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Copyright ? 2010 by the President and Fellows of Harvard College, Gabriella Blum, and

Philip Heymann.

Volume 1—June 27, 2010


Law and Policy of Targeted Killing?

Gabriella Blum* and Philip Heymann**

I. Introduction

Imagine that the U.S. intelligence services obtain reliable

information that a known individual is plotting a terrorist attack against the

United States. The individual is outside the United States, in a country

where law and order are weak and unreliable. U.S. officials can request

that country to arrest the individual, but they fear that by the time the

individual is located, arrested, and extradited the terror plot would be too

advanced, or would already have taken place. It is also doubtful that the

host government is either able or willing to perform the arrest. Moreover,

even if it did arrest the suspected terrorist, it might decide to release him

shortly thereafter, exposing the U.S. to a renewed risk. Should the United

States be allowed to kill the suspected terrorist in the foreign territory,

without first capturing, arresting, and trying him?

More than any other counterterrorism tactic, targeted killing

operations display the tension between addressing terrorism as a crime and

addressing it as war. The right of a government to use deadly force against

a citizen is constrained by both domestic criminal law and international

human rights norms that seek to protect the individual’s right to life and

liberty. In law enforcement, individuals are punished for their individual

? This article appears as a chapter in Gabriella Blum & Philip Heymann, LAWS,


forthcoming Sept. 2010).

* Assistant Professor of Law, Harvard Law School.

** James Barr Ames Professor of Law, Harvard Law School.

2010 / Law and Policy of Targeted Killing


guilt. Guilt must be proven in a court of law, with the individual facing trial

enjoying the protections of due process guarantees. Killing an individual

without trial is allowed only in very limited circumstances, such as selfdefense

(where the person poses an immediate threat) or the immediate

necessity of saving more lives. In almost any other case, it would be clearly

unlawful, tantamount to extrajudicial execution or murder.

When agents of a state seek to engage in enforcement operations

outside their own territory without consent of the foreign government, they

are further constrained by international norms of peaceful relations and the

respect for territorial boundaries among states. Ordinarily, when a criminal

suspect finds refuge in another country, the United States would ask the

other country for extradition to gain jurisdiction over him. Even

interviewing a person outside of U.S. territory would be unlawful; executing

him would be an extremely egregious offense. Violations of these norms

run the risk of replacing law with force and spiraling international violence.

In wartime, governments may use deadly force against combatants

of an enemy party, in which case the peacetime constraints are relaxed. But

in war, the enemy combatants belong to another identifiable party and are

killed not because they are guilty, but because they are potentially lethal

agents of that hostile party. Moreover, soldiers are easily identified by the

uniform they wear. Once in the uniform of an enemy state, any soldier, by

commitment and allegiance, is a potential threat and thus a legitimate

target, regardless of the degree of threat the soldier is actually posing at any

particular moment: the relaxing, unarmed soldier, the sleeping soldier, the

retreating soldier—all are legitimate military targets and subject to

intentional targeting. No advance warning is necessary, no attempt to arrest

or capture is required, and no effort to minimize casualties among enemy

forces is demanded by law.

The identity and culpability of an individual not wearing a uniform

but suspected of involvement in terrorism is far less easily ascertained.

While combatants should not benefit from defying the obligation to

distinguish themselves from civilians (wearing civilian clothes does not give a

soldier legal immunity from direct attack), the lack of uniform does raise

concerns about the ability to identify individuals as belonging to a hostile

147 Harvard National Security Journal / Vol. 1

force.1 Moreover, joining a military follows a distinct procedure that allows

for a bright-line rule distinguishing between those in the military and those

outside it (although it hides the dangerous responsibility of civilians who take

part in hostile activity without being members of the armed forces). Joining

a terrorist organization does not necessarily have a similar on/off switch;

individuals might join the organization or support it in some ways or for

some time, but then go back to their ordinary business without any ritual

marking their joining or departing. Identifying individuals as terrorists

grows more difficult as organizations, such as Al-Qaeda, become a network

of small dispersed cells, or even individuals, making the association with a

hostile armed group even more tenuous.

Despite these difficulties, both the United States and Israel (as well as

several other countries) have made targeted killing—the deliberate

assassination of a known terrorist outside the country’s territory (even in a

friendly nation’s territory), usually (but not exclusively) by an airstrike—an

essential part of their counterterrorism strategy. Both have found targeted

killing an inevitable means of frustrating the activities of terrorists who are

directly involved in plotting and instigating attacks from outside their


Adopting a position on targeted killings involves complex legal,

political, and moral judgments with very broad implications. Targeted

killing is the most coercive tactic employed in the war on terrorism. Unlike

detention or interrogation, it is not designed to capture the terrorist,

monitor his or her actions, or extract information; simply put, it is designed

to eliminate the terrorist. More than any other counterterrorism practice, it

reveals the complexity involved in classifying counterterrorism operations

either as part of a war or as a law enforcement operation.

A targeted killing entails an entire military operation that is planned

and executed against a particular, known person. In war, there is no

prohibition on the killing of a known enemy combatant; for the most part,

wars are fought between anonymous soldiers, and bullets have no

designated names on them. The image of a powerful army launching a

highly sophisticated guided missile from a distance, often from a Predator

drone, against a specific individual driving an unarmored vehicle or walking

1 One such famous case took place in July 1973, when the Israeli Mossad assassinated an

innocent Moroccan waiter in Lillehammer, Norway, mistaking him for a member of the

Black September faction responsible for the Munich massacre.

2010 / Law and Policy of Targeted Killing


down the street starkly illustrates the difference between counterinsurgency

operations and the traditional war paradigm. Moreover, the fact that all

targeted killing operations in combating terrorism are directed against

particular individuals makes the tactic more reminiscent of a law

enforcement paradigm, where power is employed on the basis of individual

guilt rather than status (civilian/combatant). Unlike a law enforcement

operation, however, there are no due process guarantees: the individual is

not forewarned about the operation, is not given a chance to defend his

innocence, and there is no assessment of his guilt by any impartial body.

The uneasiness about classifying and evaluating targeted killings

further grows as these operations are carried out outside an immediate

battlefield, such as in Yemen, Pakistan, or Somalia. Justifying targeted

killings in those countries faces the challenges of the constraints of peaceful

international relations or else a potentially unlimited expansion of the

geographical scope of the armed conflict beyond the immediate theater of

war. There are slippery slope concerns of excessive use of targeted killings

against individuals or in territories that are harder to justify. Recent reports

about a U.S. “hit list” of Afghan drug lords, even though supposedly taking

place in an active combat zone, have sparked criticism that drug lords, even

when they finance the Taliban, do not fit neatly within the concept of

“combatant,” and must instead be treated with law enforcement tools.2

Concerns about the use of targeted killings grow as collateral harm is

inflicted on innocent bystanders in the course of attacks aimed at terrorists.

In war, collateral damage to civilians, if proportionate to the military gain, is

a legitimate, however dire, consequence of war. In domestic law

enforcement, the police must hold their fire if they believe that there is a

danger to innocent bystanders, except where using lethal force against a

suspect is reasonably believed likely to reduce the number of innocent


To make this tactic acceptable to other nations, targeted killings

must be justified and accounted for under a set of norms that may not

correspond perfectly to either peacetime or wartime paradigms, but is

nonetheless respectful of the values and considerations espoused by both. In

2 For a report on the U.S. “hit list,” see Craig Whitlock, Afghans Oppose U.S. Hit List of Drug

Traffickers, WASH. POST, Oct. 24, 2009, available at http://www.washingtonpost.com/wpdyn/


149 Harvard National Security Journal / Vol. 1

this chapter we consider the advantages and disadvantages of choosing

either paradigm as our starting point, thereafter subjecting the paradigm to

necessary modifications for application to the counterterrorism context. We

do so by assessing the American and Israeli experience in employing

targeted killings and its legal, moral, and strategic implications.

II. The Practice of Targeted Killing

A. The United States

Countries have been in the business of targeted assassinations for

centuries. The United States has been a more recent participant. The U.S.

Senate Select Committee chaired by Senator Frank Church (the Church

Committee) reported in 1975 that it had found evidence of no less than

eight plots involving CIA efforts to assassinate Fidel Castro, as well as

assassination plots against President Ngo Dinh Diem of South Vietnam and

General Rene Schneider of Chile. During the Vietnam War, the Phoenix

Program planned the assassination of Viet Cong leaders and sympathizers.

In 1986, President Ronald Reagan ordered Operation El Dorado Canyon,

which included an air raid on the residence of Libyan ruler Muammar

Qaddafi. Qaddafi remained unscathed, but his daughter was killed.

Assassination plots by both the United States and other countries

were not publicly acknowledged, justified, or accounted for. Rather, they

were taken to be an element of that part of foreign relations that always

remains in the dark, outside official protocol or lawful interaction, unspoken

of, but understood to be “part of the international game.” Many of the

plots never became public knowledge; few, if any, enjoyed enduring public


The political fallout of the Church Committee’s criticism of the

covert assassination program during the Cold War brought President

Gerald Ford to promulgate an executive order banning assassinations, a

prohibition that was later incorporated into Executive Order 12333 (1981)

signed by President Ronald Reagan and that remains in effect today. The

executive order was part of the reason that those responsible for planning

military actions prior to 1998 took great care to avoid any appearance of

targeting specific individuals.

2010 / Law and Policy of Targeted Killing


However, following the 1998 bombings of the American embassies

in Kenya and Tanzania, and on the basis of a (secret) favorable legal

opinion, President Bill Clinton issued a presidential finding (equivalent to an

executive order) authorizing the use of lethal force in self-defense against Al-

Qaeda in Afghanistan. Shortly thereafter, seventy-five Tomahawk cruise

missiles were launched at a site in Afghanistan where Osama Bin Laden was

expected to attend a summit meeting. Following the attacks of September

11, 2001, President George Bush reportedly made another finding that

broadened the class of potential targets beyond the top leaders of Al-Qaeda,

and also beyond the boundaries of Afghanistan. Secretary of Defense

Donald Rumsfeld ordered Special Operations units to prepare a plan for

“hunter killer teams,” with the purpose of killing, not capturing, terrorist

suspects. Using the war paradigm for counterterrorism enabled government

lawyers to distinguish lethal attacks on terrorists from prohibited

assassinations and justify them as lawful battlefield operations against enemy

combatants, much like the uncontroversial targeted killing of Japanese

Admiral Isoroku Yamamoto while he was traveling by a military airplane

during World War II. According to reports, President Bush also gave the

CIA, and later the military, authority to kill U.S. citizens abroad if there was

strong evidence that an American was involved in organizing or carrying

out acts of terrorism against the United States or U.S. interests.3

The first publicly known targeted killing of terrorists outside a

theater of active war under the most recent presidential finding was in

Yemen in November 2002, when a Predator (unmanned and remotely

operated) drone was launched at a car carrying Al-Harethi, suspected of the

USS Cole bombing, along with four others, one of whom was an American

citizen. The attack in Yemen was executed with the approval of the

government of Yemen, thereby eliminating some of the international legal

difficulties associated with employing force in another country’s territory.

Later, the United States engaged in a number of targeted killing

operations in Pakistan, not all of which were authorized or approved by the

Pakistani government. One of those operations, carried out in January

2006 and directed at Bin Laden’s deputy, Aiman al-Zawahiri, left eighteen

civilians dead while missing al-Zawahiri altogether and drawing fierce

domestic criticism of then-Pakistani President Pervez Musharraf.

3 Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, WASH.

POST, Jan. 27, 2010, available at http://www.washingtonpost.com/wpdyn/


151 Harvard National Security Journal / Vol. 1

Since 9/11, Predator drones have reportedly been used dozens of

times by the United States to fire on targets in Afghanistan, Iraq, Pakistan,

Yemen, and elsewhere. The targeted killing operations have successfully

killed a number of senior Al-Qaeda members, including its chief of military

operations, Mohammad Atef.

President Barack Obama’s administration has not changed the

policy on targeted killings; in fact, it ordered a “dramatic increase” in the

drone-launched missile strikes against Al-Qaeda and Taliban members in

Pakistan. According to commentators, there were more such strikes in the

first year of Obama’s administration than in the last three years of the Bush

administration. CIA operatives have reportedly been involved in targeted

killing operations in Yemen and Somalia as well, although in Yemen the

operations are carried out by Yemeni forces, with the CIA assisting in

planning, munitions supply, and tactical guidance. Obama has also left

intact the authority granted by his predecessor to the CIA and the military

to kill American citizens abroad, if they are involved in terrorism against the

United States.4

B. Israel

Since its creation in 1948, Israel has assassinated various enemy

targets, including Egyptian intelligence officers involved in orchestrating

infiltrations into Israel in the 1950’s, German scientists developing missiles

for Nasser’s Egypt in the 1960’s, Black September members following the

Munich Olympics massacre of 1972, and prominent leaders of Palestinian

and Lebanese terrorist networks such as the secretary general of Hezbollah

in 1992. Israel even planned an assassination operation against Saddam

Hussein after the Gulf War.

But it was only during the Second Intifada, which began in

September 2000, that targeted killings became a declared and overt policy

in the fight against terrorism. Since the first publicly acknowledged targeted

killing operation by Israel in November 2000, there have been many dozens

of such operations, mostly in Gaza and only rarely in the West Bank. The

use of targeted killing operations increased with the level of Palestinian

violence and decreased with the prospects of peaceful relations between the

parties. Following waves of suicide bombings, there was a surge in targeted

4 Id.

2010 / Law and Policy of Targeted Killing


killing operations; when there were declarations of ceasefire or when

political processes were underway, operations were halted.

The process for approving targeted killing operations in Israel

involves an intelligence “incrimination” of the target, which identifies the

target as a person actively involved in acts of terrorism; a plan for the time,

place, and means of the attack (most commonly, an airstrike); consideration

of the danger of collateral damage; and a review of potential political

ramifications. The complete plan must receive the approval of a top-level

political official. There is no external review process, judicial or other.

The stated Israeli policy is that only members of a terrorist

organization who are actively involved in an ongoing and direct manner in

launching, planning, preparing, or executing terrorist attacks are lawful

targets. In addition, targeted killing operations will not be carried out where

there is a reasonable possibility of capturing the terrorist alive.

The legitimacy and usefulness of the practice of targeted killings has

been hotly debated within Israel ever since it became publicly known that

Israel was employing them. No incident illustrates the tension between the

benefits of a legitimate procedure meeting due process standards and the

national security demands for exigency better than the targeted killing of

Salah Shehadeh. Shehadeh was the head of the military wing of Hamas in

the Gaza Strip, and was, according to Israeli intelligence, directly

responsible for the killing of scores of Israeli civilians and soldiers and the

injury of hundreds of others in dozens of attacks.

Initially, Israeli officials had demanded that the Palestinian

Authority arrest Shehadeh. When the Palestinian Authority declined, the

Israeli government sought to capture him directly, but had to forego such

plans when it realized that Shehadeh lived in the middle of Gaza City,

where no Israeli soldiers had been deployed since 1994, and where any

attempt to apprehend Shehadeh would turn into a deadly confrontation. It

was then that Israel decided to kill him.

On the night of July 22, 2002, an Israeli F-16 aircraft dropped a

single one-ton bomb on Shehadeh’s house in a residential neighborhood of

Gaza City, one of the most densely populated areas on the globe. As a

result, Shehadeh and his aide, as well as Shehadeh’s wife, three of his

153 Harvard National Security Journal / Vol. 1

children, and eleven other civilians, most of whom were children, were

killed. One hundred and fifty people were injured.

Israeli officials claimed that the targeted killing of Shehadeh was

designed to prevent him from carrying out future attacks against Israelis.

They asserted that, according to intelligence reports, at the time of his

killing, Shehadeh was effectively a “ticking bomb,” in the midst of planning

at least six different attacks on Israelis, including one designed as a “megaattack,”

involving a truck loaded with a ton of explosives.

In the aftermath of the attack, there was little disagreement that

Shehadeh himself was a justified target. Nonetheless, television images of

funerals of slain children drew fierce criticism both within and outside of

Israel. Legal proceedings were initiated in Britain against the Israel Defense

Force’s (IDF) Chief of General Staff, the IDF’s air force commander, and

the commander of the Southern Command.5 A lawsuit under the Alien

Tort Claims Statute and the Torture Victim Protection Act was filed by the

Center for Constitutional Rights in the Southern District of New York

against the head of the Israel Security Agency at the time, Avi Dichter.6

The claim was subsequently dismissed by the court.7

Within Israel, the cars of air force pilots, normally considered

demigods in popular Israeli culture, were sprayed with graffiti insults of

“war criminal.” A year later, twenty-seven pilots declared that they would

refuse to carry out any additional bombing missions in Gaza. Israeli

leftwing activists petitioned the High Court of Justice to order a criminal

investigation into the attack and also to prevent the air force commander—

Major General Dan Halutz—from being promoted to Deputy Chief of

General Staff (Halutz later became Chief of General Staff, but resigned after

the 2006 war in Lebanon). A criminal proceeding was initiated in Spain by

relatives of the victims of the attack on Shehadeh against seven Israeli

officials for alleged war crimes (and was later dismissed by a Spanish court).

5 The latter flew to London in September 2005 following his discharge from the military,

but had to stay aboard the plane and return to Israel after being tipped off that he might be


6 Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007).

7 The United States Court of Appeals for the Second Circuit affirmed the dismissal. See

Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009).

2010 / Law and Policy of Targeted Killing


In a traditional war context, killing fourteen civilians along with the

highest military commander of the enemy could be considered

proportionate collateral damage. For comparison’s sake, the special report

of the prosecutor of the International Criminal Tribunal for the Former

Yugoslavia on the NATO operation in Kosovo determined that ten (and

according to some reports, seventeen) civilian casualties were legitimate

collateral damage for the attack on the Serbian television station.

But public opinion could not disentangle the proportionality

question from the broader political context of the Israeli-Palestinian

relationship: the legality and morality of the continued occupation of Gaza

and the West Bank (Israel withdrew from Gaza three years later); the

perception of failure in conducting the war on terrorism; and the frustration

over losing the symbolic struggle over “victimhood” to the Palestinians.

A year after the targeted killing of Shehadeh, ten senior Hamas

leaders met in a room on the top floor of a residential building in Gaza.

Bruised by the effects of the Shehadeh operation, the Israeli security

agencies decided to use a laser-guided bomb only a quarter of the size of the

one used to kill Shehadeh. The Hamas leaders left the room seconds before

the bomb hit. The top floor was destroyed, but the group escaped with

minor scratches. Had a larger bomb been used, the building would have

collapsed, together with the Hamas leadership and civilian residents.

Two years later, in a newspaper interview, Avi Dichter, while

admitting that the pre-operation assessment misjudged the level of collateral

damage that would result from the attack on Shehadeh, added that “he

couldn’t say how many Israelis paid with their lives for the fact that

Shehadeh continued to operate long after Israel had the operational

capability to harm him, but not the moral will to do it.” In describing the

subsequent failed attack on the Hamas leadership as “a miss,” Dichter

lamented, “it was the Hamas’ dream team . . . the ceiling collapsed, but the

team got away. No one knows how many Israelis were killed as a result of

the decision [not to use heavier munitions].”8

8 Amos Harel, Dichter: The Targeted Killing of Hamas Leaders Has Brought About Calm, HA’ARETZ,

June 1, 2005 (in Hebrew).

155 Harvard National Security Journal / Vol. 1

III. Choosing the Framework

A. Justifying Targeted Killings—The War Paradigm

The debate within the United States over the lawfulness of targeted

killings has remained largely confined to legal scholarship and public

commentary; the courts have never addressed it. The Bush administration,

to a large extent, relied on a December 1989 Memorandum of Law (an

advisory opinion), issued by the Special Assistant for Law of War Matters to

The Judge Advocate General of the Army at the time, W. Hays Parks.9 The

Parks memorandum distinguished the prohibition on illegal assassinations in

Executive Order 12333 from lawful targeting of individuals or groups who

pose a direct threat to the United States. The prohibition, argued Parks,

applied to covert acts of murder for political reasons. Legal Advisor to the

State Department at the time, Arbaham Sofaer, emphasized in his own

statements that the prohibition “should not be limited to the planned killing

only of political officials, but that it should apply to the illegal killing of any

person, even an ordinary citizen, so long as the act has a political

purpose.”10 Both Parks and Sofaer, however, asserted that this prohibition

did not preclude the targeted killing of enemy combatants in wartime or the

killing in self-defense of specific individuals who pose a direct threat to U.S.

citizens or national security in peacetime. The latter, both argued, was

permissible under the inherent principle of self-defense to which every

country was entitled under Article 51 of the United Nations Charter (which

allows countries to use force in self-defense after suffering an “armed

attack”) and customary international law. Neither Parks nor Sofaer

expounded on what amounts to direct threat.

9 Memorandum from W. Hays Parks, Special Assistant to The Judge Advocate Gen. of the

Army for Law of War Matters, to The Judge Advocate Gen. of the Army, Executive Order

12333 and Assassination (Dec. 4, 1989) reprinted in ARMY LAW., Dec. 1989, at 4 [hereinafter

Parks Memorandum] available at http://www.loc.gov/rr/frd/Military_Law/pdf/12-


10 Abraham D. Sofaer, Sixth Annual Waldemar A. Solf Lecture in International Law: Terrorism, the

Law, and the National Defense, 126 MIL. L. REV. 89, 119 (1989). For further analysis of the

Sofaer doctrine, see Kenneth Anderson, Targeted Killing in U.S. Counterterrorism Strategy and

Law 24–25 (Brookings Inst., Georgetown Univ. Law Ctr., & Hoover Inst., Working Paper

of the Series on Counterterrorism and American Statutory Law, 2009), available at


2010 / Law and Policy of Targeted Killing


The Bush administration has favored the paradigm of war, treating

terrorists as combatants and justifying the targeted killing of terrorists as

equivalent to the lawful killing of members of an enemy force on any

battlefield. Specifically, the administration deemed terrorists to be

“unlawful combatants,” targetable and detainable, but denied the rights

accorded to lawful detainees, namely, to be treated as prisoners of war if

captured. The Bush administration maintained this position even when the

targeted killing took place in Yemen or Pakistan, outside an immediate

theater of hostilities such as Afghanistan. Given that the war on terrorism

was a “global war,” the Administration maintained, there could be no

geographical boundaries to the theater of war.

However, as we noted in the introduction to this chapter, choosing a

war paradigm as governing the targeted killings of suspected terrorists is not

devoid of difficulties. The killing on the basis of blame rather than status,

the difficulties in ensuring the accurate identification of the target, and the

fact that operations take place outside of a defined battlefield—all make the

war paradigm at best a proximate, but by no means a perfect, fit. The full

legal implications of this choice were considered by the Israeli High Court

of Justice (HCJ), in its ruling on the Israeli practice of targeted killing

operations in Gaza and the West Bank.

A petition was first submitted to the HCJ by a group of Israeli

NGOs in late 2001, as the first Israeli targeted killing operations became

public, but it was dismissed on grounds of justiciability. In March 2002,

another petition was submitted, and this time, Supreme Court President

Aharon Barak ordered the state to respond. By that time, 339 Palestinians

had been killed by targeted killing operations during the Second Intifada:

201 intended targets and 129 innocent bystanders. No less than seven

briefs, covering hundreds of pages of arguments and documents, were

submitted to the court. In his last decision before retiring from the court,

President Barak delivered the ruling in December 2006.11 It is probably the

most comprehensive judicial decision ever rendered addressing the legal

framework of the “war on terrorism.”

Barak began by accepting that, unlike in the era of the First Intifada,

there was now an “international armed conflict” with Palestinian militants,

11 HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel (Targeted Killings

Case) [2005], available at


157 Harvard National Security Journal / Vol. 1

which warranted and justified the use of military means, as governed by

customary international law, to combat terrorism. For Barak, accepting the

armed conflict paradigm was, albeit implicitly, a precondition to the

justification of targeting operations, going far beyond any law enforcement

method. Furthermore, his choice of an international armed conflict paradigm

was singular amongst the opinions of the U.S. Supreme Court as well as

most other commentators, which have favored a non-international armed

conflict model. This choice was possibly motivated by the fact that

international armed conflicts are subject to more regulation under

international law than their non-international counterparts, thereby further

constraining the government.

Barak, in his decision, did not discuss the possibility of working

within a law enforcement paradigm, or the possibility of relying on Article

51 of the UN Charter to justify the practice. Indeed, it would have been

hard to justify a general practice, employed hundreds of times in the same

territory, as an “exceptional measure” under a self-defense paradigm.

But Barak’s acceptance of the war paradigm as applicable to the

fight against terrorism was not unqualified. The remainder of the decision

was designed to limit the full application of the laws of war and place further

constraints on the legitimacy of targeted killing operations, in comparison

with traditional combat.

First, in terms of the classification of terrorists, Barak rejected the

government’s claim that these were unlawful combatants, and found,

instead, that terrorists were “civilians taking direct part in hostilities.” This

choice of a two-group classification (civilian/combatant) vs. a three-group

classification (civilian/ lawful combatant/unlawful combatant) was intended

to achieve at least two goals. The first was to make sure the protections of

the Geneva Conventions applied to the armed conflict with Palestinian

terrorists and to avoid the American administration’s conclusion that, as

“unlawful combatants,” terrorists were entitled to few protections under the

laws of war.

Second, by refraining from labeling terrorists as “combatants,” the

ruling ensured that unlike combatants on the battlefield, who were all

legitimate targets regardless of rank, role, or threat, terrorists would not be

targeted on the basis of mere membership in a terrorist organization;

instead, an individual culpability of the targeted person, by way of direct

2010 / Law and Policy of Targeted Killing


participation in instigating and executing terrorist acts, would have to be

proven. A mere membership test in the case of Hamas or some other

Palestinian organizations would have been especially prone to over-inclusive

application, as alongside their military wings, these organizations also have

broad political, social, economic, and cultural operations.

The ruling also departed from the traditional armed conflict

paradigm in that it conditioned the legitimacy of targeted killings on the

absence of a reasonable alternative for capturing the terrorist. On the

traditional battlefield, no attempt to capture the enemy or warn the enemy

in advance is necessary before shooting to kill. In fact, the court’s

requirement to try to apprehend the terrorist is far more easily situated

within a law enforcement model of regular policing operations and signifies

the uneasiness that the court felt about the war paradigm.

The Supreme Court’s decision also addressed concerns about

collateral damage to innocent civilians in the course of targeted killings

operations. At the time the petition was submitted, the ratio of civilians to

militants killed by targeted killings operations was 1:3—one civilian for

every three militants12 (the ratio has improved substantially since then, and

in 2007, the rate of civilians hurt in targeted killing operations was 2–3

percent).13 Barak acknowledged the difficulty in determining what number

of casualties was “proportionate”:

[O]ne must proceed case by case, while narrowing the area

of disagreement. Take the usual case of a combatant, or a

terrorist sniper shooting at soldiers or civilians from his

porch. Shooting at him is proportionate even if as a result,

an innocent civilian neighbor or passerby is harmed. This is

not the case if the building is bombed from the air and scores

of its residents and passerby are harmed. . . . The hard cases

are those which are in the space between the extreme


12 Note that numbers of militants killed include both the intended targets and their armed

group associates who were present at the time of the attack and were harmed as a result.

13 Amos Harel, Pinpointed IAF Attacks in Gaza More Precise, Hurt Fewer Civilians, HA’ARETZ,

Dec. 30, 2007, available at http://www.haaretz.co.il/hasen/spages/939702.html.

14 Targeted Killings Case, HCJ 769/02 at ? 46.

159 Harvard National Security Journal / Vol. 1

Accordingly, the decision placed an emphasis on the procedure by which

the targeted killing operation was considered and approved and on the postfactum

debriefing of operations, all in an effort to improve the record on

collateral harm. Importantly, however, the decision did not demand a zero

civilian casualty policy. In that, it remained more loyal to the war paradigm

than to a policing paradigm.

Barak added that certain incidents might be subjected to judicial


The concern about collateral damage also brought the court to

stipulate that in certain cases in which there was substantial collateral

damage, and depending on the conclusions of an investigation into such

incidents, it would be appropriate to compensate innocent civilians who

have been harmed.15

To conclude, the Israeli Supreme Court sought a middle ground

between a more aggressive law enforcement paradigm and a tamer wartime

paradigm. It chose the latter as its point of departure, but then, in

consideration of the unique nature of the war on terrorism, added

limitations and constraints on the government’s war powers so as to remain

as loyal as possible to the basic principles and values of the Israeli legal


B. Justifying Targeted Killings—The Exceptional Peacetime Operations


Could the U.S. administration, given the Parks memorandum,

justify targeted killings even without relying on the applicability of military

powers to a “war on terrorism”? It would have to find the operation lawful

under a reasonable interpretation of the domestic law of homicide; it would

have to address major issues of peacetime international law, including

human rights laws and the duty to respect the sovereignty of other countries;

and, of course, it would have to satisfy the constitutional protections found

in the Bill of Rights, to the extent these are applicable abroad.

15 Id. at ? 40.

16 That the 2008 armed conflict between Israel and Hamas in Gaza looked far more like a

conventional war may help explain why, only three years after Barak’s decision, Israeli

forces struck numerous Hamas members who would not have necessarily met the strict tests

he had imposed.

2010 / Law and Policy of Targeted Killing


Domestic law enforcement operations permit shooting to kill a

suspected criminal only under very limited circumstances. These limitations

coincide with international human rights norms on the use of force by

governments against citizens. When the suspect imposes no immediate and

lethal threat, firing at him to affect an arrest is only constitutional if “the

officer has probable cause to believe that the suspect poses a threat of

serious physical harm.”17 There are even greater common law constraints

on shooting a suspect where there is a concern about collateral harm to

others around the suspect; in such cases, law enforcement officials are

required to hold their fire and refrain from risking innocent bystanders.

Still, under the American Model Penal Code § 3.02, the defense of

“necessity” or “choice of evils” justifies and thus immunizes conduct “which

the actor believes to be necessary to avoid a harm or evil to himself or to

another” if the harm to be avoided is greater than that sought to be

prevented by the law defining the crime (intentional killing, in this case), and

so long as there is no reason to believe the legislature intended to exclude

this justification. Under this statement of the American rule the danger of

the harm to be avoided need not be imminent and the rule would justify

homicide as well as less serious crimes. Thus, in some jurisdictions the

wording need hardly be stretched to make legal under domestic law the

killing of an active participant in a terrorist scheme to kill many others, if

that way of aborting the plan is believed to be necessary. In other

jurisdictions the law would have to be changed to allow intentional

homicides or consideration of non-imminent harms.

As for international human rights laws, the possibility of using deadly

force against individuals who are threatening the security of the state has not

been rejected altogether even by international human rights bodies. The

Human Rights Committee, in its response to the Israeli report on the

practice of targeted killings, notes only that “[b]efore resorting to the use of

deadly force, all measures to arrest a person suspected of being in the

process of committing acts of terror must be exhausted.”18 It adds that such

operations must never be carried out for purposes of retribution or revenge,

thus implying that they may be legitimate if intended at preemption.

17 Tennessee v. Garner, 471 U.S. 1 (1985).

18 U.N. Human Rights Committee, Concluding Observations of the Human Rights Committee: Israel,

? 15, U.N. Doc. CCPR/CO/78/ISR (Aug. 21, 2003), available at



161 Harvard National Security Journal / Vol. 1

The 2002 Inter-American Commission on Human Rights Report on

Terrorism and Human Rights19 similarly leaves room for the use of deadly force

against suspected terrorists, even under a general law enforcement model.

It notes that “in situations where a state’s population is threatened by

violence, the state has the right and obligation to protect the population

against such threats and in so doing may use lethal force in certain

situations.”20 It goes on to assert the natural implication that, in their law

enforcement initiatives, “states must not use force against individuals who

no longer present a threat as described above, such as individuals who have

been apprehended by authorities, have surrendered or who are wounded

and abstain from hostile acts.”21

And in its decision in the case of Isayeva, the European Court of

Human Rights acknowledged the right of a state—Russia—to use deadly

force against Chechen rebels, even when there was no indication that the

latter were posing an immediate threat to the Russian forces.22

But outside the territory of the United States, the government is also

limited by the international norms protecting each state’s sovereignty in

using force to capture or kill suspected criminals. As a general principle of

international law, a country is strictly prohibited from engaging in law

enforcement operations in the territory of another country, and much more

so when the law enforcement operation includes killing a person. Deadly

attacks by air strikes or drones directly implicate the international

prohibition on the use of force between states. How, then, could the

government justify targeted killing operations under international law in any

way other than relying on a war/combatants paradigm?

The Parks memorandum addresses the question of lawful targeting

and unlawful assassinations in peacetime, and argues the following:

The use of force in peacetime is limited by the previously

cited article 2(4) of the Charter of the United Nations.

19 Inter-American Commission on Human Rights, Report on Terrorism and Human Rights,

OEA/Ser.L/V/II.116, Doc. 5 Rev. 1 Corr (Oct. 22, 2002), available at


20 Id. ? 87.

21 Id. ? 91.

22 Isayeva v. Russia, 41 Eur. Ct. H. R. 847 ? 181 (2005); see also Isayeva v. Russia, App. No.

6846/02, Eur. Ct. H. R. (Nov. 15, 2007).

2010 / Law and Policy of Targeted Killing


However, article 51 of the Charter recognizes the inherent

right of self-defense of nations. Historically, the United

States has resorted to the use of military force in peacetime

where another nation has failed to discharge its international

responsibilities in protecting U.S. citizens from acts of

violence originating in or launched from its sovereign

territory, or has been culpable in aiding and abetting

international criminal activities.23

Parks goes on to give the examples of an 1804–1805 Marine expedition into

Libya to capture or kill the Barbary pirates; a year-long campaign in 1916

into Mexico to capture or kill the Mexican bandit Pancho Villa following

Villa’s attack on Columbus, New Mexico; the 1928–1932 U.S. Marines’

campaign to capture or kill the Nicaraguan bandit leader Augusto Cesar

Sandino; the Army’s assistance in 1967 to the Bolivian Army in its

campaign to capture or kill Ernesto “Che” Guevara; the forcing down in

1985 of an Egypt Air plane in Sicily, in an attempt to prevent the escape of

the Achille Lauro hijackers; and the 1986 attacks on terrorist-related targets in


These historical precedents, claims Parks, support the interpretation

of the United Nations Charter as authorizing the use of military force to

capture or kill individuals whose peacetime actions constitute a direct threat

to U.S. citizens or national security. In a footnote, he adds:

In the employment of military force, the phrase “capture or

kill” carries the same meaning or connotation in peacetime

as it does in wartime. There is no obligation to capture

rather than attack the enemy. In some cases, it may be

preferable to utilize ground forces to capture (e.g.) a known

terrorist. However, where the risk to U.S. forces is deemed

too great . . . it would be legally permissible to employ (e.g.)

an air strike against that individual or group rather than

attempt his, her, or their capture, and would not constitute


If so, targeted killings, as they have been used by the United States in

Yemen, Pakistan, and elsewhere, may well have been justified without ever

23 Parks Memorandum, supra note 9, at 7.

24 Id. at 8 n.14.

163 Harvard National Security Journal / Vol. 1

relying on a “war on terrorism,” but instead by being framed as an

exceptional use of force in self-defense alongside peacetime law

enforcement. Although Parks does not expound upon this point, from his

equation of military action in peacetime with that of wartime, it seems he

would accept some degree of collateral damage in a peacetime operation

under similar logic of a wartime attack.

Choosing a peacetime framework with some allowance for military

action is not free from difficulties. One obvious problem is that the

“exceptional” use of force has been turned, in the context of the war on

terrorism, into a continuous practice. In addition, the degree to which

countries should be allowed to use force extraterritorially against non-state

elements has been debated extensively by both international law and

domestic law scholars. The implications of allowing the use of armed force

to capture or kill enemies outside a country’s own territory, and outside a

theater of traditional armed conflict, may include spiraling violence, the

erosion of territorial sovereignty, and a weakening of international


Once the precedent is laid for a broad interpretation of Article 51 of

the UN Charter, as existing alongside or as an exception to normal

peacetime limitations, it becomes harder to distinguish what is allowed in

peace from what is allowed in war. It is for these reasons that not everyone

accepts Parks’ legal reasoning, with critics arguing that any military attack

on another country’s territory, outside an armed conflict with that country,

amounts to unlawful aggression. Thus, in the case of Armed Activities on the

Territory of the Congo25, the International Court of Justice, in a decision widely

criticized, went as far as to rule that Uganda had no right to use force

against armed rebels attacking it from the territory of the Democratic

Republic of Congo. Recently, the U.N. Special Rapporteur on

Extrajudicial, Summary, or Arbitrary Executions, concluded that reliance

on the exceptional self-defense argument under Article 51 in support of

targeted killings “would diminish hugely the value of the foundational

prohibition contained in Article 51.”26

25 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005

I.C.J. 116 (Dec. 19).

26 Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report of the

Special Rapporteur on Extrajudicial, Summary or Arbitrary Execution: Study on Targeted Killings, ? 41,

delivered to the Human Rights Council, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010),

available at

2010 / Law and Policy of Targeted Killing


Even if justified as an exception to a peacetime paradigm, one

obvious precondition for the legality of targeted killing operations outside a

theater of war, in consideration of the other countries’ sovereignty, must be

that the state in whose territory the terrorist resides either consent to the

operation by the foreign power (as in the case of the collaboration between

the United States and Yemen) or else would be unable or unwilling to take

action against the terrorist (as in the case of targeted killings in Gaza). On

some rare occasions there may be an overwhelming necessity to act without

the immediate possibility of obtaining the other country’s consent.

Note that under a law enforcement model, a country cannot target

any individual in its own territory unless there is no other way to avert a

great danger. If so, if the Yemeni authorities can capture a terrorist alive,

they cannot authorize the United States to engage in a targeted killing

operation in its territory or execute one on its own.

To sum up, targeted killings of terrorists by both the United States

and Israel have been justified under a war paradigm: in the American case,

by treating terrorists as (unlawful) combatants; in the Israeli case, by treating

terrorists as civilians who are taking direct part in hostilities. It seems that a

persuasive argument can also be made that under some conditions, targeted

killings of suspected terrorists can be justified on the basis of a law

enforcement paradigm. When conducted in the territory of another

country, targeted killing must be based on a self-defense exception to the

international law prohibition on the use of force, and in consideration of

that other country’s sovereignty, should only be executed if that other

country either consents to the operation or else is unable and unwilling to

interdict the terrorist.

In the conclusion of this chapter, we set forth what the legitimate

contours of the use of targeted killing must be. We conclude that they seem

to fit both a more constrained war paradigm and a more lax law

enforcement paradigm (although the latter suits more sporadic and

measured use of the tactic). For present purposes it should be noted that if

we take the Israeli Supreme Court’s decision as controlling, then the

conditions for the legitimacy of targeted killings of terrorists in the armed

conflict between Israel and Palestinian militants are not very different from



165 Harvard National Security Journal / Vol. 1

those that would apply under a law enforcement model. Both would allow

the targeted killing of some terrorists in Gaza and both would prohibit—or

place greater constraints—on the targeting of suspected terrorists outside a

conventional theater of war if the alternative of capture was feasible.

IV. Strategic Aspects

Even if legally justifiable and morally permissible, the strategic value

of employing targeted killings is far from clear and depends very much on

the situation. As with any other counterterrorism tactic, targeted killings

carry both strategic benefits and costs.

A. The Potential Hazards of Targeted Killings

An immediate consequence of eliminating leaders of terrorist

organizations will sometimes be what may be called the Hydra effect, the

rise of more—and more resolute—leaders to replace them. The

decapitating of the organization may also invite retaliation by the other

members and followers of the organization. Thus, when Israel assassinated

Abbas Mussawi, Hezbollah‘s leader in Lebanon, in 1992, a more

charismatic and successful leader, Hassan Nassrallah, succeeded Mussawi.

The armed group then avenged the assassination of its former leader in two

separate attacks, blowing up Israeli and Jewish targets in Buenos Aires,

killing over a hundred people and injuring hundreds more.

Targeted killing may also interfere with important gathering of

critical intelligence. The threat of being targeted will drive current leaders

into hiding, making the monitoring of their movements and activities by the

counterterrorist forces more difficult. Moreover, if these leaders are found

and killed, instead of captured, the counterterrorism forces lose the ability to

interrogate them to obtain potentially valuable information about plans,

capabilities, or organizational structure.

The political message flowing from the use of targeted killings may

be harmful to the attacking country’s interest, as it emphasizes the disparity

in power between the parties and reinforces popular support for the

terrorists, who are seen as a David fighting Goliath. Moreover, by resorting

to military force rather than to law enforcement, targeted killings might

strengthen the sense of legitimacy of terrorist operations, which are

sometimes viewed as the only viable option for the weak to fight against a

2010 / Law and Policy of Targeted Killing


powerful empire. If collateral damage to civilians accompanies targeted

killings, this, too, may bolster support for what seems like the just cause of

the terrorists, at the same time as it weakens domestic support for fighting

the terrorists.

When targeted killing operations are conducted on foreign territory,

they run the risk of heightening international tensions between the targeting

government and the government in whose territory the operation is

conducted. Israel’s relations with Jordan became dangerously strained

following the failed attempt in September 1997 in Jordan to assassinate

Khaled Mashaal, the leader of Hamas. Indeed, international relations may

suffer even where the local government acquiesces in the operation, but the

operation fails or harms innocent civilians, bringing the local government

under political attack from domestic constituencies (recall the failed attack in

Pakistan on Al-Zawahiri that left eighteen civilians dead).

Even if there is no collateral damage, targeted killings in another

country’s territory threatens to draw criticism from local domestic

constituencies against the government, which either acquiesced or was too

weak to stop the operation in its territory. Such is the case now in both

Pakistan and Yemen, where opposition forces criticize the governments for

permitting American armed intervention in their countries.

The aggression of targeted killings also runs the risk of spiraling

hatred and violence, numbing both sides to the effects of killing and thus

continuing the cycle of violence. Each attack invites revenge, each revenge

invites further retaliation. Innocent civilians suffer whether they are the

intended target of attack or its unintentional collateral consequences.

Last but not least, exceptional measures tend to exceed their logic.

As in the case of extraordinary detention or interrogation methods, there is

a danger of over-using targeted killings, both within and outside of the war

on terrorism. A particular danger in this context arises as the killing of a

terrorist often proves a simpler operation than protracted legal battles over

detention, trial, extradition, and release.

B. The Benefits Nations Seek

At the most basic level, targeted killings, which are generally

undertaken with less risk to the attacking force than are arrest operations,

167 Harvard National Security Journal / Vol. 1

may be effective. According to some reports, the killing of leaders of

Palestinian armed groups weakened the will and ability of these groups to

execute suicide attacks against Israelis. By deterring the leaders of terrorist

organizations and creating in some cases a structural vacuum, waves of

targeted killing operations were followed by a lull in subsequent terrorist

attacks, and in some instances, brought the leaders of Palestinian factions to

call for a ceasefire. The Obama administration embraced the targeted

killing tactic, holding it to be the most effective way to get at Al-Qaeda and

Taliban members in the ungoverned and ungovernable tribal areas along

the Afghanistan-Pakistan border or in third countries.

Despite the adverse effects such operations may have on the

attitudes of the local population toward the country employing targeted

killings, the demonstration of superiority in force and resolve may also

dishearten the supporters of terrorism.

Publicly acknowledged targeted killings are furthermore an effective

way of appeasing domestic audiences, who expect the government “to do

something” when they are attacked by terrorists. The visibility and open

aggression of the operation delivers a clearer message of “cracking down on

terrorism” than covert or preventive measures that do not yield immediate

demonstrable results. The result in Israel has been to make a vast majority

of citizens supportive of targeted killings, despite the latter’s potential

adverse effects. And, perhaps surprisingly, of all the coercive

counterterrorism techniques employed by the United States, targeted

killings have so far attracted the least public criticism.

V. Conclusions

Targeted killing operations display more clearly than any other

counterterrorism tactic the tension between labeling terrorism a crime and

labeling it an act of war. If a terror attack is simply a crime, counterterrorism

forces would follow the same laws and rules as the Chicago or Miami police

department do in fighting crime, where intentional killing could rarely if

ever be lawful, other than where necessary in a situation immediately

requiring the defense of self or others, or in making an arrest of an obviously

dangerous felon. From the perspective of international peacetime relations,

targeted killings face even greater legal constraints when targeting a terrorist

outside the state’s jurisdiction.

2010 / Law and Policy of Targeted Killing


If a terrorist plan is an act of war by the organization supporting it,

any member of any such terrorist organization may be targeted anytime and

anywhere plausibly considered “a battlefield,” without prior warning or

attempt to capture.

Known or anticipated collateral damage to the innocent is generally

prohibited in law enforcement, but is legitimate within the boundaries of

proportionality in fighting wars. In fighting crime, the government’s

obligation to protect its citizens applies to all citizens—criminals and

innocents. In fighting wars, the government’s primary obligation is to its

own citizens, with only limited concern for the well-being of its enemies.

Assuming, as we do, that states do have a right to defend themselves

against acts of terrorism, targeted killings cannot be always illegal and

immoral. But because terrorism is not a traditional war, nor a traditional

crime, its non-traditional nature must affect the ethical and strategic

considerations that inform targeted killings, the legal justification behind

them, and the choice of targets and methods used to carry them out.

As we have shown, targeted killings may be justified even without

declaring an all-out “war” on terrorism. A war paradigm is overbroad in

the sense that it allows the targeting of any member of a terrorist

organization. For the United States, it has had no geographical limits.

When any suspected member of a hostile terrorist organization—regardless

of function, role, or degree of contribution to the terrorist effort—might be

targeted anywhere around the world without any due process guarantees or

monitoring procedures, targeted killings run grave risks of doing both shortterm

and lasting harm. In contrast, a peacetime paradigm that enumerates

specific exceptions for the use of force in self-defense is more legitimate,

more narrowly tailored to the situation, offers potentially greater guarantees

for the rule of law. It is, however, harder to justify targeted killing

operations under a law enforcement paradigm when the tactic is used as a

continuous and systematic practice rather than as an exceptional measure.

Justifying targeted killings under a law enforcement paradigm also threatens

to erode the international rules that govern peacetime international

relations as well as the human rights guarantees that governments owe their

own citizens.

Whichever paradigm we choose as out starting point, greater

limitations than those offered by the Parks memorandum or that are

169 Harvard National Security Journal / Vol. 1

currently operating in the American targeted killings program should be

adopted. The limits set by the Israeli Supreme Court—ironically, within

the paradigm of wartime operations—are a good place to start.

First, the tactic should not be used unilaterally by the endangered

state if the host country of the terrorists is willing and able to act on its own

to arrest or disable in a timely manner the source of the threat. Host

country cooperation in capture and extradition must be the first alternative

considered. That is, targeted killings must only be carried out as an

extraordinary measure, where the alternative of capture or arrest is


Second, only those who are actively and directly involved in terrorist

activities are legitimate targets; not every member of a terrorist organization

is or should be.

Third, the fact that terrorists do not wear uniforms should not give

them an unfair legal advantage over soldiers in uniform in the sense of

immunity from deliberate attack. But their lack of uniform does raise

legitimate concerns about the ability to ensure the correct identification of

the target, in terms of personal identity as well as specific culpability. Any

targeted killing operation must therefore include mechanisms in its planning

and execution phases that would ensure an accurate identification. Such

mechanisms need not involve external judicial review; judges are neither

well situated nor do they have the requisite expertise to authorize or reject

an operation on the basis of intelligence reports. Rather, the system should

be based on verified and verifiable intelligence data from different and

independent sources, careful monitoring, and safety mechanisms that would

allow aborting the mission in case of doubt.

The concern about collateral damage requires specific attention.

Unlike ordinary battlefield strikes, the fact that the targeting forces have

control over the time, means, and methods of strike mandates that a

heightened degree of care should be exercised to choose an occasion and

means that will minimize collateral harm to uninvolved individuals,

especially where the operations are carried out outside an immediate

conflict zone. In those cases, we believe that where innocent civilians suffer

collateral damage, those injured should generally be compensated.

2010 / Law and Policy of Targeted Killing


Finally, the aggression of the targeted killing tactic mandates its

measured use in only the most urgent and necessary of cases. The

government’s interest should be to tame violence, not exacerbate it. Where

alternatives exist, they should be pursued, not just as a matter of law but also

as a matter of sound policy.

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