Morav 1

Jonathan Morav

Expository Writing S-20d

Professor Thane Weedon

14 August 2006

Israel’s Policy on Targeted Killings: the Legal and Ethical Implications

Since the outbreak of the second Intifadah in late 2000, the Israeli government has publicly

employed the tactic of targeting leading members of Palestinian terrorist organizations for death. Targeted

killings offered military planners what appeared to be an effective way to limit collateral damage while

crippling militia leadership and eliminating those responsible for terror attacks. These goals were consistent

with Israel’s larger military aims of maintaining national security, minimizing casualties, preventing the

erosion of ground positions and bringing the Palestinians back to the negotiating table.1 Although this

policy was overwhelmingly popular amongst the citizens of Israel2, public outcry within the international

community was swift and harsh.

Governments, International Organizations and Human Rights advocates invoked the Geneva

Conventions to deem the policy illegal and of questionable ethics. The purpose of this research project is to

examine the legal and ethical implications of this policy. I will first attempt to prove that International Law

at the current time is ill equipped to govern the handling of the current conflict between the Palestinians

and Israelis. I will also examine how this legal ambiguity may affect the ethics of the conflict and how in

turn that leads to Israel’s justified use of targeted killings. Finally, I will examine the ethical questions

posed by this policy. This portion of the essay will deal with issues of collateral damage, the real net effect

of targeted killings on terrorist organizations and whether these killings lead to retaliatory attacks, thus

putting more Israeli civilians in harms way. Ultimately, the goal of this research project is to prove that the

Israeli policy of targeted killings, although not perfect, is: a) not governable by current International Law;

and b) ultimately has a net positive effect in protecting Israeli society at large, and is therefore ethically

permissible.

1
Michael L. Gross, “Fighting by Other Means in the Mideast: a Critical Analysis of Israel’s Assassination
Policy,” Political Studies 2003 VOL 51, 350-368.
2
Ellis Shuman, “Israel to Continue ‘Targeted Killings’,” Israel Insider, August 2001, 5 August 2006,
<http://www.israelinsider.com/channels/security/articles/sec_0066.htm>.
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Targeted Killings and their Legal Implications

International Law in its own right entails a complex web of intricacies, institutions and

conventions, all serving the common purpose of protecting civil society. Although in the majority of

instances these conventions (i.e. Law of War, International Humanitarian Law and International Human

Rights Law) serve this noble cause, their ambiguity in regards to the roles of non-state actors and the laws

governing their code of conduct in times of war cannot go unnoticed. The definitions provided of what

constitutes a war, an armed conflict and the differentiation between those who are labeled enemy

combatants and those who are defined as civilians have failed to keep up with the ongoing and emerging

geopolitical realities posed by the rapid rise of non-state actors and international terrorist organizations.

Under current International Law, conflicts are defined in numerous ways. First, is the conflict

international or non-international? Second, does the situation amount to an “armed conflict”? Common

Article 2 of the Geneva Conventions defines a conflict as international when it is waged between two or

more states. 3 Herein lays the root of the problem. The conflict between the Israelis and Palestinians cannot

meet the criteria of this definition. Although a conflict exists, as is evident in our nightly newscasts and

morning newspapers, it currently cannot be legally defined as such due to the narrow scope that

International Law provides. The same can be said for what constitutes an “armed conflict”. An armed

conflict as defined by the Geneva Conventions is “any difference between two States and leading to the

intervention of armed forces”. Once again, although Israel is recognized as a State, such legal status has not

yet been granted to the Palestinian people, nor does the definition of “armed forces” apply to members of

terrorist organizations that the Israeli policy of targeted killing applies to. As the head of the international

law branch of the Israeli army’s legal division remarked, “International Law actually only recognizes two

situations: peace or war. But life isn’t as simple. Israel is not at war since war is between two armies or two

states and the Palestinians have neither. But since Israel is in armed conflict with Palestinians, you are

allowed to target combatants.”4

3
Orna Ben-Naftali and Keren R. Michaeli, “‘We Must Not Make a Scarecrow of the Law’: A Legal
Analysis of the Israeli Policy of Targeted Killings,” Cornell International Law Journal 2003-2004 Vol. 36,
233-292.
4
Tim Weiner, “Making Rules in the World Between War and Peace,” New York Times, 19 August 2001,
pp.A1, A4.
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This leads us to the issue of combatants and non-combatants and how International Law fails to

elucidate the difference when it comes to non-State actors. Traditionally, International Law has been well

appointed in regards to the issue of combatants and non-combatants. States have fought wars, and rarely

has the question provided an ambiguous answer. Combatants have always been viewed as members of

States armed forces that are actively engaged in military operations. Those who do not fall under this rubric

are automatically classified as non-combatants. But with the rise of non-state actors and international

terrorist organizations, this definition provided by the Geneva Convention appears to be outdated. Four

conditions are laid out in Article 4 (A) (2) of Geneva Convention III:

1. being under responsible command;

2. wearing a fixed distinctive sign;
3. carrying arms openly; and
4. conducting their operations in accordance with the laws and customs of war.5

With the definition put forth by the Geneva Conventions, it would appear that Israel’s employment

of targeted killings is illegal. Non-State actors and terrorist organizations (i.e. Hamas and Islamic Jihad) fail

to meet two of the four criteria. Although it can be argued that they are under responsible command, and

they are known to carry arms openly throughout the occupied territories, they do not wear a fixed insignia

identifying them as a member of an armed force and as a result of their targeting of innocent Israeli

civilians they do not conduct their operations in accordance with the laws and customs of war. As a result

of the failure of the Geneva Conventions to address the issue of terrorists and non-State actors, members of

terrorist organizations are deemed by law to be civilians and are therefore afforded full protection of the

law and may not be targeted by the Israeli military.6 This caveat shows the outdated nature in which the

Geneva Convention governs armed conflicts. There are additional segments of the Geneva Convention that

prove to be problematic in coming to any solid conclusion to the legality of targeted killings.

Complicating matters further, this conflict between Israel and the Palestinians is one that takes

place between an Occupying Power (Israel) and Occupied People (Palestinians). The Fourth Geneva

Convention has elaborate guidelines establishing the code of conduct required between these two parties.

As I mentioned above, due to the definition of combatant provided by the Convention, terrorists who target

Israeli civilians in Israel-proper (outside of the territories), are granted civilian status due to their failure to

5
David Kretzmer, “Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate
Means of Defence?,” The European Journal of International Law, 2005 Vol. 16, no. 2, 171-212
6
David Kretzmer, The European Journal of International Law, 2005 Vol. 16, no. 2, 171-212
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meet the criteria of the Conventions definition. This poses a serious problem. According to the Convention

it is the responsibility of the Occupying force, Israel, to ensure and maintain the safety and welfare of all

civilians that come under its occupation. Unfortunately these includes those members of Hamas and Islamic

Jihad who fail to meet the definition of “armed forces” and are thus granted further legal protections from

Israel’s policy of targeted killings.

The combination of an International Law regime, unable to modernize its statutes to accept the

realities of modern day geo-politics and the Palestinian Authority’s unwillingness to apprehend terrorists

suspected of planning and carrying out attacks against Israeli civilians has left the State of Israel no choice

but to carry out methods of self-defense needed to ensure the safety of its civilians. Detractors of Israel’s

policy on targeted killing have failed to examine the legal aspects of Israel’s case. It is clear from the facts I

have stated above that International Law is not at this point in time capable of rendering any definitive

verdict on Israel’s actions. The law lacks many of the variables that are characteristic of the current conflict

and lavishes unnecessary protections to terrorists who in their own right commit egregious violations of

International Law.

These facts lead us to a very important question in regards to this issue: Does the lack of clarity

within International Law affect the ethics of this conflict? Michael Walzer, a famed Social Science

professor and leading ethical theorist on issues of war, uses the phrase inter arma silent leges: In times of

war the law is silent.7 Walzer uses this phrase to describe the argument people make that “all is fair in love

and war”, challenging this assertion as simplistic. In regards to this situation not only is the law silent, it is

non-existent. How can we ascertain what affect this has on the ethics of this conflict? If International Law

had properly accounted for non-state actors and their roles, would an organization like Hamas change its

rules of engagement? This development seems unlikely. But how can International Law affect the Israeli

government’s position on targeted killings? First you can argue that the current state of the law does not

prohibit Israel from taking such measures, therefore one can imply that they are well within their rights to

act the way they do. But even if the Law was capable of incorporating the characteristics inherent in this

conflict, would it be possible to legalize this action while recognizing the impact this policy will certainly

have on civilian casualties? International Law has developed in a way where emphasis is put on civilian

7
Walzer, Michael. Just and Unjust Wars: A Moral Argument with Historical Illustrations. New York:
Basic Books, 2006.
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protections rather than the punishments that violators should incur. Due to the inherent risks that targeted

killings pose this leads me to believe that it is not possible to both legalize this action, and ensure the safety

of the civilian population. Therefore it does not appear possible for the law, even if updated to meet the

criteria of this conflict, to justify this policy. Therefore we must look for other means of deeming this

policy justifiable, namely ethical reasons that prove Israel’s policy permissible.

Targeted Killings and their Ethical Implications

The practice of targeted killings carried out by the Israeli government has a reverberating affect on

many aspects of the Palestinian-Israeli conflict. Many of these affects carry heavy moral and ethical

implications.

Before going forward in exploring these issues I would first like to, for the purposes of this paper,

define the term “Collateral Damage”. According to the Merriam-Webster Online Dictionary collateral

damage is defined as: “injury inflicted on something other than an intended target; specifically: civilian

casualties of a military operation”. Although I agree with the basic premise provided by this definition, for

the purposes of this research project I believe it is necessary to expand the meaning of collateral damage.

When exploring the ethical and moral ramifications that Israel’s policy on targeted killing poses, I believe it

is important to examine not just the physical harm done to civilians through this policy, but also the long-

standing repercussions such operations may have for the hopes of building a sustainable Palestinian State

and how this policy in turn may affect Israel’s civilian population.

Salah Shehada lived a violent life. During his last two years, the senior Hamas leader directed up

to 52 terrorist operations against Israel, killing 220 civilians and 16 soldiers. And on July 22, 2002,

Shehada died a violent death: an Israeli F-16 dropped a 2,000-pound bomb on his apartment building,

obliterating it with him inside. The Israeli government had targeted Shehada on eight different occasions,

each one being called off due to the fact that Shehada was always accompanied by his daughter. Only when

Shin Bet, Israel’s domestic intelligence service, learned that he would be in an apartment building with no

innocents nearby did the operation proceed. Unfortunately, the intelligence turned out to be false, not only

was Shehada accompanied by his daughter, but also surrounding buildings occupied by innocent civilians

were badly damaged when the massive bomb targeting Shehada struck its target. This targeted killing is

one of the more infamous ones carried out by Israel. Originally, Israel had sought to apprehend Shehada,
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but he was known to reside in a densely populated area of the Gaza Strip and any incursion would have

surely posed dangers to both Israeli troops and Gaza’s civilian population. The aftermath resulted in

Shehada’s death along with his daughter and 14 other civilians. 8

This incident leads me to explore the first question derived from the moral and ethical

implications posed by Israel’s policy. Daniel Byman asks the question: If terrorism is condemned because

it kills the innocent, how can one justify counterterrorism tactics that kill them too? In attempting to justify

Israel’s use of targeted killings I would begin by elucidating the key differences between the terror tactics

of an organization like Hamas and the counter-terror tactics employed by the State of Israel. It is not a

secret that Hamas intentionally targets Israeli civilians when carrying out terrorist attacks. These attacks

have been carried out in various places conducive to inflicting the most casualties possible. Among places

that terrorist organizations have targeted are buses, nightclubs, restaurants, and shopping centers. One

cannot claim resistance nor can they claim self-defense when those they are targeting have little to do with

the ongoing situation in the Occupied Territories. Israel’s policy on targeted killing proves to be in stark

contrast to the modes of operation employed by terrorist organizations.

In almost all cases where Israel identifies a terrorist to be “liquidated”, they first request that the

Palestinian Authority apprehend the suspected terrorist. After this request is repeatedly denied, Israel goes

on to examine the feasibility of apprehending the suspect using military force. The Gaza Strip has one of

the highest overall growth rates and population densities in the world. The 2006 population was 1,428,7579

giving the territory a population density of 3,750 persons per sq km (9,712 per sq mi). More than half of

Gazans live in the region's urban centers, the largest of which is the city of Gaza. Due to this fact, more

often than not this option poses hazardous conditions for the military force to enter Gaza and more

specifically Gaza City where a majority of Hamas’ organization resides. Such an operation “would

probably spark a general melee”10.

After exhausting these options Israel turns to the option of targeted killings. Even when

considering this option Israel practices the utmost due diligence. For instance, this policy is reserved only

for those terrorists who are deemed to be leaders of terrorist organizations, bomb makers, and those who

8
Daniel Byman, “Do Targeted Killings Work?,” Foreign Affairs, 1 March 2006, Vol. 85, Issue 2
9
CIA World Fact Book, <https://www.cia.gov/cia/publications/factbook/geos/gz.html>
10
Daniel Byman, Foreign Affairs, 1 March 2006, Vol. 85, Issue 2
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play an important role in day to day planning and operations.11 Additionally, as I mentioned in the case of

Salah Shehada, Israel has called off numerous operations due to the possibility that civilians could be

harmed. This series of concerted efforts aimed at limiting civilian casualties is what distinguishes Israel’s

policy on targeted killing from the actions of terrorist organizations. When carrying out acts of war,

outcomes are far from guaranteed, therefore when examining policies of respective governments and

organizations it is important to take into account the intent certain policies have.

Although Israel carries out this exhaustive process in order to ensure minimization of civilian

casualties, there are those who say it is not enough. Statements made by Kofi Annan and images that

portray the conflict worldwide through news outlets all seem to imply that Israel’s policy arbitrarily, or

some would dare to say intentionally targets civilians. But statistics do prove that Israel’s action does

indeed minimize civilian casualties. The fact that less than 5 percent of Palestinian casualties are either

women, elderly, or young children, in comparison to more than 40 percent of Israeli casualties of terrorist

attacks. This statistic proves the key Israeli claim that the higher number of Palestinian deaths reflects the

higher number of Palestinian attacks on Israeli targets, not the reverse.12

In regards to the issue of civilian casualties, the ultimate question of proportionality is a difficult

one to answer. Does such a balance exist or is it even attainable? As I mention above, Israel, on eight

separate occasions called off a targeted killing because the suspected terrorist was with his daughter. But

let’s say that the terrorist refused to travel without his daughter by his side, knowing that her presence

would insulate him against a targeted killing and allow him to plan and execute additional terrorist attacks

resulting in the murder of more Israeli civilians. Should this behavior insulate him from such attack? Where

do the obligations of the Israeli government lie? To the civilians its duty it is to protect? Or to the daughter

of a suspected terrorist mastermind that is responsible for the deaths of hundreds of Israeli civilians? It can

even be argued that Israel’s reluctance to carry out this operation on many different occasions possibly led

to this terrorist being able to plan and carry out additional attacks against Israeli civilians. Morally, these

11
Avi Dichter and Daniel L. Byman, “Israel’s Lessons for Fighting Terrorists and Their Implications for
the United States,” Saban Center for Middle East Policy at the Brookings Institution, Analysis Paper,
Number 8, March 2006
12
Alexander A. Weinreb and Avi Weinreb, “Has Israel Used Indiscriminate Force?,” Middle East
Quarterly, Summer 2002, Pg. 17-25
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are difficult question to answer, but on balance, it can be said that Israel does indeed go out of its way to

minimize collateral damage incurred as a result of its policy.

It is often argued by International Organizations and Human Rights Groups that Israel’s policy

leads to the intensification of conflict due to potential reprisal attacks by Palestinian terror organizations.

This argument feeds on the notion that a true cycle of violence exists. Muhammad Dahlan, a senior

Palestinian security official, once remarked: “whoever signs off on killing a leader among Hamas or any

other leader on the Palestinian side should turn the page and should sign off on killing 16 Israelis”13. This

strong use of language sounds imposing enough to make the common person rethink their position on

targeted killings, but upon digging further than rhetoric, there is empirical data that suggests Israel’s policy

does indeed bare fruitful results, especially when it comes to the operational and efficiency capacity of

terrorist organizations. The National Memorial Institute for the Prevention of Terrorism reported that in

2005, only 21 Israeli civilians died at the hands of Hamas—down from 67 in 2004, 45 in 2003, 185 in 2002,

and 75 in 2001. The study also correspondingly provides evidence that shows the number of attacks carried

out by Hamas increased from 19 in 2001, 34 in 2002, 46 in 2003, 202 in 2004, and 179 in 2005.14 These

numbers show that although there has been a rise in terrorist attacks by Hamas, their “lethality rate” has

been on the downtrend since Israel instituted its policy of targeted killings. From this statistic we can

conclude that targeted killings of suspected terrorist masterminds, although providing the appearance of

intensified hostilities, in fact severely affect the quality and efficiency of terrorist attacks carried out by

Palestinian Organizations. Next I would like to examine the implications that this policy may have on

Palestinian civil society.

The process of gathering intelligence and information on potential targets poses serious

implications for Palestinian society. The information gathered by the Israeli military is not solely based on

its technological superiority but also on its extensive network of human intelligence sources and informants

spread throughout the Occupied Territories. Throughout the years Israel has rounded up, arrested and jailed

thousands of Palestinians suspected of taking part in terrorist activities. These actions have proved fertile

ground for recruiting informants that will be sent back into the Palestinian territories to provide intelligence

13
Daniel Byman, Foreign Affairs, 1 March 2006, Vol. 85, Issue 2
14
Daniel Byman, Foreign Affairs, 1 March 2006, Vol. 85, Issue 2
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to Israeli intelligence officials.15 The question that this action forces me to ask is whether this process of

collecting intelligence through locals prohibits Palestinians from developing a sustainable and prosperous

society? Collaborators are subject to vigilante justice within their own community, which undermines

general respect for the rule of law, and the constant threat of betrayal by a member of ones own community

undermines the trust and social cohesion that would be needed to build a viable Palestinian state should the

peace process advance to that stage.16 This argument poses a very interesting ethical question. Do Israel’s

methods of intelligence collection feed on the despair and poverty of the Palestinian people? Does Israel

have an obligation to assist Palestinian people develop a sustainable society? I argue that although Israel’s

policies do in fact undermine any hopes of a Palestinian society you must take into consideration that a

State involved in protracted conflicts, especially with non-State actors must first take into consideration

their need for self-defense. I also argue that should the Palestinian Authority change its policy on non-

cooperation with Israeli authorities it would nullify Israel’s need to carry out such methods. Surely,

International Law disagrees with this argument, stating that Occupying powers bear full responsibility for

the well being of those they occupy, but as I have already mentioned, International Law is not applicable to

the situation between Palestinians and Israelis and fails to recognize that a state of war, or armed conflict

does indeed exist between the two.

Finally, we conclude with the question of what real effect a targeted killing may have on a terrorist

organization. There are those who argue that no real effect is felt for a terrorist organization and that where

will always be a supply of people willing to undertake the duties entailed. But I think this argument

simplifies what it means to be a terrorist, especially a terrorist that serves as a senior member of an

organization. Many skills go into planning and carrying out terrorist operations, among them, bomb makers,

terrorism trainers, forgers, and recruiters. These are not skills that are easily attained; in some cases many

years of experience is necessary to become proficient as a leader.17 When these members of a terrorist

organization are killed a disruption effect does occur. Also this policy requires terrorist leaders, who are

always in fear of being targeted, to focus more of their time and energy in hiding, this policy also

15
Clive Jones, “One Size Fits All: Israel, Intelligence, and the al-Aqsa Intifada,” Studies in Conflict &
Terrorism, 26:273-288, 2003
16
Kristen Eichensehr, “On the Offensive: Assassination Policy Under International Law,” Harvard
International Review, Pg. 36-39, Fall 2003
17
Daniel Byman, “Do Targeted Killings Work?,” Foreign Affairs, 1 March 2006, Vol. 85, Issue 2
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drastically prohibits a terrorists ability to communicate for they never know who is listening nor can they

always trust those they are communicating to. This development clearly has a net-positive effect for Israeli

society.

Ultimately, the Israeli policy of targeted killing provides a net positive effect on Israel’s society.

The data and evidence provided above proves that Israel’s adoption of this policy has directly correlated

with less Israeli civilians being killed in terrorist attacks. This development alone proves justification

enough for the continued implementation of this policy. Israel’s diligent approach to this action, although

never guaranteed, and not perfect, has drastically limited the scope of “collateral damage” incurred by

targeted killings. Additionally as I mentioned in the first half of this research project, the current state of

international law cannot govern this policy carried out by the State of Israel. It lacks many of the variables

present in the current conflict and until International conventions are able to keep up with this development

of the non-State actor, it will not be possible to render and definitive answer as to the legality of such

policies. Therefore, it is necessary to make clear the ethical reasons of why Israel’s policy on targeted

killings should be and is permissible.