The expansion of legal rules around targeted killings by the United States is one of the most consequential legacies of the post-9/11 era. Under both the Bush and Obama administrations, the U.S. government arrogated itself broad rights to kill individuals far from any battlefield. The legal reasoning that former President Barack Obama used to publicly justify the ramped-up drone warfare program had its origins in a similar past effort by Israeli military lawyers to justify Israel’s targeted killings of Palestinians in the West Bank and Gaza Strip.
This transcript has been edited for clarity and length.
What’s the real-world impact of academic legal scholarship, as it pertains to armed conflict?
There is a direct relationship that we can trace between knowledge production in the academy and what states seek to legally justify during armed conflict. What legal scholars publish contributes to an aspect of opinio juris, or what states believe is legal, which together with state practice constitutes something called international customary law. This is a form of international law, which, in contrast to treaties, is effectively a form of tacit consent. Effectively, legal scholars publish opinions which indirectly help shape customary law. If there is robust objection to what states do based on these opinions, then it falls into the realm of illegitimacy. But if, in contrast, the practice and the legal concepts gain traction, it can become the seed for new customary law, which can develop overnight or over a long period of time. If it crystallizes into a new norm, then it not only applies to the state proposing the law, but will be applicable to other states in the international community as well. This is certainly the story of the use of lethal force against enemy combatants not recognized as legitimate belligerents.
“The whole reason they needed to create these new legal concepts is because they were rejecting existing laws that were created during the 20th century, specifically to regulate this kind of irregular combat.”
How have the Israeli government and military lawyers employed international law to justify the use of targeted killings?
During the Second Intifada, Israel created an entirely new set of laws of war to govern their relationship with the Palestinians. As Daniel Reisner, former head of the [Israel Defense Forces]’s International Law Department, himself stated in this article, Israel developed the concept of “armed conflict, short of war” to give itself the ability to legally justify its targeted killing policies in the occupied territories. The issue is that there exists a body of international law that dealt with situations of guerrilla warfare, namely the 1977 Additional Protocols I and II, which Israel has simply refused to recognize. The whole reason they needed to create these new legal concepts is because they were rejecting existing laws that were created during the 20th century, specifically to regulate this kind of irregular combat.
What were those laws, and in what context were they created?
During the period of decolonization in Africa and Asia, there were two protocols added to the Geneva Convention at the behest of countries in the Non-Aligned Movement, in order to recognize their wars of national liberation as legitimate. These protocols elevated guerrilla warfare to a form of legal armed conflict, meaning that guerrilla fighters received the status of legal combatants, giving them the right to both legally kill and be targeted themselves, as well as the protections afforded to prisoners of war if they were captured.
The first of these protocols was meant to regulate guerrilla wars fought against colonial domination, alien occupation, and racist regimes, while the second protocol regulated civil wars. When in 2000 Israel found itself fighting lightly armed Palestinian security officers in the occupied territories who had turned their arms against the Israeli army, they did not want to look at this existing body of international law to regulate their response. The first protocol, regulating irregular combat, would have required them to recognize the Palestinians as a nascent state living under colonial domination, foreign occupation, and a racist regime. But this would mean recognizing Palestinian militants as legitimate combatants with the right to use force, while Israel insisted that they were all criminal terrorists regardless of whether they targeted Israeli military installations or civilians. Meanwhile the second protocol governing civil war would’ve required them to acknowledge Palestinians in the occupied territories as a part of Israeli society, thus disrupting its Jewish demographic majority and acknowledging Israel’s governance of an apartheid regime.
So how did they legally maneuver around this issue in order to justify targeted killings?
To avoid either recognizing Palestinians as a nascent sovereign nation or a people subject to apartheid within Israel, Israeli military lawyers came up with an entirely new concept of “armed conflict short of war,” a new category of legal reasoning that never existed before. They didn’t want to call their conflict with the Palestinians a “war” since that would recognize the inevitability of a Palestinian state and trigger a number of requirements under the laws of war. But they also didn’t want call it an “occupation,” since then they would be subject to the laws that govern occupiers. Among other things, occupation law would mandate them to use policing powers instead of offensive military tactics like targeted killing. So to avoid doing either, they simply created a new and unprecedented legal category that is, in effect, a new law for colonial dominance.
“To avoid either recognizing Palestinians as a nascent sovereign nation or a people subject to apartheid within Israel, Israeli military lawyers came up with an entirely new concept of ‘armed conflict, short of war,’ a new category of legal reasoning that never existed before.”
The United States has used similarly expansive legal reasoning to justify its targeted killing operations in the war on terror. Is there a relationship between the Israeli legal efforts and those used in the American global counterterrorism campaign?
There is a synergy, in the sense that U.S. and Israeli arguments to expand the use of lethal force have been building off each other. As per the U.N. Charter, the use of force is generally prohibited, with a few exceptions, including individual and collective self-defense or when specifically authorized by a Security Council resolution under its Chapter VII authority. After 9/11, there was a shift under the Bush administration toward the use of preventive force, as opposed to pre-emptive self-defense, under customary law, or a response to an armed attack under treaty law. This shift becomes the basis of legal justification for extrajudicial assassinations, or targeted killings, outside of hot battlefields.
It was during the Obama-era drone warfare campaign, however, that these changes were really institutionalized. Whatever public hostility there was to Bush administration activities almost disappeared under Obama, though what he did in terms of targeted killings far exceeded what Bush did. It was liberal lawyers like Harold Koh and Martin Lederman who wrote the legal memos justifying these policies. Their efforts ultimately also helped legitimate previously unprecedented Israeli legal arguments in favor of expanding the range of circumstances when lethal force can be legally used.
What’s the cumulative impact on international law of these kinds of innovations? And how have they impacted our understanding of the Israel-Palestine conflict?
Because Israel wants to keep the land that it is occupying, they have perverted existing law to regulate their operations in the territories under their control. Normally speaking, they should be regulated by occupation law and thus, limited to using policing powers. Instead, they’ve created whole new categories of law that have blurred the lines on the acceptable use of force and allowed them to carry out targeted killings of Palestinians, while denying them the rights normally afforded to combatants. Israeli military lawyers are right to point out that their situation is unprecedented; there is no other occupation that has lasted over five decades. No other state has invoked the concept of “armed conflict, short of war” in any other scenario, which Israel’s military lawyers admit they made up. Israel wants to be an occupying power in the Palestinian territories, but also claim that those territories are not occupied as a matter of law so that it can facilitate its settler-colonial territorial expansion. That is why Israel has remained in the territories for so long — it has never intended on withdrawing from them. And now it is invoking the law of self-defense to use force to protect its colonial holdings. But a state cannot invoke self-defense to wage war on a people [whose land] it already occupies, while insisting that those people are neither a nascent sovereign nation nor a population under its control.
There’s also been an ongoing effort to try and collapse the Israel-Palestine conflict into the same category as the U.S. war on terrorism, both morally and legally. The fact is that Israel’s confrontation with Palestinian armed groups is analytically and legally distinct from the U.S. confrontation with non-state actors like Al Qaeda and ISIS. No one is highlighting that distinction, and this is the most dangerous thing about the relationship between the U.S. and Israeli efforts on targeted killings. Given that most national liberation movements ended in the 20th century, the question of Palestine today stands out. It’s a unique situation, though its one that international law has contemplated before.
What are some of the frustrations that exist with the way that matters of Israeli targeted killing policy are discussed, particularly with regard to legal rationales?
Even in contrast to the United States, Israel attempts to frame itself as the more humane face of war because they’ve been legally regulating their war. But what articles like this don’t really mention is that even when defining rules around civilian harm and proportionality, as the PCATI v. Government of Israel decision does, Israel’s military lawyers, ethicists, and practitioners are able to legally redefine who counts as a civilian or not. With regard to principles like proportionality, they are redefining what is appropriate to fit their irregular circumstances. What may have been disproportionate in conventional combat becomes proportionate under these “new” circumstances. Thus, the Israeli army can claim to be abiding by their Supreme Court decisions, but in the end, Israel’s military has changed the relevant definitions in the first place. They are not even saying that there is an exception for them in their targeting killing practices; they are literally just creating new law to justify their activities.