This morning (August 24) I listened to the TLV1 Podcast of “So Much to Say” that featured an interview conducted by host Hillel L. Cohen of Daniel Reyzner, an attorney, international law expert, and former head of the International Law Department of the IDF. The subject was Israel’s targeted killing of the three Hamas leaders this past week and possibly the killing of Muhammad Deif, among the very top Hamas Generals. Cohen wanted Reyzner to explain the differences between “assassinations” and “targeted killings” and the principle of proportionality that results in civilian casualties.
Reyzner said that “assassination” is a term used to denote an unlawful killing by a private individual. “Targeted killing,” however, is very different and is what America, Great Britain and Israel have used since 9/11 and the 2nd Intifada. This is more than a semantic issue, because Israel’s enemies would like to delegitimize Israel’s targeting of Hamas militant leaders by calling it “assassination.”
Until fifteen years ago, the logic of law enforcement in most of the western world was that the role of a representative of a government (the police, a soldier, etc.) was to arrest individuals who were allegedly guilty of a crime or who were about to commit a crime and bring them to justice. However, this traditional standard of law enforcement breaks down concerning groups shooting rockets and missiles and making suicide attacks from a neighboring country. Israel has no means or ability to arrest and prosecute such individuals.
Since the 2nd Intifada and 9/11, terrorism is understood by most western nations as “warfare,” and therefore, fighting terrorism falls under the laws of war.
Once one accepts this logic, the next step is to distinguish between combatants and civilians. In Gaza, for example, since there is no opportunity to arrest combatants, it is lawful for Israel to target militants and kill high-ranking Hamas officials.
Israel, more than most nations, has much experience in this kind of warfare, according to Reyzner, and has developed clear standards by which it may act against enemy combatants. The original set of standards was developed in 2000 after the 2nd Intifada and had five conditions. A later Israel High Court decision taken in 2005-6 under former Chief Justice Aharon Barak approved those standards. The five include:
1. That credible evidence must be shown that individuals targeted are centrally involved in attacking Israel;
2. That legitimate areas for such attack are Gaza and some (but not all) places in the West Bank;
3. That no approval for attacks will be given to any commander operating in an area controlled by Israel (i.e. Area C in which Israel has security responsibility) where it is possible to seek out, arrest and bring suspects to justice;
4. That when Israel attacks individuals, per the above conditions, it must comply with the principle of proportionality in times of war. This means that the commander must balance between the anticipated military advantage of the attack and the resulting danger, death of innocent civilians, and damage to property that is likely to occur. The complicating fact that Hamas deliberately embeds itself in civilian neighborhoods, homes, apartment buildings, schools, hospitals, clinics, mosques, and UN centers, has complicated Israeli actions severely. The risk, of course, is that if an Israeli commander violates any of these standards, he may become guilty of a war crime. The problem is that such charges are usually brought long after the war has ceased by people sitting in committees under the protection of international courts and the Hague, who have never fought in a war themselves and do not understand the pressures in battle, and who may not have the relevant expertise in international laws of warfare (as is the case with the recently established UN commission to investigate Israeli war crimes – no mention of Hamas is in its mandate!). The Israeli commander in the field, Reyzner explained, is given latitude to make decisions in real time with the best information he/she has. On the one hand, this flexibility gives the commander the freedom to make the right decision, but on the other it increases risk that someone else will say he made the wrong decision. When evaluating Israel, it takes the most extreme precautionary measures than any other western country;
5. This was a procedural item requiring all the first four standards to be fulfilled.
I found this interview particularly enlightening and recommend your listening to it.