A Review of Legitimate Target: A Criteria-Based Approach to Targeted Killing by Amos N. Guiora (Oxford University Press, 2013)
This is a book on assorted matters of genuinely urgent importance. Although explicitly jurisprudential in orientation (the author teaches Criminal Procedure at the University of Utah), the implications are much broader in scope. Indeed, for anyone who has been paying attention to world news on “routine” matters of war and terrorism, it is reasonable to say that the book’s argument will resonate authoritatively on virtually all current matters of peace and security.
This is not a book about assassination. As Professor Guiora makes very clear at the outset, targeted killing is a particular expression of “aggressive, preemptive self-defense” by a nation-state. Its legality, he continues, requires that the intended victim pose “an immediate future threat,” and that it not be in “retaliation for a past act….” Operationally, as is increasingly evident from our daily news sources, targeted killings are, “in the main, conducted through UAVs (referred to as drones), manned helicopters firing missiles, or, `on the ground,'” hit teams.”
Guiora is a distinguished legal scholar, one who served for 19 years in the Israel Defense Forces as commander of the IDF School of Military Law, and also as legal adviser to the Gaza Strip. Written with the understanding that nation-states have increasingly sought alternatives to traditional warfare, his meticulous study fashions a coherent strategy, both lawful and effective, against an expanding enemy that is apt to be “borderless, amorphous, and ruthless.”
In the end, this developed strategy recommends “person-specific operational counterterrorism,” a plan – unlike all-out classical battles between fully-armed military forces – that relies on “intelligence gathering and analysis,” and that seeks to protect democratic societies from “specific individuals who pose a danger to national security.”
Under international humanitarian law, every use of force must always be judged twice, once with regard to the justness of the cause, and once with regard to the justness of the means. Regarding the first criterion, the author invokes and clarifies the doctrine of “pre-emptive self-defense,” a rationale for permissible force that requires identifying enemy preparations for attack that are recognizably “imminent.” As I have written myself in law journals and The Jewish Press, international law is not a suicide pact. Guiora is correct to claim that states sometimes have a residual right to act in self-defense before they are attacked (anticipatory self-defense, explained primarily at customary international law), and that doing so via a limited strategy of targeted killing can substantially minimize collateral casualties among noncombatants.
This brings the author to the second critical legal standard on the use of force – the core issue of properly defining and identifying legitimate targets. Here he offers a “criteria-based decision-making process,” a complex intellectual enterprise, reflecting multiple imperatives (law, policy, morality, and operations), and pertinent expectations of both national and international law. Above all, we can learn here that a policy of targeted killing is permissible only if a legitimate target, a direct participant, and self-defense are all “narrowly defined and specifically applied.”
By its very nature this is not an easy subject to write about, especially where the core genre is intended to be very conspicuously jurisprudential. It is, after all, difficult for any civilized people to acknowledge self-defense imperatives that could allow killing as remediation. Nonetheless, Guiora is right that “The fog of operational counterterrorism has replaced the relative clarity of traditional war,” and that “It is both moral and legal to kill a terrorist when that is the only recourse to prevent him/her from killing innocent individuals.”
For this reviewer, who writes extensively on assassination, the most interesting aspect of Professor Guiora’s excellent book is perhaps his precise and meaningful distinction between assassination and targeted killing. In claiming they are not the same, he is able to sharpen and refine relevant decisional options. He is also on very solid ground in distinguishing targeted killing from extrajudicial execution. The latter reflects any government policy to kill presumed enemies of the state as a means of punishment, and not, looking forward, for national self-defense.
Almost immediately, these vital distinctions brought to my mind the relatively recent case of Anwar al-Awlaki, an American citizen successfully targeted for execution by a CIA drone in Yemen. By definition, this was (and remains) an exceedingly complex legal and moral case, especially because it has involved the very subtle and intersecting tributaries of both U.S. law and international law.