notably water boarding) were not torture (i.e., flagrantly illegal) when employed by the US government, now the Obama administration asserts a similar position that America loves the rule of law, except of course when it might inhibit recourse to a preferred tactic.

If such a bump in the road, then the lawyers are sent in with their shovels to remove any appearance of an obstacle, making it clear to the world that whatever America wants to do is “legal” so are as its leading legal technicians are concerned even when the policy in question flaunts generally accepted understandings of a rule of international law.

In this instance, self-defense is stretched way beyond the accepted consensus among international law specialists as most authoritatively expressed by the majority of the International Court of Justice in its Nicaragua decision of 1986.

Claiming that self-defense entitles the United States to convert the entire world into a global battlefield is certainly bad law, but it is also likely to be bad policy, generating support for extremist expressions of anti-Americanism and creating tensions with such other states as China and Russia, and maybe Brazil, India, and Turkey.

Further, it is scant consolation for Mr. Holder, Mr. Brennan and other Obama officials to reassure the public that this broad legal authority is being used prudently and sparingly, and with a maximum effort to avoid harm to others than those targeted. Unfortunately, the facts as more impartially assessed do not lend credence to such self-serving packaging of targeted killing without even taking consideration the spread of terror to communities that might be struck day or night by a drone missile aimed at a suspect. This indiscriminate form of state terrorism embedded in targeted killing does not even get the benefit of an acknowledgement.

A Word in Conclusion

We now have the materials we need to launch a much overdue debate on targeted killing. Unlike torture, which has vividness and immediacy that existentially assaults our sense of decency and dignity, the relative novelty and remoteness of targeted killing, a technologically facilitated innovation in the tactics of state violence, seems more abstract and numbing, and less in conflict with civilizational values.

In some respects, this distinction identifies some real differences. Most legal commentators do not challenge targeted killing if confined to the combat zone, say Afghanistan, but focus their criticisms on its cross-border uses, which in the US case, can be anywhere in the non-Western world.

In this regard, while torture is primarily of concern as a crime against humanity, targeted killing raises the most fundamental issues of world order, sovereignty, the scope of warfare, the crime of aggression, and extra-judicial executions.

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