U.S. drone strikes in battlespaces far removed from conventional theatres of war are the most obvious modern form of ‘targeted killing’. But the practice has a long history – with its modern incarnation stemming from the ‘lawfare’ blueprint constructed by Israel. So writes Leonard Small, in a roundtable on targeted killing.
The invention of the phrase ‘targeted killing’ has its roots in the first and second intifada in Palestine. It was in the latter conflict of 2000 that Israel used this provocative vocabulary to replace the more emotionally-charged ‘assassination’ or ‘liquidation’.
Daniel Reisner, former head of the International Law Branch of the Israeli Defence Force (IDF), claimed that the second intifadabrought about a shift in Israeli rules of engagement: “Prior to the second Intifada, Israeli soldiers were actually told to wait until they were fired upon, before responding.” But the change in “circumstances” had necessitated that “Israeli soldiers no longer are required to wait until they are actually shot at before they respond.”
Although the policy had been in place beginning in 1980, it was at turn of the millennium that the IDF chose to disclose the practice of what was now called ‘targeted killing’ to the public.
The terminology is key here: assassination is widely considered a ‘dirty word’ – illegal in the U.S. (under Executive Order 12333) and condemned around the world; once even outlawed by the Israelis. Back in 1954, the CIA circulated a training manual ‘A Study of Assassination’ to agents during the coup in Guatemala, noting that “Assassination can seldom be employed with a clear conscience. Persons who are morally squeamish should not attempt it”. Such repugnance to assassination was an obstacle for the Israeli attempt to kill Palestinian militants. So in 2001, a year after the Israelis disclosed its targeted response to the second intifada, the government realized it had to normalize, sanitize, and legitimate the practice through the law. In this way,
Israel paved the way for targeted killing, and has set legal precedent and custom which has proved very useful and expedient in rationalizing the Obama administration’s drone wars.
But the history of targeted killing didn’t really begin with Israel. They have always been a part of colonial exploitation, expansion, and legitimation–violent act conducting in the name of law, not in spite of it. The British ruled through a legalistic-bureaucratic empire, and Francisco de Vitoria’s Spanish conquest of the Americas in the 1500s was underwritten by something similar to modern lawfare.
What’s more, it is worth remembering that the Hague Convention of 1907, the Geneva Conventions of 1949 and Additional Protocols of 1977 an 2005 do not prohibit war – they simply proscribe its form.
When the language of law is used—i.e., “proportionality,” “distinction,” “necessity”–killing is not prohibited and it is accepted that, in some circumstances, some innocent people will die and will do so in a manner that is entirely consistent with the relevant law.
Law, then, is an active participant in the war-matrix. Its hegemonic status is evidenced in the great lengths state officials go to in casting their violence as legally justified, even as moral justifications are nowhere to be heard. Moreover, much of the global opposition to war is now frequently spoken in the name of law. (U.S. drone wars are ‘illegal’ and so on). Lawfare sets the discursive ‘rules of the game’, and this is relatively new.
Consider, as Small does, the role of military lawyers in the kill-chain – Judge Advocate Generals (JAGs) and The Israeli Military Advocate General (MAG) Corps (formerly the Legal Services Corps). JAGs now make sovereign decisions: whether to take life or let live.
While the MAG has always played an integral and even intrinsic role in Israeli military affairs, JAGs are now directly involved in targeting decisions. They give direct legal permission to the IDF as to whom, and how many, they can and cannot kill based on the intelligence that they are provided. When targeted killing first appeared as acknowledged state policy in 2000, there was a big debate in the IDF about what role the JAGs should play in the process of “executing targets.” … That debate is now settled, and JAGs do indeed have to approve each and every strike.
Israeli JAGs therefore play a double-role: these lawyers bring a form of legalistic rationality to an otherwise ‘lawless’ space of war. But this ‘humanitarian’ enframing is likewise responsible for legitimizing the very existence of state violence, and at times exacerbating it.
Through the Israeli precedent of targeted killings, we can therefore see the U.S. drone wars as a legalistic construction that is founded upon the same deadly integration of (CIA) lawyers in the kill-chain.
Law is a both a legitimating and delegitimating instrument: but it has never been the prima facie ‘check’ on state violence the way so many imagine it to be.