Targeting Terrorists (Ethics and Global Politics)

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Targeting Terrorists (Ethics and Global Politics)

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TARGETING TERRORISTS

Ethics and Global Politics Series Editors: Tom Lansford and Patrick Hayden Since the end of the Cold War, explorations of ethical considerations within global politics and on the development of foreign policy have assumed a growing importance in the fields of politics and international studies. New theories, policies, institutions, and actors are called for to address difficult normative questions arising from the conduct of international affairs in a rapidly changing world. This series provides an exciting new forum for creative research that engages both the theory and practice of contemporary world politics, in light of the challenges and dilemmas of the evolving international order. Also in the series Ethics in an Era of Globalization Edited by M.S. Ronald Commers, Wim Vandekerckhove and An Verlinden ISBN 978 0 7546 7195 4 From Terrorism to Politics Annisseh van Engeland and Rachael M. Rudolph ISBN 978 0 7546 4990 8 Emerging Conflicts of Principle International Relations and the Clash between Cosmopolitanism and Republicanism Thomas Kane ISBN 978 0 7546 4837 6 The Ethics of Foreign Policy Edited by David B. MacDonald, Robert G. Patman and Betty Mason-Parker ISBN 978 0 7546 4377 7 Who’s Afraid of Children? Children, Conflict and International Relations Helen Brocklehurst ISBN 978 0 7546 4171 1

Targeting Terrorists A License to Kill?

AVERY PLAW Political Science Department University of Massachusetts, Dartmouth, USA

© Avery Plaw 2008 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Avery Plaw has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. Published by Ashgate Publishing Limited Gower House Croft Road Aldershot Hampshire GU11 3HR England

Ashgate Publishing Company Suite 420 101 Cherry Street Burlington, VT 05401-4405 USA

www.ashgate.com British Library Cataloguing in Publication Data Plaw, Avery Targeting terrorists : a license to kill? - (Ethics and global politics) 1. Terrorism - Prevention - Moral and ethical aspects 2. Terrorism - Israel - Prevention 3. Terrorism Prevention - Government policy - Israel 4. Terrorism United States - Prevention 5. Terrorism - Prevention Government policy - United States I. Title 363.3'2517 Library of Congress Cataloging-in-Publication Data Plaw, Avery. Targeting terrorists : a license to kill / by Avery Plaw. p. cm. -- (Ethics and global politics) Includes bibliographical references and index. ISBN 978-0-7546-4526-9 1. Terrorism--Prevention--Moral and ethical aspects. 2. Terrorism--Israel--Prevention. 3. Terrorism--Prevention--Government policy--Israel. 4. Terrorism--United States--Prevention. 5. Terrorism--Prevention--Government policy--United States. I. Title. HV6431.P5738 2008 363.325'17--dc22 2008005474 ISBN 978 0 7546 4526 9

Contents List of Figures and Table Acknowledgements Quotes

vii ix xi

1

The Issue of Targeting Terrorists

2

The Development of Israel’s Terrorist Targeting Policy

29

3

The Expansion of Israeli Targeting During the Second Intifada

61

4

The Development of the US Terrorist Targeting Policy

91

5

The Legality of Targeting Terrorists

121

6

The Politics of Targeting Terrorists

165

7

The Morality of Targeting Terrorists

199

8

Talking about Targeting

237

Bibliography Index

1

263 287

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List of Figures and Table Figure 3.1 Figure 3.2 Figure 3.3 Figure 3.4

Second Intifada fatalities: Palestinians killed by Israelis, and Israelis killed by Palestinians Second Intifada terrorist attacks carried out by Palestinians Second Intifada terrorist targeting operations Second Intifada targetings and fatalities

64 65 66 86

Table 3.1

Granger causality tests

87

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Acknowledgements This book was written between 2004 and 2007. The idea of writing it came during an impassioned discussion with friends in late 2002 over whether there was sufficient justification for Israel or the United States to target terrorists. So thanks first and foremost to Daniel and Gordon, who inspired the inquiry. Over the years that I’ve worked on this book, I’ve benefited greatly from the contributions of many people and institutions. In the year I began serious work, I had the benefit of a postdoctoral fellowship from the Social Sciences and Humanities Research Council of Canada. The book would not have been feasible without its generous support. I spent that year as a Visiting Scholar at NYU, and benefited enormously from the faculty and resources there. I would particularly like to thank Steven Lukes for his sage advice and helpful support. Many people have commented on specific chapters, and in some cases the whole manuscript. Special thanks go to Steven Scheinberg, Gordon Aronoff, Brian Williams, Doug Roscoe, Gilbert Plaw, Mark and Jacqueline Satlow and Robert Manley, as well as to Ashgate’s peer reviewers, who provided very helpful criticism and suggestions. Some sections of the book were presented at conferences, including those hosted by the American Political Science Association, the Canadian Political Science Association, the North-Eastern Political Science Association, and the Global Conference on War and Virtual War. I would like to express gratitude for responses, discussion and suggestions from the participants at those events. Early versions of some arguments and ideas contained in this book have been published as follows: “Terminating Terror: The Legality, Ethics and Effectiveness of Targeting Terrorists,” Theoria, 117 (2007); “Film as Ethical Argument: Evaluating Munich’s Case against Targeted Killing,” Film and Philosophy, vol. 11 (2007), and “Is the War on Terror Real? Should it be?” in Graeme Goldsworthy and Robert Brecher, War and Terror: Politics, Representation and Practice (New York/ Amsterdam: Rodopi, 2008). I would like to thank all the editors and reviewers for their advice and ideas. Tom Paine, Tim Paicopolis, Colin George, and Elizabeth Circharo deserve special mention for their help in checking facts and references. Finally, my deepest thanks go to Jane Danek, without whose unflagging support nothing would be possible.

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“Wherever a plot is being woven, wherever people are planning to murder Jews and Israelis – that is where we need to strike.” Golda Meir (Klein 2005: 106) “Some have met their fates by sudden justice … they’re no longer a problem for the United States of America and our friends.” George Bush (Bush 2003) “Even terrorists must be treated according to international law. Otherwise any country can start executing those whom they consider terrorists.”Anna Lindh (Machon 2006: 2–3)

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Chapter 1

The Issue of Targeting Terrorists In their ongoing wars on terror, both the US and Israeli governments have resorted to a policy of “targeting terrorists.” In essence, both governments authorize their military or intelligence services to kill specific suspected “terrorists” who they believe mortally threaten citizens and cannot otherwise be neutralized (for example, by preventive arrest) (David 2002: 1). In some cases, alleged terrorists have been shot from a distance while at home, or in their cars, or at work, or in the course of carrying out acts of terrorism. Most frequently, alleged terrorists have been blown up with missiles fired from aircraft – in the US cases, from unmanned Predator aerial vehicles, and in the Israeli cases from Apache Attack helicopters. President Bush calls this “sudden justice,” and the Israeli government calls it “targeted killing,” or more recently and euphemistically, “targeted thwarting,” “preventive liquidation,” or “interception” (Bush 2003; Nolte 2004: 114; David 2002: 2; Reuter 2004: 14). Their critics, however, speak in more morally charged terms of “assassination” or “extra-judicial killing” (Amnesty International 2003; Human Rights Watch 2002; Stein 2003: 127–8; Patten 2002). All of this diverse terminology, however, refers to the same basic policy. For the purposes of this book, the policy will be referred to as “targeting terrorists.” The policy is best illustrated by an example. At around noon on 9 November 2000, four Israeli helicopters appeared over the Palestinian-controlled West Bank town of Beit Sahour in pursuit of a car being driven by a senior Fatah activist, Hussein Abayat, and carrying three of his comrades as passengers. One of the helicopters fired two missiles at the car, at least one of which struck the target. Abayat was killed instantly and the other occupants of the car seriously injured in the resulting explosion. Two Palestinian women in the vicinity were also killed. Israeli officials confirmed that Abayat was the target of a combined Israeli Defense Force (IDF) and Israeli Intelligence (Shin Bet) air raid, charging that he was “personally responsible for a long list of attacks against military and civilian targets including shootings at Giloh” (Korn 2004: 217–19; Capella and Sfard 2002). A similar US-led targeting took place on 3 November 2002, above the desert about 100 miles east of Sanaa, the capital of Yemen. On that date a CIA-controlled Predator unmanned aerial vehicle appeared over a lone car speeding along an isolated highway and launched a laser-guided Hellfire missile. The missile struck the target and exploded, leaving only charred remains. US and Yemeni officials claimed that the cars’ occupants had been six members of al-Qaeda, including a senior operative, Qaed Salim Sinan al-Harethi, one of the terrorists the CIA believed to be responsible for the bombing of the US destroyer Cole in 2000. Based only on the carbonized

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remains, forensics specialists were unable to confirm the identity of the victims (Calhoun 2003: 209–11) These two operations marked the renewal by Israel, and the inception by the United States, of terrorist targeting campaigns that continue today. Since 11 September 2001, US officials have acknowledged (usually unofficially) at least 19 occasions since on which Predators have successfully fired Hellfire missiles on terrorist suspects overseas (Meyer 2006; Machon 2006). By the end of 2006, US targeting operations were widely reported to have killed at least five al-Qaeda leaders and ten alleged terrorist operatives, but are also reported to have killed at least 20 civilians.1 According to the human rights group B’Tselem, the Israelis had killed 218 terrorist targets in the course of the second Intifada, as well as 149 people who were not intended targets, as of September 2007 (B’Tselem 2007). Defenders of targeting suggest that such campaigns can disrupt the operations of terrorist organizations (for example, Byman 2006, Luft 2003). Whatever their successes, the two terrorist targeting campaigns have proven to be highly controversial. The United Nations (UN), leading human rights organizations like Amnesty International (Amnesty), and many Regional Intergovernmental Organizations like the European Union (EU), as well as many individual states and scholars have denounced this policy as immoral, illegal and counter-productive (United Nations Press Release (UNPR) 2004; United Nations Commission on Human Rights (UNCHR) 2002, 2004; United Nations General Assembly (UNGA) 2001, Amnesty International 2001, 2003; Patten 2002; Gross 2004; see also Kretzmer 2005: 173). On the other hand, Israel has defiantly insisted that the policy is legal, moral, and necessary (Israeli Ministry of Foreign Affairs (IMFA) 2003c). Several states have voiced support for Israel’s “right to defend itself against terrorism” in this manner (UNPR 2004). The United States, however, has exhibited a somewhat inconsistent public stance on terrorist targeting since September 11th. It has often voted against resolutions condemning the Israeli practice, and then criticized Israel, while engaging surreptitiously in terrorist targeting itself (United States Department of State (DoS) 2002; BBC News 2002). Meanwhile, in both the academic and popular press, an increasing number of arguments have been published seeking to justify and defend the targeting of terrorists as legal, moral, and effective (for example, Byman 2006; Kasher and Yadlin 2005a, 2005b; Meisels 2004). The targeting of terrorists is thus a contentious issue. It also has important implications. If the policy is legitimate and successful, then it warrants wider acceptance and perhaps even application in analogous cases, particularly as many countries around the world continue to confront transnational terrorist attacks. If it is illegitimate and counter-productive, then it should not merely be condemned, but aggressively confronted and halted before it can do irreparable harm to the credibility of international law and institutions, and to the prospect of effectively bringing contemporary terrorism to an end.

1 See the cases described at the end of Chapter 4. These numbers are based on press reports, and could be subject to change in light of additional evidence.

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3

The policy of targeting terrorists and the issues it raises, however, have not been subjected to careful scrutiny, and in many ways this effort to offer an in-depth assessment of the ramifications of this policy is entering new territory. This book aims to explore the moral and legal debates, effectiveness, history, and implications of the policy for contemporary and future struggles with terrorist groups. It begins by briefly reviewing the historical development of terrorist targeting policies in Israel (Chapters 2 and 3) and the United States (Chapter 4), and then examines key arguments advanced both in favor of and against the practice’s legality (Chapter 5), political practicality (Chapter 6), and morality (Chapter 7). The final chapter provides a brief summary of some of the key issues raised in the main text, and outlines a possible point of compromise between critics and defenders of terrorist targeting. Some Necessary Preliminaries Two important issues need to be addressed before turning to cases of terrorist targeting. The first is the need for clear definitions, and in particular to establish exactly what is meant by “targeting terrorists.” The second preliminary need is to show that US and Israeli targeting policies are in a basic sense similar, and can effectively be treated together. The expression “targeting terrorists” incorporates two distinct ideas. The first, “targeting,” refers to a type of government policy in which the state authorizes branches of its military or intelligence apparatus to deliberately employ lethal force against individuals it identifies as threats to its security. The second, “terrorists,” refers to the group of persons towards whom the policy is intended to be exclusively directed. Distinguishing these two terms, at least initially, will be helpful both in clarifying the meaning of the expression and in drawing out some of the natural concerns that such a policy must raise. In a recent article, Steven David, a Professor of International Relations at Johns Hopkins University, provides a useful starting point in defining the broad category of targeting policies. In his definition, “targeted killing is the intentional slaying of a specific individual or group of individuals undertaken with explicit governmental approval” (David 2003b: 112). David offers this definition with the recent US, and particularly Israeli, campaigns against terrorists in mind, but seeks to locate such efforts within a general type or category of policy. So at this level of abstraction, no particular targets are placed in the cross-hairs. The policy could be directed at any group. Perhaps the most immediately striking feature of David’s definition is that killing is authorized simply by the expedient of governmental approval. Since a court is an institution of government, this provision would encompass the order of a court following a criminal trial (that is, capital punishment). But the provision could equally be fulfilled by executive authorization without specific judicial approval. A policy of targeted killing thus permits (but does not require) the state to employ lethal force without the restraint of due process and judicial deliberation. Of course, the use of lethal force without specific judicial authorization will not be entirely unfamiliar even to citizens of well-functioning constitutional liberal democracies. Police, for example, are permitted to employ lethal force in some

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situations. Soldiers are also permitted to use lethal force in combat. In both of these contexts, however, the use of lethal force is constrained in some important ways that do not apply to a policy of targeted killing. For example, police are only permitted to employ lethal force deliberately against persons who pose an immediate and significant danger to others and when no other means of protecting these others is available. Soldiers, on the other hand, are only permitted to employ lethal force against enemy combatants (provided that they are not hors de combat). Targeted killing, as David defines it, is different. It separates the use of lethal force from the exigencies of emergency and combat situations, and permits those authorized by the state to kill designated targets wherever doing so would not pose an undue danger to others. Targeted killing is also different from these other, more familiar, uses of lethal force in a second way: the target is designated in advance. During armed conflict, soldiers may kill any enemy soldier whenever opportunity arises (consistent with the laws of war). Police are permitted to use lethal force against any person threatening the lives of others, when no plausible alternative is available. By contrast, targeted killings are, in Michael Gross’s words, “named killings” (Gross 2003: 362–3). Here the government authorizes only the killing of specific, named persons. These targets are fair game wherever they can be safely attacked. But only the target is fair game. Any targeted killing policy would obviously be troubling. Governments wield enormous power, including a virtual monopoly of legitimate coercive power. One of the oft-sighted reasons for having constitutions and human rights is to curtail the potentially tyrannical power of governments. And one of the very first things constitutions and human rights conventions seek to protect from arbitrary government power is the sanctity of life. Moreover, it may be argued that a policy of targeting directed specifically against terrorists is especially conducive to the abuse of state power. Such a policy must operate on the basis of highly sensitive intelligence, and must therefore be pursued, in part at least, outside the domain of public scrutiny. Further, the demands of national security can potentially be used to evade effective legislative and judicial oversight. In this way, the investigation and elimination of alleged terrorists seems to invite the circumvention of critical checks, balances, and safeguards against the abuse of the terrible power of the state, and thus to potentially permit the most horrifyingly intimate and irremediable abuse of that enormous power. The danger is best illustrated by actual cases. Two Historical Cases Recent history provides a number of chilling cautionary tales involving the use and abuse of terrorist targeting policies. South Africa from the mid-1970s through the 1980s, for example, provides a potent illustration of the potential abuse of targeting policies, in this case in the service a deeply disreputable state. In February 1974, in response to African National Congress (ANC) terrorist actions, the National Government of Balthazar Vorster initiated a policy of hunting and killing opponents abroad who employed terrorism against the apartheid regime (while terrorists within the country remained subject to normal law enforcement). As resistance continued

The Issue of Targeting Terrorists

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and even escalated into the early 1980s, the government of P.W. Botha covertly extended the targeting program to opponents of the regime at home, and allowed it to become the basis of a “total counter-revolutionary strategy” against all opponents of the regime, including peaceful protesters. Probably the most infamous case was the gunning down of University of Witwatersrand lecturer David Webster outside his Johannesburg home by agents of the euphemistically entitled Civil Cooperation Bureau (CCB) on 1 May 1989. The scope of covert killings by South Africa also gradually broadened in foreign operations, so that by the end of the 1980s attacks were being undertaken not only to neutralize terrorists, but also, for example, to sabotage Namibian independence. Killings at home and abroad continued under the early administration of F.W. de Clerk, although there is no evidence that the reformminded Prime Minister was aware of the targeting program at the time. The program was only brought to a halt in 1990 following exposure in the press and a crackdown by the new government that included the arrest of the head of the CCB, Colonel Pieter Verster, in March 1990 (O’Brien 2001: 128–37). In a two-part article on South Africa’s “Use of State Assassination as a Tool of State Policy,” Kevin O’Brien, the Chair of Political Studies at UC Berkeley, provides a chilling account of how South Africa’s “securocracy” evolved, insulated from public scrutiny. He stresses, in particular, the increasing brutality it demonstrated in the face of growing anti-apartheid protests (O’Brien 2001: 109–38). Estimates of the total number of “those directly targeted by the state for elimination” range from above 50 to above 75, although O’Brien concludes that the final number was probably fewer than 100 (O’Brien 2001: 134–8, 142). A full assessment of the policy, however, must include not only the body count, but also the additional measure of terror it infused into associated policies of intimidation, beating, administrative detention, and torture. But for all its success in terrorizing enemies of the South African state, ultimately the strategy must be accounted a costly failure. Not only did it fail to protect the apartheid regime from revolutionary change, but it did great damage to the image of South Africa and contributed significantly to its international isolation. Spain and the GAL More troublingly still, even in cases where the objectives of the targeting policies have appeared less unsavory, a similar pattern has ensued. For instance, in the mid-1980s, the Spanish government organized a secret elite security force – the Grupos Antiterroristas de Liberación (GAL). The GAL was intended to combat Basque separatist terrorism, and particularly the Euskadi Ta Askatasuna (ETA), by pursuing perpetrators back to their home bases in Basque areas of France and disrupting their activities. The GAL operations rapidly degenerated into a “dirty war” against Basque terrorists. Between 1983 and 1987, the GAL employed the kidnapping and torture of ETA terrorists and Basques who were believed to have information about the terrorists. The GAL are accused of 28 killings over this period. However, later investigations have revealed that at least a third of the victims had no connection at all with ETA (BBC News 1998). The activities of the GAL were subsequently

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brought to light, and some members of the GAL were convicted at trial (Woodworth 2001). Again, the targeting policy turned into a political, moral, and legal disaster. There is therefore good reason to approach any examination of the legitimacy or suitability of a policy of targeted killing, and specifically of terrorist targeting, with healthy scepticism. On the other hand, David’s formulation of targeted killing frames it only in the most general and permissive terms, and it is certainly possible to argue that, at least in certain situations, a specific, focused, and restrained policy of targeted killing might be legitimate, and even desirable. For example, the magnitude of the threat posed by transnational terrorists to innocent civilians has been all too graphically illustrated in the last decade. In this context, Tamar Meisels, a Professor of Government and Policy at Tel Aviv University, recently posed the following pregnant question. Assuming that they can be clearly identified, she asks, “what’s wrong with killing bad guys?” To most people, she suggests, especially to “those who grew up on Hollywood movies … the idea of ‘killing the bad guys,’ so to speak, seems intuitively rather a good thing” (Meisels 2004: 298). The focus of this book is upon whether any sort of targeted killing policy can be legally, morally, and politically justified in the cases of the only two countries which are known at the moment to be pursuing sustained terrorist targeting policies – Israel and the United States. The book is therefore concerned not with a policy of targeted killing in the broad sense defined by David, but specifically with the targeting of terrorists by countries that have recently suffered devastating terrorist attacks and continue to be menaced by the terrorist groups that have attacked them. The September 11th attack in the United States in 2001 alone directly resulted in at least 2964 deaths (excluding the 19 terrorists). On the Israeli side, the IDF reports that in the five years following the start of the second Palestinian Intifada at the end of September 2000, Palestinians killed 1074 Israelis and wounded 7520 – devastating numbers for such a comparatively small population. Daniel Byman, the Director of Georgetown’s Security Studies Program, points out that this toll represents the proportional equivalent of 50,000 American dead and 300,000 wounded (Byman 2006: 102).2 Such terrorist attacks are distinctively troubling in that they are premeditated acts of mass murder. Premeditated murder is distinguished in virtually all criminal justice systems as the single most serious crime, and to commit such a crime on the scale illustrated above certainly warrants a strong response on the part of the state. Indeed, as a US court observed in 1998, in view of their deliberate intention to maximize random casualties, “the malice associated with terrorist attacks transcends even that of premeditated murder” (United States District Court for the District of Columbia 1998). Moreover, the threat posed by terrorists should be assessed not only in terms of the atrocities that they already have committed, but also in relation to the potential scope of future atrocities. With the growing sophistication, portability, and power of modern weaponry, great new vistas of destructive power are open to terrorists, including, 2 According to B’Tselem statistics, 998 Israelis have been killed in Palestinian attacks (689 civilians and 309 soldiers) between the end of October 2000 and 4 October 2006. In the single month of March 2002, it reports that 83 civilians were killed, including 12 minors (B’Tselem 2007).

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conceivably, weapons of mass destruction. In the hands of a terrorist, a briefcasesized nuclear weapon could be used to flatten a major city, wiping out millions of lives in an instant. It also seems doubtful whether any state could refuse to negotiate for long in the face of such a threat (Laqueur 2004: 24–5, 142–3, 226–31). Finally, it should be emphasized that the damage that terrorist attacks do to a country is not limited only to the lives directly lost or people maimed in attacks. Such attacks produce climates of fear which erode the essential prerequisites of trust and security that underpin liberal democracy, and ultimately social life in general (see, for example, Scheffler 2006: 5; Walzer 2004: 51). Terrorism may not yet have exhibited the power to bring down democratic governments, but a sustained campaign of terror certainly has the power to injure and even maim democratic life (as tragically illustrated in Algeria), and through such damage, to harm all citizens (Ignatieff 2004: 70, 73, 80). Israel and the United States have correctly argued that they have been and continue to be major targets for international terrorist organizations. They maintain that they have little choice but to act in self-defense to protect their citizens. Therefore, they have both declared war on terrorism. Both countries have also begun to target suspected terrorists. The US and Israel may therefore make a strong case that they confront special terrorist menaces. But their choice to adopt a policy of terrorist targeting as a key battle tactic is more problematic. In light of the Spanish and South African cases, there can be little doubt that targeting is itself a dangerous policy, fraught with troubling human rights ramifications as well as temptations to abuse. To make a case for targeting as an appropriate response to terrorism, it needs to be shown, to begin with, that the term “terrorist” can be specified in a way that restrains the policy and protects the innocent as the South African and Spanish policies did not. Yet it is far from clear that any such definition is available. Defining Terrorism Constraining a policy of targeted killing by focusing it exclusively on terrorists immediately raises the problem of defining terrorism. In particular, it raises the oftheard question of whether “one man’s terrorist is another man’s freedom fighter,” or as one commentator aptly put it, “Is terrorism a matter of perspective?” (Kennedy 1999: 2; Waugh 1989: 478). If “terrorist” is really just a catch-all phrase for describing enemies of the state, then restricting targeted killing to terrorists is really no restriction at all – or, more accurately, it only imposes the unonerous restriction of limiting killing to one’s enemies. There can be little doubt that the term “terrorist” is sometimes used simply as a term of abuse, but it is equally certain that such manipulations of language need not evacuate a term of useful meaning. The parsing of language to create ambiguities between who is a freedom fighter and who is a terrorist is all too often a “relativist canard,” in the words of Michael Ignatieff – until recently the Director of the Carr Center for Human Rights Policy at Harvard University (Ignatieff 2004: 95). There is plenty of controversy around the causes which have motivated terrorist actions,

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and whether and to what degree such causes are politically compelling. But what distinguishes terrorists is not their causes, or the legitimacy or illegitimacy of such causes (which are usually shared by many who do not resort to killing), but their means of pursuing their political objectives – that is, by violating not only domestic criminal law and common norms of morality, but also the law of armed conflict, including that which applies specifically to wars against colonial domination and foreign occupation. At the very core of these rules and norms is what is sometimes called the “principle of distinction” (or sometimes “discrimination”): that is, the imperative to distinguish between combatants and noncombatants (including civilians) and to direct armed force solely against combatants. As Ignatieff asserts: “those who observe such rules deserve the name of freedom fighters. Those who do not are terrorists” (Ignatieff 2004: 95). The difference is generally not a subtle, nuanced one, for it is a characteristic strategy of modern terrorists not only to breach the rules, but to flout them completely, to prefer civilian to military targets, and where possible, the most innocent and vulnerable civilians (women, children). There can be no genuine confusion between someone who attempts to blow up a bus full of children and a freedom fighter. Those who insistently deny this basic distinction typically draw on the great freedom fighters of the last century, such as the ubiquitous Che Guevara. But in fact these same “guerrillas” are the first to distinguish themselves from terrorists and to condemn the latter. Thus, in Guevara’s words: we are sincerely convinced that terrorism is a negative weapon which never produces the desired effects and which can alienate the people from revolutionary movements while causing among those who use it human losses out of all proportion with the results achieved. (Guevara 1968: 98)

By contrast, Guevara and Castro championed guerrilla campaigns in the countryside as the vehicle of social revolution; Castro spoke of “urban terrorism” as the “grave of the guerilla” (Laqueur 2002: 180). The discussion to this point, however, only demonstrates that there is at least some tangible distinction between terrorists and freedom fighters, and that therefore the attribution “terrorist” is not as wholly subjective as the terrorist-freedom fighter cliché suggests. It does not yet show that there is a viable general definition of terrorism that could orient and restrain a targeting policy. The best strategy for establishing this latter point is undoubtedly to introduce and defend such a definition, stressing in particular its accuracy, coherence, and wide acceptability. Unfortunately, there is currently no self-evident candidate. The proper definition of terrorism remains a subject of dispute both in contemporary international politics and among scholars and experts. The ongoing political disagreement surrounding the definition of terrorism is exemplified by the continuing failure of the United Nations to settle on a single definition of terrorism (in spite of 12 global conventions and protocols currently in force addressing different dimensions of the problem). On the other hand, the ongoing academic controversy is well illustrated by the 109 definitions Alex Schmid and Albert Jongman obtained from a survey of leading scholars and experts in the field (Schmid and Jongman

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2005: 5–6, 32–8). Indeed, as argued forcefully by Walter Laqueur, a leading historian of terrorism, there will likely never be a universally accepted definition of terrorism, for at least two reasons. On one hand, “the history of terrorism goes back a very long time,” literally thousands of years, crossing diverse cultures and continents, and the pure diversity of contexts and cases makes formulating a single comprehensive definition very difficult (Laqueur 2002: vii–xiii). On the other hand, it is unlikely that “terrorists and their well-wishers would ever agree with their victims about the nature of their actions” (Laqueur 2004: 232). There is, however, widespread recognition of at least some clear cases of terrorism. Few commentators seriously dispute whether the September 11th attacks on the United States were acts of terrorism. Al-Qaeda itself is at least sometimes chillingly frank. The following passage, attributed to Osama bin Laden’s teacher, Sheikh Abdullah Azzam, is quoted on one of al-Qaeda’s recruiting tapes: We are terrorists, and terrorism is our friend and companion. Let the West and East know that we are terrorists and that we are terrifying as well. We shall do our best in preparation to terrorize Allah’s enemies and our own. Thus terrorism is an obligation in Allah’s religion. (Gerges 2002)

Responding in a 1996 interview to the question of whether he considered himself a terrorist, bin Laden himself declared: “terrorizing the American occupiers [in Saudi Arabia] is a religious and logical obligation.” Two years later, he clarified the full scope of this obligation to terrorize: “To kill the American and their allies – civilian and military – is an individual duty incumbent upon every Muslim in all countries” (Lawrence 2005: 39, 61). In an interview with al-Jazeera three years later, in October 2001, in the direct aftermath of the September 11th attacks, bin Laden pronounced: “if inciting for these reasons [on behalf of the Palestinians and the holy sanctuaries] is terrorism, and if killing those that kill our sons is terrorism, then let history witness that we are terrorists” (Lawrence 2005: 107). There seems little doubt, then, that al-Qaeda is a terrorist organization, and that US efforts to target its leadership can properly be described as targeting terrorists. One cannot, however, always depend on terrorists to identify themselves. A clear definition remains highly desirable. Fortunately, a degree of agreement on a very “broad definition” of terrorism has recently emerged among at least some scholars. Terrorism is said to involve “politically or ideologically motivated violence that is directed against civilians or noncombatants” (Scheffler 2006: 2). Indeed, Jeff McMahan of Rutgers University has recently referred to this as the “orthodox definition” (McMahan 2004: 729). One obvious weakness of this orthodox definition, however, is its reliance on the ambiguous category of political or ideological motivation. It is by no means exactly clear what “political or ideological motivation” refers to, or how in most cases it can be authoritatively discerned. Moreover, in at least some cases an ideology seems intimately connected with acts of violence which do not look intuitively like terrorism. The Manson family’s murders, for example, appear to have been motivated by a cosmic ideology, even if a somewhat confused one, but that does not make them acts of terrorism. In short, violent criminals do not become terrorists simply by virtue

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of being moved by big ideas. Terrorism involves a more specific intention to coerce or intimidate a population or government by systematically instilling fear in it. In 2004, the United Nations Secretary-General’s High-Level Panel on Threats, Challenges and Change (hereafter UN Panel) pointed out that the lack of a comprehensive “anti-terrorism convention including a definition of terrorism” was seriously handicapping international efforts to address this threat. In particular, the UN Panel noted that existing laws and norms worked to constrain the behavior of states in their use of force, but that the “norms governing the use of force by non-state actors have not kept pace.” It therefore recommended a comprehensive international convention on terrorism with a single definition of terrorism at its core to act as a morally and legally authoritative means of identifying terrorism so that it can be effectively punished and prevented. In support of that effort, the UN Panel offered the following definition of terrorism: any action … intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population or to compel a government or an international organization to carry out or to abstain from any act. (UN Panel 2004: 51–2)

Any person or organization which authorizes or carries out such actions should correspondingly be deemed guilty of terrorism. The UN Panel went on to insist that such acts “cannot be justified on any grounds.” With this condemnation, the UN Panel echoed the UN General Assembly’s Resolution 51/210 (1996), which “strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed” (UNGA 1996: Article 1). The UN Panel’s proposed definition was framed carefully with the intention of attaining as wide a consensus as possible. To do so, it narrowed and specified components of the “orthodox” definition. Specifically, it shifted from encompassing any political or ideological motivation to requiring a discernible purpose of either intimidating a specific population or coercing a government. Moreover, the UN Panel’s definition required the intention to cause death or serious bodily harm, rather than merely the use of violence. The UN Panel’s definition has not yet attained consensual endorsement, but perhaps, as Laqueur argues, a full consensus is too much to hope for (Laqueur 2004: 232–8). The definition is acceptable to many scholars, states, and international organizations, and is probably as close as the UN has come to the long-sought international definition of terrorism. Of course, this is not to deny that forceful criticisms have been made of it. Three stand out in particular. On examination, however, it is evident that the UN Panel’s proposed definition proves fairly resilient in the face of these challenges. In the first place, some critics complain that the UN Panel’s definition is too broad. For example, it makes no explicit exemption for what the Islamic Summit has called the “legitimate struggle of oppressed and subjugated nations against foreign occupation of any kind” (Ganor 2006). Even some resolutions approved the by the UN General Assembly and the UN Commission on Human Rights recognize that resistance groups engaged in such struggles against oppression may legitimately

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employ “all available means, including armed struggle” (UNGA 1982; UNCHR 2002). Some have interpreted these resolutions to recognize a right of resistance to foreign occupation that includes a right to employ what would normally qualify as terrorism (Washington Post 2002: A28). This is, for example, the position taken by the Hamas Government in Palestine (Haaretz 2006). On this view, the UN definiton would infringe on the basic right of resistance by limiting the means that could be employed in such a struggle (that is, by prohibiting terrorism). The main difficulty with this objection is that it relies on a doubtful interpretation of UN resolutions establishing a right of resistance, and the legal basis for such resolutions in the First Additional Protocol to the Geneva Conventions of 1949 (hereafter the First Protocol). There is nothing in these UN resolutions (although admittedly the wordings are somewhat ambiguous) which warrants the belief that they endorse terrorism as a legitimate means of resistance. What they do specifically endorse is armed resistance against colonial or military occupation. This is fully consistent with the First Protocol, which requires that armed forces engaged in resistance to colonial or alien occupation be treated as legitimate combatants provided they meet certain conditions, including upholding the basic rules of humanitarian law. But legitimate armed resistance does not imply terrorism. Indeed, quite the opposite. Legitimate armed resistance precludes terrorism. While the First Protocol explicitly recognizes that “peoples … fighting against colonial domination and alien occupation … in the exercise of their right of self-determination” may deserve the status of recognized combatants (Article 1.4), it also insists that all recognized combatants must be under the control of a responsible party and “subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict” (Article 43.1). The Protocol’s “Basic Rule” concerning the conduct of military operations is that: the parties to a conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. (Article 48 – Basic Rule; see also all of Articles 51, 52, 54, 56–8)

Correspondingly, in the later listing of grave breeches of the First Protocol, the first entry is “(a.) making the civilian population or individual civilians the object of attack” (Articles 85(3)(a)). Moreover, “acts of terrorism” are explicitly prohibited in armed conflicts in Article 4(2)(d) of the Second Additional Protocol as well as in Article 33 of the Fourth Geneva Convention of 1949. They are also specifically listed as war crimes in the statutes of several international judicial bodies, including the International Criminal Tribunal for Rwanda (Article 4(d)). In short, the right of armed resistance is premised on the prohibition of attacks on civilians and other acts of terrorism. Even in the context of armed resistance, deliberately attacking civilians is a war crime. This finding corresponds with the 2005 study by the International Committee of the Red Cross (ICRC) of contemporary customary international humanitarian law (Henckaerts and Doswald-Beck 2005: 3–16). On the other hand, those who wish to legitimize terrorism will no doubt point to the phrase “by all available means,” insisting that taken literally, this implies no

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restraints whatsoever on the means that can be legitimately employed. However, this expansive interpretation of the resolutions raises several objections. In the first place, it reads the resolutions to in fact endorse resistance “by all means” period, when in fact the key phrase is “by all available means.” To read this as a justification for terrorism must rely on the (dubious) argument that terrorism was intended to be considered as an “available means” by the UN Commission on Human Rights and the General Assembly. Moreover, what the resolutions then go on to specifically endorse is “armed resistance,” which precludes terrorism. Clearly, the addition “including armed resistance” indicates that the foregoing phrase “by all available means” is not intended as a literal blanket endorsement of anything, as this would render the specific endorsement of armed struggle wholly redundant. Indeed, the endorsement of literally “all means” seems absurd on its face, since no one could plausibly argue that the passage is intended to endorse genocide, for example. Moreover, reading the resolutions as endorsing terrorism brings them into conflict with explicit UN prohibitions of terrorism, which declare that it “cannot be justified on any grounds.” What the phrasing of the resolutions in fact seems to suggest is a right of resistance up to and including armed resistance (such as guerrilla warfare focused on military targets) but short of terrorism. If this is the case, however, the UN Panel’s definition of terrorism does not infringe, but properly limits, the legitimate right of resistance to foreign occupation or colonial domination. The UN Panel itself eloquently asserts the natural limits of the right to resistance. After noting that one major obstacle to attaining a common definition of terrorism is the claim that “people under foreign occupation have a right to resistance and a definition of terrorism should not override this right,” the UN Panel responds that “the central point [here] is that there is nothing in the fact of occupation that justifies the targeting and killing of civilians …. Attacks that specifically target innocent civilians and non-combatants must be condemned clearly and unequivocally by all” (UN Panel 2004: 51–2). At the same time, some contemporary writers have argued for a narrower definition of terrorism on very different grounds. The eminent Israeli philosopher Asa Kasher and the Director of Israeli Defense Forces (IDF) Intelligence (Aman), Major General Amos Yadlin, have proposed a definition of “acts of terror” which begins: “an act, carried out by individuals or organizations, not on behalf of any state …” (Kasher and Yadlin 2005b: 4). However, this narrowing of the definition to acts “not on behalf of any state” seems problematic in several respects. For example, systematically excluding the actions of states does not seem consonant with the term’s history, which has its roots in the Jacobin Terror, nor with its current usage, which frequently encompasses “state terrorism.” Indeed, as Noam Chomsky has rightly pointed out, given the overwhelming power of states today, states’ use of terror should be of special concern (Chomsky 2001: 16–17). Besides, there are many terrorist organizations today, including some recognized by Kasher and Yadlin, which are “sponsored” by and act “on behalf” of states, such as Hizbullah. A third line of criticism assails the definition not as too wide, but as too narrow. In other words, it underestimates rather than exaggerates the scope of terrorism in the contemporary world. The British philosopher Ted Honderich, for example, argues that “political violence … is terrorism” (Honderich 2002: 93). There is virtue

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in the simplicity and clarity of this definition, but there is also reason to be concerned that it is too broad. For example, a state’s use of force to halt or prevent riots or terrorism or crimes against humanity may be both violent and political, and yet still be importantly morally distinct from the violence it seeks to prevent. It may be intended to preserve peace and human security rather than to threaten them. To equate terrorism with all political violence is to stretch the word beyond recognition. It is to force the deliberate and indiscriminate slaughter of children onto the same moral scale as humanitarian intervention to halt genocide, weighing only the relative body counts as a pertinent comparison. In contrast to both narrow and wide alternatives, the UN Panel’s definition provides a plausible basis for this study. It focuses on deplorable acts rather than the agents who commit them (and so is equally applicable to individuals, groups, or states). Moreover, it appropriately distinguishes the kind of deplorable act it signifies from other forms of political violence: it specifies acts of “serious” violence perpetrated against a particular vulnerable group (noncombatants). Finally, the UN Panel’s definition is consonant with both the term’s historical roots and current usage, and clarifies the source of its distinctive pejorative force. All of this is simply to show that there is a plausible, defensible, and widely (if not consensually) endorsed definition of terrorism that could orient and discipline a targeting campaign. Terrorism is a real and distinct phenomenon, and a policy of targeting can, in principle at least, be directed exclusively at terrorists. US and Israeli Definitions of Terrorism At this point, however, a potent practical objection can be raised in connection with the twin objects of this study – US and Israeli targeting policy. Neither the United States nor Israel has adopted the UN Panel’s definition that has been defended here. Each has its own official definition which is certainly more controversial and may arguably be far less defensible. Pursuing targeting policies in the light of these definitions may therefore permit the killing of some who would not qualify as terrorists under the UN Panel’s proposed definition, and indeed who may not be terrorists in the eyes of many neutral observers. In the estimate of some critics, such actions may amount to no more than state-sponsored murder. It will be argued at the end of this section that these objections are less telling than they first appear. In general, the recent US and Israeli targeting campaigns have been directed at those who have been termed “new terrorists,” who specialize in the systematic use of indiscriminate violence against noncombatants, and in particular in suicide attacks. There is no doubt that those participating in such attacks would be encompassed in the UN Panel’s definition of terrorism. Of course, in the execution of US and Israeli policies to date there have been problematic cases (as will be seen), but these need not invalidate the policy of targeting terrorists altogether, particularly if means can be identified to focus its application more sharply on clear cases that fit the UN Panel’s definition of terrorism. Before turning to these issues, however, it will be instructive to consider the US and Israeli definitions of terrorism.

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US Definitions of Terrorism The US Department of Defense (DoD) defines terrorism as: the calculated use of unlawful violence or threat of unlawful violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological. (DoD 2002: 12)

This definition clearly shares several key features with the UN Panel’s definition: terrorists exploit violence to intimidate governments or societies to advance an agenda. In at least one sense, however, the DoD’s definition is also more restrictive than the UN’s. It limits the scope of terrorism only to “unlawful” actions. At the same time, the DoD’s definition is in several senses broader than the UN Panel’s. For instance, under it, any act of violence, or even the threat of violence, can constitute terrorism – not only those actually intended to produce death or serious bodily harm. Another sense in which the DoD’s definition is broader than the UN Panel’s is that it does not limit terrorism to attacks on civilians or noncombatants. Rather, it includes attacks on military forces if such attacks are “unlawful.” Oddly, the other leading US definition of terrorism – that used by the State Department (DoS) – drops the DoD’s focus on unlawfulness and reverts to the UN Panel’s focus on violence specifically against noncombatants. According to the DoS, terrorism is: Premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents, usually intended to influence an audience. (DoS 1996: vi)

This definition, with its focus on violence against noncombatants, appears to raise questions about attacks on military forces that the DoD’s definition was designed to encompass. A later addendum, however, clarifies the DoS’s intention to include such attacks: We also consider as acts of terrorism attacks on military installations or on armed military personnel when a state of military hostilities does not exist at the site, such as bombings against US bases.

So, like the DoD’s and UN Panel’s definitions, the DoS’s definition encompasses attacks on noncombatant troops in times of peace, but unlike the DoD’s definition, it does not appear to incorporate illegal attacks on troops or bases during wartime. None the less, like the DoD’s definition, the DoS’s potentially encompasses a wider range of terrorist action than does the UN Panel’s. For instance, it includes all acts of violence, and not only those which result in death or serious bodily harm. On the matter of intended outcome, the DoS’s definition broadly defines terrorist acts as “intended to influence an audience,” rather than specifically to “intimidate” or “compel.”

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What is most striking about the DoS’s definition is not where it is wider than the UN Panel’s definition, but where it is narrower. In particular, it explicitly limits terrorist actions to sub-national groups or clandestine agents, and thus specifically excludes state actions (although clandestine operations might still fall under the definition). In this way, it fails to address some state terrorism. However, the scope of both the DoD’s and DoS’s definitions are somewhat broader in terms of non-state terrorism than the UN Panel’s, including, for example, violence not necessarily intended to be life-threatening. There may also be some greater breadth on the issue of whether attacks on the military can be acts of terrorism. The DoD’s definition in particular encompasses “unlawful” attacks on military forces during wartime. This is a potentially contentious application of the term “terrorism” to what are more familiarly known as “war crimes.” Even the references to terrorism in the existing conventions and statutes relating to the law of war focus, as seen in the last section, on attacks on civilians rather than on combatants. It may be argued forcefully that the terms “terrorist” and “war criminal” designate generally distinct phenomena (although they overlap in condemning acts of violence against civilians during wartime), and that correspondingly, all unnecessary confusion between them – as produced, for example, in the DoD’s definition – should be avoided. In specific relation to terrorist targeting, however, the issue is largely moot, because war criminals are generally combatants, and may be targeted and attacked legally by opposing forces regardless of whether they are designated as terrorists. In short, then, while the US definitions are a little wider in ambit, and a little fuzzier around the edges, they are close to the UN Panel’s definition in spirit, and are likely to overlap largely in application. The sharpest difference concerns the US definitions’ lesser sensitivity to the politically pertinent category of state terrorism, the implications of which will be examined below. Israeli Definitions of Terrorism The most pertinent Israeli law, which dates back to 1948, focuses on defining terrorist organizations rather than terrorist acts. Paragraph 1 of the Prevention of Terrorism Ordinance No. 33 of 5708-1948 defines terrorist organizations as follows: “Terrorist organisation” means a body of persons resorting in its activities to acts of violence calculated to cause death or injury to a person or to threats of such acts of violence.

Evidently, this definition is broader in several senses than those already considered. For example, there is no distinction made between military and civilian targets, nor any requirement of political purpose or intention to coerce. Moreover, like the DoD’s definition, it encompasses threats of violence rather than limiting itself to actual acts. Further, the “a body of persons resorting in its activities” appears to indicate a private group, or at least a non-governmental organization. So the definition refers to non-governmental groups intentionally employing violence or threats thereof. What is noticeably absent is the usual intentionality requirement – for example, for political reasons or to intimidate a government. The Israeli definition therefore seems

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to designate any non-governmental group deliberately employing serious violence or the threat thereof as terrorist. When it comes to targeting terrorists, however, the IDF has operated with more specific rules of engagement. The office of the Judge Advocate General (JAG), for example, laid out specific legal guidelines as to who can and who cannot be targeted in February 2002. For example: “targeting can only be done to prevent attacks in the future which are liable to toll multiple casualties.” So in the context of targeting, terrorism involves attacks intended and likely to kill a multitude. Moreover, there must be strong evidence that an alleged terrorist “will plan or carry out a terror attack in the near future,” including a pattern of past attacks. IDF legal sources offered the following example as a guideline: “If you know the person has four times in the past sent his people to shoot at Israelis traveling on the roads, and if you have information about his intention to sponsor more activities of this sort tomorrow or the day after tomorrow, then the suspect meets the assassination criteria” (Harel and Alon 2002). The IDF’s guideline suggests two criteria used in identifying a terrorist target: (1) a continuous pattern of mass violent attacks against Israelis (especially civilians), and (2) the clear and demonstrable intention to engage in a further mass attacks in the near future. Moreover, IDF lawyers stressed that the first factor by itself was insufficient to trigger a targeting operation. In addition, the government must be effectively unable to arrest the alleged terrorist(s). In other words, the terrorist(s) must be in a foreign administrative jurisdiction in which local authorities are unwilling or unable to take action against the terrorists (Harel and Alon 2002). In short, then, the Israeli targeting policy as outlined by the JAG only permits action against terror suspects in foreign-administrated jurisdictions where local authorities are unwilling or unable to take action against them, and where they have been involved in a pattern of violent mass attacks against Israelis and where they can be shown to be actively planning a further multiple-casualty attack. Evidently, this category of terror suspects subject to targeting is far narrower than specified in the Israeli definition of terror organizations. In December 2006, the Supreme Court of Israel (SCI) further refined the guidelines for the legitimate use of terrorist targeting in ways that will be discussed in detail in Chapters 3 and 5. In summary, there seems then to be one principal area in which the US and Israeli definitions of terror for purposes of targeting are narrower than the UN Panel’s definition, and one area in which they extend beyond it. On one hand, the DoS and Israeli 1948 definitions effectively exclude state terrorism by focusing exclusively on violence perpetrated by “groups” (in the former case, “sub-national’ groups”). On the other hand, the DoD and 1948 Israeli definitions, contrary to the UN Panel’s, at least formally permit attacks on military targets to be defined as terrorist actions (at least, in the former case, if they are unlawful). All the definitions overlap, however, on the core category of political violence intended to kill or seriously injure civilians. So what implications do these two main definitional differences have for targeting policy? In practice, very little, although the first difference between the UN Panel’s definition and the Israeli and US governments’ does raise a hotly disputed issue in the wars on terror that has already been touched upon briefly – that is, can states also be guilty of acts of terrorism, and if so, what implications does this have for the US and Israeli confrontations with terrorist organizations?

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This broad question raises many difficult issues, and is unlikely to be resolved decisively in the foreseeable future. In the specific context of terrorist targeting, however, the implication of excluding state actions from the operative definition of terrorism is clear-cut: there can be no warrant for targeting state officials regardless of their involvement in, or encouragement of, terrorist operations. In the context of targeting, this restriction is relatively uncontroversial. Both international law and practice prohibit attacks on state officials by other states except in circumstances of inter-state war, and even then only permit it if they are part of the military hierarchy. As will be shown in detail in Chapter 5, the deliberate killing of state officials in peacetime constitutes “assassination,” a serious crime under international conventions and custom. Moreover, it has been forcefully argued that permitting terrorist targeting in the case of state officials carries the potential to significantly destabilize both the internal order of countries affected to the detriment of all citizens, and if the practice leads to reprisals in kind, to significantly undermine the international political order (see, for example, Thomas 2005: 131). The implication is that public officials cannot be subject to terrorist targeting. Still, critics may respond by asking why, if targeting is a just response to non-state terrorism, should state terrorists not be subject to the same justice? If anything, surely leaders should be held to a higher standard. Further, as Chomsky stresses, given the state’s enormous power and effective monopoly over legitimate coercion, there are compelling reasons to worry more about state terrorism than non-state forms. Nevertheless, the legal and practical barriers to targeting leaders remain prohibitive. Moreover, there is an important moral consideration which militates against targeting state officials: in essence, there are other means available to influence the behavior of states and their officials and to mitigate the threats that they pose. The UN Panel, for example, pointed out that “the legal and normative framework against state violations is far stronger than in the case of non-state actors,” whatever its admitted limitations (UN Panel 2004: 51). Specifically, the UN Panel stressed the political pressure that can be put on states as members of the international community as well as on their officials. States are subject, both in their bilateral and multilateral relations, to a range of diplomatic, economic, and military sanction that simply do not apply to international terrorist networks. States, and increasingly their officials, are also subject to criminal prosecution under international law. There is clear precedent for countries, even very powerful countries, being prosecuted for the promotion or commission of acts of terrorism. For example, in 1986 the International Court of Justice in the case of Nicaragua v. United States held the US responsible for having “encouraged the commission by [the Contras] of acts contrary to general principles of humanitarian law” (including acts of terrorism) (ICJ 1986: 148). More recently, international judicial institutions have been authorized to hold individual leaders responsible for crimes committed while in public office. Article 27(1) of the 1998 Rome Statute of the International Criminal Court, for instance, reads as follows: This statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as Head of State or Government, a member of Government or Parliament, an elected representative or a government official shall in no

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Targeting Terrorists case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

Moreover, the recent prosecutions of General Augusto Pinochet and former Presidents Slobodan Milosevic and Saddam Hussein illustrate that neither public office nor domestic law necessarily bar judicial proceedings, even for crimes of violence authorized by sitting presidents (Zappala 2001; Hasson 2002). Undoubtedly there remain severe limitations on judicial recourse against state officials who authorize or encourage acts that qualify as terrorism. Many officials escape prosecution, and even where they are prosecuted, it is typically only once they have left office, and the proceedings are often slow and the results sometimes unsatisfactory. None the less, it is clear that avenues exist for the prosecution and punishment of state terrorists, and that those avenues are being improved. By contrast, terrorists subject to targeting are precisely those whom their host states have proved unable or unwilling to arrest and prosecute. From a moral standpoint, it is in part the frustration of alternate means of pursuing justice that may warrant the recourse to targeting. There is thus, in addition to legal and practical considerations, a cogent moral argument for exempting state officials from terrorist targeting. Together, these considerations form an overwhelming case for prohibiting the use of terrorist targeting against state officials. The consequence of the prohibition on targeting state officials is to mitigate the significance of the divergence between the UN Panel’s and the targeting states’ definitions of terrorism, at least in relation to terrorist targeting policies. While the UN Panel’s definition is preferable to the US and Israeli formulations in respect of recognizing state terrorism, this limitation in the US and Israeli definitions is irrelevant in relation to terrorist targeting, which cannot be employed as a response to state terrorism. The second difference between the UN Panel’s and the targeting states’ definitions of terrorism has a more direct and obvious significance for the scope of targeting operations. If the targeting states consider as terrorists organizations and individuals who attack military installations and/or combatants, while the UN definition does not, then it is possible that they would target individuals who would not be considered terrorists under the UN Panel’s definition. Yet the divergence is not as serious as it first appears. In the first place, it does not appear that any of the organizations that have been or are likely to be targeted as terrorist actually limit themselves to attacking only military installations. Al-Qaeda and the various Palestinian terrorist organizations do sometimes attack military targets, but the vast bulk of their operations are directed at civilians. In the second place, the UN definition does encompass attacks on “noncombatants,” which could include military installations and personnel as long as there was not a concurrent condition of armed conflict involving those forces. The attackers even of military installations would then qualify as terrorists under the UN Panel’s definition. On the other hand, if a state of belligerence did exist between the country whose installations are attacked and terrorist groups, then the state can attack members of the terrorist groups as combatants regardless of whether a particular attack on their military facilities qualifies as an act of terrorism. Yet it must be allowed that there could in

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theory be a situation in which a state’s army is involved in hostilities with an enemy other than an alleged terrorist group, and that group limited itself to only attacking the state’s armed forces. In such a situation, the group could be treated as terrorist under the US and Israeli definitions, but not under the UN Panel definition. This might present a problem, and for this reason the US and Israel should be encouraged to recognize that terrorism involves attacks specifically on noncombatants. However, this eventuality seems unlikely at the moment, and it does nothing to show that states like the US and Israel cannot properly treat those who attack noncombatants, and especially civilians, as terrorists. Finally, a last and possibly decisive argument can be raised in response to all of these legitimate concerns about definitional divergences. US and Israeli officials may point out that the terrorists selected for targeting are typically leaders of terrorist organizations and militants who have authorized and/or participated in indiscriminate attacks on civilians, usually repeatedly. It is senior members of al-Qaeda, and particularly those believed to have had a hand in the most devastating attacks against Americans, who have almost exclusively formed the object of US terrorist targeting policy. Similarly, the Israelis have concentrated their attacks on leaders or militants whom they claim have directly authorized or carried out devastating assaults on Israeli noncombatants. In sum, US and Israeli officials can forcefully argue that any definitional discrepancy is irrelevant because those targeted have been willing participants in deliberate, lethal, and indiscriminate attacks on noncombatants who would qualify as terrorists on the UN Panel’s definition. Indeed, they may plausibly maintain that the organizations and individuals targeted are the embodiment of an emergent “new terrorism” that has synthesized the most abhorrent qualities of traditional terrorist practice and raised them to a new, purer level (Laqueur 1999; Tan and Ramakrishna 2002; Azzam 2003). The “New Terrorism” Defenders of terrorist targeting often see it is a regrettable but necessary response to devastating forms of what some scholars have characterized as “new terrorism.” The character of the new terrorism makes technical disputes over definitional thresholds wholly academic. The aim of the “new terrorists” is massive, indiscriminate civilian carnage, and their powerful new means to accomplish this objective is the dispersed international underground network capable of exploiting the political spaces opened by failed and rogue states to plan, train, and acquire the most destructive available weapons. A case can be made that it is forms of this new type of terrorism that are the object of US and Israeli targeting policies, and that they fit squarely within the UN Panel’s definition of terrorism. If this case is convincing, it would go far towards diminishing the significance of remaining discrepancies between the UN and US and Israeli definitions of terrorism, at least as far as their application to targeting policy is concerned. It may also go some distance to explain why governments like that of the US and Israel might believe strong counter-terrorist measures like targeting are

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warranted today. To assess the force of the case, however, it is necessary to consider more carefully the purported features and evidence of this new terrorism. The new terrorism is generally seen as having first emerged around 1968, and as having reached at least a first culmination in the 11 September 2001 attacks on the United States (Hoffman 2002: 30–31). While there is some variation in the specific features that scholars attribute to it, certain features are common to most if not all analyses: 1. it involves attacks that randomly or indiscriminately victimize civilians or noncombatants; 2. it is international in organization and operation (typically exploiting bases in rogue and failed states); 3. it exhibits a networked structure composed of semi-independent cells rather than a traditional hierarchical organization. None of the individual features attributed to this “new” terrorism are strictly new. Some examples of terrorist groups exhibiting each characteristic can be traced back at least to the early 1950s, and in some cases to the turn of the century. But it is only in recent years that these novel features have been systematically combined. The resultant integrated strategy, in combination with the development and accessibility of new weapons, has produced a fourth distinctive feature of the new terrorism. As Andrew Tan and Kumar Ramaskrishna (the editors of The New Terrorism, 2002) have aptly put it: “the new terrorism is ‘new’ most of all because of its sheer lethality” (Tan and Ramakrishna 2002: 6; Cotler 1998: 2). Since around 1982–83, it has been increasingly linked with a form of attack that exemplifies indiscriminate destruction – the suicide bombing. To fully appreciate the character of the new terrorism, it will be helpful to briefly trace each of these emerging features and their consequences. In his book The New Terrorism, Walter Laqueur provides a useful formulation of the most striking difference between “traditional” and “new” terrorism: terrorist campaigns of the past were fought … with self-imposed rules of engagement, against oppressors and tyrants. But this notion belongs to a period in which terrorist acts were directed against individuals who were considered personally guilty for one reason or another. Since then terrorism has proceeded from limited to total and indiscriminate warfare, certainly as far as the targets are concerned, quite often the aim is simply to kill or maim as many people as possible. (Laqueur 1999: 281)

In his numerous books on the history of terrorism, Laqueur develops the point that the “traditional” form of terrorist action is the assassination of individuals personally identified as enemies or oppressors. He cites cases ranging from the sicarii of the first century to the Assassins of the eleventh to the attentats of the Russian Narodnaya Volya of the late nineteenth century and the Social Revolutionaries of the early twentieth to illustrate the general persistence of this pattern to at least the beginning of the twentieth century (Laqueur 2002: 7–12). Anarchist bomb-throwing in Europe at the end of the nineteenth and beginning of the twentieth centuries certainly illustrated a growing tolerance of collateral damage, but their attentats generally did

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little harm, and remained primarily directed towards either individual or symbolic enemies of the people, as indeed did the bulk of terrorism connected with the decolonialization struggles of the 1950s and early 1960s. It is only in the late 1960s and early 1970s that terrorist attacks directed at random civilians and noncombatants began to emerge as a new norm, as illustrated, for example, in al-Fatah’s bombing of Israel’s Mahaneh Yehuda market on 22 November 1968, resulting in 12 civilian deaths and 52 injuries. This new strategy both reflected new weapons available to terrorists and offered a new means of rapidly and dramatically disseminating their messages to the world. As Laqueur summarizes: “Indiscriminate terror has become widespread only in recent times with the invention of more effective explosives on one hand and the development of the mass media on the other” (Laqueur 2002: 105). The first attacks were relatively small and isolated, but once the pattern was established, the scope and frequency of indiscriminate attacks on noncombatants grew rapidly, until by today, “killing without hesitation, often without thought and reason, has become the rule, not the exception” (Laqueur 2002: 104). The attacks of September 11th, along with the many attacks on Israeli civilians in buses, pizza parlors, schools, and discos, provide compelling illustrations of this “new” trend. Similarly, terrorism has traditionally been a relatively local phenomenon, both organized and carried out within the political jurisdiction against which its protest was directed. In the latter half of the twentieth century, however, terrorism became an international phenomenon. Three factors in particular contributed to the internationalization of terror: first, the degree of state support for foreign terrorism grew rapidly in the post-war years; second, by the late 1960s, terrorist organizations were increasingly cooperating in one another’s struggles, and third, beginning in the late 1960s, terrorist groups adopted strategies of destabilizing states by attacking their institutions, representatives, and citizens abroad. On the first point concerning growing state support for terror, the pattern is easily traced. While there were some isolated cases of substantial government support for foreign terrorist groups from the 1920s onwards, the scale and frequency of such support vastly increased in the post-war period, particularly beginning in the 1950s as the Cold War division of the world coalesced. The United States and particularly the Soviet Union used terrorist organizations to both consolidate and expand what they saw as their proper spheres of influence and to destabilize their enemy’s. US support and participation in the terrorism perpetrated by the Contras in Nicaragua, to raise just one example, is documented in the 1986 decision of the International Court of Justice in Nicaragua v. United States, while the Soviets notoriously supported anti-colonial struggles exploiting terrorism from Algeria to Angola (Goren 1984). In this environment, with state sponsorship of terrorism growing and becoming normalized, some groups were able to mobilize resources and diplomatic support from smaller states, including the use of training and operational bases on their territory. The PLO and other Palestinian groups, such as the Popular Front for the Liberation of Palestine (PFLP), for example, became major recipients of funding and support from Arab countries like Iraq, Syria, Libya, and Saudi Arabia. Lebanon, Syria, and Jordan became hosts to training bases for Palestinian terrorists in the 1970s and 1980s, just as Afghanistan and Sudan would become hosts to al-Qaeda bases in the 1990s. State support and funding for terror activities has remained a

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significant factor in recent years, perhaps most notoriously in the form of Syrian and Iranian support for Lebanese Hizbullah and Iraq’s financial payments to the families of Palestinian suicide bombers. The second dimension of terrorist internationalism, the growing cooperation of groups engaged in discreet struggles, is exemplified in a series of cooperative actions beginning in the late 1960s designed to showcase reciprocal support. Among the most notorious of these actions was the Japanese Red Army attack on Lod Airport in Israel. On 30 May 1972, three members of the Japanese Red Army, a radical Japanese Marxist-Leninist group, flew to the Tel Aviv airport, and after passing the ticket counter, drew automatic weapons from what had appeared to be violin cases and began to indiscriminately gun down travelers in the area. At least 24 passengers were killed (including 16 Puerto Rican Catholic pilgrims) and around 80 injured. The operation was organized and supported by the Popular Front for the Liberation Palestine – General Command (PFLP – GC). Many other examples of inter-organizational cooperation were to follow. Such cooperation became especially important in the light of the internationalization of terrorist networks outlined below. Cooperation between terrorist organizations remains an important factor in their success and survival today. Al-Qaeda, for example, was able to return to the world stage and confront US occupiers through a strategic alliance (or absorption) of Abu Musab al-Zarqawi’s Tawhid wal-Jihad group in Iraq. As will be seen in Chapter 3, Palestinian terrorist organizations frequently collaborate to carry off operations (which they then jointly claim). The final aspect of the internationalization of terrorist violence is the growing tendency after 1968 to attack the institutions and citizens of the enemy government abroad. This shift in terrorist activity is generally dated from 23 July 1968, when three PFLP terrorists hijacked an El Al flight originating in Rome. The plane was flown to Algiers, where 21 Israelis and 11 crew were held hostage for over five weeks until the Israeli government finally agreed to release 16 prisoners in exchange for the hostages (Dershowitz 2002: 37–8). “Success,” as Alan Dershowitz notes, “begets repetition,” and within the year two more El Al flights would be attacked (at Athens and Zurich) while other hijacking attempts were thwarted in Jordan and Athens. A month later, a TWA flight from Rome would be hijacked by Palestinian terrorists and diverted to Damascus. These attacks were a prelude to the golden age of hijackings and airport attacks that would continue through the 1970s to about the mid-1980s. El Al offices, Israeli air facilities, planes, and embassies, as well as Jewish synagogues, social centers and various trains and ships carrying Jews outside of Israel all would come under terrorist attack over the following fifteen years (Dershowitz 2002: 57– 78). Probably the most famous such attack is the killing of 11 Israeli athletes at the 1972 Munich Olympic Games (recently dramatized in Stephen Spielberg’s 2005 film Munich, which is examined in Chapter 7). The foregoing discussion focuses exclusively on the success and expansion of Palestinian terrorism directed against Israelis outside of Israel itself. The broader point is that this campaign proved exemplary for other terrorists who sought to replicate the Palestinian successes. This influence is described well in Bruce Hoffman’s seminal Inside Terrorism:

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Within four years, a handful of Palestinian terrorists had overcome a quarter-century of neglect and obscurity. They had achieved what diplomats and statesmen, lobbyists and humanitarian workers had persistently tried and failed to do: focus world attention on the Palestinian people and their plight. They had also provided a powerful example to similarly frustrated ethnic and nationalist groups elsewhere: within a decade, the number of terrorist groups either operating internationally or committing attacks against foreign targets in their own country in order to attract international attention had more than quadrupled. According to the Rand-St. Andrews Chronology of International Terrorism, the number of organizations engaged in international terrorism grew from only eleven in 1968 (of which just three were ethno-nationalist/separatist organizations, the remainder radical MarxistLeninist or left-wing groups) to an astonishing fifty-five in 1978. Of this total, more than half (thirty, or fifty-four per cent) were ethno-nationalist/separatist movements, all seeking to copy or capitalize on the PLO’s success. They ranged from large, international communities of displaced persons with profound historical grievances, such as the Armenian Diaspora, to miniscule, self-contained entities like the obscure expatriate South Moluccan community in the Netherlands. What they all had in common, however, was a burning sense of injustice and dispossession alongside a belief that through international terrorism they too could finally attract worldwide attention to themselves and their cause. (Hoffman 1998: 74–5)

More recently, al-Qaeda followed a similar strategy, at least initially, regarding US targets. It attacked them in international settings where the security environment would be lax but where their actions would attract a broad international audience. For example, US embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania were attacked with car bombs on 7 August 1998, killing over 200 people and wounding thousands. The final characteristic of the new terrorism is the widely noted evolution of terrorist organizations away from the traditional hierarchical structure of centralized organizations like the Narodnaya Volya or even the earlier incarnations of the PLO, PFLP, and PDFLP, for example. As Kevin O’Brien notes in a recent contribution to a volume on “the New Terrorism,” cutting-edge terrorist organizations “are likely to consist of dispersed small groups who communicate, coordinate, and conduct their campaigns in a networked manner, without a precise central command” (O’Brien 2002). The classical example of such an organization is al-Qaeda (literally “the base,” a foundation which can simultaneously link and support a diversity of organizational structures), in which bin Laden acts as a kind of CEO, listening to creative ideas from below and funding those that seem promising, laying down a general policy, and permitting diverse underlings to occupy themselves with carrying out his directives. As Bruce Hoffman evocatively puts it: “just as large, multinational business conglomerates moved during the 1990s to flatter, more linear, and networked structures, bin Laden did the same with al Qaeda” (Hoffman 2002: 35, 38). Palestinian organizations have also followed bin Laden’s lead, particularly in relation to the second Intifada. The increasingly networked structures of some of the Palestinian organizations is reflected, for example, in the evolution of Palestinian Islamic Jihad (PIJ). In 1998, the hierarchically structured PIJ was traumatized by the targeted killing of its leader, Fathi Shikaki, and effectively neutralized for several years thereafter. However, in the apt description of Daniel Byman, “today’s PIJ and

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its counterparts [that is, other Palestinian terror organizations like Hamas and the alAqsa Martyrs’ Brigade] are so loose in their organization that true decapitation is no longer possible” (Byman 2006: 100). One further similarity of note among the new terrorist organizations that have been cited here is that they all employed the quintessential new terrorist weapon – the suicide bombing. The suicide bombing is arguably the most potent as well as the most hideous weapon in the arsenal of contemporary terrorist organizations (Miller 2007; Eggen and Wilson 2005). For those organizations that unleash this weapon against civilian targets, there can be no plausible argument over whether they are terrorists. The problem of the fuzzy boundaries of the definition of terrorism does not arise. Without exception, the new terrorist organizations targeted by either the US or Israeli governments – including al-Qaeda, PIJ, al-Aqsa Martyrs’ Brigade, Hamas, and Hizbullah – are among the most prominent users of suicide bombings against noncombatants. This overview of the new terrorism leads to two general points pertinent to the present inquiry. First, the new terrorism is likely to prove especially difficult to address through traditional law enforcement approaches, particularly in view of its international scope and its decentralized structure. At the same time, the escalation in weapons technology combined with the indiscriminate brutality of this phenomenon present a serious threat to the security of states. An effective response is therefore needed. States must find new ways to defend their citizens against the new terrorism. This point provides at least some prima facie rationale for the adoption of a targeting policy in regards to the new terrorism, at least until other, better alternatives evolve. Second, the indiscriminate political violence of the new terrorism will generally qualify under all the definitions of terrorism thus far surveyed. In so far as countries like the United States and Israel direct their targeting policy against those integrally involved in the new terrorism, and particularly those involved in suicide bombing operations, they remain not only consistent with their own and the UN Panel’s proposed definitions of terrorism, but also with any plausible definition, and thus minimize the potential for abuse of their targeting policies or complaints regarding their misapplication. Admittedly, some isolated cases of actual targeting appear, as we will see, to have been problematic in regards to the UN Panel’s definition. Critics have charged with some force that in some cases errors or misjudgments have been made. None the less, defenders of targeting can plausibly argue that the legitimacy of the policy need not be judged on the basis of a small number of questionable cases, especially if amendments to the existing policies are available which carry the potential to prevent such problematic actions. In the remainder of this book, the possibilities of regulating and restraining targeting policies will be a central concern. The key point for the moment is that the new terrorism is a real and increasingly threatening phenomenon which can be made the exclusive object, at least in principle, of a targeting policy. Combining the foregoing preferred definitions, terrorist targeting can be defined as follows: the intentional slaying of a terrorist or group of terrorists undertaken with explicit governmental approval, where terrorist is defined as one who causes death or serious

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bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population or to compel a government or an international organization to carry out or to abstain from any act.

For reasons that have been touched upon, however, state officials must be regarded as exempt from targeting (unless a state of armed conflict exists between states, in the context of which an official can be regarded as a combatant). It may be added that the Israeli and US governments claim to authorize such targeting only where terrorists pose a serious and direct threat to the lives of citizens, and in the absence of other means to neutralize that danger (such as preventive arrest). In effect, this means that the governments may only undertake targeting operations abroad, because within their own territories arrest and prosecution would presumptively be an option. More specifically, targeting operations will be largely restricted to territories where local officials are unwilling or unable to apprehend the terrorists themselves once identified. Therefore, the central question of this book will be whether, when, and under what conditions a terrorist targeting policy can be justified legally, morally, and pragmatically if preventive arrest is not a viable option. More particularly, can it be justified in the cases of the contemporary United States and Israel in their current confrontations with terrorist organizations? Comparing Israeli and US Targeting Policies This last question raises a final preliminary issue that requires attention. This concerns whether the United States and Israel employ a common policy of terrorist targeting, or whether these countries find themselves in distinct situations and employ different strategies in their fights against terrorism (Nolte 2004: 126–8; Gross 2004). How comparable are their policies? There are, without doubt, some important differences of situation. To begin with, there are important differences in the quality of the political causes by appeal to which terrorist groups seek to justify their actions. On the European left and through much of the Arab world, there is a special sympathy for the Palestinian cause, and not without reason. As will be shown in the next chapter, the Palestinians have an overwhelming case for a national state in Palestine. They also have reason to fear that the facts on the ground created by the Israeli settlement policy, and more recently by the separation barrier/wall, and the Israeli re-occupation of large areas of the West Bank are detrimental to their prospects for a viable national state. These conditions warrant political and moral demands on Israel to reach a fair and final settlement (consistent with its own security needs) with the Palestinians. They also certainly warrant protest on the part of the Palestinian people, non-violent resistance, and possibly even taking up arms in pursuit of self-determination. The one response they do not warrant, as explained earlier in this chapter, is deliberate attacks on Israeli civilians. As Sari Nusseibeh, the President of al-Quds University in Jerusalem, recently observed, “resistance to occupation is justifiable only insofar as it does not undermine or blemish the principle from which it received its justification in the first place, namely, the safekeeping of human dignity” (Nusseibeh 2007: 505).

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Yet if the Palestinians, with their powerful moral and political cause, have no warrant for terrorism, then what can be said for al-Qaeda? Al-Qaeda has fewer fans in the West, and that too for good reason. While there may be an element of truth in some of its grievances against US foreign policy in the region, the world view articulated by its leaders is based upon warped, extremist interpretations of Islam. Moreover, its stated goals of eliminating Western influence in the Middle East and establishing a strict Sharia-based Caliphate in place of the current munafiq (apostate) regimes through relentless jihad prosecuted against soldiers and civilians alike seem neither plausible nor desirable to many, both inside the Moslem world that al-Qaeda purports to represent and outside it. Indeed, many Moslems have stressed that such al-Qaeda emirs such as bin Laden, Zawahiri and Zarqawi have grossly violated Moslem law along with what are often regarded as universal standards of human behavior (see, for example, Said 2002: 236–9; Reuter 2004: 115–29; Wright 2006: 130). Palestinian scholar Edward Said perhaps put it best when he described alQaeda as “a tiny band of crazed fanatics,” “pathologically motivated” by hatred and resentment, and engaged in “mutilations of Islam” (Said 2002: 234–6). In short, al-Qaeda’s nihilist message, its contemptuous disregard for established standards of human rights, and its resort to mass terrorism put it beyond the pale of civilization. Negotiating with terrorists like Zarqawi who behead people, or bin Laden, who condoned flying civilian aircraft into packed skyscrapers, is not an option. They must rather be contained, and if possible, eradicated – although this involves defeating their ideas as well as the physical threat they represent. There is no denying, then, the vast differences in the character of the political causes espoused by al-Qaeda and the various Palestinian groups (such as the PLO and Hamas) engaged in terrorist activity against Israel. None the less, as the UN Panel, the General Assembly, and Security Council have all stressed, there is “no justification” for deliberate, mass, and indiscriminate attacks on civilians. It is correspondingly the premise of this work that regardless of the varying degrees of legitimacy (or lack thereof) in the political causes of al-Qaeda and the terrorist organizations that target Israel, terrorism represents an illegitimate means that frequently rises to the level of a crime against a humanity. In this sense, there is no substantive difference between an al-Qaeda bomber blowing up a packed bus in London and a Hamas bomber blowing up a bus in Haifa. Both are equally illegitimate and pose similar security challenges to affected countries. Nevertheless, while all terrorist, and especially new terrorist, attacks against civilians are similarly illegitimate, there remain some important practical, geopolitical differences between the targets pursued by Israel and the United States that warrant consideration. Palestinian terrorist organizations are concentrated in the West Bank and the Gaza Strip, from which their attacks have almost exclusively emanated in recent years. So they are relatively concentrated. These territories remain at least partially under Israeli administration today. However, the counter-terrorist efforts of the Palestinian Authority, which administrates the territory that is not under direct Israeli control, are open to grave doubts. Indeed, the recent Hamas government openly endorsed such attacks (including suicide bombings) and remained openly committed to armed struggle against the Israeli occupation (Associated Press 2006; BBC News 2007a; People’s Daily 2006). So while the main sources Palestinian

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terrorism are relatively concentrated and proximate to Israel, they may benefit from a tolerant local administration. On the other hand, al-Qaeda, the primary object of US targeting, is a globally diffuse terror organization. But the countries in which it operates are, at least sometimes, as Byman points out, friendly to and cooperative with the United States (Byman 2006: 107–8). These geopolitical differences between Israel’s and the US’s adversaries make for some important tactical differences in the US and Israeli situations. There are also some notable differences in the two countries’ targeting policies. Israel officially targets terrorists and acts primarily through its military – the IDF – with the approval of the Minister of Defense and Prime Minister. The US government only acknowledges its actions occasionally and unofficially, and allows the CIA more independence in pursuing a list of approved targets based on criteria set out by the executive branch. One important reason for the US’s coyness about its targeting policy is that Executive Order 12333 prohibits its use of assassination. Indeed, the US is the only national government to have explicitly adopted such a prohibition (Schmitt 1992: 682). This makes its domestic legal situation somewhat different from Israel’s, and demands a specific examination of the legal status of targeted killing in light of the Executive Order (see Chapter 5). Israel has also been far more prolific in its targetings than the United States. Indeed, some critics have argued that the Israeli policy has largely become one of retaliation (for example, Smith 2001). In contrast, this charge is far less frequently leveled against the US policy. However, the essential fact remains that both countries currently confront situations in which hostile organizations have emerged devoted to advancing their political causes through terrorism – indeed, through the mass and indiscriminate use of terrorism against their civilian populations. Both states have responded, in part, by deliberately killing terrorists who they think threaten their people and who they claim they cannot otherwise stop. In this basic sense, their policies are similar. Moreover, by examining these two variants of terrorist targeting together, it is possible to explore a wider range of arguments for and against such policy than could be provided by studying either variant in isolation. By consequence, it is possible to offer a richer assessment of its potentials and deficiencies, and to recommend a more general and consistent framework for its regulation.

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Chapter 2

The Development of Israel’s Terrorist Targeting Policy Before turning to the legal, moral and political arguments and counter-arguments around the targeting of terrorists, it will be helpful to review the modern history of the practice and how it has evolved into its current form. Walter Laqueur remarks in A History of Terrorism that “the study of the history of terrorism is not a magic wand, a key to all the mysteries of contemporary terrorism, but … it [does] provide some useful insights” (Laqueur 2002: viii). Something similar can be said of counter-terrorism in general, and the targeting of terrorists in particular. For one thing, it may be that targeting terrorists is better justified in some circumstances than others, and that similarly, some types of operations are more legitimate than others. But it will be difficult to make such comparative judgments without a background of historical cases. Moreover, it will be important in fairly assessing contemporary operations to have some sense of how they have developed over time and have taken on the particular features they exhibit today. Indeed, this chapter will develop the idea that targeting operations have largely evolved in response to the changing character of terrorism. Any historical overview of terrorist targeting must start with the Israeli case. Although it may be argued that Israel – a relatively young country – did not invent terrorist targeting, it has certainly had longer and more intense experience with the policy against a wider array of opponents than any other modern country. As Steven David remarks: “Israel has pursued targeted killings throughout its history” (David 2002: 5). It has employed diverse strategies and weapons, ranging from handguns and snipers’ rifles to booby-trapped phones and phone booths, to car bombs, tanks, poisons, and more recently, helicopter gunships and F-16 fighter aircraft. It has employed these weapons against a spectrum of targets, from Egyptian Intelligence officers to German rocket scientists to both leaders and militants of all the major Palestinian terrorist organizations. It has carried out terrorist targeting operations across Europe and the Middle East, as well as in Africa. In short, the breadth of its known targeting operations puts it, for better or worse, in a class by itself. It is by no means clear, however, that all of the Israeli targeting operations have been brought to light. One reason for this is that the Israeli government was reluctant, at least until the beginning of the second Intifada in 2000, to officially acknowledge its targeting operations. As a consequence, the facts regarding its operations are only fitfully emerging, and in some cases still remain hidden. To raise just one illustrative example, it was only in 2005 that Aaron Klein, a prominent Middle Eastern correspondent and author of Striking Back: The 1972 Munich Olympics Massacre and Israel’s Deadly Response, revealed to the consternation of many experts that

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Mossad was in fact responsible for the death on 30 March 1978 of Dr. Wadi Haddad, a founder of the Popular Front for the Liberation of Palestine (Klein 2005: 206). Moreover, even in the post-2000 period when Israel has become more open about acknowledging its targeting policy, there are still others for which it declines to take responsibility. As former Prime Minister Ariel Sharon put it on 5 April 2001: “Sometimes we will announce what we did, sometimes we will not announce what we did. We don’t always have to announce it” (Luft 2003: 5). In many cases, however, Israeli responsibility for killings has long been unofficially acknowledged, and is strongly corroborated by a number of factors, including the identity of the target, the means employed, characteristic operational details, statements of witnesses, and in some cases, the later admissions of participants. The following overview of Israeli operations focuses mainly on the well-established cases. It must for that reason be considered as illustrative rather than exhaustive. It is intended to provide a general sense of the Israeli practice of terrorist targeting, with an emphasis on how it has evolved over time. Historical Background of the Israeli–Palestinian Conflict No clear understanding of terrorist targeting can be developed by examining operations in isolation from the difficult circumstances of long and aggravated conflict that have prompted so harsh a policy. The following historical overview therefore begins with a brief summary of events leading to the foundation of the state of Israel, the development of the Israeli–Palestinian conflict, and the initiation of Israel’s practice of targeted killing. This brief but necessary background overview will focus on aspects of Palestinian and Israeli history that shed light on the historical development of the controversial tactic of terrorist targeting. At the core of the Israeli–Palestinian conflict are competing claims to the same land. The Jewish claim extends back to the first book of the Hebrew Bible. The original covenant that God makes with Abraham, creating what would become known as the Jewish people, includes his promise of the land of Canaan. The geographic boundaries of the biblical land of Canaan are the subject of some debate today, but are generally believed to include much of what is today Israel, and possibly parts of the West Bank, Southern Lebanon, Jordan, and Syria (Curtis 2007: 72–6). God tells Abraham: I will establish my covenant between me and you, and your offspring after you throughout their generations, for an everlasting covenant, to be God to you and to your offspring after you. And I will give to you, and to your offspring after you, the land where you are now an alien, all the land of Canaan, for a perpetual holding; and I will be their God. (Genesis 17:7–8, New Revised Standard Version)

In the following book, God, through his prophet Moses, redeems the “children of Israel” from bondage in Egypt and restores them to this “promised land.” When Moses dies before entering the Holy Land, Joshua leads the “children of Israel” in the conquest of the city-states and tribes of Canaan. Following Joshua’s death, King David completes the work of re-establishing an Israelite kingdom in the Promised Land. Both biblical and archaeological evidence suggest that David conquered

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Jerusalem around 1000 BC and established a kingdom over much of the contemporary land of Israel and Western Jordan. After the death of David’s son Solomon, the kingdom was divided into Judea in the south and Israel in the north, but Jerusalem remained the center of Israelite sovereignty and of the people’s religious, cultural, and economic life. The name “Jew” dates from this period, and initially referred literally to residents of Judea. The Bible records that Solomon completed his father David’s project of building a great temple at Jerusalem, on Mount Moriah, where God had appeared to David. Mount Moriah was also where Abraham had chosen to sacrifice his son Isaac as God had commanded, and possibly where God had begun the act of creation (Genesis 22: 1–19; 1 Chronicles 22:14; 29:4; 2 Chronicles 3:1). Historical Struggles for the Holy Land Defending the “promised land” turned out to be difficult. The Israelite kingdom was located at the strategic intersection of three continents. It was therefore a desirable prize for conquerors. The Assyrians conquered Israel in 722 or 721 BC, and the Babylonians took Judea around 587 BC, destroyed Solomon’s temple in Jerusalem, and expelled much of the population from the land. The Babylonians, however, were soon conquered by the Persians, who took Babylon in 539 BC. Emperor Cyrus permitted the return of the Jews to Israel (who now brought back with them a written history/law called the Torah), and the re-establishment of a local Jewish rule which would endure on and off for five centuries, albeit generally in the form of a protectorate or province of large and powerful empires. The temple was rebuilt on its former site on Mount Moriah. The Persians ruled from 539 to 331 BC. Alexander then conquered the Persian Empire, and after his death in 323 BC, his empire was divided among his generals. One of his generals, Seleucus, established a dynasty (the Seleucids) which ruled over much of Israel and Judea, although its control was at times interrupted by the Egyptian Ptolemies. Initially, the Seleucids permitted a good deal of local rule and the free practice of Judaism. In 168–7 BC, however, one of the Seleucid Kings, Antiochus IV, tried to suppress the religion. This policy provoked the Maccabean revolt, which succeeded in driving the Seleucids out of much of Judea and Israel and re-establishing Jewish independence for about a century. In 63 BC, however, the Romans, led by Pompey, invaded, sacked Jerusalem, and reduced Judea to a client state of Rome. The Romans ruthlessly put down Jewish rebellions, the first from 66 to 73 AD, destroying the second temple in the year 70. They built a temple of Jupiter on the site. A second revolt from 132 to 135 AD was put down especially harshly. Following the second revolt, the Romans renamed the area Palaestina (a term actually referring to the historical Philistines, who were ancient residents of the area) and drove the Jews out of Jerusalem and the surrounding region. The bulk of the Jewish population then entered a long period of exile from the “promised land,” although a significant population remained and/or returned, and appears to have thrived, particularly in the region of Galilee from the fourth through the seventh centuries (Pasachoff and Littman 2005: 98).

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Moslem Conquest It is at this point that the Palestinian (and more broadly Islamic) claims to the land are anchored. During the seventh century, Moslem armies emerging from Arabia conquered most of the Middle East, including Palaestina. Jerusalem was conquered in 638 AD by the Caliph Umar. Islamic powers then maintained political control of Palestine for 1200 years until the nineteenth century, excepting only the brief and territorially limited interludes of the Crusades. During this period, the population of Palestine became increasingly Arabic and Islamic in composition, although a significant Christian minority and a smaller Jewish minority remained. Umar leveled the remains of the Roman temple of Jupiter that had been built on the site of the Jewish temples, and built a small mosque on the same site. Moslems believed this to have been the site described in the seventeenth Sura, in which Mohammed, in the course of his “night journey” in the company of the Angel Gabriel, ascended to heaven to receive instruction from Allah. During the years 687 to 691 AD, Abd al-Malik, the ninth Caliph, built the great Dome of the Rock on the Temple Mount. The site, al-Haram al-Sharif, built on the site of the Jewish “holy of holies,” would come in time to be recognized as the third holiest site to Moslems, after Mecca and Medina (Morris 2001: 112). The Seljuk Turks conquered Jerusalem in 1071, then struggled on and off with Crusaders (and Egyptian Fatimids) for around 200 years, until the crusaders were expelled once and for all in 1291 AD. By the latter part of the thirteenth century, however, the Mamelukes established control over the area of Palaestina (and from the late fourteenth century, allowed some Jewish immigration from Spain and other European countries), until they were displaced in turn by the Ottoman Turks in 1516–17. The Ottomans then exercised sovereignty over the area until the First World War, in which they unwisely sided with the doomed Central Powers (Germany and Austria-Hungary). British troops under Edmund Allenby invaded Palestine from Egypt in October 1917, and with T.E. Lawrence and Faisal’s rebel Arabian army securing their Eastern flank, rapidly routed the Ottoman armies, taking Jerusalem on 9 December. The British Mandate and the Palestine Question Following the war, Britain was assigned the administration of the area under a League of Nations Mandate. Britain continued to exercise prime responsibility for the administration of the territory until after the Second World War, when, in the face of deepening strife between ethnic and religious groups in the region, particularly Moslem Arabs and Jews, it withdrew. However, Britain continued to play an important role as an adviser to the new United Nations on what should be done with the territory. The main precipitant of ethnic strife in Palestine was Jewish immigration. Beginning under Ottoman rule, particularly in the late nineteenth century, and continuing under the British mandate, Palestine saw significant and persistent immigration of Jews, especially Ashkenazi Jews from Europe, which generated increasing tensions with the Arab population, and eventually led to widespread violence. In so far as

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historical records can be found, a small Jewish community had continued to live in Palestine from the period of the Roman expulsion (135 AD), concentrated primarily in the towns of Jerusalem, Safad, Hebron, and Tiberias (McCarthy 1990: 13). Before the nineteenth century, however, it appears to have numbered no more than a few thousand – a relatively small proportion in relation to the predominantly Moslem population, which from the seventh century does not appear to have dipped much below around 200,000. In 1850, when more reliable statistics (at least on Ottoman citizens) begin to be available, the recorded population of 340,000 included 13,000 Jews, 27,000 Christians, and 300,000 Moslems (McCarthy 1990: 10). Some scholars have argued that these numbers based on Ottoman statistics included many Ottoman citizens that did not actually reside in Palestine, and ignored many Jews who lived there but who were not citizens (Isseroff 2002). They are, however, the best records currently available. At any rate, the late nineteenth century brought a large influx of Jews to Palestine, concentrated especially in two waves – the first and second Aliyot. The first wave of Jewish immigration from Europe, or first Aliyah, occurred between 1881 and 1903, raising the recorded Jewish population from 15,300 citizens to 25,257. The second Aliyah, between 1904 and 1914, strongly led by the World Zionist Organization (founded in Basle in 1897), raised the Jewish population of Palestine from 26,096 to around 60,000 (McCarthy 1990: 24). While these waves of Jewish immigration did not significantly affect Moslem Arab demographic dominance in Palestine (which fell only from 87 per cent in 1882 to 83 per cent in 1914; McCarthy 1990: 37), it none the less began to stoke the fires of Arab resentment. The local Arab population resented the steady influx of Jews as a threat to their control of the land, their economic opportunities, the integrity and unity of their traditional communities, and to their national aspirations (although some scholars have argued that Jewish settlement created economic opportunities for Arab Moslems, and in fact contributed to rising immigration from Egypt, Syria, and Morocco during this period). In particular, as the aspirations of political Zionism to found a Jewish homeland in Palestine became known, many Arabs, both within and outside Palestine, became increasingly resistant to Jewish immigration (Khalidi 2006: 47–8, 86–94, 11–12). Political Zionism was at its inception in large part a reaction to the experience of Jewish persecution in Europe – as illustrated by the Dreyfus affair in France in the 1890s and pogroms in Russia in 1881–84 and 1903–6. Local Arabs, however, did not see any reason why they should pay a price in land for European intolerance. And certainly they had a strong case that Palestine should, when and if it gained independence from the Ottomans, become a unified Arab Islamic state. In the first place, Arabs comprised the vast majority of the population (in 1922, close to 90 per cent, while Jews constituted around 10–12 per cent) (Khalidi 2006: 32–3, 52; McCarthy 1990: 35). In the second place, most Moslem Arab families had resided in Palestine for many generations. In the third place, Palestine had been under Moslem rule (with some partial exceptions during the Crusades) for close to 1300 years. In the fourth place, some Moslem scholars argued, and continue to argue, that land conquered by Islam, and especially by the Arab armies of the seventh century,

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had become part of the Dar al Islam (“the realm of Islam”) and should never be surrendered to non-Moslems. Jews, on the other hand, stressed their own historical and religious connections to the “promised land,” their own continuous historical presence in the land, as well as their history of persecution in the many countries in which they had lived since most of them had been forcibly expelled from Israel and Judea by the Romans. Finally, they argued that there was enough land to provide for a just division, and that the presence of a Jewish state alongside an Arab-Palestinian one would bring economic and social benefits to local Arabs. Arab leaders were not so sanguine. The conflicts over the future of Palestine were further aggravated in 1914 by the eruption of the First World War, and in particular by the alliance of the Ottoman Turks with Germany and Austria. This Ottoman decision alienated English and French opinion, and contributed to the Balfour Declaration of 1917 – a letter from the United Kingdom’s Foreign Secretary, Arthur Balfour, to Lord Rothschild (who was seen as a representative of the Jewish people), stating that the British government “view[ed] with favor the establishment in Palestine of a national home for the Jewish people.” However, during the war the British also secretly made promises to the Sharif of Mecca to create independent Arab states in the region in exchange for an Arab revolt against the Ottomans (the McMahon–Hussein correspondence). Whether the British promises included or excluded Palestine has been long and hotly disputed (for example, Committee Set Up to Consider Certain Correspondence between Sir Henry McMahon and the Sharif of Mecca 1939). One thing that is clear is that if the British promises were intended to include Palestine, then the promises were not fulfilled. Following the defeat of Germany and its Ottoman allies, and the effective dismemberment of the latter, it was the Balfour Declaration that was included in the League of Nations Palestine Mandate of 1922, assigning administrative authority over Palestine to the United Kingdom. The Mandate also ascribed civil and political rights to the “non-Jewish communities” in Palestine, but made no mention of their national rights (Khalidi 2006: 32–5). Tension and Violence under the British Mandate The British inherited a difficult situation in Palestine. Arab resentment was fueled by their failure to achieve independence after the war on the basis of Wilson’s principle of national self-determination, their subjection to the British, and above all by the various promises of a Jewish homeland in Palestine coupled with continuing, and by the 1930s rapidly accelerating, Jewish immigration (Khalidi 2006: 11). The Jewish proportion of the population rose to around 16 per cent by 1930 and then jumped to around 30 per cent by 1940 (McCarthy 1990: 35–7). It is no surprise, then, that violent resistance repeatedly broke out. For example, Arab riots erupted in the Springs of 1920 (6 Jews killed, over 200 injured), of 1921 (47 Jews killed and 146 wounded) and the summer of 1929 (133 Jews killed and 339 injured) (Sanders 1983: 653; Morris 2001: 96, 102, 116). The main violence focused on the Jewish communities of Jerusalem, Haifa, Hebron, and Jaffa. In 1929, almost the entire Jewish population of Hebron along with half of that of Jerusalem was forced to flee the cities (with 60

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Jews killed) (Morris 2001: 113–16). The Jewish population in Palestine (or Yishuv) responded by creating their own self-defense force, the Haganah, in 1920. In April 1936, much of the Arab population, especially in the cities, participated in a six month general strike held to protest British policy (especially in relation to Jewish immigration). In its initial phase, the strike and protests appear to have been a spontaneous popular reaction to the dispossession and economic marginalization of Palestinian Arabs. Within weeks, however, the Arab Higher Committee, under the leadership of Jerusalem’s Grand Mufti, Hajj Amin al-Husseini, was inciting violence against both the Jews and alleged Arab collaborators (mainly Husseini’s rivals). After the publication of the Peel Commission Report in 1937 recommending the partition of Palestine (into a large Arab and a small Jewish state on less than a fifth of the mandate territory), the protests evolved into widespread Arab rioting throughout Palestine, and finally into a sustained although largely uncoordinated armed revolt (Morris 2001: 139). This uprising, which became known as the “the Great Arab Rebellion,” continued, albeit unevenly, through to 1939. After some initial bungling, British troops put the revolt down harshly. In addition to perhaps several hundred Jews who were killed, somewhere between three and six thousand Arabs are estimated to have died in the fighting, and many thousands more were arrested by the British (Morris 2001: 151, 157–8). The biggest impact of the violence, however, was on the British policy in Palestine. The British had learned the danger of antagonizing the substantial Arab majority (Khalidi 2006: 35, 113). British policy correspondingly became increasingly concerned with mollifying the Arab population of Palestine and Arab opinion throughout the Middle East. In 1939, a White Paper decreed that only 75,000 Jews would be allowed to immigrate into Palestine over the following five years, after which Jewish immigration would be subject to Arab approval. It also placed limits on Jewish land purchase. Finally, and most importantly, it abandoned the British commitment to a separate Jewish home in Palestine, and instead promised responsible government for the whole country in five years, and independence in ten (Khalidi 2006: 114–15). The restraints on immigration came at a particularly difficult time for the Jews in Palestine, as their co-religionists in Europe, and particularly in Germany and its conquests, were falling under increasingly onerous persecution and would soon be facing annihilation. The attempt at the extermination of the European Jews that would later become known as the Holocaust was beginning. The Yishuv responded to the quota by organizing illegal immigration beyond the quota. Their degree of success increased as the war proceeded, and by 1945, Jews comprised 573,587 out of a total Palestine population of 1,868,597, a little under a third of the total (McCarthy 1990: 35). Terrorism and the End of the Mandate The burst of illegal immigration was timely from the Jewish perspective, not only in permitting the lives of tens of thousands of European Jews to be saved, but also in inflating the Jewish population in Palestine just as the political situation was about to be thrown into flux. In the face of growing pressure and irreconcilable demands from both Arabs and Jews, the British elected to withdraw from the mandate, and to throw the problem of reconciling Arabs and Jews into the lap of the United Nations.

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The British withdrawal was hastened in particular by a terrorist campaign waged by the underground Zionist movements Irgun Z’vai Leumi (Irgun) and Lohamei Herut Israel (Lehi), culminating in the former’s bombing of the King David Hotel on 22 July 1946 resulting in 91 fatalities. On 12 August 1947, the British Parliament approved the decision to withdraw rapidly from the Mandate, thus compelling the newly founded United Nations to step in to fill the vacuum (Morris 2001: 179, 181–2). The Irgun and Lehi attacks of this period not only unambiguously qualify as terrorism, but are also some of the best-known precursors of the new terrorism outlined in the last chapter. Irgun and Lehi lacked the networked structure or the international scope of operations associated with the new terrorism, but the indiscriminate character of some of their attacks, such as the bombing of Jaffa’s vegetable market on 26 August 1938, foreshadowed what was to come. Indeed, the suggestion that these Jewish organizations introduced terrorism in the modern sense into the conflict contains some truth (Morris 2001: 147). In addition, the success of these attacks in prompting, or at very least accelerating, the British withdrawal provided a persuasive exhibition of their power. Precursors of Terrorist Targeting Both in the war and post-war years, Jewish groups, including the Haganah, made efforts to hunt down and kill individual Palestinians responsible for attacks on Jewish settlers (Morris 2001: 149). These operations do not qualify as terrorist targetings because they were not authorized by a state (administrative authority remained in British hands throughout the period). Indeed, in some cases they do not appear to have been authorized by even the Jewish Agency – the administrative center of the Yishuv. In other respects, however, such actions do exhibit the principal features of a terrorist targeting policy. In this light, it might well be suggested that the Yishuv had established the framework for targeting terrorists even before the founding of Israel in 1948. A second early precursor of the policy of targeting terrorists can be traced to the aftermath of the Second World War. In the six months following the Allied victory in Europe in May 1945, a small group of soldiers from the Jewish Brigade, calling themselves the Nokmim (“Avengers”), secretly hunted and summarily executed former Nazis responsible for the persecution of the Jews under the Third Reich. While no precise records were kept, it is believed that the Nokmim killed hundreds of former SS and Gestapo men in Italy, Austria, and Germany. The three main organizers of this group later emigrated to Israel and served in important roles in the IDF (Black and Morris 1991: 188–90). Although the Nazi treatment of Jews certainly meets the criteria for terrorism under the definition adopted in this book, the retaliatory executions carried out by the Nokmim are not full-fledged cases of terrorist targeting because they were not authorized by any governmental authority, or even, as far as is known, by the nongovernmental Jewish Agency. It is also not clear that the targets posed a continuing threat or, once targets were identified, that the only available form of punishment was execution. They might, for example, have been turned over to Allied forces to

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stand trial for their crimes, albeit there is no guarantee that they would actually have been prosecuted, let alone convicted. Partition and War The UN General Assembly responded to the British decision to withdraw by setting up a special committee to recommend a course of action in April–May 1947. The United Nations Special Commission on Palestine (UNSCOP) majority report recommended an almost equal division of the land between Palestinian Arabs and Jews (the Jews were to get around 55 per cent, but with the bulk of it comprising the Negev Desert in the South). Some scholars have argued that this division was inequitable in the light of what remained a sizeable Arab majority in population and a vast disproportion in land ownership (Said 1998: 4; Nusseibeh 2007: 41). The map UNSCOP proposed was a rather complex one in which both sides obtained three separate areas which touched at one point. The idea was to keep as many Arabs as possible within Palestine, and as many Jews as possible in Israel. The UN General Assembly adopted the UNSCOP partition plan on 29 November 1947 in Resolution 181. The final vote was 33 in favor to 13 against with 10 abstentions, with both the Soviet and US superpowers embracing the partition. The Jewish authorities accepted the partition, and the Arab authorities rejected it. The immediate result of the partition vote was escalating local violence over control of the land, pitting the Haganah against local Arab militias and small numbers of irregular troops from the surrounding Arab countries. In this first phase of what the Israelis call the War of Independence and Palestinian Arabs al-Naqba (“the disaster”), the fighting focused mainly on control of roads, villages, and strategic points (especially around Jerusalem, which the UN Resolution had made a Special Administrative Zone). The better-prepared Israeli forces were eventually victorious in this first or “civil” phase of the war, and wound up seizing and annexing some territory which had been allocated to the Palestinians, thereby firmly connecting the three disparate parcels of territory they had been allocated in the partition. The declaration of the state of Israel one day before the official end of the British Mandate in Palestine helped to cement recognition of these territorial gains, but the infant state’s claims would still have to be defended by arms against the surrounding states. Israel and the Palestinian Refugees The founding of the state of Israel was announced on 14 May 1948. The new country was recognized quickly by the superpowers and the United Nations. The surrounding Arab countries, however, responded by launching what the Arab League’s General Secretary, ‘Abd al-Rahman Azzam Pasha, described as “a war of extermination and a momentous massacre, which will be spoken of like the Mongolian massacres and the crusades” (Morris 2001: 219). Palestinians found themselves ranged on a battlefront along which armed forces from six Arab states confronted defenders of the new Jewish state. An estimated 700,000–750,000 Palestinians fled or were expelled, some (especially women and children) willingly following the instructions of local leaders, while others were intimidated or forced out by Israeli forces. In

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a few notorious cases, large numbers of Palestinian civilians were murdered by paramilitary Jewish terrorist organizations (Lehi and Irgun), and in some cases, the Haganah (the precursor of the IDF) (Morris 2004: 80, 84, 220, 238–9, 422–4). Israeli historian Benny Morris identifies 24 cases of Jewish massacres of Palestinians, the most notorious being Deir Yassin, where between 100 and 110 Palestinians were systematically killed (Shavit 2004). In the mean time, the armed forces of the surrounding Arab states – Egypt, Jordan, Syria, Lebanon, Saudi Arabia, and Iraq – invaded the territory claimed by Israel, seeking to destroy the nascent Jewish state. The newly founded IDF soon succeeded in containing and ultimately repulsing the invading armies. Israel survived, now controlling over three-quarters of the original mandate territory. Anxious to protect the Jewish majority in its (now expanded) national homeland, the Israeli government declined to permit most of the Palestinian refugees to return to the homes that they had left or from which they had been forced – setting up the Palestinian refugee problem that remains unresolved today. Most of the remaining land that had been earmarked for a Palestinian state, specifically the West Bank, was annexed by Jordan. The remaining sliver of Palestinian land in the west, the Gaza strip, was absorbed (but not formally annexed) by Egypt. The Birth of Terrorist Targeting It would finally be the unresolved Palestinian refugee situation, and the violence that resulted from it, that would instigate the initiation of Israel’s targeting policy. The first known targets, however, would not be Palestinian refugees, but Egyptian officers. Between 1948 and 1956, some Palestinians who had taken refuge from the war in Gaza and the West Bank began to make raids across Israel’s permeable borders. Most of the raids emanated from Gaza (under Egyptian control), but a growing number by the end of the 1940s were also launched from the West Bank (annexed by Jordan). By 1950, literally hundreds of raids were being made every month. In some cases, raids penetrated to within ten miles of Tel Aviv or to the outskirts of western Jerusalem (most of the city, including the old quarter and alHaram/Temple Mount complex were under Jordanian control). Large areas near the border became virtual combat zones, and life was frequently disrupted even near the heart of the tiny country. Many of the infiltrators, who soon became commonly known as fedayeen, were intent primarily on theft or sabotage. By April 1952, more than 4000 crimes committed by infiltrators on Israeli territory were reported (Black and Morris 1991: 118–19). Some fedayeen, however, were intent on violence. By the end of 1952, some 100 Israelis had been killed by fedayeen, and by 1956 approximately 200 more would die. To cite just one chilling incident, on 17 March 1954, a raiding party waylaid a civilian bus at Ma’ale Akrabim in the central Negev and killed all 11 passengers on board.

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First Targeting Efforts: Responding to Fedayeen Incursions The IDF responded by beefing up border security, increasing patrols and ambushes, and intensifying retaliatory strikes into Jordan and Egypt, whose armed forces had to bear some of the punishment for fedayeen raids. Initially, authorities in Egypt and Jordan, including the Arab Legion, tried to discourage the raids, or at any rate too many of them, so as to avoid Israeli response. By late 1954, however, it had become clear to the Egyptian and Jordanian militaries that the raids would be difficult and politically costly to curtail, and that they could in fact be useful sources of intelligence as well as a means of softening up Israeli defenses and defusing domestic pressure to take action against the Jewish state. By late 1955, IDF Intelligence had gathered compelling evidence that the Director of Egyptian Military Intelligence in the Gaza Strip, Colonel Mustafa Hafez, had assumed a lead role in organizing, equipping, and directing the cross-border raids out of Gaza. His subordinate stationed in Amman, Lieutenant-Colonel Salah Mustafa, was directing raids out of Jordan. IDF Intelligence quickly determined that it would be far more effective to go directly after these senior organizers and suppliers of terror than to continue large-scale retaliatory strikes against the refugee camps being used as bases by fedayeen raiders. The proposed targets, however, were both high-ranking Egyptian officers working out of sovereign nations. It took the Israeli Cabinet six months to make a decision on the IDF request, but by the Spring of 1956 it had given approval and IDF Intelligence’s planned operation began. The operation, overseen personally by IDF Intelligence Director Yehoshafat Harkabi, was both devious and dangerous. Colonel Hafez was to be killed by a letter bomb that was to be carried by one of his own agents but which was not in fact to be addressed to him. The carrier was to be one Muhammad al-Talalka. Talalka was one of Hafez’s men, but he was posing as a double agent to IDF Intelligence and passing his assignments from them back to Hafez. Talalka’s IDF handler ordered him to deliver a book wrapped in brown paper (which it was suggested contained a secret message) to Gaza’s Inspector of Police – knowing that Talalka would first report back to Hafez, which he did. On the night of 11 July 1956, Talalka met Hafez at his Gaza headquarters, and Hafez, as had been anticipated, asked to examine the package. The explosion that followed blinded Talalka permanently and mortally wounded Hafez. He died a few hours later. The following day, Lieutenant-Colonel Salah Mustafa’s driver collected a package at the Amman central post apparently from the headquarters of the UN truce observers. Mustafa too was mortally wounded when the enclosed bomb detonated, and he died hours later in hospital. The first Israeli targeting operations had got their men, and the elimination of Hafez and Mustafa did partially disrupt cross-border infiltrations for a time. The result was a sharp diminution in the number and effectiveness of cross-border raids on Israeli territory, at least for a couple of months. By the end of the year, however, the raids had intensified, and indeed would eventually provide at least the public justification for the pre-emptive launching of the Israeli Sinai campaign on 29 October 1956 (Black and Morris 1991: 126–33).

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It is instructive to note the circumstances under which the operation was initiated. First, it was undertaken in the face of persistent fedayeen assault, which continued to exact a high cost in lives and injuries despite Israeli efforts to strengthen their border defense and their intensified use of reprisal operations. Moreover, the location of the fedayeen bases in Egyptian and Jordanian territory severely limited the options for Israeli response (criminal law enforcement, for example, was wholly impractical). The effect of the Israeli targeting action was precise and powerful, even if the means employed were decidedly crude. The letter (or better, package) bombs sent by the Israelis could have easily gone awry, and might not only have failed to kill their intended victims, but could easily have injured or killed others. In the final analysis, the Israeli action must be assessed as a crude, ad hoc, but effective response to a seemingly persistent security threat. The Eichmann Alternative Only a few years after Israel’s first experiment in targeting terrorists, a possible alterative strategy emerged with the capture of the Nazi war criminal Adolf Eichmann. By 1960, Israel’s Institute for Intelligence and Special Operations (Mossad) had located the former Transport Administrator of the “Final Solution,” living under an assumed name in Buenos Aires, Argentina. Eichmann famously bragged of being personally responsible for delivering five million Jews to concentration camps (International Military Tribunal 1947: 371). With explicit permission from Prime Minister Ben Gurion, a covert Mossad-led team abducted Eichmann from near his house in Buenos Aires on 11 May 1960. Nine days later he was smuggled out of the country with an Israeli delegation which had attended Argentina’s 150th Anniversary Celebrations (Malkin and Stein 1990: 181–247; Harel 1997). In a sensational internationally televised trial that began on 11 April 1961, Eichmann was indicted on 15 criminal charges, including crimes against humanity and crimes against the Jewish people. On 11 December, the three presiding Israeli justices announced their predictable verdict, convicting Eichmann on all counts, and on 15 December, they sentenced him to death. Eichmann was hung at Ramla Prison a few minutes after midnight on 1 June 1962. Although there was a great deal of international criticism of Israel at the time concerning Eichmann’s capture (or kidnapping) and subsequent trial, particularly in terms of the violation of Argentinean sovereignty, the venture seems to have accumulated legitimacy over time, and today the trial has become a source of “authoritative” precedents for international criminal justice (Posner and Ware 1986: 146–7; Ratner and Abrams 2001: 26). In this sense, it might offer Israel a more internationally legitimate model for the neutralization of terrorist threats than targeting them. Indeed, Israeli authorities continue to insist that preventive arrest is always to be preferred to targeting. But the difficulty of pursuing arrest in certain circumstances can be illustrated with reference to the case of another Nazi war criminal hiding in South America at the same time. Shortly after Eichmann’s abduction, Mossad also came into possession of intelligence that led it to the location of the notorious Dr. Josef Mengele – a concentration camp doctor who personally selected over 400,000 Jewish prisoners

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for the gas chambers and performed famously sadistic experiments on thousands of prisoners. Israeli agents confirmed that Mengele was living under an assumed identity on a farm outside São Paolo, Brazil. However, in this case Israeli officials declined to act. Still experiencing negative fallout from Eichmann’s abduction and trial, and still recovering from the enormous costs in money, manpower, and planning associated with it, Isser Harel, the Director of Mossad, put off taking action, and ultimately the matter was never pursued. In particular, Harel was concerned that Mengele was guarded by “guns and dogs,” and would therefore be extremely difficult if not impossible to kidnap (Posner and Ware 1986: 186–9, 287–9). Dr. Josef Mengele died of a stroke while swimming at a beach near Bertioga, Brazil on 7 February 1979. In short, then, the abduction model sometimes presents costs and difficulties that are prohibitive, especially once potential targets are alerted to the possibility of capture. As will be seen, high-value targets, such as PLO/Black September coordinator Ali Hassan Salameh, hire large numbers of bodyguards and change locations with sufficient frequency to make a kidnapping operation a nonstarter (Klein 2005: 215). Pre-empting Egyptian Missile Development: Targeting Scientists Only two years after Eichmann’s capture, the Israeli government again had occasion to resort to targeting, although not, in this case, against terrorists. On 21 July 1962, Egyptian President Gamal Abdel Nasser announced the development of new weapons in the struggle against Israel. The liquid-fueled Al-Zafir and Al-Qahira rockets could, he asserted, hit any target “South of Beirut.” By the end of the month, Mossad had set up a special unit to gather information on the Egyptian missile program. By mid-August, Mossad head Isser Harel reported to Israeli Prime Minister Ben-Gurion that a factory devoted to the production of medium-range liquid-fueled missiles had indeed been secretly set up in Egypt with the help of German scientists, that missiles had already been produced and tested, and that the construction of 900 more was already planned. Even more alarmingly, there was some evidence of research being done into arming the missiles with gas, chemical, or biological weapons (Black and Morris 1991: 192–6). A Mossad operation codenamed “Damocles” was quickly organized. In September 1962, Dr. Hans Krug, the Director of a Munich-based company working with the Egyptian project, disappeared and is presumed to have been killed. In November, IDF Intelligence sent letter bombs to installations connected with rocket production in Egypt, and one of them, a large parcel mailed from Hamburg, killed five Egyptians. In February 1963, a failed attempt was made by Mossad in Lörrach, Germany to shoot Dr. Heinz Kleinwachter, an expert in electronic systems who had once worked on the V2 rocket. Threatening letters, posted in Egypt, were sent to German scientists participating in the Egyptian project. Project Damocles however soon ran into serious difficulty when a Mossad agent named Yosef Ben-Gal was arrested on 2 March in the course of an attempt to blackmail Dr. Paul Goerke, an electronics expert working in Cairo, by threatening his daughter Heidi. Still, in the end, Project Damocles, succeeded in intimidating German rocket scientists into withdrawing

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from the missile program, and as a consequence, in frustrating Egyptian ambitions to develop ground-to-ground missiles capable of targeting all of Israel’s major cities (Black and Morris 1991: 198–9). However, even if successful, and even if it was only an improvised, ad hoc response to what might become a serious security threat, Israel’s use of targeting in this case veered into highly doubtful legal and moral territory. While the potential threat to Israeli security may have been quite real, the response of threatening scientists – and even more troublingly, their families – appears to cross the threshold from self-defense into terrorism. After all, there can be little doubt that the scientists and their families were noncombatants. Moreover, attempts to shoot them in distant countries or to coerce them through violence against their families into abandoning participation in the missile program were clearly politically motivated (although not, perhaps, with intention to intimidate a government or civilian population). Doing deliberate violence to noncombatants for political purposes is not only a flagrant violation of human rights during peacetime and of the core humanitarian principle of distinction (between combatants and civilians) during wartime, but comes very close to (state) terrorism on the widely held definition adopted and defended in this book. The 1967 War and the Rise of Palestinian Resistance Organizations The full development of a terrorist targeting policy had to await the emergence of what has been termed the “new terrorism.” This new terrorism quickly emerged as the dominant practice of a group of new Palestinian nationalist organizations founded in the 1960s. These new groups would be dominated for at least several decades by al-Fatah, which was founded in the early 1960s by a group of Palestinians living in Cairo, among them Yasir Arafat. Al-Fatah’s initial strategy was to launch a guerrilla war against Israel with the purpose of eventually winning back the land lost in 1947–48. At the 1964 Arab League Summit, the Arab nations established the Palestinian Liberation Organization (PLO). The PLO was initially conceived as a sort of official umbrella organization for existing Palestinian nationalist organizations, but by 1969 it had been thoroughly taken over by Arafat’s al-Fatah group. At the Arab League Summit at Rabat in 1974, the PLO’s pre-eminence in the Palestinian nationalist struggle was formalized with its being recognized as “the sole legitimate representative of the Palestinian people” (Kassim 1981: 142). The second most important group through the late 1960s and 1970s was the Popular Front for the Liberation of Palestine (PFLP) which emerged, at least as a paramilitary group, in 1966 under the leadership of Dr. George Habash. The PFLP, which joined the PLO in 1968, offered a Marxist-Leninist, hard-line nationalist alternative to al-Fatah. In 1969, a Maoist group, fashioning itself as the Popular Democratic Front for the Liberation of Palestine (PDFLP), splintered away from the PFLP (but remained within the PLO) (Laqueur 2004: 99–101). Up until 1968, the activities of the PLO groups were limited largely to guerrilla warfare, with some employment of traditional terrorism. However, the Six Day War, fought from 5 to 10 June 1967, acted as a powerful catalyst of change. Israel initiated the brief struggle by launching a highly successful pre-emptive strike against Egypt (and then later turning against Jordan and Syria) after President Nasser had

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provocatively massed troops on the Sinai border, ordered the UN peacekeepers there (UNIFIL) out of the country, and finally cut off Israeli shipping through the Straits of Tiran. As a result of its victory in this conflict, Israel occupied the Sinai Peninsula, the Golan Heights and both the West Bank and the Gaza Strip. On 19 June, however, Israel’s National Unity Government voted unanimously to offer to return the Sinai to Egypt, the Golan Heights to Syria, and on 2 July representatives meeting with Jordan’s King Hussein offered to open negotiations with Jordan for the return of the West Bank (minus East Jerusalem, which Israel effectively annexed on 27 June) in exchange for peace agreements (Gorenberg 2006: 52–3, 58–63, 79–80). The Arab states responded on 1 September 1967 with the Khartoum Resolution, declaring what became known as “the three nos”: “no peace with Israel, no recognition of Israel, no negotiation with it” (Article 3). Little immediate progress was therefore made toward the return of the captured land. Moreover, in the absence of any progress toward a negotiated resolution, the Eshkol government in Israel gave in to domestic pressure to begin repopulating Jewish communities in the West Bank that had been abandoned before or during the 1948 war. The first of these settlements, Kfar Etzion, was officially inaugurated in September 1967. Once begun, however, the “settler movement,” driven at once by Israel’s security concerns and at the same time by the religious vision of a reunified and whole Israel pursued by Gush Emunim (“the block of the faithful”) and similar groups, the movement rapidly gained momentum. Settlements were developed in the Gaza Strip and in Sinai, but the main focus of the settler enterprise remained East Jerusalem and the West Bank. By 1993 and the beginning of the Oslo peace process, Israel had constructed 120 settlements in the West Bank with a population of over 100,000, while another 146,800 people inhabited settlements around East Jerusalem (Vardi and Schulman 2002: 4, 12–13). These settlements were regarded generally in the international community, as well as by many in Israel, as violations of Israel’s obligations as an occupying power under the Fourth Geneva Convention. This Convention states: “The occupying power shall not … transfer parts of its own civilian population into the territory it occupies” (Article 49; Vardi and Schulman 2002: 20–29). In the mean time, the continued Israeli occupation of the West Bank and Gaza Strip deprived Palestinian groups of their staging ground for attacks on Israel proper. At first, groups like the PLO sought to take advantage of the political geography to conduct guerrilla warfare against the Israeli administration of the West Bank. But the land proved inhospitable to such a strategy. It was too open and too small, and guerrillas could find few places to hide (Morris 2001: 365–70). The longer-term consequence of the Israeli victory was to radicalize Palestinian groups, and to prompt them to invent and lead in the new terror. Now that the West Bank and Gaza strip were occupied by Israel, rather than annexed to Jordan and controlled by Egypt respectively, the Palestinian groups perceived an opportunity to reclaim these lands by focusing international pressure against Israel. The key was to capture international attention, and that was better done by spectacular actions in the capitals of the West than by sabotaging water conduits in the Judean Desert. So the first innovative tactic of the new terrorism was to systematically internationalize the conflict by attacking Israelis and Jews outside Israel. A second and related tactical innovation was not to restrict the attacks exclusively to Israelis and Jews. If one’s

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intention was to draw international attention, including some foreign citizens would not hurt. The rise of the new-style spectacular international terrorism began, as noted in Chapter 1, on 23 July 1968 with a PFLP hijacking of an El Al flight from Rome. This was followed by a dazzling succession of other international attacks over the next two years, of which some of the more prominent examples follow: a PFLP attack on an El Al plane in Athens on 26 December (killing one Israeli); an attack on another El Al flight at Zurich airport on 18 February 1969 (killing the pilot and three passengers); an attempt to assassinate former Israeli Prime Minister David Ben-Gurion in Copenhagen on 22 May 1969; a PFLP hijacking of a TWA flight from Rome on 29 August 1969; hand grenades thrown at the El Al office in Brussels on 8 September 1969; another hand grenade thrown at the El Al office in Athens on 27 November 1969 (killing one); the attempted hijacking of an El Al flight from Munich (killing one); the PFLP detonation of a Swiss airliner taking off from Zurich on 21 February 1970 (killing 47); an attack on the Israeli Embassy in Paraguay on 4 May 1970 (killing two), and the 22 June 1970 hijacking of an Olympic Airlines flight departing from Beirut by members of the Palestinian Popular Struggle Front (Dershowitz 2002: 57–65). More troublingly, when the PFLP blew up a Swiss passenger airliner in February 1970, it demonstrated that the new terrorists were prepared to act internationally and indiscriminately against random civilians. Furthermore, they were willing to kill in large numbers, often without even a pretense of negotiation. The point was brutally reinforced on 30 May 1972, when Red Army terrorists opened fire without warning on random passengers in Lod Airport, killing at least 24. Black September The epidemic of “spectacular” hijackings of international flights culminated on 6 September 1970 with the PFLP’s simultaneous hijackings of three passenger jets (TWA, Swissair, and Pan Am) with more than four hundred hostages. The planes were eventually blown up to protest US support for Israel, two of them (along with an additional hijacked BOAC aircraft) at Dawson’s Field in Jordan. The passengers, however, were safely released. But this incident precipitated an unexpected and unwelcome response from the perspective of Palestinian nationalist organizations – specifically, a strong military reaction from the Jordanian Hashemite regime, which was embarrassed by the terrorism on its home turf. On 17 September 1970, Jordan’s King Hussein boldly unleashed his army on increasingly unruly Palestinian elements in his kingdom, including attacks on Palestinian refugee camps. His reaction was “bold” in the sense that a majority of the population of his kingdom remained Palestinian, even after the loss of the West Bank. But King Hussein won his gamble, and succeeded in expelling the Palestinian nationalist organizations (and many supporters) without precipitating a civil war. The PLO and other nationalist groups and supporters fled, mainly to Lebanon. This incident earned the name “Black September” among Palestinians, a name that was to become notorious. In August–September of 1971, the PLO, at a congress in Damascus, secretly resolved to create a front organization to carry out revenge against Jordan and

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to continue its campaign of international terrorism while insulating the main organization from international criticism. The front organization was given the name “Black September.” From 1971 to 1973, Black September embarked on the most concentrated campaign of international terrorism yet recorded, initiating 60 operations in 1973 alone (Morris 2001: 379). Its most notorious operation, however, occurred in September 1972 at an event which attracted unprecedented international coverage. This action, in combination with the sustained campaign of terror that followed, provoked Israel’s first sustained campaign of terrorist targeting. The Beginning of Systematic Terrorist Targeting Black September made its first appearance on the international stage on 28 November 1971 with the assassination of Wasfi Tell, the Jordanian Prime Minister, during a state visit to Cairo (Reeve 2000: 20). It was not long, however, before its attention shifted to Israeli targets. At 4.10 a.m. on 5 September 1972, eight Palestinians associated with Black September climbed the unguarded wall around the Olympic Village in Munich, West Germany and proceeded to the dormitory where the Israeli Olympic team was housed. Munich 1972 The eight terrorists quickly forced their way into Apartments 1 and 3, taking 11 Israeli hostages, two of whom were soon killed while trying to resist (Klein 2005: 44–7). The terrorists threw papers onto the street outlining their demands. They wanted 234 prisoners to be released from Israeli jails, along with the leaders of the infamous Baader-Meinhof Gang from German jails (Reeve 2000: 14). The Germans for their part were prepared to meet the terrorists’ demands, but the Israeli Prime Minister, Golda Meir, rejected them categorically, so the Germans played for time. That evening, at 10.40 p.m., the local Bavarian authorities made a poorly organized rescue attempt as the terrorists tried to leave by plane. One result was that the remaining hostages were executed by their captors. Three of the eight terrorists survived and were taken into custody. Israel waited only 48 hours to respond. At 3.50 p.m. on Friday 8 September, 24 Israeli fighter jets struck PLO bases deep in Lebanese and Syrian territory, killing a reported 200 terrorists as well as 11 Lebanese civilians. Days later, Israel launched Operation Turmoil 4: Israeli infantry, tanks, and artillery crossed the border into Southern Lebanon with significant air support and surrounded and searched towns that were being used as bases for PLO operations against Israel; 45 terrorists were reported killed, 16 operatives captured, and hundreds of houses damaged or destroyed. Yet, while these responses certainly did some damage to the PLO and Fatah, “none of those killed or captured had any covert or operational affiliation with Black September” (Klein 2005: 95). On 12 September, Prime Minister Meir met briefly with the grieving families of the slain Israeli athletes before addressing the Knesset. “I want to share my plans with you,” she said. “I’ve decided to pursue each and every one of them. Not one of

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the people involved in any way will be walking around on this earth for much longer …. We will chase them till the last” (Klein 2005: 100). To the Knesset, she said: the actions and ways of the terrorists are continually evolving. It is our duty to prepare ourselves for this type of war, more than we have been to this day – methodically, knowledgeably, decisively, and expansively; this is a dangerous and critical task …. We have no choice, but to strike terrorist organizations wherever we can reach them. That is our obligation to ourselves and to peace. We shall fulfill that obligation undauntedly. (Klein 2005: 101)

Meir’s statements can justifiably be considered the formal announcement that Israel would pursue targeted killings not only as an ad hoc and extraordinary measure, but as part of its counter-terrorism policy. As Aaron Klein put it: “Israel had assassinated its enemies before, but now assassination would become a major tool in counterterrorism” (Klein 2005: 106). That policy would begin with wiping out Black September, but would not stop there. As with the United States decades later, a traumatic attack led to a pre-emptive policy of targeted killings designed to stave off potential threats. If the Israeli government hoped to eliminate the unacceptable threat posed by the “new terrorism,” it would have to take the offensive. This insight, however, immediately raised the question of how this could be done in a controlled and responsible way. The Establishment of the Targeting Procedure Within two weeks of the terrorist action in Munich, Prime Minister Meir was presented with “a new plan to fight the burgeoning Palestinian terrorism,” drafted by Mossad Director Zvi Zamir with the help of the newly appointed Special Adviser on Terrorism, General Aharon Yariv. The primary focus of the plan was “prevention.” As she put it a week later to the Knesset: “wherever a plot is being woven, wherever people are planning to murder Jews and Israelis – that is where we need to strike” (Klein 2005: 106). The second focus of the plan was deterrence. It was believed that the weak European law enforcement response to terrorism did little to deter it. If, however, terrorists had to operate under the shadow of an aggressive Israeli policy of prevention, including the pre-emptive killing of its enemies, some recruits might think twice, or the organizations might become more reluctant to operate in Europe. Revenge was not identified as an objective. Klein points out that it was considered improper for a “state to pursue revenge for the blood of the murdered.” None the less, he plausibly argues that “it motivated, to varying degrees, every officer and official involved from the Prime Minister on down” (Klein 2005: 108). The core of the new plan was a procedure for authorizing targeted killings. First, Mossad would assemble an extensive dossier on suspected terrorists. Later, if it was felt that the evidence against the subject was conclusive, Mossad would formulate an indictment which would be presented to the Prime Minister. The Director of Mossad would act as a prosecutor arguing for a guilty verdict followed by the death penalty. The Prime Minister along with selected members of the cabinet would act as judges (Israel has no tradition of jury trials). In some cases, the judges “would suspend sentencing, demanding further incriminating evidence” (Klein 2005: 107). In other

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cases where the evidence was determined to be sufficiently damning and the threat posed to Israeli civilians sufficiently pressing, Mossad would be authorized to plan a targeted killing. Once the plan was in place, an additional authorization would be required from the Prime Minister. The Prime Minister was only to authorize plans once it could be established clearly that neither innocent civilians nor the interests of the state would be harmed (Klein 2005: 107). The Mossad team charged with carrying out these operations was designated Caesarea, and Michael Harari was appointed as its first commander. The select cabinet panel presiding on such questions was eventually dubbed by the international media “Committee X.” By October 1972, Committee X, under the leadership of Prime Minister Meir, had begun to process “indictments.” “The Wrath of God” The most immediate and obvious candidates for Israeli targeting were the Black September terrorists involved in the planning and execution of the Munich operation. The campaign to track down and kill these individuals came to be known as “The Wrath of God” (Reeve 2000: 161). The first candidate to be brought before Committee X was Wa’el Zu’aytir, a Palestinian originally from Nablus who had lived in Rome for sixteen years. He worked as a clerk at the Libyan Embassy, specializing in translation. His lifestyle was hardly that of a leading terrorist. His means were modest, and his main interests seemed to be books and music. His crowning achievement was a translation of the Arabic classic One Thousand and One Nights into Italian. He was unguarded and unarmed, making him an easy or “soft” target. But the Committee was informed that he was the leader of Black September in Rome and had aided the attack in Munich. This charge remains disputed. For example, Abu Iyad, one of the leaders of Black September, was later to claim that Zu’aytir had no connection with the organization, and was at any rate “fiercely opposed … to all forms of terrorism” (Morris 2001: 381). None the less, Committee X approved his targeting. At around 10.30 p.m. on 16 October 1972, Zu’aytir was approached by two members of Mike Harari’s Caesarea team in the lobby of his apartment building on Piazza Annibiliano and shot 12 times with silenced Beretta .22s. He died immediately. Although significant doubt remains about Zu’aytir’s involvement with the Munich operation, evidence has emerged which seems to tie him at least peripherally to several terrorist actions against Israel. None the less, in Klein’s view at least, “his assassination was a mistake.” Still, what one official called “the Munich revolution” had begun (Klein 2005: 123, 103). It took the Caesarea several months to work out the details of their next operation. For weeks Israeli agents shadowed Dr. Mahmoud Hamshari in Paris in an attempt to identify an opportune moment to kill him. Mossad had identified Hamshari, the PLO’s unofficial man in France, as a local leader of Black September. They also suspected him of complicity in the bombing of a Swiss Air flight on 21 February 1970, which took the lives of 47 passengers and crew, as well as of involvement in a plan to kill the former Israeli Prime Minister David Ben-Gurion in May 1969.

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Even after the death of Zu’aytir in Rome, Hamshari apparently remained confident that his semi-diplomatic status with the PLO would protect him. He amicably agreed in early December to meet a purported Italian journalist for a makeshift interview at a Left Bank cafe. The journalist was in fact a Mossad agent, and the Caesarea team exploited the opportunity to gain access to Hamshari’s apartment and to plant a small bomb in his telephone. Through daily surveillance, the team had discovered that Hamshari’s French wife, Marie-Claude, and his daughter, Amina, were regularly absent from the apartment in the morning. On the morning of Friday 8 December 1972, a little after 8 a.m., the alleged Italian journalist telephoned Dr. Hamshari. When Hamshari answered and identified himself, the Caesarea team set off the bomb in his phone, fatally wounding him. He died in hospital several weeks later (Reeve 2000: 166; Klein 2005: 130–33). Escalation Black September responded to the Israeli offensive by renewing its own. On 28 December 1972, a Black September team gained admittance to the Israeli Embassy in Bangkok, Thailand and took six Israelis hostage. They demanded the release of 36 prisoners from Israeli jails. However, the Egyptian Ambassador acted to defuse the situation. He negotiated an agreement by which the terrorists were flown to Egypt, their demands unmet (Reeve 2000: 169–70; Klein 2005: 135–7). The embarrassment of this ineffective operation was mitigated at least partially by the killing of an Israeli agent in Madrid on 26 January 1973 (Reeve 2000: 169–74; Klein 2005: 135–43). On the other side, by the end of the year, the Caesarea team had expanded. Mike Harari had three targeted killing teams at his disposal. Each team had the same basic configuration, dividing operative responsibilities to three distinct squads. One squad was devoted to logistics (renting apartments, driving getaway cars, and the like), one to carrying out surveillance on the target and his dependents, and one to carrying out targeted killings (Klein 2005: 132–3). In mid-January, another Caesarea targeted killing was approved. Hussain AbuKhair, the newly appointed Cyprus representative of the PLO, was marked for death. Although the Israeli government could not definitively connect him with Black September, it apparently felt that his connection with the PLO was sufficient to make him a dangerous terrorist. After two weeks of surveillance, a Caesarea team planted a bomb in his bed at the Olympic Hotel. When he shut off his light for the evening, a Caesarea agent activated the bomb. The explosion killed Abu-Khair instantly (Reeve 2000: 167–9; Klein 2005: 137–8). Later in the year, another “soft” target was approved by Committee X, Dr. Basil al-Kubaisi. Dr. Kubaisi was a professor of international law of Iraqi origin whom Mossad alleged to be connected with a series of terrorist actions (although not with the attack at Munich). In particular, intelligence revealed him to be a member of George Habash’s PFLP who had helped to plan the attack at Lod Airport in 1972 as well as an assassination attempt on Prime Minister Meir at JFK Airport on 6 March 1973 (Reeve 2000: 170–73). Caeasarea agents approached him on the evening of 6 April 1973 as he exited a brothel on Paris’s rue Chauveau Lagarde, and shot him nine times at close range with silenced .22 Beretta pistols. Mr. al-Kubaisi died quickly,

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before help could arrive (Klein 2005: 152–4). Black September quickly struck back in Rome in late April 1973, when Zaharia Abu Saleh shot El Al employee (and alleged Mossad agent) Vittorio Olivares in the stomach (Reeve 2000: 169). Black September Attack in Khartoum Thus far, Israel’s targeting campaign had been largely carried out against unguarded or “soft” targets who generally had little direct connection with the attack in Munich. The leaders of Black September remained hidden in Arab countries where it was especially difficult for Mossad agents to get at them. Beyond the technical difficulties and the danger to agents captured in Arab states, Israeli leaders were concerned about the potential diplomatic repercussions. On 1 March 1973, however, Black September initiated an operation that would have the unintended effect of significantly reducing the international repercussions to Israel of targeting terrorists in hostile Arab countries. A small Black September unit attacked the Saudi Arabian Embassy in Khartoum while the Saudi Ambassador hosted a farewell party for George Moore, the departing deputy chief of the US delegation. The attack was designed in part to show that despite their disappointing attack on Israel’s Bangkok Embassy, Black September had not lost its nerve. It was also intended to apply pressure on the Israelis through their US allies. The operation did not, however, unfold as planned. Within minutes, all the guests had escaped through the gardens save for five – Cleo Noel (the US Ambassador), George Moore, and the Belgian, Saudi, and Jordanian Chargés d’Affaires. In a familiar refrain, the hostagetakers demanded the release of Palestinian and German prisoners, and when President Nixon rejected the demand, the terrorists shot the American and Belgian hostages and released the Saudi and Jordanian. The Americans were naturally furious, and agreed to turn a blind eye to Israeli reprisals even on hostile Arab territory (Reeve 2000: 177–9). Operation “Spring of Youth” On the morning of 9 April, the 16 soldiers of Israel’s elite anti-terror commando unit, the Sayeret Maktal, arrived at Haifa pier to receive their final orders from IDF Chief of Staff David Elazar. “Kill the bastards,” Elazar told them (Reeve 2000: 179; Klein 2005: 164). The IDF Chief referred, in particular, to the unit’s three primary targets: Muhammad Yussef Najar (a founder and the second-in-command of al-Fatah), Kamal Adwan (the Fatah division chief for attacks in Israel), and Kamal Nasser (the PLO’s Chief Spokesman). The first two had long histories of involvement in terrorist aggression against Israel. Both were believed by Israeli intelligence to be leaders of Black September and intimately involved with the Munich attack. The only target who raised serious doubts among Israeli military and political leaders was Kamal Nasser, because he was a political official rather than a military figure, a spokesman for terror rather than a direct participant. In the end, the case in favor of targeting him advanced by military intelligence was accepted: he was a senior member of a terrorist organization, that organization did not maintain a clear line between political and operational branches, and his work of publicly sanctifying the killing

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of Israelis was an important contribution to the terrorist endeavor (Klein 2005: 158– 60). Moreover, a terrorist organization is not a state, and its public officials enjoy no special protection under international law. The Sayeret Maktal boarded missile boats at the Haifa pier which by 1 a.m. brought them to the coastline off Beirut. At 1.30 a.m., the Israelis reached the building where the three targets had apartments. Posing as tourists with several of the commandos disguised as women (including the commander, Ehud Barak), the unit infiltrated the building. The commandos, dividing into teams, stormed the three apartments and gunned down the three targets, also killing Muhammad Yussef Najar’s wife in the mêlée. An elderly Italian woman responding to the commotion was also killed (Klein 2005: 161–8). Ironically, the number one target on the Israeli targeting list, the man who they believed to be most responsible for the planning and execution of the Munich attack, Ali Hassan Salameh (sometimes called “the Red Prince”), was allegedly sleeping nearby. According to the Israelis, they were unaware of his proximity, but Salameh reads their failure to go after him differently. In Salameh’s view: The enemy’s main victory – the assassination of three of our leaders in Beirut in April 1973 – was the result of complete carelessness …. My home was about 50 meters from the late Abu-Yussef’s home. The Israeli assassins didn’t come to my home for a very simple reason: it was guarded by my fourteen men. (Reeve 2000: 181; Klein 2005: 215)

After “Spring of Youth,” Klein reports, Salameh hired dozens more security men. In the end, however, these precautions did not prevent Israel from successfully targeting him in Beirut on 22 January 1979. In the mean time, however, the operation in Beirut was hailed in Israel as a great success. Golda Meir announced to the Knesset: “we killed the murderers who were planning to murder again” (Reeve 2000: 183). For the leaders of the IDF, the success in Beirut confirmed the value of an offensive strategy. As IDF Chief of Staff Elazar later told journalists: “Israel won’t play by the rules of partial war; wars are not won with a strong defense” (Klein 2005: 169). The IDF targeting campaign continued without relent. On 11 April 1973, Zaiad Muchasi, who had replaced the targeted Abu-Khair as Black September chief in Cyprus, was blown up in his hotel room in Athens (Reeve 2000: 184). Two junior Black September operatives, Abdel Hamid Shibi and Abdel Hadi Nakaa, were blown up in their Mercedes while preparing to attack the El Al offices in Rome. Both survived the initial explosion but later succumbed to their wounds (Klein 2005: 173). Finally, in Paris on 28 June 1973, Caesarea agents planted a bomb in Mohammed Boudia’s Renault 16. The bomb was detonated by remote control as he climbed into the car, blowing him to pieces. No others were injured (Klein 2005: 177–82; Reeve 2000: 185). The End of the First Terrorist Targeting Campaign Emboldened by the success of the “Spring of Youth,” the Caesarea team began to concentrate increasing resources on tracking their number one target, the “Red

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Prince.” In mid-July 1973, they followed what seemed to be a hot lead to Lillehammer, Norway. On short notice, Mike Harari was forced to put together surveillance and targeting teams that would prove fatally inexperienced. Fatal Error in Lillehammer On 21 July, the team made what they believed to be a positive ID on Salameh, and Mike Harari telephoned Mossad Director Zvi Zamir and asked for permission to proceed immediately, before the quarry had a chance to escape. After assuring himself that Harari was certain of his man, Zamir agreed. Unfortunately, Harari was proceeding on circumstantial evidence (including an extraordinary physical resemblance) and ignoring some serious anomalies. For example, what was the famous international terrorist playboy doing suddenly living a modest domestic life and waiting tables in Lillehammer? Harari was also sharply underestimating the difficulty of carrying out an assassination in a small, isolated community like Lillehammer. None the less, at 10.35 p.m., as the target got off a bus accompanied by a young, pregnant Norwegian woman, a car screeched to a halt nearby. Two men got out of the back seat and shot the target ten times with silenced Berettas, jumped back into the car and sped away. Half an hour later, the victim was pronounced dead at a local hospital. Tragically, Caesarea had got the wrong man. The victim was a Moroccan waiter named Ahmed Bouchiki, a man who with no known link to terrorism who had been returning with his young wife, Turil, from a local screening of Where Eagles Dare. Two operatives, Dan Art and Marianne Gladnikoff, who had been brought in by Caesarea as support for the operation, were soon picked up by police while trying to return a rented car at Pornavo Airport. Their interrogation by authorities led to the arrest of two senior agents, Avraham Gemer and Sylvia Rafael. Searching Dan Art’s belongings, Oslo police found a phone number which led them to two more agents, Zvi Steinberg and Michael Dorf, who were duly arrested. Mike Harari and the two assassins, however, managed narrow escapes. None the less, the Israeli government now faced a very serious public relations problem. Its agents had murdered an innocent man, and several had been captured. Should it acknowledge the operation and plead with the Norwegian government for their repatriation, or should it disavow the agents, effectively leaving them to their fate? In the end, Golda Meir’s government chose a middle course: it pleaded for leniency while refusing to acknowledge the agents. Meir also ordered an internal investigation of the events in Lillehammer. Ultimately, however, Harari himself was allowed to conduct the investigation, and little came of it. In the mean time, information gleaned from some of the prisoners and documents in their possession began to reveal a web of Mossad operatives and safe houses throughout Europe. In short, the capture and trial of the Israeli operatives led to what historians Benny Morris and Ian Black call “the most damaging exposure ever of their country’s clandestine activities” (Black and Morris 1991: 276). Agents were recalled from across Europe. Golda Meir suspended all targeting operations. None the less, as journalist Simon Reeve notes: “nobody in the Israeli government saw fit to apologize to the pregnant Turil Bouchiki for the tragic loss of her husband” (Reeve 2000: 1999). Only in 1996 did Shimon Peres’s government make some

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form of restitution: the government of Israel expressed regret for the incident in Lillehammer and agreed to pay compensation to Mr. Bouchiki’s family of almost $400,000 (Klein 2005: 198). On 1 February 1974, the six captured Israeli agents were sentenced in a courtroom in Oslo. Gemer and Rafael, the senior agents, got five-and-a-half years, and Arbel got five for second-hand knowledge of a premeditated murder. Gladnikoff got two-anda-half years for being accessory to the murder. Steinberg got one year for gathering information in a foreign country, and Dorf, the communications and codes man, was acquitted (Klein 2005: 197). After a short lull, Israel soon felt compelled to continue its targeting program (Reeve 2000: 196–200). Black September’s Last Hurrah The hunt for the “Red Prince” was off, at least temporarily, but the Prince remained a potent threat to Israel. Within two weeks of the Lillehammer debacle, he supervised a Black September operation at Athens Airport. On 5 August 1973, two young Palestinians, Tallal Khaled Kaddourah and Shafik Hussein el Arida, pulled out submachine guns and grenades in the departure lounge and opened fire on what they thought were passengers leaving for Israel. They were in fact ticket-holders for a TWA flight to New York. Four people were killed and 55 were injured. The two young terrorists failed to “martyr” themselves as planned, and were eventually arrested by Greek police (shortly, however, to be released) (Reeve 2000: 199–200). This Athens Airport attack, however, was the last terrorist operation publicly connected with Black September. Indeed, the overall number of international terrorist attacks on Israel sharply declined after 1972. Klein reports that senior Israeli intelligence officers were virtually unanimous in giving much of the credit to the policy of terrorist targeting (Klein 2005: 209). Paradoxically, however, the policy’s success to this point eliminated much of its raison d’être, and through the next decade operations would be noticeably scaled down. The 1973 War An additional factor contributing to a downscaling of targeting operations in the mid-1970s was what Israelis call the Yom Kippur War. At 2 p.m. on 6 October 1973, which for Jews was Yom Kippur (the Day of Atonement, the highest Jewish holiday), Egypt and Syria launched surprise attacks on Israel that succeeded in breaking through Israeli defense lines in Sinai and the Golan Heights respectively. Some have argued that an important reason for the failure of Israeli intelligence to perceive the threat in a timely fashion was the enormous concentration of intelligence resources in the targeting operations (Raviv and Melman 1990: 194). In any event, targeting operations were certainly disrupted for a time as Israeli Intelligence scrambled to respond to the invasions. Israeli forces were able to quickly recover from the initial onslaught, establish and hold new defensive lines, and by 11 October, to break back through the enemy lines in the north. By 14 October, Israeli forces occupied 20 square kilometers of Syrian territory. In the south, the Israelis waited until the Egyptian Second and Third

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Armies had deployed fully across the Suez Canal, and then counter-attacked with their own canal crossing in the other direction on 15–16 October, eventually cutting off and encircling Egypt’s Third army. However, Israel was prevented from fully exploiting its breakthrough by a great power/UN-imposed ceasefire which came into effect on 23 October. The ceasefire averted the total defeat of at least the Egyptian Third army, and probably the encirclement of the second as well. Israel agreed to withdraw from newly conquered Syrian territory and to allow Egypt to retain the west side of the Suez Canal (Morris 2001: 400–33) The unfavorable resolution of the war reinforced Israeli leaders’ sense of their vulnerability and the importance to Israeli security of cultivating great power support and world opinion. Not unrelatedly, the war also created the conditions for progress towards a permanent peace treaty with Egypt at the end of the decade (signed on 26 March 1979). All of this acted as a restraining influence on Israeli targeting, forcing it to be more selective and even more secretive. None the less, contrary to widespread belief, Israeli targeting never entirely stopped. It merely adapted to the changing character of the terrorist threat and international climate. Continuing Targeting Operations in the 1970s Terrorist attacks picked up again on a smaller scale after the 1973 war, and gradually intensified in the latter part of the decade as Anwar Sadat and Menachem Begin negotiated towards an Egyptian–Israeli peace. A number of Palestinian nationalist groups, most notably al-Fatah, the PFLP and Dr. Wadi Haddad’s offshoot PFLP – External Operations (PFLP – EO), carried out prominent terrorist attacks on Jewish targets both in Israel and abroad. The best-known (although by no means the bloodiest) incident was the joint PFLP – EO/Baader-Meinhof hijacking of an Air France flight originating in Tel Aviv and its diversion to Entebbe, Uganda on 27 June 1976. The hijackers eventually released non-Jewish passengers, retaining 103 Jewish hostages as leverage for their demands – specifically, the release of 53 prisoners held in Israeli and European jails. The source of the incident’s fame, however, is not the hijacking, but the daring rescue operation executed by Israeli commandos led by the Sayeret Maktal on 4 July. After flying secretly to Entebbe, Israeli troops stormed the plane, killing all eight of the terrorists with the loss of only one commando. Three passengers died during the rescue. The Targeting of Dr. Wadi Haddad One unintended effect of the Entebbe attack was to provoke Mossad into resuming terrorist targeting operations beginning with the man behind the Entebbe hijacking, the leader of the PFLP – EO, Dr. Wadi Haddad. Haddad, who lived in Baghdad and rarely traveled, was a talented, innovative, and prolific organizer of terror who had overseen many of the PFLP operations, including the first hijacking of an El Al plane on 23 July 1968, before quarreling with PFLP leader George Habash and leaving to create his own offshoot. By the time of his targeting, he was responsible for literally dozens of hijackings and other terrorist attacks against Israelis, Americans, and Europeans.

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According to Aaron Klein’s recent revelation, Mossad arranged for Dr. Haddad, whom they knew to be a chocoholic, to be given a box of exquisite Belgian chocolates by a reliable Palestinian agent, betting that Dr. Haddad would not share – and indeed, they guessed right. The chocolates were coated in a lethal but extremely slowacting biological poison. The symptoms began several weeks later as his appetite diminished, he lost weight, and began suffering from a variety of infections and viruses. Tests showed that his immune system was fatally compromised. But it was several painful months before he died on 30 March 1978 in an East German hospital. Following his death, the PFLP – EO effectively disintegrated, and “the number of attacks against Israeli targets abroad plummeted.” According to Klein, “Israeli intelligence and, in particular, the Mossad, viewed this as further proof of the effectiveness of their assassination program” (Klein 2005: 205–10). Eliminating A-Tzaika and the “Red Prince” The new Israeli Prime Minister, Menachem Begin, was so impressed with the effects of Haddad’s elimination that he shortly thereafter authorized another operation. This time the target was Zuhir Mokhsan, leader of A-Tzaika, a pro-Syrian terrorist organization. Mokhsan was shot on 25 July 1979 in the hall of his Cannes apartment building by two Caesarea agents. As with Haddad, Klein reports, “Mokhsan’s sudden death led to the dissolution of the A-Tzaika organization – another veritable well of terrorism gone dry” (Klein 2005: 209). Also in 1979, Mossad finally caught up with Ali Hassan Salameh. After 1973, Salameh appeared to have reduced his direct involvement in terror operations in order to cultivate his role as the PLO’s liaison with the CIA. There is also some doubt as to whether Salameh was actually involved in the planning of the Munich attack (as Mossad believed), or merely claimed to be. There is no doubt, however, that he was a leader of Black September and had personally organized at least four major terrorist attacks in Europe and one in Asia (Klein 2005: 211–20). Around 4 p.m. on 22 January, as Salameh and his bodyguards were driving along Verdun Street in Beirut, a Volkswagen parked on the side road containing 11 pounds of Hexagene (a plastic explosive) blew up. The detonation was triggered by a Mossad agent standing about a hundred yards away in a window overlooking the street. Salameh managed to stumble out of the car and was rushed to American University Hospital. He died early in the morning on an operating table. Eight others were also killed in the explosion (Reeve 2000: 206–8). Terrorist Targetings in the 1980s The bulk of Israeli terrorist targeting operations in the 1980s were connected with two major events in the Middle East. The first was the Israeli invasion of Lebanon in early June of 1982, and the subsequent partial occupation that was only brought to a final end by Prime Minister Ehud Barak in late May 2000. The second event was the Palestinian Intifada (‘Uprising’) beginning in the West Bank in December 1987.

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The 1982 War in Lebanon On the night of 3 June 1982, Israel’s ambassador in London, Shlomo Argov, was shot in the head and severely wounded by members of the Abu Nidal group (an offshoot of al-Fatah). The Israeli government responded on 6 June with a long-planned ground invasion of Lebanon allegedly intended to secure the northern border and to evict the PLO and other Palestinian nationalist groups from their bases in southern Lebanon. Once the invasion had begun, however, Defense Minister Ariel Sharon pursued a policy of crushing the PLO, including its headquarters in Beirut, and evicting its remnants from Lebanon. By 12 June, the IDF was outside Beirut. Begin and Sharon demanded that the PLO leave the country, or they threatened to “evict” them. But the PLO dug in its heels and refused to retreat. By the end of July, the Israeli Air Force (IAF) was being used to bomb the PLO into submission, with predictable civilian casualties. Some of the missions were specifically designed to target the PLO leadership: Arafat, Abu Jihad, and Abu Iyad. Several apartment buildings were destroyed in what an US journalist Jonathan Randal called “the world’s first manhunt from the air,” with hundreds of Palestinian casualties (Randal 1984: 257). Still, the PLO leaders, safely hiding in bunkers, survived until the organization agreed to leave the city on 12–13 August (Morris 2001: 514–37). Sabra and Shatilla The expulsion of the PLO from Beirut was by no means the end of the fighting. The Israelis had also agreed to withdraw from Beirut after arranging the expulsion of PLO remnants from the refugee camps. In several cases, this undesirable duty was assigned to Lebanese Christian Phalangist forces. The results in the Sabra and Shatilla camps between 16 and 18 September were a disaster: an estimated 700– 800 Palestinians were indiscriminately killed. This slaughter, permitted by the IDF, humiliated the Israeli government. It also accelerated the process of popular Israeli disaffection from the war, and marked the beginning of the IDF’s slow withdrawal to its original Security Zone in the south and beyond (Morris 2001: 549). Before redeploying to the Security Zone in June 1985, however, the IDF would have to pass through three years of difficult and largely unprofitable fighting against terrorist organizations, during which it would repeatedly employ targeting operations. In particular, Israeli forces used targeting regularly against Hizbullah, “the party of God.” Hizbullah was founded by Hussein Mussawi following the Israeli invasion of Lebanon. Mussawi was a fundamentalist Shiite cleric and former ‘Amal official who (with spiritual and financial assistance from revolutionary Iran) led a militant faction in splintering from the Shiite ‘Amal militia, declaring it insufficiently militant. Hizbullah Hizbullah’s eventual goal was to create an Islamic Republic in Lebanon on the model of Iran. Its immediate goal was to force Israel and Western “peacekeepers” out of the country (Morris 2001: 551). In this latter pursuit, it proved both innovative and ruthless. It was the first group to demonstrate the power of systematic suicide

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bombing, and it pioneered the use of suicide car and truck bombers (Reuter 2004: 52–78). On the morning of 23 October 1983, for example, Hizbullah terrorists drove a truck laden with several tons of explosives into the barracks of the US Marines, who had come to Lebanon as part of a multinational peacekeeping force, killing 241 servicemen. Minutes later, a second truck was driven into the barracks of French paratroopers, another contingent of the multinational force, killing another 59 soldiers. These suicide attacks would lead directly to President Reagan’s decision to completely withdraw US forces from Lebanon in February. In a little over a year from its founding, Hizbullah had, through the strategic but brutal employment of suicide bombing, “forced the greatest superpower the world has ever known to its knees” (Reuter 2004: 56, 51–7; Morris 2001: 551–4). But it was against the IDF that Hizbullah unleashed its most sustained and savage campaign. And where Hizbullah led, other Shiite organizations, such as the ‘Amal militia, soon followed. By mid-1984, Shiites were launching around a hundred attacks a month against IDF forces in Lebanon. In one attack in November 1983, a truck bomb was driven into the IDF headquarters in Tyre, killing 23 Israeli soldiers and 32 Arabs who were being held for questioning. In time, the Israelis began to respond with what had proved to be their most effective counter-terrorist weapon (short of full-scale military assault) – targeting operations. Targeting Hizbullah and ‘Amal On 16 February 1984, to cite one example, gunmen, allegedly paid by Israeli operatives, shot and killed Sheikh Ragheb Harb in Jibsheet, Lebanon. Harb was a local Shiite cleric who exhorted violent resistance to the Israeli occupation and is credited with starting and directing the Islamic resistance movement which would eventually evolve into the military wing of Hizbullah (Chomsky 1984: 176; Byman 2006: 97–8). Again, on 14 June 1984, 15 Shin Bet men raided a garage in the village of Bidias, taking custody of the owner, Murshid Nakhas, a local ‘Amal commander, and stuffing him into one of their cars. Nakhas was shot dead, and his body was dumped nearby. Israeli spokesmen later maintained that Nakhas had been killed while resisting arrest (Morris 2001: 555–6). On 3 March 1985, an IDF raid of the town of Ma’arake was used as cover by Shin Bet operatives to hide a bomb in the roof of the local mosque, over the office of the local Hizbullah commander. The bomb was triggered the following day during a meeting of militants and leaders in the area. Thirty-four people were injured and 12 died, including three Hizbullah commanders (Morris 2001: 556). The First Intifada Later in the 1980s, Israel again employed the targeting of terrorists in the West Bank and Gaza Strip in response to the first Palestinian Intifada. The Intifada began on the evening of 8 December 1987 in response to the collision of an Israeli truck and vans carrying Palestinian workers from the Jibalya refugee camp. Four Palestinians were killed. The crash was rumored among Palestinians to have been a deliberate retaliation

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for the stabbing to death of an Israeli in the Gaza City market several days earlier. The Intifada began with a series of large, spontaneous demonstrations, protesting economic hardships, “creeping” Israeli annexation (particularly the continued growth of settlements), and most of all, the continuing Israeli occupation of the West Bank and Gaza Strip. Its most visible manifestation was mass demonstrations, often including rock-throwing and Molotov cocktails. These were soon complemented with strikes and commercial shut-downs in what is probably best described as a massive campaign of civil disobedience. Israeli efforts to suppress the Intifada, including curfews, checkpoints, and the forcible dispersal of demonstrations, tended to exacerbate rather than diminish the Palestinian will to resist (Morris 2001: 561–5). Contrary to the optimistic initial assessments of Israeli security experts, the Intifada would continue for six years. While the mass demonstrations declined perceptibly over time, violent attacks on Israelis, especially settlers, played an increasingly important role. In reaction to some of the violent Intifada elements, Israel employed methods with some resemblance to terrorist targeting within the territories. One illustrative incident has been documented by the Israeli human rights group B’Tselem. It involves the shooting of Jamal Rashid Ghanem on 22 March 1992. During a soccer game between the Schweike soccer club and the Tulkarm Trade Union team, a four-man squad of Israeli border police in civilian clothes burst onto the field of a local soccer stadium and shot one of the players, Jamal Ghanem, who was on the Shin Bet wanted list for attacks on IDF forces. The B’Tselem report concludes that the plainclothes police neither gave warning nor tried to immobilize Ghanem by shooting him in the legs. While it is not clear whether the police had received any direct and specific instructions from their superiors to kill Ghanem, the government’s refusal to even investigate the incident is indicative of at least an attitude of implicit authorization (Yashuvi 1992: 48–50). Some of the external operations were more clear-cut cases of targeting. For example, on 16 April 1988 an Israeli commando squad was secretly put ashore near Tunis, picked up by Mossad agents in rented cars, and driven to the home of Arafat’s deputy, Khalil al-Wazir (Abu Jihad). The commandos killed several guards, broke into the house, and shot al-Wazir dead in front of his wife and children. Al-Wazir had a long history of involvement with terrorist operations, the most recent of which, the Israelis alleged, was the hijacking of a bus near Dimona, Israel, in the course of which three Israelis civilians were killed (Morris 2001: 593). Oslo In the end, it seems unclear whether the Israeli targeting operations contributed much to bringing the Intifada to an end. The “uprising” was really only brought to a decisive close in August–September 1993 with the mutual recognition of Israel and the PLO and the beginning of the Oslo peace process. But Oslo did not by any means bring a wholesale end to the confrontation or violence. Hamas, for example, rejected the Oslo Accords, and Hizbullah continued its attacks on Israeli forces in the Security Zone. Israeli Prime Minister Rabin, for his part, declared his intention to “fight terrorism as if there was no peace process and pursue the peace process as

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if there was no terrorism” (Morris 2001: 617). Israel’s policy of targeting terrorists continued, if on a more restrained level. Israeli Terrorist Targetings in the 1990s Israel executed at least three major targeting operations against Palestinians in the 1990s which can be fairly summarized as a success, a mixed result, and a failure (David 2002: 4).1 The success came first. Following a series of damaging terrorist attacks by Palestinian Islamic Jihad (PIJ), culminating in a deadly bombing at Beit Lid junction near Netanya, Israel on 22 January 1995 that is reported to have killed at least twenty soldiers and one civilian, a decision was taken to target its highly capable leader, Fathi Shikaki. But Shikaki lived in Damascus, and rarely left. Israeli Prime Minister Rabin was reluctant to approve an operation in the Syrian capital. Caesarea was therefore forced to wait for Shikaki to make one of his occasional trips to Libya, which he always did by way of ferry from Malta. Fortunately for the Israelis, Shikaki departed on such a trip ten months later, and they were given the go-ahead. Even with the plan approved and the operatives in place, execution was frozen eight times for fear of harming civilians or exposing agents. On 28 October 1995, outside Malta’s Diplomat Hotel, Shikaki was shot dead by two Caesarea agents, who made good their escape (Klein 2005: 225–7). Deprived of its leader, the hobbled PIJ succumbed to an extended leadership struggle, and effectively ceased operations against Israel for several years. Targeting “The Engineer” and Khaled Mashal The second, mixed-result effort was the colorful killing of Yahya Ayyash, “The Engineer,” the leading Hamas bomb maker and terrorist mastermind. Between 1994 and 1996, Ayyash has been widely attributed with partial responsibility for at least 130 Israeli dead and over 500 wounded. The Shin Bet caught up with Ayyash in Gaza on 5 January 1996. Ayyash had been given a booby-trapped cellular phone by a trusted colleague. On this occasion, when he went to use it, the telephone exploded, killing him but not injuring any others. Hamas, however, reacted to Ayyash’s killing by unleashing a deadly series of four suicide bus bombings over the next two months which killed more than fifty Israelis (Katz 1999: 271–84; David 2002: 4). The disastrous third operation was the failed attempt on the life Khaled Mashal, the chief of Hamas’s Political Bureau, in Amman, Jordan on 25 September 1997. According to Israeli Prime Minister Benjamin Netanyahu, Mashal “was a pre-eminent figure in Hamas and responsible for the murder of innocent Israelis” (BBC News 2006a). Mossad agents posing as Canadian tourists managed to inject Mashal with a toxic substance, but were apprehended by Jordanian authorities while attempting to leave the country. An angry King Hussein then demanded the antidote. 1 Israel also carried out several operations in the 1990s against Hizbullah. In February 1992, for example, Hizbullah leader ‘Abbas Musawi was killed when Israeli helicopters fired missiles at his car. In August 1998, Hussam al-Amin, Amal’s Operations Officer, was killed in a similar way (Luft 2003: 4).

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Netanyahu at first refused to provide it, but after the forceful intervention of US President Bill Clinton, he agreed, thus bringing about Mashal’s recovery. In exchange for the release of the captured Mossad agents, Netanyahu also eventually agreed to the release from prison of Hamas founder and spiritual leader Sheik Ahmed Yassin, who was then serving a life sentence in Israel. The attempted targeting was thus not only counter-productive in relation to dealing with Hamas, but undermined the reputation of Mossad and subjected Israel to enormous international criticism as well as specifically angering Jordan, Canada, and the United States. The targeting policy thus finished the millennium on a distinctly low note. Certainly, an expansion of the Israeli targeting program looked unlikely, but expansion was exactly what would happen, beginning the following year. The cause for Israeli escalation of the policy of terrorist targeting was to be the outbreak of a new intifada in late September 2000 known as the al-Aqsa Intifada. Conclusion A policy of targeting terrorists was, despite variations in intensity, a persistent feature of Israeli security policy across the first 52 years of the country’s history. It began as an ad hoc response to sustained fedayeen incursions and violence against civilians which proved highly resistant to more traditional remedies. The initial (limited) success with terrorist targeting led to its continuation and development in response to evolving terrorist strategies. Following the internationalization of terror in the late 1960s and 1970s, for example, targetings went international, not only throughout Europe, but also on occasion in hostile Arab states. When Palestinian organizations began to launch suicide attacks from the territories, Israel invented new ways to get at terrorist leaders without disproportionately endangering civilians, such as boobytrapping cell phones. When terrorist leaders began to hide in Arab capitals, believing themselves beyond the reach of Israeli agents, new ways were developed to reach them, like poisoning their chocolates. Over time, targeting grew into a core element of Israel’s anti-terrorist arsenal, with its own formalized authorization process involving the highest echelons of political authority. Indeed, there has emerged “a [near] consensus among Israel’s defense officials that it is the most effective and least injurious way to deter and prevent terrorist groups from perpetrating terrorist attacks” (Luft 2003: 11; Klein 2005: 209– 10). This view is understandable given the policy’s frequent success in disrupting terrorist organizations and operations: examples include Egyptian-sponsored fedayeen in the 1950s, Black September in the 1970s, the PFLP – EO following Dr. Haddad’s poisoning, the PIJ following Shikaki’s targeting, and A-Tzaika following Mokhsan’s killing. In other cases, such as the eliminations of Ali Hassan Salameh and Yahya Ayyash, targeting operations clearly succeeded in degrading the capabilities of terrorist organizations – although in the last case, a high price had to be paid in the form of immediate Hamas retaliations. Still, in general, targeting provided these results at a far lower cost in lives than full-scale military operations. On the other hand, Israel’s success with targeting led it to employ the tactic in some especially dubious situations – for example, against scientists and their families,

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or when targets seemingly might have been arrested, as in the cases of Nakhas and Ghanem. Success, and arguably overconfidence, also led the Israeli government into several disastrously botched operations. These involve at least two undeniable legal, political and moral disasters – the killing of Ahmed Bouchiki in 1973, and to a lesser degree, the failed attempt on the life of Khaled Mashal in 1997, with its unintended consequences. Moreover, the problematic character of targeting operations led the Israeli government initially to falsely deny its involvement in some operations, such as that leading to the killing of Ahmed Bouchiki, undermining its general credibility and compounding its later embarrassment. Israel’s record with the targeting of terrorists over its first fifty years was thus distinctly mixed. It was likely Israel’s most successful single counter-terrorist tactic, but never succeeded in fully suppressing the terrorist threat against Israeli civilians. Indeed, the overall level of threat may well be argued to have steadily mounted over the first 52 years of Israel’s existence. The growth of the terrorist threat, however, only prompted greater Israeli reliance on the policy, as will be seen in the next chapter.

Chapter 3

The Expansion of Israeli Targeting During the Second Intifada Despite the humiliating debacle of its failed attempt to kill Khaled Mashal in September 1997, Israel’s targeting operations have not ceased; rather, they have vastly increased. Since October 2000, Israel’s targeting operations, although now mainly confined to the West Bank and Gaza Strip, have outstripped the number of known operations during the first 52 years of its history. In part, this may be due to a greater proportion of operations being reported as a consequence of Israel’s adoption of a more open terrorist targeting policy since 2000, but it is also due simply to a far greater rate of activity. These combined developments have also escalated the level of controversy over the policy, both internationally (as demonstrated, for example, in the increased number of condemnations of Israeli targeting operations from various UN organs) and domestically (as seen, for example, in three separate appeals to the Supreme Court of Israel to ban the practice) (Stein 2003: 131; David 2003a: 139). This chapter provides a brief chronological overview of some of the more prominent Israeli terrorist targeting operations since 2000, along with some background on the evolving circumstances surrounding them (emphasizing suicide bombings), starting with the beginning of the second Intifada. The main source of statistical information throughout the chapter is B’Tselem: the Israeli Information Center for Human Rights in the Occupied Territories, a non-governmental organization that tracks a range of statistics connected with Israeli policy and actions in the West Bank and Gaza Strip, including terrorist targetings (of which it is critical) (see, for example, Stein 2001a; 2001b). Its numbers are credible, and are generally published with supporting data to facilitate verification. However, some relevant statistics are not collected by B’Tselem (for example, suicide bombings), and in those cases it has been necessary to rely on other sources, including annual Israeli government reports. These sources are specified where used. The Year 2000 and the Revival of Terrorist Targeting The event that triggered the revival and escalation of the terrorist targeting in 2000 was the second or “al-Aqsa” Intifada. The Intifada was triggered in turn by the visit of Likud Party chairman Ariel Sharon to the al-Haram al-Sharif compound on the Temple Mount on 28 September 2000. Many Palestinians saw Sharon’s presence at

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the sacred site as a provocation, although he remained for only 24 minutes and did not enter the Dome of the Rock or the al-Aqsa Mosque. The al-Aqsa Intifada Sharon’s visit to the al-Haram al-Sharif complex set off rioting, both in the compound and around Jerusalem, during which participants pelted Israeli police with rocks. The following day, Israeli police entered the compound in force to disperse the demonstrators, precipitating clashes that left at least four Palestinians dead and hundreds injured. The rioting then spread through Jerusalem and the occupied territories. Stone-wielding rioters “were augmented by Palestinian security men and militiamen firing light weapons at Israeli positions” (Morris 2001: 661). On 6 October, Palestinian leaders declared a “day of rage,” and rioting broke out in Jerusalem and across the West Bank and Gaza Strip. Following Friday prayers at the al-Aqsa Mosque, hundreds of Palestinian youths raised a Palestinian flag over the site, hurled rocks down on Jews worshipping at the Western Wall, and later stormed an Israeli police station and set it on fire. By the end of the day, ten Palestinians had been killed and hundreds of Israelis and Palestinians had been injured (BBC News 2000; Frontline 2002). There remains a great deal of debate today among scholars over the factors that precipitated the second Intifada, or at least of their relative weight. In its initial phases, it appears to have been a “spontaneous eruption” (Morris 2001: 660–62; Nusseibeh 2007: 470). Contributing factors likely included the collected frustration of more than thirty years of occupation, the stalling of the Oslo peace process, the lack of real improvement in Palestinian living conditions on the ground under the rule of the PLO, and by the continued growth of Israeli settlements (Khalidi 2006: 178–80, 198–205). Despite Israeli promises to limit settlements to “natural growth,” the population of West Bank settlements rose during the Oslo years, 1993 to the end of 2001, from 247,000 to 375,000 inclusive of East Jerusalem, or from 100,500 to 191,600 (that is, by 90 per cent) exclusive of it (Vardi and Schulman 2002: 4, 11–13). PA and Fatah leaders, however, appear to have immediately “fanned the flames” of the uprising, and some later took an active role in leading the violence (Morris 2001: 662; Nusseibeh 2006: 437–40; Khalidi 2006: 179; Hajjar 2006: 27). On the other hand, Israel is accused of having militarized the conflict by using excessive force against demonstrating crowds (see, for example, Hajjar 2006: 27). Meanwhile, popular Palestinian anger was clearly being fanned by resistance organizations such as Hamas and Palestinian Islamic Jihad (PIJ), whose leaders were impressed by the Hizbullah model of resistance to Israeli forces and anxious to replicate it. PIJ leader Ramadan Shallah, for example, made the following declaration in November 2001: The shameful defeat that Israel suffered in Southern Lebanon and which caused its army to flee it in terror was not made on the negotiating table but on the battlefield and through jihad and martyrdom, which achieved a great victory for the Islamic resistance and Lebanese people …. We would not exaggerate if we said that the chances of achieving victory in Palestine are greater than in Lebanon. If the enemy could not bear the losses of

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the war on the border strip with Lebanon, will it be able to withstand a long war of attrition in the heart of its security dimension and major cities. (Pape 2005: 74)

Hamas’s official statements carried a similar message; for example: the Zionist enemy … only understands the language of Jihad, resistance and martyrdom, that was the language that led to its blatant defeat in South Lebanon and it will be the language that will defeat it on the land of Palestine. (Pape 2005: 74)

Hamas’s Political leader, Khaled Mashal, encapsulated the point when he remarked: “we always have the Lebanese experiment before our eyes. It was a great model of which we are proud” (Pape 2005: 74). In the territories, as Shallah noted, Israeli security forces, and especially civilians, were far more exposed and vulnerable than they had been in Southern Lebanon. It stood to reason then that Israel could be even more decisively defeated and compelled to withdraw. The Distinctive Character of the Second Intifada Whatever the catalysts that precipitated the second Intifada, one thing that quickly became abundantly clear is that it would cost the Palestinian people dearly in blood. The four Palestinians killed by Israeli security forces on the first day of rioting would ultimately be followed by over 4000 others by September 2007 (see Figure 3.1). According to B’Tselem’s estimates as of October 2007, this total includes at least 2029 persons who were not taking part in hostilities, 1414 who were taking part in hostilities, and 606 whose involvement has not yet been determined (B’Tselem 2007). On the other hand, the Palestinians succeeded in imposing a heavy price in Israeli blood for the continued occupation of the West Bank and Gaza Strip (see Figure 3.1). In this at least they were far more successful than in the first Intifada, especially early on. As Steven David points out, the relative fatality rate of the early second Intifada, 3:1 (Palestinians to Israelis), eclipsed the 25:1 mark of the first (David 2002: 5). Although the overall second Intifada ratio has increased sharply in recent years, it still marks a significant advance on the first (B’Tselem 2007). Another feature of the second Intifada that quickly became apparent, particularly after the initial burst of popular participation in September and October 2000, was that rather than being driven, as with the first Intifada, by acts of civil disobedience, strikes and road-blocks and youthful crowds of stone-throwing protesters, it would quickly be dominated by armed violence, and ultimately, systematic terrorism. Suicide bombings in particular became a central feature of the Intifada. These bombings were carried out by a whole range of terrorist organizations: Hamas, Tanzim, the al-Aqsa Martyrs’ Brigade (AMB), Palestinian Islamic Jihad (PIJ), the Popular Front for the Liberation of Palestine (PFLP), the PFLP – General Command (PFLP – GC), the Democratic Front for the Liberation of Palestine (DFLP), and the Popular Resistance Committees (PRCs), and others. Figure 3.2 provides yearly totals for the numbers of terrorist attacks carried out by Palestinian groups against Israelis during the second Intifada through the end of 2006 (based on data gathered by the ITIC and made available through the IMFA).

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Figure 3.1 Second Intifada fatalities: Palestinians killed by Israelis, and Israelis killed by Palestinians Source: B’Tselem (2007).1 Note: Israeli and Palestinian fatalities are not overlapping. Each is represented only by its own shaded area.

The Israelis, for their part, responded to the second Intifada attacks by resuming and escalating their terrorist targeting operations (see Figure 3.3). Moreover, unlike the first Intifada, they began to use attack helicopters and F-16s to carry out the missions, despite the increased danger of collateral damage. The targeting operations represented in Figure 3.3 are based on B’Tselem records, and only include operations that resulted in at least one fatality.

1 Palestinians killed:

+ + . Israelis killed:

+ + + .

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Figure 3.2 Second Intifada terrorist attacks carried out by Palestinians Source: Intelligence and Terrorism Information Center (2007): 162

Diplomatic Efforts and Rising Violence The terrorist dimension of the second Intifada emerged slowly following an initial surge of popular demonstrations and Israeli efforts to restrain them. In response to the intensifying violence, US President Bill Clinton engineered a summit on 16 and 17 October at Sharm al-Sheikh, Egypt, to bring the sides together in an attempt to frame the contours of a final status agreement before the Intifada got out of hand. At the summit, the two sides agreed to a temporary ceasefire and to the creation of a US investigative committee, the aim of which was to identify the causes of the violence (and which would eventually issue the Mitchell Report). No breakthroughs were made, however, on the main final status issues. A week later, on 21–22 October, Arafat called other Arab leaders to an extraordinary session of the Arab League Summit which culminated in statements praising the Intifada and now demanding (in defiance of the agreement at Sharm al-Sheikh) an international investigative panel into the violence. In the mean time, terrorist violence began to mount. B’Tselem reports ten total Israeli fatalities for the month. However, it is only on 2 November that the first bombing attack occurred, a car bombing in Jerusalem’s Mahane Yehuda Market, killing two and injuring ten 2 .

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Figure 3.3 Second Intifada terrorist targeting operations Source: B’Tselem (2007)3

others. The attack was claimed by the PIJ. In November and December, terrorist attacks, including the second Intifada’s first suicide attack, would claim 16 more civilian lives and cause 84 injuries (B’Tselem 2007; IMFA 2007b). The Recommencement of Targeting In November, as terrorism increased in pace and scope, the Israeli government authorized the resumption of terrorist targeting. The first terrorist targeting of the second Intifada, the killing of Hussein Abayat near Bethlehem (as described briefly in Chapter 1), occurred on 9 November – one week after the terrorist bombing at Mahane Yehuda Market. This was followed up with two more attacks later in the month and six in December, carried out mainly by snipers and resulting in six target deaths and one non-target death. Targetings then fell off in the first three months of 2001, during the Israeli election campaigns and government transition. On 10 December 2000, Ehud Barak resigned as Israeli Prime Minister, effectively forcing elections in which he sought a “fresh mandate” for negotiation (Quirke 2000). President Clinton, however, facing the end of his own second term and no doubt fearing for Barak’s chances of re-election, chose to push ahead with negotiations.

3 .

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The Targeting of Dr. Thabet Thabet One of the targetings in December proved especially controversial. On 31 December 2000, at around 10 a.m., Dr. Thabet Thabet, the former head of the Palestinian Dental Association, was killed by a sniper while pulling out of the driveway of his home in Tulkarem on the way to work. Critics raised objections to Dr. Thabet’s targeting on two main grounds. First, while he was the Secretary General for Fatah in the district, he was not known to have any personal involvement in terrorist activities. On the contrary, he was closely connected with many people in the Israeli peace movement and was widely believed “to have promoted peace before and after the Oslo agreement” (Amnesty International 2001: 16–17). Indeed, Yael Stein has pointed out that press reports suggest that Israeli authorities deliberately chose to target Dr. Thabet in order to intimidate Palestinian officials (Stein 2001a: 11). However, Israeli officials responded that contrary to appearances, Dr. Thabet was the commander of a local Tanzim cell, and this role “remove[d] him from the civilian category” (Amnesty International 2001: 17). The second argument raised by critics was that Dr. Thabet could easily have been arrested. He was killed only 300 meters from the boundary of “Area C,” where Israel exercised fully security control, and he regularly passed through such areas in the course of his weekly routine. Israeli officials claimed simply that: “International law allows a strike against someone identified with certainty as being prepared to commit an attack against Israeli targets.” Clinton’s Bridging Proposals On 23 December 2000, President Clinton presented his bridging proposals to representatives of the two sides, which reportedly included Palestinian sovereignty over the Gaza Strip and 94–6 per cent of the West Bank (plus a land swap of Israeli territory of 1–3 per cent), Arab Jerusalem, and the Temple Mount (minus the Western Wall). However, Palestine would remain a “non-militarized” state, and the right of return would apply automatically only to Palestinian territory, with the Israeli government retaining final say on how many would be permitted to return to its territory. Compensation for refugees would be provided from a substantial international fund, and international peacekeepers would be introduced into the territory to assure mutual compliance and to contain violence between the two sides. Clinton asked both sides to respond to his parameters by 27 December (Clinton 2004: 936–7; Ross 2004: 752–3, xxiv). The Israeli Cabinet met on 27 December and accepted Clinton’s parameters with reservations that Clinton characterized as “within the parameters.” PA Chairman Arafat, however, delayed, and according to both President Clinton and Lead Negotiator Dennis Ross, ultimately “wouldn’t accept the parameters that were hard for him … He just couldn’t bring himself to say yes” (Clinton 2004, 943–5; Ross 2004: 753–8). Some commentators, however, have questioned whether the Israeli acceptance was genuine and whether their reservations were really within the parameters (Carter 2006: 150–51). A last-ditch effort to reach a deal at meetings in Taba, Egypt from 21 to 27 January broke down again, primarily over the issue of the right of Palestinian refugees to

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return to Israel. On 28 January, Barak angrily suspended negotiations until after the Israeli elections. In the mean time, a suicide bombing in January produced 60 Israeli injuries, and other terrorist attacks produced seven more Israeli fatalities. The increasing Palestinian violence would have a very tangible impact on the results of the election. The Year 2001: A Rising Tide of Blood On 6 February 2001, Sharon and his Likud Party defeated Ehud Barak, and Labor and began to form a new Israeli “National Unity” government with Labor as its junior partner. On 4 March, a Palestinian suicide bomber killed three and injured dozens in a rush-hour attack in Netanya. Hamas claimed responsibility (CNN 2001). Three days later, on 7 March 2001, Sharon officially took office. He expressed a willingness to make “painful sacrifices” to obtain peace with the Palestinians, but refused to negotiate “under the pressure of violence and terror” (PBS 2001). In the situation of the continuing Intifada, Sharon’s position marked the end of substantial efforts toward a final settlement between the two sides. The Targeting of Maso’oud Ayyad A week after Sharon’s election, on 13 February 2001 at 9.45 a.m., Maso’oud Ayyad was traveling in the northern Gaza Strip, near the Jabalya refugee camp, when his car was struck by three missiles fired from a flight of Israeli Air Force combat helicopters. Mr. Ayyad, a senior officer of Arafat’s Force 17 (his bodyguards), was killed instantly, along with his passenger. Four bystanders (including a child) were also injured. An IDF spokesperson acknowledged the attack, and explained that Ayyad was an active member of Hizbullah and had planned two mortar attacks against Israeli settlements in the previous two weeks. The spokesperson observed that: “cutting the head off a snake is certainly not going to stop attacks or solve the Palestinian terror problem …. There will likely be a few more mortar attacks, but this killing was the right reaction to unprecedented Hizbullah actions” (O’Sullivan 2001). On the other hand, the European Union responded with a letter condemning the Israeli “policy of liquidation, or execution without trial” as a violation of international law and an obstacle to the peace process (Haaretz 2001). In the mean time, in response to three terrorist bombings in 24 hours on 27 and 28 March (killing at least two Israelis and wounding dozens), Israel began retaliatory helicopter gunship raids into PA-administrated zones of the West Bank (“Zone A” under the Oslo Accords) (IMFA 2007b). At least two Palestinians were killed in IDF raids against Force 17 bases in Gaza and Ramallah. Arafat’s house was hit. Still, the terror attacks continued and the damage they produced began to grow – between April and 1 June, suicide attacks took 27 lives and caused injuries to at least 280. Terrorist targetings also began to assume a more regular rhythm, accelerating into the summer.

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The Targetings of Muhammad ‘Atwa ‘Abdel-‘Al and Iyyad Hardan A 26-year-old PIJ Commander, Muhammad ‘Atwa ‘Abdel-‘Al, was incinerated in Rafah, in the Gaza Strip, at around 12.40 p.m. on 2 April 2001, when an IAF Apache helicopter hit his car with three missiles. A second car traveling behind his, a taxi, was also seriously damaged, although both its driver and a passenger managed to evacuate without serious injury (Capella and Sfard 2002). Israeli Minister of Transportation Ephraim Sneh acknowledged responsibility for the attack. Israel accused ‘Abdel-‘Al of planting bombs along Israel’s Security Road between Rafah and the Egyptian border, as well as with having armed and prepared a suicide bomber who carried out a devastating attack in 1995. ‘Abdel-‘Al was arrested by the PA in 1997 as part of a crackdown on Hamas and PIJ terrorism, but was released at the beginning of the second Intifada (Goldenberg 2001). Israeli officials claimed that the operation was “designed to harm those who perpetrate attacks against Israelis,” and affirmed that they would continue “targeting terrorists and Palestinian officials involved in attacks” (Capella and Sfard 2002). Three days later, Iyyad Hardan, the military commander of the PIJ in Jenin, was blown up while standing in a booby-trapped telephone booth. Osama Jawabreh, a militant with the AMB, would be killed in similar style on 25 June 2001 (B’Tselem 2007). Two Short-lived Truces On 30 April 2001, the Mitchell Commission completed its report, recommending a six-week cooling-off period, to be followed by confidence-building measures, a freeze on Israeli settlement-building activity, and a return to negotiation. The report was followed by a brief lull in the violence, shattered by a suicide bombing on 18 May at the entrance to a shopping center in Netanya. Five Israelis were killed, dozens wounded, and Hamas claimed responsibility for the attack (IMFA 2007b). In response, the Israelis bombed a police station in Nablus with a US-built F-16, killing 11 PA police officers. On 1 June, a suicide bomber who detonated himself in a Tel Aviv disco killed 21 and injured more than 120 others. The PIJ claimed responsibility (CNN 2002). Clearly, the lull was over and the Mitchell Plan was stillborn. On 13 June, CIA Director George Tenet negotiated a truce between Israeli and Palestinian authorities. Nine days later, however, two Israeli soldiers were killed in a bomb attack in the Gaza Strip claimed by Hamas (IMFA 2007b). Violence quickly escalated on both sides, and by the beginning of July, Israel resumed terrorist targetings. The Tenet ceasefire had failed to hold. Targeting Muhammad and Waleed Bsharat, Samih Abu Haneesh, Mustafa Zibri July was an intense and relatively successful month for those carrying out Israel’s terrorist targetings, with five missions (almost exclusively carried out by helicopter) resulting in the elimination of 13 targets with only four non-targets killed. For example, at 11.15 p.m. on 1 July 2001, two IAF Apache helicopters fired eight missiles at a car in the Jenin District of the West Bank. The car was completely destroyed, and the three passengers, all young men affiliated with the PIJ, were

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killed. No others were injured. The IDF acknowledged the attack, and claimed that the car was carrying a large amount of explosives and that the young men were on their way to carry out a bomb attack inside Israel (Jerusalem Post 2001). On Israel Radio, Israeli Environment Minister Tzahi Hanegbi stated that the PA had not lived up to its commitments to prevent violence, and that the Israeli army was therefore acting in order to defend its citizens (Capella and Sfard 2002). Israel scored another success in August. On 27 August, an Israeli helicopter fired missiles into PFLP headquarters in suburban Ramallah. The organization’s Secretary General, Abu Ali Mustafa (nom de guerre Mustafa Zibri), was blown apart while sitting at his desk, only feet from Yasir Arafat’s own offices. There were no nontarget casualties (Joffe 2001). However, terrorists had their Summer successes as well, which continued into the Fall. On 9 August, for example, 15 Israelis were killed and over a hundred injured when a suicide bomber detonated himself in a pizzeria in central West Jerusalem. Hamas claimed the attack (IMFA 2007b). On 17 October 2001, right-wing Israeli Minister of Tourism Rehavam Zeevi was shot and killed in a hotel room in the Mount Scopus area of Jerusalem. The PFLP claimed responsibility. The IDF struck back with six targetings in the same month, resulting in eight targets and no nontargets killed (they followed up the next month with five targets and no non-targets killed). December, however, belonged to the terrorists, as six suicide bombings alone accounted for 26 Israeli fatalities and approximately 254 injuries (IMFA 2007b). On 16 December, however, Arafat called for an end to attacks on Israel. On 20 and 21 December, Hamas’s political and military wings respectively agreed to suspend operations provided that Israel stopped targeted killings and attacks on civilians. On 3 January, Israel announced that it would begin withdrawing from parts of the West Bank. The move was quickly put on hold by a spate of terrorist attacks and Israeli arrests of militants at the start of the new year (Left and Jeffery 2002). The Year 2002: Climax of Violence The year 2002 started unpromisingly despite the ceasefire, as Israel first uncovered an enormous illegal arms shipment and then was rocked by a series of terrorist attacks. On 3 January 2002, Israeli forces intercepted a freighter, the Karine-A, with 50 tons of illegal arms destined for Palestine – mostly for the PFLP. Arafat denied any connection with the arms. However, investigations would lead directly back to the PA’s main financial official, Fuad Shubaki. Later, documents seized from the PA would reveal an elaborate system of illegal arms procurement (IMFA 2002). In the mean time, on 9 January, two men in Palestinian police uniforms attacked an army outpost near the Gaza Strip, killing four soldiers (Guardian 2002). The attack was immediately claimed by Hamas, apparently ending the “ceasefire.” The following day, Israel responded to the breach of the ceasefire by bulldozing dozens of homes in Rafah, the home of the Hamas gunmen involved in the previous day’s attack, and by targeting an AMB leader named Raed al-Karmi, in Tulkarem. Al-Karmi admitted involvement in shooting attacks on Israelis, including the killings

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of two Tel Aviv restaurant owners (Quirke 2002). Israeli authorities in fact accused him of involvement in ten murders of Israelis. Members of the AMB announced that Israel had ended the ceasefire. Developments on the Legal Front On 29 January 2002, the SCI sitting, as the High Court of Justice, rejected a petition (HCJ 5872/01) calling for a halt to the “assassination policy.” The court held that the policy was within the bounds of reason. As to its desirability, the court held that: “the selection of means of combat that the respondents [the Israeli Officials] use in order to thwart slaughterous terror acts is not one of the subjects that this court will see it appropriate to interfere with.” In February 2002, the IDF Judge Advocate General, Menachem Finkelstein, issued a legal opinion on the legitimacy of targeting terrorists (the policy the Israeli government referred to at the time as “targeted killing”). Finkelstein’s conclusions were not published, but his main findings were widely reported. He concluded that such actions were legal in certain exceptional circumstances, provided that four conditions were met: 1. “There must be well-supported information showing that terrorist will plan or carry out a terror attack in the near future.” 2. “The policy can be enacted only after appeals to the Palestinian authority calling for the terrorist’s arrest have been ignored.” 3. “Attempts to arrest the suspect by use of IDF troops have failed.” 4. “The assassination is not to be carried out in retribution for events of the past. Instead it can only be done to prevent attacks in the future which are liable to toll multiple casualties.” (Harel and Alon 2002) The Israeli government seized on this opinion as a legitimation of its policy. The Judge Advocate General’s legal opinion generated a great deal of controversy both within and outside of Israel, but in one part at least it was already becoming anachronistic by the time it was issued. As the violence intensified and evidence of PA complicity in terror activities grew, the IDF began to abandon the policy of appealing to an uncooperative Palestinian Authority to arrest and try terror suspects. The eventual reconfiguring of the rules for targeting by the SCI in 2006 would reflect these changes on the ground. In the mean time, however, the targetings continued, often in especially aggressive form, and only erratically meeting the second condition laid down by Judge Advocate General Finkelstein. Operation Defensive Shield In March 2002, Palestinian terrorist activities hit a peak, causing 114 Israeli fatalities (81 deaths the result of at least 11 suicide attacks) (IMFA 2007b). The heightened terrorist activity culminated in the suicide attack of 27 March on Jews celebrating the Passover Seder at the Park Hotel in Netanya, resulting in 30 deaths and over 100 injuries. Prime Minister Sharon responded with Operation Defensive Shield

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– the military re-occupation of the principal cities of the West Bank. Within 24 hours, the IDF had called up 20,000 reserves and had begun to move into Palestinian administrative zones. In a five-minute televised address on 31 March, Ariel Sharon declared: “citizens of Israel: the state of Israel is at war, a war with terror” (CBC 2002). By 3 April, President Arafat was sealed in his compound in Ramallah by Israeli troops and most of the major West Bank cities were either occupied or in the process of being occupied by Israeli troops. It was during the re-occupation of Jenin – or the “Battle of Jenin” – that false reports of a massacre were disseminated to the international press and erroneously verified by UN sources. Israel was harshly condemned on international networks like CNN as well as by senior officers of the United Nations for what was alleged to be a slaughter of at least 500, and in some accounts thousands of Palestinians. In fact, the death toll turned out to be 52, with at least 34 being later identified as “well known military operatives of Hamas, Islamic Jihad and Fatah-Tanzim” (Gold 2004: 213). Moreover, Palestinian organizations admitted on their websites that they had “intentionally employed Palestinian civilians as part of their defensive tactic.” Ultimately, the IDF estimated that 14 of the fatalities were civilians, although NGOs like Human Rights Watch estimated the number at 22 at least (Human Rights Watch 2002: 4). Israel lost 23 infantrymen, in part because it chose not to rely on air strikes that would likely have caused greater civilian casualties, but rather to fight house-to-house. In the meantime, if the military did not entirely stop terror attacks, it certainly slowed them down. Israeli fatalities per month fell to a little under half their March high, settling in at around 50 deaths per month for the next three months, before falling to somewhere between 13 and 25 per month for most of the remainder of the year. Building the Fence Despite a large commitment of Israeli reserves, the re-occupation effected only a partial reduction of the incidences of terrorism against Israeli civilians. Correspondingly, in August the Israeli Security Cabinet approved the initial phases of the construction of what Israelis prefer to call a fence or separation barrier, but Palestinian critics typically refer to as a wall (or “apartheid wall”) to separate Israel and some of its major settlements in the West Bank from Palestinian population centers. The fence/wall, however, provoked intensive international criticism and legal challenges at both international and domestic levels (as will be seen). The fence/wall is still under construction today, and while it has no doubt contributed to a diminution of terror attacks against Israeli civilians, it must at best be assessed as a long-term (and certainly legally problematic) solution. Israel required a more immediate answer to Palestinian terror, and continued to look back to its old standby of terrorist targeting. On 6 May 2002, the Israeli government released a report, based in part on papers that had been seized during the occupation of the Moqata (President Arafat’s Ramallah compound) that linked the PA with the promotion of terrorism against Israel. The “smoking gun” in the report was a set of orders, signed by Arafat himself, authorizing funding for the AMB, seemingly in some cases for the specific purpose

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of carrying out acts of terrorism against Israel. (Naveh 2002) On 24 June, US President George W. Bush, apparently influenced by the Israeli report, suggested the Palestinian leadership was “compromised with terror,” and called upon the Palestinians to “elect new leaders” (Bush 2002). At the same time, he sketched a roadmap to the “rapid” achievement of Palestinian independence, contingent on the ending of terrorism and an ambitious (critics argued over-ambitious) program of building democratic institutions (Freedland 2002). In the mean time, for the Israelis, the PA’s complicity in terror was one more reason why it could not be expected to arrest, try, and punish terrorists, and thus one more reason why the Israelis had to confront Palestinian terrorists themselves. The Targeting of Salah Sehadeh and the Demolishing of Houses Terrorist targetings hovered steadily at between one and three operations a month throughout 2002 and through to April of 2003, when they rose to four. Following the attack on Abu Ali Mustafa, however, some of the operations began to exhibit a new boldness, both in the choice of targets and the selection of means. On 22 July 2002, for example, following a series of bloody terrorist attacks claimed by Hamas under Salah Shehadeh’s leadership, an Israeli F-16 fighter-jet dropped a one-ton bomb onto Shehadeh’s apartment, bringing down the entire three-storey building along with several adjacent structures. Fourteen civilians were killed, including nine children. There were reports that at the time of his targeting, Shehadeh was planning a “megaattack” of six simultaneous terror operations (Luft 2003: 10). On another front, in October 2001 (after a three-year lull), the Israeli government had officially renewed the policy of demolishing the homes of the families of Palestinian terrorists, and particularly of suicide bombers. In the last few months of 2002, however, Israel began to apply the policy with hitherto unknown intensity, destroying the homes of 150 accused terrorists between September 2002 and February 2003 (King 2003). The policy, not surprisingly, generated an enormous international backlash. Critics characterized it as both inhumane and illegal (Darcy 2003; B’Tselem 2002, 2005). It was widely argued that the policy was, in the words of Kofi Annan, “tantamount to collective punishment and a clear violation of international law” (BBC News 2004b; see Security Council Resolution 1544). In February 2005, Israel officially abandoned the policy following the recommendation of a military committee appointed by Chief of Staff Moshe Ya’alon, which found that it was not an effective means of deterrence and should be stopped. In the mean time, B’Tselem reported that Israeli forces demolished 667 Palestinian houses in the West Bank and the Gaza Strip, leaving more than 4200 persons homeless (B’Tselem 2005). Israeli Elections In Israel, 2002 ended with an important political shift as Sharon’s National Unity government fell when Labor, under Shimon Peres, withdrew from the governing alliance, thereby forcing new elections on 28 January 2003. Peres’s move backfired, however, as the Likud Party under Sharon won the election convincingly enough to be able to form a right-wing Knesset alliance without the participation of Labor.

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In the final tally, 2002 would mark the climax of the Intifada’s violence and bloodshed. B’Tselem reported 421 Israeli civilians and soldiers killed, and 1032 Palestinian civilians killed by Israeli security forces (B’Tselem 2007). The Year 2003: The Inertia of Conflict The year 2003 opened on a sour note, as two Palestinian suicide bombers detonated themselves thirty seconds apart in the Old Bus Station district of Tel Aviv, killing at least 22 and injuring over 100 (BBC News 2003). But the pace and lethality of terrorist attacks continued to slowly decline. B’Tselem reported 185 Israeli fatalities (down from 421 in 2002). The Shin Bet reported 3838 terrorist attacks in 2003, resulting in 213 Israeli fatalities. This represented a 30 per cent drop in the number of attacks from 2002, and a 50 per cent drop in the number of fatalities. The IMFA attributes this drop primarily to “the intensive counter-terrorist actions of the IDF, Israel Police and ISA …” (IMFA 2004d). Suicide attacks, however, continued to take a large toll (accounting for 144 deaths and 779 injuries in the course of the year). Of particular note was a suicide bus bombing on 19 August that killed 23 and injured over 100, and a suicide bombing on 4 October in a Haifa restaurant that killed 21 and injured 60 (IMFA 2007b). The Targetings of Ibrahim Makadme and Mahmoud Titu Targeting operations continued largely in the pace and style established in 2002 until a sharp upsurge in June. One notable success was the targeting, by helicopter of the co-founder of Hamas and leader of its military wing, Ibrahim Ahmed Haled Makadme, on 8 March in the Gaza Strip. Makadme was killed in a missile strike along with two Hamas operatives whom the IDF accused of preparing a terrorist attack (having already smuggled the explosives into Israel). The IDF took responsibility for the attack, and immediately published a backgrounder on Makadme (and his two colleagues), describing Makadme as “the most extreme and uncompromising figure among the Hamas leadership” and attributing a lengthy list of Hamas attacks to him (IMFA 2003c). None the less, the Israeli targeting program also experienced some sharp setbacks, particularly in June, when in the course of ten targetings they also killed a horrifying 24 non-targets. In just one case, the targeting of Ma’sud Mahmoud Mustafa Titu, B’Tselem reports that eight non-target bystanders were killed. A low-flying Apache helicopter had fired seven missiles into Titu’s car while he sat in traffic in the Gaza City market. The non-target casualties consisted mainly of ordinary Palestinians who had the misfortune to be in the vicinity at the time of the attack. Titu himself was an explosives and rockets expert who was known to have participated in several terrorist actions, including a 1995 rocket attack that killed two soldiers (McGeary 2004). But the danger that the attack posed to bystanders casts doubt on the use of missile barrages in densely packed urban centers.

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PA Reform and Roadmap One of the most hopeful notes of the year was struck by PA President Arafat, who, bowing to US-led foreign pressure, appointed his PLO deputy, Mahmoud Abbas (Abu Mazen), as Palestinian Prime Minister in mid-March 2003. Abbas appeared to have a mandate to proceed with institutional reform of the government, particularly of the security forces, and to move toward greater democratic accountability. On 30 April 2003, a new Palestinian Cabinet selected by Abbas (with Arafat’s approval) was sworn in, and the US government released President’s Bush’s long-awaited roadmap to peace. The roadmap aimed at a “final and comprehensive settlement of the Israel–Palestinian Conflict” and envisioned the creation of a Palestinian state within three years. In its first phase, it called upon the PA to condemn and suppress terrorist violence against Israel, and called on Israel to freeze all settlement growth, “including natural growth” (DoS 2003). Neither side in the conflict seemed particularly impressed. Palestinian terrorist attacks against Israel actually increased in May and June (including five suicide bombings in May alone), resulting in 30 fatalities with little evidence of PA interference (IMFA 2007b). Israel correspondingly made little effort to halt the “natural growth” of settlements. At the end of June, however, Hamas, the PIJ, and Fatah announced a ceasefire (although the PIJ would nevertheless claim a suicide bombing on 7 July). Israel then began pullbacks from the Northern West Bank, and announced its planned withdrawal from four major West Bank cities and the release of 400 Palestinian prisoners (in fact it released around 330 on 6 August). However, following a 19 August PIJ suicide bombing on a bus in the heart of Jerusalem that killed over 20 and injured over 100, Israel responded with a helicopter-based missile attack in Gaza on Ismail Abu Shanab, a Hamas political leader, who was killed along with two of his bodyguards. Hamas, the PIJ, and Fatah then declared an end to the ceasefire (Guardian 2003a). On 6 September 2003, Abbas resigned in frustration with Arafat, and particularly his unwillingness to cede control of the Palestinian security forces (Guardian 2003b). In the mean time, violence continued apace. The Year 2004: Continuity and Signs of Change In 2004, the havoc wrought in Israel by Palestinian terrorism continued to decline gradually – this despite several individually devastating attacks, including a suicide bus bombing on 29 January in front of Sharon’s official residence in Jerusalem; in this case, at least ten were killed and 50 wounded. Still, B’Tselem recorded a reduction in Israeli fatalities as a result of terrorism from 185 in 2003 to 108 in 2004. According to IMFA statistics, shooting attacks fell by approximately a third from 2003 to 2004 (from 2111 to 1621), and suicide attacks by more than a third (from 26 to 15), with a 62 per cent reduction in resultant fatalities from 144 to 55 (IMFA 2004b, 2005). At the same time, Qassam rocket attacks rose, but accounted for few casualties. The IMFA statistics emphasize in particular the high number of foiled attacks due to aggressive Israeli counter-terrorist operations, and the large number of Palestinian terrorists who had been neutralized (6964, of whom 959 had been killed).

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On 2 February, Prime Minister Sharon shocked many when, rather than reacting aggressively in response to the suicide bombing near his residence, he revealed that he planned to withdraw Israeli settlements from the Gaza Strip. On 14 March, however, a pair of suicide bombers from Gaza (a rare point of departure) detonated themselves in the port of Ashdod, killing ten Israeli workers. Hamas and the AMB claimed joint responsibility. Sharon responded by canceling talks with the PA leadership. Israeli officials promised “a sustained and relentless strategy of intercepting terrorists,” especially in Gaza. “No one,” they asserted, “is immune” (Urquhart 2004b). Within a few weeks, they would demonstrate the point. The Targeting of Sheikh Ahmed Yassin On 22 March 2004, while Sheikh Ahmed Yassin – a frail, virtually blind quadriplegic confined to a wheelchair – was being wheeled out of early morning prayers in Gaza City and into a waiting car, an Israeli helicopter gunship approached and fired missiles at his party. Yassin was killed instantly, along with both of his bodyguards. Six bystanders were also killed in the resulting blast. More than a dozen civilians were also reported to have been injured, including two of Yassin’s sons. Sheikh Yassin was Hamas’s co-founder and its political (and arguably “spiritual”) leader. The IDF made the following announcement acknowledging his targeting: This morning, in a security forces operation in the northern Gaza Strip, the IDF targeted a vehicle carrying the head of the Hamas terror organization, Ahmed Yassin and his aides. Yassin, who was personally responsible for numerous murderous terror attacks, resulting in the deaths of many civilians, both Israeli and foreign, was killed in the attack. Yassin was the dominant authority of the Hamas leadership, which was directly involved in planning, orchestrating and launching terror attacks carried out by the organization. In this capacity, Yassin personally gave his approval for the launching of Kassam rockets against Israeli cities, as well as for the numerous Hamas terrorist bombings and suicide operations. In his public appearances and interviews, Yassin called repeatedly for a continuation of the “armed struggle” against Israel, and for an intensification of the terrorist campaign against its citizens. The successful operation against Yassin constitutes a significant blow to a central pillar of the Hamas terrorist organization, and a major setback to its terrorist infrastructure. (IMFA 2004c)

After his release from Israeli prison in 1997 (in connection with the failed Israeli attempt to target Khaled Mashal in Jordan), Sheikh Yassin had openly called for violence against Israel, including suicide bombings – thus violating the conditions of his release. In 1989, Yassin had originally been tried, convicted, and sentenced to two life sentences by an Israeli court for having ordered the execution by Hamas of two captured Israeli soldiers (IMFA 2004a). Yassin was also alleged by Israeli officials to have confessed to having ordered the establishment of the military branch of Hamas,

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having overseen the recruiting of terrorists, and to have personally approved the terrorist operations. Israeli authorities may have been further provoked by Yassin’s taunt shortly before the attack that Israel’s response to the Ashdod suicide attacks had been weak, and that such weakness would only provoke further attacks. Israeli authorities had specifically warned that Yassin was a potential target. On 13 June 2003, for example, Israeli authorities specifically stated that Yassin was not immune from Israeli retaliation (Guardian 2004). Indeed, Israel had made a previous attempt to target Yassin on 6 September 2003, when an IAF F-16 dropped a quarterton bomb on a Gaza building Yassin was visiting. The bomb, however, turned out to have been of insufficient force, and Yassin escaped with only minor injuries. Still, Yassin’s targeting produced a major international reaction. The United Nations Secretary General, Kofi Annan, strongly condemned Yassin’s “assassination,” and called on Israel to “immediately end” its practice of “extrajudicial killing” as not only “contrary to international law,” but also counter-productive in relation to “the search for a peaceful solution” (UN News Service 2004). The UN Commission on Human Rights passed a resolution condemning “the killing of Sheikh Yassin” by a vote of 31 to 2 with 18 abstentions (UNPR 2004). The UN Security Council failed to pass a similar motion because the United States vetoed it, claiming it was “silent about the terrorist atrocities committed by Hamas” (UN News Centre 2004). The Israeli Cabinet itself was not entirely of one mind regarding Yassin’s killing. Avraham Poraz, the Interior Minister, opined that the attack “was a bad idea because I am afraid of a revenge from the Palestinian side.” Prime Minister Sharon, however, remained jubilant, insisting that the state of Israel had just eliminated “the greatest arch-murderer of Palestinian terrorism” (BBC News 2004a). He and his Defense Minister vowed that the targetings would continue, and proved as good as their word, hitting Yassin’s replacement within a month. The Targeting of Abdul Aziz Rantisi On the evening of 17 April 2004, Israeli forces killed Sheikh Yassin’s replacement as political head of Hamas, Abdul Aziz Rantisi, with a missile strike on his car. Rantisi had emerged briefly from hiding to visit his family (Myre 2004). Two of Rantisi’s bodyguards are also reported to have been killed in the attack. Israeli army radio noted that Rantisi had habitually surrounded himself with human shields since taking over the political leadership of Hamas, and that this had been the first chance to attack him without producing significant collateral damage. The IDF acknowledged the targeting of Rantisi, and stressed that he “was directly responsible for the killing of scores of Israelis in numerous terrorist attacks” (IDF 2004). Israeli officials accused Rantisi of having been planning a large terrorist attack to solidify his leadership (Fox News 2004). Rantisi had previously been arrested by the Israelis several times, and on 10 June 2003 had survived a previous missile attack on his car from a helicopter which killed two bystanders and injured at least 30. The targeting of Rantisi drew a degree of international criticism, but overall it was not as sharp or as stern as that following the killing of Sheikh Yassin. The UN Secretary General’s office stated: “The secretary-general condemns Israel’s assassination of Hamas leader Abdul Aziz Rantisi …. He reiterates that extrajudicial

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killings are violations of international law and calls on the government of Israel to immediately end this practice.” Jack Straw, the British Foreign Secretary, stated: “the British government has made it repeatedly clear that so-called ‘targeted assassinations’ of this kind are unlawful, unjustified and counter-productive” (BBC News 2004c). Other European governments made similar protestations, but neither the tone of condemnation nor its breadth rivaled that which followed the death of Sheikh Yassin. Bush administration spokespersons, on the other hand, declined to condemn that attack, reportedly noting “Israel’s right to defend itself from terrorist attacks” (Fox News 2004). This comparatively subdued reaction was no doubt due to Rantisi’s lower profile in relation to Yassin, and to progress toward Israel’s planned (but still fragile) withdrawal from Gaza. But it seems likely that it also reflected a clearer sense of Rantisi’s involvement in Hamas military operations, as well as the fact that the attack had been preceded by a well-publicized Hamas suicide bombing. Hamas of course threatened massive retaliation, but as the weeks passed, little violence materialized. A number of experts have suggested that Israeli targetings significantly reduced Hamas’s immediate ability to respond (and contributed to its eventual willingness to accept a temporary ceasefire) (see, for example, Byman 2006: 104–5). At the same time, most analysts have suggested that the killings of Yassin and Rantisi have considerably enhanced the organization’s popularity among Palestinians (Hroub 2004: 31, 34; Myre 2004). Following Rantisi’s death, Hamas announced that it would no longer make the identity of its leaders public, and for a time it was speculated that the organization had moved to a collective leadership. Some commentators have suggested that the shift to a secret leadership has contributed to difficulties of coordination and motivation (Byman 2006: 104). Slaughter in Gaza and Rulings on the Fence/Wall During the Spring of 2004, Israel also pursued alternate counter-terrorist strategies, particularly in the Gaza Strip. On 17 May, an IDF force entered the Rafah Refugee Camp with the intent to raze or destroy the houses of those connected with terrorist activities and their families. During the two days of fighting and demolition that followed, Israeli forces killed at least thirty Palestinians, many of who were civilians, including some children. Israeli forces were subsequently forced to withdraw from Gaza on 25 May under international pressure (McGreal 2004a). The bad news continued for Israel. On 30 June, the SCI determined that parts of the proposed route of the massive security fence the Israeli government was building partially in the West Bank infringed Palestinian human rights. The SCI was willing, however, to accept the legality of a barrier crossing the green line (the effective pre1967 division between Israel and the West Bank) provided it did not unnecessarily interfere with the lives of local Palestinians. On 9 July 2004, the International Court of Justice issued an advisory opinion on the legality of the separation barrier/ wall. The ICJ determined that “the construction of the wall constitutes action not in conformity with various international legal obligations incumbent upon Israel” (ICJ 2004: paras 137–8). In particular, the ICJ stressed that the fence/wall violated Israel’s obligations as an occupying power under the Fourth Geneva Convention. Israel, which had declined to participate in the ICJ’s proceedings, dismissed the

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ICJ’s advisory on the grounds that it had no jurisdiction and that the fence/wall was a means of self-defense guaranteed under Article 51 of the Charter. The Israeli government amended the fence/wall route to comply with the SCI’s decision. A Terrorist Targeting in Damascus On 31 August 2004, 16 Israelis were killed and over 80 injured by twin suicide bus bombings near Beersheba. The attacks were claimed by Hamas as revenge for the killing of its leaders Yassin and Rantisi earlier in the year. The Israeli government, however, also saw Syrian involvement, and Israeli army chief Moshe Ya’alon announced that Israel would “deal with … those who support terrorism,” including those in “terror command posts in Damascus” (Urquhart 2004a). On 26 September, Izz el-Deen al-Sheik Khalil, a Hamas member living in Damascus whom Israel accused of being the head of Hamas military operations outside the West Bank, was killed by a bomb planted in his car. Israeli sources unofficially acknowledged responsibility for the attack, calling it a response to Hamas’s Beersheba bombings and to Syrian involvement. This was the first Israeli targeting outside of the West Bank and Gaza Strip since the beginning of the second Intifada, and it demonstrated that Israel was both capable and willing to act elsewhere in the Arab world. However, Israel’s success in Damascus was quickly undermined by a bloody operation in the Jabaliya refugee camp. Provoked by Qassam rocket attacks aimed at the Israeli town of Sderot (one of which killed two Israeli children), Israel launched a major military operation in Northern Gaza that included sending tanks and soldiers into the heart of the heavily fortified Jabaliya refugee camp. The result was more than 70 Palestinian fatalities, of which at least 31 were civilians (19 under age 18) (McGreal 2004b; B’Tselem 2007). Although Israel demolished scores of homes, and cleared a six-mile swath along the border in hopes of spotting missile launchers, little was accomplished in the way of reducing missile attacks. The military incursion, in essence, was a bloody failure. Israel did earn severe international condemnation, however, particularly by the UN and its agencies. Arafat’s Death Even beyond its concerns over the construction of the wall and harsh Israeli reprisals, the year was a very difficult one for the PA. On 11 November 2004, the political situation was thrown into turmoil as PA President Yasir Arafat died in a French hospital. In the mean time, the popularity of Hamas rose perceptibly due to the “martyring” of its leaders, and due to the PA’s ongoing inability to protect ordinary Palestinians. In the course of the year, Israeli security forces killed 826 Palestinian civilians, according to B’Tselem. Following Arafat’s death, Israel appears to have suspended targeting operations.

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The Year 2005: A Year of Possibility Hopes of resolving or at least downscaling the conflict rose with the new year. On 9 January 2005, Mahmoud Abbas was elected Palestinian President, a development which many saw as a step towards re-opening of peace talks. On 23 January, Abbas succeeded in eliciting agreement to a temporary ceasefire from Hamas and the PIJ. Less than a month later, at a summit at Sharm al-Sheikh on 8 February hosted by Egypt’s President Hosni Mubarak, Abbas and Sharon formally agreed to a ceasefire. On 17 and 18 March, Abbas negotiated an agreement with Hamas, the PIJ, Fatah’s military wings, and several smaller resistance organizations for a tahdi’a, or a voluntary “period of calm” until the end of the year. Efforts to work out a final status agreement with Israel, however, were largely deferred pending the Sharon government’s planned unilateral withdrawal from the Gaza Strip, which went ahead relatively smoothly in the latter part of August 2005. The Sharon government employed the IDF to complete the eviction of 8500 Israeli settlers from 21 Gaza settlements. Moreover, the year as a whole saw a sharp drop in overall violence and casualties on both sides of the conflict. B’Tselem reports only 50 Israeli civilians and security forces killed by Palestinians (B’Tselem 2007). Even more strikingly, the number killed due to suicide attacks fell to 23 and the number of injured to around 160. The Israeli Ministry of Foreign Affairs and the Intelligence and Terrorism Information Center (ITIC) reported continuing reductions in the number of terrorist attacks being carried out in connection with the Intifada, including a drop of 40 per cent in total attacks from 2004 (2365 attacks, as opposed to 3871 in 2004). More specifically, they reported a decline in suicide attacks from 15 (with 119 having been thwarted) in 2004 to 7 (with 15 having been thwarted) in 2005 (ITIC 2005: 3). Concurrently, B’Tselem reports 190 Palestinians killed by Israeli Security forces – a more than 75 per cent fall from the 826 of 2004. One contributing factor in for the sharp reduction is that Israel, which had not carried out a terrorist targeting operation since October of 2004, continued its moratorium through July 2005. At that point, it renewed operations, but at a relatively low level. Only nine operations are reported by B’Tselem in the course of the remainder of the year, with 22 targets killed and seven non-target casualties. As the data suggests, however, 2005 did not sustain the hopes with which it began, but ultimately succumbed to a slow slide back into violent confrontation. In fact, the problems surfaced almost immediately after Sharm el-Sheikh. On 25 February, a suicide bombing outside a seafront Karaoke club in Tel Aviv took five Israeli lives and wounded around 50. The PIJ claimed responsibility. The Israeli government demanded that Abbas take strong action against Palestinian terrorist groups, but refrained from making reprisals itself. However, a second suicide bombing occurred on 12 July outside a shopping center in Netanya, killing five and wounding over 80, and this did galvanize an Israeli response.

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Targetings of Sayid Tziam, Mohammed Khalil, and Four Hamas Militants On 15 July, an Israeli helicopter destroyed a vehicle near Gaza City carrying four senior Hamas militants (Assem Marwan Abu Ras, Adel Ghazi Hania, Saber Muhammad Abu Assi, and Amjad Anour Arafat) and weaponry that included multiple Qassam rockets. Two days later, an Israeli sniper in Khan Younis shot Sayid Isa Jabar Tziam, a local Hamas commander whom the IDF accused of being “involved in numerous terror attacks in which Israelis were murdered” (IDF 2005). The ceasefire had been broken. Yet, with the upcoming Gaza pull-out planned for August, both sides seemed reluctant to escalate the conflict further. Once the withdrawal from Gaza was complete, however, there was no barrier to renewing the conflict. On 28 August, a suicide bomber blew himself up at Beersheba’s central bus terminal, wounding several. On 25 September, an Israeli aircraft fired a missile and struck a Mercedes on the coastal road near Gaza City carrying Mohammed Khalil, the PIJ’s top militant in Southern Gaza, killing him and wounding two bystanders. On 26 October 2005, the PIJ responded to a further targeting with a suicide bombing at the main market at Hadera that killed six and wounded 30 (Urquhart and McGreal 2005). Israeli targetings then continued as the violence flared up, with one operation in both October and November, followed by three separate helicopter attacks in the Gaza Strip, killing eight targets in December. Two Big Shake-ups in Israeli Politics The end of 2005 also featured two major changes in Israeli politics. On the Israeli side, on 11 November, the new Labor leader, Amir Peretz, withdrew his party from the government coalition, precipitating an election that was eventually scheduled for 28 March 2006. On 21 November, Prime Minister Ariel Sharon abandoned the governing Likud Party, a majority of whose members had opposed his unilateral withdrawal from Gaza, and set up a new centrist party called Kadima which shot immediately to the top of the Israeli polls. However, on 18 December, Sharon suffered a minor stroke, and on 4 January 2006, a major one that left him in a coma. The new Kadima Party was left to face the election under its Deputy Leader, Ehud Olmert. The Year 2006: The Conflict Rekindled The major political realignments in Israeli politics were quickly echoed in a transformative political development in the PA. Hamas, credited by many with having forced the Israelis out of Gaza with its campaign of terror, won the 25 January 2006 legislative elections, and formed the new Palestinian government with Ismail Haniya as Prime Minister. The Hamas government refused to recognize the state of Israel, renounce violence, or accept the agreements (such as the Oslo Accords) negotiated by previous PA governments. Israel then refused to transfer the $55 million of revenue it collects on behalf of the PA each month. The Hamas government sought funding elsewhere (most notably from Iran and the Arab world), but found itself in a serious financial crisis. None the less, it staunchly refused to

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budge from commitments laid out in its Charter not to recognize Israel. Indeed, according to its Charter, Hamas remains committed to the “obliteration” of Israel and its replacement by a purely Palestinian Islamic state. Its claim to all of Palestine (including Israel) “until judgment day” is set out explicitly in Article 11. The means by which it is to be reclaimed are spelled out in Article 7 – by fighting the Jews. In the Israeli election of 28 March 2006, Deputy Leader Ehud Olmert led the new Kadima Party to a plurality of the vote and 29 seats on a platform of unilaterally settling Israel’s final borders should Hamas not budge on its refusal to recognize and negotiate with Israel. Olmert formed a governing coalition with Labor, and announced plans to proceed with a unilateral withdrawal and setting of boundaries in a year if the position of the PA government did not change. In the mean time, the Israeli government slowly intensified its policy of targeting terrorists in the occupied territories as the level of diplomatic conflict between Israel and the Hamas government intensified. Intensifying Conflict with the PA The early part of 2006 was marked by a slow re-escalation of the Palestinian–Israeli conflict. Over the first four months of the year, according to B’Tselem, 12 Israelis were killed by Palestinian terrorist actions. Most notably, a suicide attack on 17 April at the Old Central Bus Station in Tel Aviv claimed at least nine lives and injured more than 60. Over the same period, almost 90 Palestinians were killed by Israeli Security Personnel. The period was similarly marked by a ratcheting up of the Israeli program of terrorist targeting. According to B’Tselem, during the first four months Israel killed 15 Palestinians in six operations, of whom 11 were intended targets. Seven further Israeli targetings were reported over the Summer, and two in the Fall. Together, they eliminated 11 targets and resulted in 20 non-targeted fatalities (B’Tselem 2007). Still, the year’s most intense conflicts were the war in Lebanon in July and August, and the Israeli military operations in Gaza. Both Israeli campaigns were precipitated by incursions across Israel’s borders resulting in the killing and kidnapping of Israeli soldiers. On 25 June 2006, Palestinians led by Hamas and the PRCs employed a tunnel from the Gaza Strip to slip under the Israeli border and to attack troops stationed on the Israeli side. Two IDF soldiers were killed in the attack, four injured, and Corporal Gilad Shalit was captured and spirited back across the border. The kidnappers justified the operation as an attempt to free Palestinian prisoners, particularly women, jailed in Israel. The Israeli government responded to the attack with a large-scale military incursion into Gaza on 28 June designed to find and free Corporal Shalit. Intensive operations in the Gaza Strip would continue for several months, but did not succeed in finding or freeing Corporal Shalit. They did result, however, in the deaths of hundreds of Palestinians as well as several Israeli soldiers (Carter 2006: 200).

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War in Lebanon On 12 July 2006, under cover of missile attacks, Hizbullah conducted a raid from Southern Lebanon across the Israeli border, killing three Israeli soldiers and taking two others hostage (Ehud Goldwasser and Eldad Regev). The Israeli Prime Minister declared the attack an “act of war,” and the Israeli Army was mobilized (CBC 2006). Israeli troops immediately moved across the border, and by the following morning, Israeli jets were bombing Beirut Airport and other airfields. The fighting only ended on 14 August 2006, when a United Nations Security Council ceasefire went into effect. After 34 days of fighting, the Israeli advance was still short of the Litani River (their stated objective in the final few days of the conflict), which lies around 30 km to the north of most of Israel’s border with Lebanon. Israeli troops withdrew shortly after the end of fighting as new UNIFIL (United Nations Interim Force in Lebanon) troops began to arrive to patrol the south. Lebanese government sources estimate over 1000 Lebanese killed in the course of the fighting, although there is some controversy over the numbers as well as the proportion of those who were civilians. IDF sources claimed to have identified 532 Hizbullah militants killed (including names and addresses), and estimate 200 more may have been killed (Rabinovich 2006). Meanwhile, Israel lost at least 43 civilians to Hizbullah missile attacks over the border, which continued throughout the conflict at rates as high as 200 and more a day (over 4000 missiles in all). The IDF reported around 120 Israeli soldiers killed in combat. Hundreds of thousands of civilians on both sides were displaced. Israel was also subject to enormous international criticism, and Hizbullah is generally reckoned as the victor in the conflict (see, for example, Economist 2006) The Israeli perception that the IDF failed in its war objectives (because it neither recovered the kidnapped soldiers nor destroyed Hizbullah) led to the resignation of IDF Chief of Staff Dan Halutz on 17 January 2007 (Harel and Benn 2007; CNN 2007b). In this case, a full-scale invasion proved a counter-productive response to terrorist attacks. Targetings Around the War Israel continued its targeting policy in the lead-up to the war with Lebanon, carrying out an air strike against the PIJ on 20 May (killing senior militant Mohammed Dahdouh, but unfortunately also four people in a nearby car), and three operations in June, killing leading activists of the PIJ, the PRCs, and Hamas (Eldad 2007). Israel also carried out an operation on 9 August, during the war with Lebanon. Two helicopters fired missiles into a building in Jenin, killing Osama Attili and Mohammed Atik, whom the IDF identified as two “leaders of Islamic Jihad’s military wing” (Jerusalem Post 2006). Finally, Israeli forces carried out at least four attacks over the remainder of the year, all air strikes employing missiles, two on 12 and 14 October, and two on 8 and 20 November. In the first attack, the IAF killed the Hamas Group Commander for Beit Lahiya along with three operatives by destroying their car. In the second, an Israeli jet fired missiles that struck a car traveling in Gaza City, killing one AMB operative and injuring two others. The November attacks were both carried out in Gaza. In the first, IAF helicopters struck a car traveling in the southern Gaza Strip with a missile, killing Ahmed Awad, the head of Hamas’s Qassam firing group

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in the Gaza Strip, along with another Hamas operative (Brannon 2006). Similarly, in a second attack, the IAF killed two Hamas field commanders, Abdel Khader Habib and Basel Obeid, while they were driving in the Sajaiyeh section of Gaza City. In this case, six passers-by were also killed in the attack (Isacharoff 2006). On 26 November 2006, Israel and Hamas agreed to a ceasefire: Hamas would stop launching Qassam missiles from the Gaza Strip, and Israel would stop targeting Hamas militants. However, Israel has continued to be struck by missiles launched from the Gaza Strip. By 21 December 2006, it had been hit by more than 60. In March 2007, Israel renewed targeting operations. Supreme Court of Israel Ruling on Targeted Killings On 14 December 2006, the SCI issued its ruling on a petition challenging the legality of targeted killings (The Public Committee Against Torture et al. v. The Government of Israel et al. (PCATI)). The SCI concluded that terrorist targetings are, in principle, neither clearly legal nor illegal. The SCI’s view was that the legality of targeting operations depended on the specifics of the individual case: As we have seen, we cannot determine that a preventive strike is always legal, just as we cannot determine that it is always illegal. All depends upon the question whether the standards of customary international law regarding international armed conflict allow [a] preventative strike or not. (SCI 2006: para. 60)

In light of this determination, the SCI set out general guidelines as to what was required to ensure the legality of a terrorist targeting under international humanitarian law. Its guidelines can be summarized as follows. Targeting requires: First, “convincing and well-formed information” regarding the individual’s terrorist activities. Second, a terrorist “cannot be attacked if a less harmful means can be employed” to prevent attacks. Third, only terrorists who present a direct threat now may be subject to targeting. They “are not to be attacked for the hostilities … committed in the past.” Fourth, an independent, thorough investigation must be conducted after the attack to determine “the precision of the identification of the target and the circumstances of the [terrorist targeting].” Fifth, every effort must be made to minimize harm to innocent civilians, and where it cannot be avoided “harm to innocent civilians caused during military attacks (collateral damage) must be proportional.” (Yoaz 2006; SCI 2006: para. 39)

A more detailed examination of the SCI’s findings will be provided in Chapter 5.

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Hamas Coup in Gaza In fighting between 10 and 15 June 2007, Hamas militias routed their Fatah rivals and succeeded in completing an armed take-over of the entire Gaza Strip. The ICRC estimated that around 116 people were killed in the fighting and 550 injured (ICRC 2007). On 14 June, Palestinian Authority President Mahmoud Abbas responded by declaring a state of emergency, dismissing the Hamas-led government of the Palestinian Authority, and later replacing it with a government led by political independent Salam Fayyad. One important effect of this development has been to divide the West Bank and the Gaza Strip politically and to greatly complicate negotiations with Israel over an independent Palestinian state. Hamas continues to reject any recognition or direct negotiation with Israel, and continues to carry out attacks against Israeli civilians – most frequently by launching Qassam missiles at Israeli towns across the border. Israel continues to employ terrorist targeting today, primarily against terrorist organizations operating in the Gaza Strip. Conclusion: Israeli Targeting Activities During the Second Intifada The foregoing overview illustrates a number of features of Israeli targeting operations after September 2000. In the first place, Israeli targeting operations exhibited several new and striking features. For example, Israel began to practice terrorist targeting openly, officially acknowledging many of its operations. Its targetings also began to take on more of the features of military rather than covert operations, for instance employing Apache helicopters and F-16 fighters. In the majority cases, the Israeli government specifically claimed that those it targeted were active militants or leaders of terrorist organizations, and tied them to specific attacks against Israelis. In many cases, the claim was also made that the terrorists were involved in planning further terrorist attacks against Israelis, and in some cases, that they were on their way to carry out terrorist attacks when they were intercepted. In the bulk of cases, the terrorist organizations did not dispute the Israeli accusations that targets were involved in their activities, and indeed, in many cases the Israeli claims were confirmed. However, it is worth stressing that there were some exceptional cases, such as that of Dr. Thabet, wherein the involvement of the target in terrorist activities is sharply disputed. Moreover, even when charges of active terrorism were advanced against targets, no actual evidence was usually produced in support of Israeli claims, as would be required in a judicial proceeding. Important trends are also evident in the pattern of Israeli terrorist targetings. Figure 3.4 presents Israeli targeting operations against a background of overall fatalities on both sides of the conflict. The graph suggests several points of interest. The first is that the overall number of attacks and casualties seems very high, even by Israel’s own historical standards. Compared to the known attacks in the 1980s or 1990s, the figure of 134 operations resulting in 367 fatalities between October 2000 and July 2007 indicates a radical escalation of the targeting policy. If the policy represents a violation of international law and human rights, then it has become a violation on an extraordinary and sustained scale. It is no wonder, then, that it

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Figure 3.4 Second Intifada targetings and fatalities Source: B’Tselem (2007): see notes to Figures 3.1 and 3.3.

has attracted increasing attention from human rights organizations both within and outside Israel. On the other hand, the overall numbers of attacks and casualties seem small when compared with the numbers of terrorist attacks carried out against Israel in the course of the second Intifada (27,905 total attacks), and the over 1000 casualties that they have produced. Moreover, the overall targeting numbers are further dwarfed when compared with the overall Israeli effort to suppress the violence of the second Intifada, as well as the overall number of Palestinian fatalities produced (an estimated 4293 as of September 2007). This gap underscores a point that is often raised in defense of targeting policy – that other strategies, such as re-occupations, incursions, and massive arrests often turn out to be far more lethal and disruptive and galvanize more reaction and resistance than terrorist targeting. A second point is that since the beginning of targeting operations in November 2000, the monthly rate of targeting has varied pretty steadily between zero and six except for the month of June 2003, in which it jumped to ten. The overall rate exhibits a rise–fall–mild rise pattern. It climbed slowly into later 2002, peaked in mid-2003, fell off entirely in late 2004 and early 2005, only to be revived, but at a lower rate than 2000–2001. Thus far, the revived scale of operations has generally remained in the zero to three operations per month range. A third point is that the overall number of targeted to non-targeted fatalities stands at 218 to 149, or around a 1.5:1 ratio. The category of non-targeted fatalities, it should

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be pointed out, is not necessarily identical to that of civilians or even noncombatants (indeed, these designations are hotly disputed), although the total obviously includes a great number of these. In some cases, however, unintended fatalities include active members of terrorist organizations who are themselves involved in carrying out or supporting attacks on Israel (but who were not specifically intended targets). The broad distinction between intended and unintended targets is therefore more useful for aggregation and assessment of the precision and control of the targeting strikes. Non-targeted fatalities have been a feature of targeting operations from the beginning of the second Intifada campaign, and reached a sharp monthly peak in June 2003 (with an appalling 24 unintended deaths), the same month in which the number of operations peaked. However, elevated numbers of non-target fatalities do not necessarily cluster in months with elevated numbers of operations. For example, the next highest totals of non-target fatalities (12 in July 2002, 10 in July 2006, and 9 in May 2007) all occur in months in which only one fatality-producing terrorist targeting was recorded. A fourth point of importance is that the evidence gathered here seems to contradict two frequently heard claims about targeting – specifically, the claim that targetings precipitate an escalating cycle of violence, and the opposed claim that they act to suppress levels of terrorist violence. In fact, variations in the numbers of targeting operations do not appear to correlate consistently with either increases or decreases in the level of violence in the following three months. This finding is based on the B’Tselem data for the period from October 2000 through to July 2007. Vector autoregression was used to model the effects of targeting on civilian deaths. The model was estimated with two different dependent variables – Israeli deaths and Palestinian deaths – and three different versions of the targeting variable – number of targeting operations, number of targets killed, and number of non-target killings. Thus, there were six separate model estimations. The models contain lagged values of the dependent variable and the independent variable out to three months, which was the appropriate lag length suggested by various selection criteria. The results uncover no connection between targeting and civilian deaths in either a positive or a negative direction. None of the individual coefficients for the targeting variables in any of the models is statistically significant (for example, a p value of less than 0.05). Table 3.1

Granger causality tests Israeli Deaths

Palestinian Deaths

Number of Targetings

3.7483 (0.290)

1.4484 (0.694)

Killings of Targets

2.4915 (0.477)

2.064 (0.559)

Killings of Non-targets

3.4441 (0.328)

.58708 (0.899)

Note: Chi-square values are reported; p values are in parentheses. Results are taken from vector autoregression models with three lags.

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And, more conclusively, Granger causality tests, which test for the conjoint effect of the lagged independent variables, reveal no statistically significant relationships (see Table 3.1). One important caveat to these results must be noted, however. While targeting operations show no consistent impact on fatalities in subsequent months, correlations between the values in the same month do show a weak but statistically significant relationship. For example, number of targeting operations shows a 0.24 correlation with Palestinian fatalities in the same month, and a 0.28 correlation with Israeli fatalities. Yet the significance of these weak correlations is not clear. In part, for example, the increased Palestinian fatalities may be explained by the effects of the targeting operations themselves. Moreover, because targetings and fatalities are organized by month, it is not clear in which direction, if any, the causation is operating: that is, it is not evident whether increased Israeli fatalities are resulting in increased targeting operations, or vice versa. Finally, it may equally be that both targeting operations and fatalities are being influenced by a third variable (such as spikes in attempted terrorist attacks). What is clear from these results, however, is that at least some pattern of relatively immediate retaliation by terror organizations to targeting operations cannot be ruled out. Yet even if such a relationship is assumed to exist, it would not comprise the “escalating cycle” of violence that is sometimes said to follow from targeting operations. The relationship between targeting operations and terrorist attacks will be examined in greater detail in Chapter 6. A final point of importance is that the overall numbers show a rise in terrorist attacks into 2001 (with both Israeli and Palestinian fatalities peaking in early 2002), and a general falling off thereafter in the numbers of terrorist attacks. One obvious initial contributing factor to this decline was Operation Defensive Shield and the re-occupation of the West Bank. More recently, it appears likely that the fence/wall has played an important role. Defenders of targeting have also argued, however, that a great deal of the reduction in the number and lethality of terrorist attacks is attributable to the cumulative effect of terrorist targeting (Byman 2006: 103–5; Luft 2003). This explanation will be examined in greater detail in Chapter 6. In summary, then, the second Intifada has imposed unprecedented levels of terrorism on Israel’s civilian population. The IMFA reports 27,905 terrorist attacks to the end of 2006 (see Figure 3.2). The IDF estimates of Israeli casualties as of 15 January 2006 are 1084 killed and 7633 wounded (IDF 2006). At the same time, the conflict has resulted in even greater losses on the Palestinian side. B’Tselem estimates 4213 fatalities by July 2007 (B’Tselem 2007). One of Israel’s main strategies to reduce terrorist violence has been a renewal of terrorist targeting. In fact, Israel has employed hitherto unprecedented levels of terrorist targeting in the course of the second Intifada. Israeli terrorist targetings have also been unprecedented in that they have increasingly been carried out officially and in the style of military operations. The targeting operations appear to have been directed largely at active militants, some of whom have been actively engaged in operations against Israelis. Operations have been almost exclusively limited to the West Bank and Gaza Strip. Israeli targetings have killed 367 Palestinians, 149 (or around 40 per cent) of whom were not intended targets. The statistical evidence gathered by

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B’Tselem suggests that such operations are correlated neither with increases nor decreases in the levels of either terrorist violence, at least in the short run (that is, in the three months following operations). In recent years, however, Israel has ceased to be the only significant source of data regarding terrorist targeting. The United States has adopted what is in many key respects a parallel program. It is to the examination of the US case that the next chapter turns.

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Chapter 4

The Development of the US Terrorist Targeting Policy The historical development of the United States’ policy of targeting terrorists has been very different from that of Israel’s. While Israel “has been involved throughout its history in targeting operations,” the United States only began a systematic and sustained terrorist targeting program in 2001. In the five years following the attacks of 11 September 2001, however, US officials have unofficially acknowledged at least 19 successful strikes against terrorist targets. Seven strikes have been widely reported, most of which were carried out by Predator drones (Meyer 2006; Machon 2006). In 2007, the US carried out at least three additional operations in Somalia (Sanders 2007). Obviously, the density of US operations does not approach those of Israel, but the US does appear today to be pursuing a serious and sustained terrorist targeting policy. Again in contrast with the Israelis, the US targeting operations have also been mainly carried out by its foreign intelligence arm, the CIA, while Israeli operations since 2000 have been mainly carried out by the military. Moreover, while the Israelis over that period have pursued terrorist targeting as official government policy, the US policy remains unofficial. In the US case, then, terrorist targetings clearly fit within the general classification of covert operations, and the more specific sub-classification of unofficial “special operations” programs. The US is also reported to have employed a targeting policy in Iraq following its 2003 invasion (Banks 2007: 122).1 The limited information coming out of Iraq at the moment does not permit any comprehensive overview of operations there. However, the case that has been reported in the most detail – the air strike that killed Abu Musab al-Zarqawi and several of his associates – is included in the list of cases at the end of this chapter. What is perhaps most striking about the adoption of terrorist targeting by the US is that it had previously looked like a rather unlikely candidate to pursue such a policy. For one thing, it is the only country with a domestic legal prohibition on assassination (Executive Order 12333). Moreover, the main reason why this order exists is the disastrous and embarrassing failure of the US’s foray into clandestine special operations abroad, including assassination operations, in the 1950s, 1960s, and early 1970s. These unhappy memories might have been expected to have argued strongly against the adoption of a new form of lethal foreign covert operations around the turn of the millennium. 1 Ten of the 19 successful strikes against terrorist targets unofficially acknowledged by US officials are reported to have occurred in Iraq in a single month in 2005.

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In fact, across the longer span of its history, the US has exhibited a distinctive discomfort with covert operations abroad in both of their two main forms (but especially in the second) – the first being espionage (or intelligence-gathering), and the second being special operations (such as subversion, sabotage, and paramilitary actions, including targeting). Indeed, it has been argued that the US only institutionalized a capacity for covert operations, and particularly special operations, under what were perceived to be exceptional circumstances (specifically, the Second World War, the Cold War, and arguably now the “War on Terror”). Even under these special circumstances, US experience has provided strong lessons against allowing covert special operations programs to develop based on unofficial policies and without rigorous safeguards and oversight. The Church and Pike Committee hearings of the 1970s and the Iran-Contra hearings of the 1980s brought some these dangers to public attention, and the former helped to instigate President Ford’s Executive Order prohibiting assassination. In light of this history, it is sometimes argued that terrorist targeting is contrary to both the letter and spirit of US law. In examining the emergence and development of the US targeting policy, we will dwell briefly on the historical roots of the US distaste for secret special operations programs abroad, the shocking 1970s revelation of CIA involvement in attempted assassinations of foreign leaders, and the issuing of Executive Order 12333 prohibiting any further involvement in assassination. Embarrassed Operations before the Second World War It is often pointed out that the US was little involved in covert operations before the Second World War, and that when it did get involved with them, it was in response to special circumstances, such as its new role in the world and the novel threats it confronted. The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the Church Committee) noted in 1976 that covert action had only been incorporated as a tool of US foreign policy “for the last twenty-eight years” (Church Committee 1976: 152; Knott 1996: 5). A decade later, the Congressional Committees Investigating the Iran-Contra Affair (the IranContra Committees) added an explanation for the reluctant continuation of US covert operations following the end of the Second World War: “peacetime covert action became an instrument of U.S. foreign-policy in response to the expansion of Soviet political and military influence following World War II” (Iran-Contra Committees 1987: 375). Both committee reports reflect the conventional view that covert operations were alien to the US political tradition right up to the middle of the twentieth century; they were a new and dangerous departure precipitated by the US’s leading international role in the second half of the century, especially dangerous when carried out in secret and without adequate oversight. But why was the US such a reluctant latecomer to covert operations?

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Practical and Ideological Considerations The Church Committee suggested that it was a distinctive combination of US geopolitics and national interests that so long delayed its development of institutions devoted to improving its security by gathering and acting upon foreign intelligence. In short, “[s]ecure between two oceans and preoccupied with the settlement of the continent,” the US government had little need to get involved in spying and covert action abroad (Church Committee 1976: 15). To these pragmatic considerations might be added the influence of the US’s revolutionary rhetoric and its continued, if often subtle, influence over the centuryand-a-half that followed. The US achieved independence through a revolutionary war fought against the pre-eminent colonial power of the age with the purpose of establishing what Americans saw as the world’s only free and open republican government. This transformative project contributed to a deep-seated US repugnance at the politics of the Old World, and to fostering confidence that Americans could fashion a new, open politics. This rhetoric of a new politics helped to shape US foreign policy and to predispose it against the systematic use of foreign intelligence, secret agreements and special operations for over a century – stretching from George Washington’s Farewell Address of 1796, which warned future leaders against involvement in European alliances and intrigues, to Woodrow Wilson’s famous Fourteen Points, the first of which called for: I. Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind, but diplomacy shall proceed always frankly and in the public view. (Wilson 1918)

Indeed, President Wilson strikingly illustrated US antipathy to and naïveté about covert operations, when he remarked following the publication of the Zimmerman telegram: “I not only did not know when we got into this war but did not believe it when I was told that it was true, that Germany was not the only country which maintained a secret service” (Sayle 1986: 23). Embarrassed Exceptions These geopolitical and ideological factors may therefore be thought to have conspired to encourage a perceptible US discomfort with covert operations. But their influence should not be exaggerated. They were not so overwhelming as to preclude exceptions in the face of exigent circumstances. A number of recent examinations of the history of US covert operations have revealed that the US government, and most particularly its presidents, were occasionally willing to employ covert operations, usually through the use of the Presidential Contingency Fund (O’Toole 1991; Knott 1996; Carter 2000). In these early exceptional cases, however, the discomfort of the presidents is evident. In 1804, for example, President Jefferson secretly attempted to overthrow the Pasha of Tripoli, who had taken some 307 US officers and men hostage and was demanding a large ransom. The President arranged for William Eaton, a former army

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officer and agent of the State Department, to lead a US-sponsored paramilitary group in an ostensibly private invasion of Tripoli. The venture began so successfully that the Pasha immediately reduced his ransom demands by 70 per cent and agreed to sign a long-term treaty with the US. Despite the imminent prospect of victory, the President quietly settled with the Pasha and terminated the operation (O’Toole 1991: 98–101). In 1811, the US again resorted to the use of covert force. President Madison secretly authorized the insertion of a paramilitary force into East Florida (still officially under Spanish sovereignty) to begin to establish control over the land for the United States. In this case, the venture was so rapidly successful that it became a media sensation; Madison was suddenly confronted with a chorus of questions about government involvement. Embarrassed, he was compelled to disavow the operation, momentarily setting back US plans for annexation (O’Toole 1991: 101–3). For a century after Madison’s repudiation of his own secret paramilitary operation in Spanish Florida, the US government appears to have initiated no covert military actions abroad. That does not mean, however, that it abandoned all use of subversion. A few decades later, President Polk secretly used covert agents and subversion in promoting the annexation of Texas, in resisting British subversion in California, and in prosecuting war with Mexico. A half-century later, Theodore Roosevelt would give encouragement to the Panamanian revolt against Colombia, leading to the independence of the former in 1903 (Knott 1996: 89–94, 128–36). Yet even in these cases, while the US secretly encouraged politically favorable outcomes, it steered clear of using special operations to pursue them. Pershing’s Expedition: A Precursor of Terrorist Targeting? A last pre-Second World War case helps to reinforce both the initial US reluctance to use special operations, and the pressure to resort to them in the face of unconventional threats to US citizens. In 1916, the US launched a 10,000-soldier punitive expedition across the Mexican border to track down the Mexican revolutionary bandit Francisco “Pancho” Villa. Villa regarded the US as an enemy in light of its recognition of Mexican President Carranza. In March 1916, Villa led a large contingent of men in an incursion into New Mexico that resulted in the killing of 18 Americans (10 soldiers and 8 civilians) (Schmitt 2003: 41). US authorities came to the conclusion that neither border guards nor local authorities were likely to be able to capture or deter Villa. The US government therefore chose to hunt him down in Mexico. Sending US forces openly across the border raised legal issues concerning Mexican sovereignty, and obviously gave Villa advance warning of their intentions. In a case like this, special operations might have offered an especially plausible alternative. A small covert team could avoid the sovereignty issues, and would stand a much better chance of finding and neutralizing Villa. Yet the US chose to openly send a major military expedition across the border with ambiguous orders to respect Mexican sovereignty. This choice expressed a continuing US reluctance to consider special operations well into the twentieth century. The expedition avoided confrontation with the Mexican army, but was unable to track Villa down. Ultimately, General Pershing was compelled to accept the necessity of some type of covert operation to get to Villa. Specifically, Pershing

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resorted to hiring Mexican agents to poison Villa’s coffee. The plot, for which Pershing had no direct authorization from superiors, failed. In its intention, however, Pershing’s plot anticipates some of the features of terrorist targeting. Specifically, it sought to eliminate abroad a direct threat to US civilians who could not effectively be neutralized by arrest (either by US or Mexican authorities). On the other hand, unlike terrorist targeting operations, Pershing’s plot was not authorized or directly carried out by the state or its agents. Moreover, whether Villa is properly classified as a terrorist is open to question (although he was certainly involved in raids that resulted in the deaths of US civilians, and may be interpreted to have been politically motivated). Still, the Villa case foreshadowed challenges and issues that the US confronts today (Thomas 2001: 80–81). The Institutionalization of Covert Operations and First Targeting The Church and Iran-Contra Committees make strong cases that it was the Second World War that carried the US over the threshold into the world of covert operations. It was only on 13 June 1942, following the Japanese attack on Pearl Harbor and the US’s entry into in the Second World War, that President Roosevelt created the first US government institution devoted to foreign covert operations (in coordination with intelligence gathering). This was the Office of Strategic Services (OSS), housed within the War Department and reporting to the Joint Chiefs of Staff (Knott 1996: 156–7). The OSS was organized into three main divisions, one of which was designated the Special Operations Branch (SOB). The SOB focused on physical sabotage and guerrilla warfare behind enemy lines. For example, the SOB ran the notorious Detachment 101, a guerrilla fighting group that operated very successfully behind Japanese lines in Burma in cooperation with Kachin rebels (O’Toole 1991: 406–7). The other two main departments were Secret Intelligence, focused on gathering intelligence and disseminating propaganda behind enemy lines, and Research and Analysis, which focused primarily on assessing diverse intelligence signals, and synthesizing these into daily and weekly briefs for the President and Senior Executive. First Targeting: Admiral Isoruku Yamamoto It is not surprising, then, with the US’s embrace of intelligence and covert operations, that the first real US targeting operation (although not a terrorist targeting) should occur during the Second World War. This was the targeting of Japanese Admiral Isoruku Yamamoto. At first glance, this case may look sharply different from the more recent US targeting operations because it occurred in wartime and against an unambiguous enemy state and to an unmistakable soldier and combatant. But in fact, the US defines its current conflict with terrorists as a war, and defends its actions under the laws of war. It defines al-Qaeda as an enemy belligerent, and as with the case of Admiral Yamamoto, seeks to surgically kill its leadership. The real difference in the cases is that Japan is a state. However, the fact that al-Qaeda is not a recognized state and systematically flouts the laws of armed combat, including the core principle of distinction between combatants and noncombatants, makes them, if

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anything, far better candidates for covert elimination than was Admiral Yamamoto. If Yamamoto’s targeting is accepted as a legitimate act of war, it becomes more difficult to condemn the killing of al-Qaeda leadership in the context of the war on terror. On 13 April 1943, US Naval Intelligence intercepted and decrypted a coded Japanese naval transmission detailing a planned tour by Admiral Yamamoto, the Commander-in-Chief of Japan’s combined fleets. US intelligence believed that Yamamoto was the lynch-pin of the Japanese naval war effort. He was the genius who planned the attack on Pearl Harbor, and the most admired and respected officer in the Japanese navy. With the approval of William Halsey Jr., the Commander of US Naval Forces in the South Pacific, Admiral Nimitz ordered an operation to intercept and destroy Yamamoto’s plane. The 339th Fighter Group of the 347th Squadron based in Guadalcanal was selected for the mission because its P-38 planes, once specially enhanced, would be just capable of making the 430-mile trip to a possible rendezvous point. The crews were only told that their mission involved intercepting “a high ranking officer.” On 18 April, at 9.34 a.m. Tokyo time, 16 US P-38s engaged with Yamamoto’s plane and its escort of six Zeroes, and shot the commander’s plane down, killing him (Agawa 1979: 375–8). Yamamoto’s death is believed by many to have had a devastating impact on Japanese morale and confidence, and some have suggested that the performance of the Japanese navy suffered seriously for the remainder of the war (see, for example, Agawa 1979: 388–90; O’Toole 1991; 396–7; Gross 2003: 360–61). The Japanese, however, did not learn until decades later that Yamamoto had been deliberately targeted in a US operation. Consequently, the US suffered no diplomatic fallout from its surgical elimination of Yamamoto. It therefore appears to have succeeded in weakening the Japanese naval effort in the war at no cost to itself (Richelson 2002: 247; Agawa 1979: 36–74, 388–92). The Creation of the CIA Following the victory in the Pacific, President Truman terminated the OSS on 20 September 1945. Within a year, however, growing pressure from the Soviet Union produced a renewed need for intelligence-gathering and covert action capability. On 22 January 1946, Truman issued a Presidential Directive creating a Central Intelligence Group (CIG). Then, just over a year later, on 26 February 1947, Truman submitted the National Security Act (NSA) to Congress, which, among other things, reorganized the CIG into a permanent independent agency, the Central Intelligence Agency (CIA), reporting to the President through the National Security Council. The NSA legislation created the position of Director of Central Intelligence as the head of the agency. The CIA was intended to act as a central coordination point for national intelligence, and a conduit of critical information to the President. While the NSA did not formally authorize the CIA to carry out special operations abroad, it did enable it “to perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct.” On

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the other hand, it was excluded from all “internal-security functions,” which remained the province of the FBI and the Justice Department (O’Toole 1991: 423–32). The CIA appeared to score several early successes in covert operations, which greatly enhanced its influence within the US political establishment and resulted in an enormous increase in its size and resources. First, with the help of money and propaganda, the agency arranged for Ramon Magsaysay to be elected President of the Philippines in 1953 and helped him to stabilize Philippine democracy by suppressing a guerrilla movement led by the Hukbalahap. In the same year, the agency prevented the Prime Minister of Iran, Dr. Mohammad Mosaddeq, from nationalizing the Iranian oil industry (contrary to Anglo-US interests), by galvanizing public support for the more cooperative Shah. Finally, in 1954, the agency employed a campaign of subversion and deceit, climaxing in tactical support for a limited paramilitary action, to destabilize the left-leaning regime of Jacobo Guzmán in Guatemala, intimidating the President into resigning, and thereby preventing the nationalization of the assets of the United Fruit Company in the country (O’Toole 1991: 454–69). The CIA’s Failures and the Church and Pike Committees Unfortunately for the CIA, its early apparent successes were soon followed by a series of public disasters which, by the early 1970s, led to extensive investigations by both houses of Congress. Prominent among the embarrassing episodes was the shooting down of a US U-2 surveillance plane over the Soviet Union in 1960, the disastrous Bay of Pigs invasion of Cuba in 1961, the CIA’s ill-conceived promotion of Ngô Đinh Diệm in South Vietnam in the mid-1950s, and worse, its later involvement in a coup against him in 1963, and finally, its involvement in crimes which came to light in the early 1970s in connection with the Watergate scandal and the resulting exposure of its domestic spying activities (O’Toole 1991: 467–81). However, possibly the single most important factor leading to Congress’s investigation of the CIA was the agency’s (failed) attempts to assassinate foreign political leaders who were considered hostile to US interests. These latter special operations bear some resemblance to more recent targeting operations, and indeed provided the basis for the Executive Order prohibiting US government involvement in assassinations that remains in force today. Moreover, some commentators have linked recent US terrorist targetings directly with these earlier efforts to assassinate foreign political leaders. In the words of one commentator, the US government “has recently returned to its pre-1976 policy of CIA assassinations, abandoned many years earlier, and now revived along the lines of the controversial Israeli model” (Gray 2004: 175; Duffy 2005: 243–4) These cases are therefore worthy of some detailed attention. The most authoritative sources on these CIA assassination attempts are the findings of the Senate Committee itself. A key point to bear in mind in reviewing the committee’s findings is that there do appear to be some significant differences between the cases it examined and more recent terrorist targetings. Specifically, none of the objects of assassination were involved in any terrorist attacks against US citizens, and nor is it likely that they posed such a threat. Whatever the US complaints against them and their policies,

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there is little doubt that there were other, less violent remedies available. Finally, in each of these cases, the object of attack was a state official, and therefore a protected person under international law and not an acceptable target. Indeed, for legal reasons that will be treated more fully in the next chapter, each of the cases examined by the committee is more appropriately described as an assassination or conspiracy to assassinate, rather than as a terrorist targeting. The Church and Pike Committee Findings In the early 1970s, a great deal of scattered but disturbing information began to reach the public regarding the CIA’s covert special operations, and particularly “black ops” involving serious breaches of the law. Probably the most shocking accusations were of CIA attempts to assassinate (albeit none too successfully) foreign leaders perceived as uncongenial to US interests. These revelations prompted the creation of investigative committees in both houses of Congress in 1975 – the United States Select Committee to Study Governmental Activities with Respect to Intelligence Activities (the Church Committee) and the House Select Intelligence Committee (the Nedzi Committee, replaced five months later by the Pike Committee). The Church Committee in particular took a special interest in the alleged CIA involvement in assassination attempts on foreign leaders. The committees’ main findings are summarized below. Patrice Lumumba and the Congo In the latter part of 1960, the CIA had begun to plot against Patrice Lumumba, President of the newly independent Congo. Belgium’s sudden granting of independence to the former colony in June 1960 had left something of a political chaos. Lumumba’s Mouvement National Congolais (MNC) won a majority in parliamentary elections held in May, and formed Congo’s first independent government on 23 June 1960, with Lumumba as Prime Minister and Joseph Kasavubu as ceremonial President. The political situation, however, proved unstable, and in July, the new government was rocked by the secession of the resource-rich Katanga Province, and the arrival shortly thereafter of UN troops sent to try to maintain stability and prevent war. Lumumba sought Soviet aid to prop up his tottering government. President Eisenhower expressed concerns to Director of Central Intelligence Allen Dulles in August 1960 over the danger of the Congo drifting into the Soviet sphere of influence, and particularly about Lumumba’s intentions. Dulles took Eisenhower’s expression of concern as an implicit authorization for an assassination attempt. The CIA developed a plan to insert a biological poison into Lumumba’s toothpaste or food. It went so far as to transport the poison to the Congo before the situation evolved beyond the need for direct US action against Lumumba. In early September, he was fired by President Kasavubu, but refused to accept his removal. On 14 September, he was forcibly removed by a coup led by Colonel Joseph Mobutu (and supported by the President and the Belgians). He was captured and arrested by Mobutu’s troops on 1 December, and, it is believed, was shot by firing squad in

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Katanga province on 17 January 1961 (Church Committee 1975: 13–67; Schmitt 1992: 653–4). The US was thus not required to act directly against Lumumba, but the committee was disturbed to discover that the CIA had been prepared to do so, and to do so outside of any condition of war with the Congo. It is worth stressing that Lumumba was the legitimately elected leader of his country, and had neither committed any crime nor even voiced any threat against the US. He had only made the mistake of seeking help from the Soviet Union to hold his fracturing country together. The US reason for action was solely that he was perceived to present a danger to the interests of the US, and particularly its political influence in the area. Fidel Castro Probably the most notorious CIA assassination attempts were directed against Cuban President Fidel Castro. Between 1960 and 1965, the CIA was involved in at least eight plots intended to kill the Cuban leader. Obviously, none of the attempts were successful. The reasons for the US’s antipathy are not difficult to divine. On 1 January 1959, after a tough three-year guerrilla campaign, the troops of Castro’s July 26 Movement marched triumphantly in Havana, overthrowing the US-supported authoritarian regime of Fulgencio Battista. A new revolutionary government was quickly proclaimed, and on 16 February, Castro assumed the post of Prime Minister. By June, Castro had begun an extensive program of expropriating the local assets of US corporations. Moreover, the US corporations were only offered compensation at the (artificially low) valuations of their assets that they themselves had reported to the Cuban government for tax purposes. This would become a particularly sore point of contention for decades to come. In the immediate term, the expropriations led first to US trade sanctions, and later to a full trade embargo. Probably the greatest source of US animosity toward Castro, however, was his quickly developing alliance with the Soviet Union and his championing of a socialist model for Third World development. US hostility was sharply heightened by the Cuban missile crisis of the Fall of 1962. Yet several of the CIA attempts on Castro’s life pre-dated either the discovery of Soviet missiles based in Cuba or even the CIA’s aborted Bay of Pigs invasion of 1961. The planned operations actually began with efforts to embarrass rather than to kill Castro, for example by dosing him with LSD before a major speech. With the rising tensions between the two countries, however, the objective soon evolved into assassination. In an early effort, the CIA contracted to pay a well-placed Cuban $10,000 to “arrange an accident” for Castro. When that failed, a second attempt was made to kill him with cigars treated with botulinum toxin. The cigars were sent to Cuba, but they do not appear to have actually been put to use. In a third effort to eliminate Castro, the CIA contracted the infamous Mafia figure John Rosselli to arrange for poison pills to be dropped into Castro’s drink (by a highly placed Cuban official who was heavily in debt to Rosselli). The CIA provided the pills, but the plan fell apart when the Cuban official lost his government position, and thereby his access to Castro.

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Following the Bay of Pigs and the Cuban missile crisis, CIA efforts to eliminate Castro were re-doubled. In 1963, two rather desperate plans were developed, and later abandoned as impractical. The first called for an exotic seashell to be rigged to explode when Castro, an enthusiastic diver, swam over it. The second plan involved a diving suit, developed by the Technical Services Division, infected with a fungus that would cause a chronic skin disease. As additional insurance, the regulator was contaminated with tubercula bacillus (Church Committee 1975: 79–179). In its report, the Church Committee did not find convincing evidence that any of the presidents in power during this period were informed about specific operations. The evidence concerning the CIA directors was more mixed, some implicating Allen Dulles, but there was little to suggest that his successor John McCone was informed. Recently released CIA documents (popularly known as “the family jewels”) confirmed that “at least one plot to kill Castro … was directly approved by CIA Director Allen Dulles” (Zegart 2007). As with Lumumba, US hostility to Castro appears to have been occasioned primarily by political considerations, especially after the Cuban missile crisis. Following the crisis, and the removal of the Soviet missiles, Castro might have been a danger to US interests in the region, but it is difficult to see how he could plausibly be seen as posing an immediate threat to US citizens. At any rate, no armed attack on the US had occurred, no sort of armed conflict existed between the countries, and Castro had committed no crime against the US that could plausibly warrant operations intended to harm or even kill him. Finally, because he is a public official of a sovereign state, operations intended to kill him (outside of wartime) would unambiguously qualify under international law as assassination. Rafael Trujillo A third case the Church Committee examined was the 1961 killing of Rafael Trujillo. Fearing that the dictator of the Dominican Republic would create a revolutionary situation in his country akin to Batista’s Cuba, both the Eisenhower and Kennedy administrations gave strong support, including arms, to a dissident group opposed to him, which the CIA knew planned to assassinate him. On 30 May 1961, the group succeeded in arranging for Trujillo to be shot by his own security forces while driving in his car. The Church Committee was unable to determine whether the CIA knew about the specific plan in advance or whether US weapons were used in the assassination. The committee was none the less concerned that the CIA’s support and encouragement of a group it knew intended to assassinate the country’s leader made the US an accomplice in the crime (Church Committee 1975: 191–216). Evidently, President Trujillo posed no threat to citizens of the US. The US interest in his elimination was driven by worries about US influence in the region, not by domestic security concerns. Moreover, the US had not been attacked and no sort of armed conflict existed between the Dominican Republic and the United States. There is little reason, then, to question the characterization of Trujillo’s killing as an assassination, and any US encouragement of it as complicity in assassination. But in all of these key respects, the case differs sharply from the targeting of the al-Qaeda leadership.

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Ngô Đinh Diệm A fourth case the Committee examined involved the CIA’s involvement in the killing of Ngô Đinh Diệm. In 1963, the United States, already involved in a police action in South Vietnam, gave approval for a military coup which resulted in the killing of President Diệm. Diệm had initially been a US favorite, but had progressively lost favor in Washington by failing to consolidate his country politically against influences from the north, by failing to follow US guidance on economic reforms, and finally, as a result of his harsh crackdown on Buddhist monks who had begun to immolate themselves publicly in protest over his policies. A cable from the Station Chief to the Director of Central Intelligence John McCone specifically supported the assassination of Diệm as a component of the coup. McCone responded that the United States should not “be in the position of stimulating, approving or supporting assassination … thereby engaging our responsibility therefore” (Church Committee 1975: 217). McCone’s decision was passed to the coup plotters, who agreed not to discuss the issue of assassination further with US agents. The coup went ahead on 1 November 1963, and both President Diệm and his younger brother, Ngô Đinh Nhu, were caught and executed the following morning. The Church Committee found that although the US had clearly supported the coup which resulted in Diệm’s death, it had no direct part in, and therefore bore no direct responsibility for, his assassination (Church Committee 1975: 217–24). Yet even if there was some direct CIA approval of the coup plotters’ intention to kill Diệm, the case would hardly have resembled a terrorist targeting such as that of Qaed Salim Sinan al-Harethi in 2002. Diệm was a public official whose country had not attacked the US. Indeed, the US was actively involved in propping up his regime. He obviously posed no direct threat to US citizens. Once again, US hostility to Diệm was driven by political considerations, not security concerns. General René Schneider The final public official whose death the Church Committee investigated was that of René Schneider, the Commander-in-Chief of the Chilean Armed Forces, in 1970. Salvador Allende’s electoral victory in Chile in September 1970 was met with profound dismay in Washington, where National Security Advisor Henry Kissinger regarded him as a socialist likely to abolish further elections and to embark on a transformation of Chile in a Cuban direction (Kissinger 2000: 314–17). President Nixon quickly approved in principle US action to bring about his overthrow, and created a group including Kissinger and CIA Director Richard Helms to oversee the arrangements. The group, however, immediately confronted a major obstacle in the Commander-in-Chief of the Chilean armed forces, General René Schneider. Although by no means a leftist himself, Schneider was a strict constitutionalist committed to serving the elected president. A successful coup therefore required General Schneider’s elimination. At a meeting on 18 September 1970, the group approved his removal.

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The CIA paid General Roberto Viaux and his chief associates at least $120,000 and provided them with tear gas grenades and .45-caliber machine guns with the serial numbers removed in order to “kidnap” the general. The plotters made three successive attempts, on 19, 20, and 22 October. In the final attempt, a gang of Viaux’s men surrounded General Schneider in his car while he was stopped at an intersection in Santiago. They report that the general tried to draw his gun to defend himself, and so they shot him (Hitchens 2002: 56–64). The obstacle to an US-promoted military coup to remove President Allende was thereby eliminated. The coup went ahead on 11 September 1973 under the leadership of the Commander of the Army Augusto Pinochet. President Allende died at the Presidential Palace, either shot by the military or by his own hand. Although the Church Committee concluded that the involvement of the US in the Chilean coup was substantial, there was no concrete evidence that any US official had directly authorized the assassination of General Schneider (or, indeed, President Allende) (Church Committee 1975: 225–54). Evidently, General Schneider was a public figure who had not broken any law (indeed, his “crime” was upholding the Constitution) nor constituted any threat to the US or its citizens. His killing therefore constituted an assassination, and US complicity in it, even if they had only intended to aid in his “kidnapping,” was a serious crime under international law. US involvement in the killing, or the attempted killing, of each of these five public figures was both immoral and illegal, and led the Church Committee both to condemn the CIA’s involvement in assassination and other violent operations overseas, and to seek to severely constrain its latitude to conduct such operations in the future. It must also be acknowledged that these operations were similar to the targeting of terrorists, in that a state arranged, or at least contributed to, the attempted killing of a specific individual abroad. In a number of other key respects, however, it should also be recognized that they were profoundly different from terrorist targeting. In the first place, the figures involved were legitimate leaders of their respective countries, not violent international criminals. As leading public figures, there were established means of legal recourse to address objections to their policies, both diplomatic and judicial. The US had not been attacked and was not at war with their countries, and had no legal right to use force against them. Moreover, they constituted no direct threat to the US or its citizens. The painful truth is that the US, through the CIA, undertook or supported violent, and in some cases lethal, actions against these leaders because they posed a threat to US political and economic interests. Such actions are profoundly different from targeting terrorists who have taken American lives, intend to take more, but who are effectively immunized from legal redress through their protection by countries which are either sympathetic to them or are unable to bring them to justice. There are also good reasons to think that these differences are important. One such reason will be developed in the next chapter: that is, the elements that most clearly distinguish the cases examined by the Church Committee – the killing of public officials for political reasons – are precisely the elements that define political assassination, a practice clearly prohibited under international law. Whether terrorist targetings must also fall under this rubric is less clear.

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Phoenix Program There was one other area of CIA activity examined by Congress that had some superficial affinity with terrorist targeting. Specifically, Congress examined the organization’s involvement in what became known as the Phoenix Program (or Phụng Hoàng) in Vietnam. The program was initially developed under Special Presidential Assistant Robert Komer, who had been assigned responsibility for reinvigorating the counterinsurgency effort in Vietnam. The program was developed under the title of Intelligence Coordination and Exploitation in 1967, but came to be known as the Phoenix Program particularly following the Tet offensive in January 1968. The purpose of the program was to “neutralize” members of the Vietcong civilian infrastructure (VCI), either by “rallying” them to government side, “capturing,” or “killing” them (Andradé 1990: 72–87, 287). The VCI was a pervasive web of covert agents in South Vietnam, especially in the countryside, working to advance the interests of the North by destabilizing the government. As Dale Andradé, the author of Ashes to Ashes: The Phoenix Program and the Vietnam War, puts it aptly, the VCI “was basically a miniature government reproduced down to village level throughout South Vietnam” (Andradé 1990: 1). The Phoenix Program was largely organized and directed, particularly in its initial early stages, by US advisers, and the CIA in particular, although most actual operations were undertaken by South Vietnamese Provincial Reconnaissance Units (PRUs) or police. According to the testimony of William Colby, the senior CIA officer, to Congress: Americans had a great deal to do with starting the program … we had a great deal to do in terms of developing the ideas, discussing the need, developing some of the procedures, and so forth...maybe more than half the initiative came from us originally. (Colby 1971: 209–10)

In particular, Americans were responsible for setting the monthly quotas for VCI neutralization, which appear to have ranged as high as 1800 VCI a month in 1969. As US involvement in the war wound down, however, US involvement in the Phoenix Program diminished, and by August 1971 it appears that the program was an almost wholly South Vietnamese affair. The Phoenix Program attracted widespread criticism following the Congressional revelations because many “political officials” as well as “many civilians who supported the VC, but were not cadres, were assassinated or murdered” (Moyar 2007: 224). Journalist Michael Drosnin, for example, described the Phoenix Program as “a secret war not aimed at the enemy’s soldiers but its civilians”; Douglas Valentine, author of The Phoenix Program, argues that: “Central to Phoenix is the fact that it targeted civilians, not soldiers” (in Moyar 2007: 224).2 Yet it is precisely in this key respect that the Phoenix Program differed sharply from terrorist targeting, which is by definition restricted to active terrorist threats – not civilians or public 2 Even historians who charge that the harm done to civilians has been greatly exaggerated allow that there were at least some cases where civilians and political officials were killed (Moyar 2007: 229).

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officials. Moreover, terrorist targeting is restricted to threats who cannot otherwise be neutralized, which was not the case with the civilians and political officials killed under the Phoenix Program. Further, terrorist targeting, at least as it is described here, involves a country threatened by terrorist attack authorizing its agents to undertake operations against a specific, named threat. It is not clear to what degree any of these features apply to Phoenix Program operations, where the CIA set quotas but much of the control over operations was in other hands, and more so as time passed. Finally, terrorist targetings are characteristically carried out overseas, where governments cannot or will not act to neutralize terrorist threats. The Phoenix Program was part of a broad counter-insurgency campaign wherein both South Vietnamese and US forces were present and potentially capable of engaging with threats. In all these respects, therefore, the Phoenix Program must be sharply distinguished from terrorist targeting today. Church Committee Recommendations In light of the information brought to light in its inquiry, the Church Committee concluded that the CIA had clearly been involved in some illegal efforts to assassinate foreign leaders (most notably Castro), but that the degree to which the US presidents and even the CIA directors were informed and approving was unclear. In most of the cases (including Lumumba, Trujillo, and Diệm), the evidence available in the mid-1970s did not show that the CIA had directly participated in, or authorized, assassination. While none of the individual operations were designated as renegade, there was recognition that certain branches of the CIA were operating independently and without adequate oversight. Specifically, the committee offered three central findings: (1) due to a breakdown in the CIA’s command and control structure, it was possible to mount assassination plots without express authorization; (2) many of the officials involved in the plots believed them to be permissible (although they were not); (3) communications broke down between those in charge of the plots and their superiors. This breakdown resulted not only from the failure of officers to keep their superiors informed, but also from the failure of superiors to make clear that assassination was an impermissible instrument of foreign policy (Schmitt 1992: 657). The Church and Pike Committee findings led to the creation of powerful and permanent congressional committees assigned to oversee future US intelligence activities – the United States Senate Select Committee on Intelligence, created on 19 May 1976, and the House Permanent Select Committee on Intelligence, created on 14 July 1977. The 1980 Intelligence Oversight Act established these two powerful committees as the sole oversight committees for the CIA. The Church and Pike Committee findings also helped to prompt the Foreign Intelligence Surveillance Act of 1978 and the creation of the Foreign Intelligence Surveillance Court which oversees requests for surveillance warrants on alleged foreign agents operating within the US.

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Anti-assassination Executive Order In June 1975, once the Church Commission investigations had begun, President Ford formally announced his opposition to assassination and banned its use during his administration. The following year, he issued Executive Order 11905 formally banning assassinations. It provided that “no employee of the United States government shall engage in, or conspire to engage in political assassination.” Subsequent administrations have not only maintained the ban, but have clarified it. In 1978, President Carter issued Executive Order 12306, which repeated the exact language of Ford’s order with one small change. Carter’s version eliminated the word “political,” which in Ford’s version had qualified the term “assassination.” Reagan too, following his election, issued a revised version of the order, this time as Order 12333. Reagan repeated Carter’s text, but added a new section below, reading as follows: “Indirect Participation: No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this order.” This addition extended President Ford’s prohibition of “conspiring to engage in assassination” to any participation in any operation which involved assassination, whether or not US agents themselves were to be involved in the assassination. Reagan’s order has never been repealed, and remains in force today. However, the Reagan administration interpreted the prohibition fairly narrowly, particularly in relation to military operations abroad; for example, they saw the 1986 air strike on Libya as fully consistent with the Executive Order even though one of the targets of the operation was clearly Mohammar Qaddafi. Subsequent administrations have concurred in interpreting the order narrowly. Following the Church Committee Report and enactment of Executive Order 12333, a strong consensus against assassination as an instrument of state policy emerged, both in the general public and the government. The profound repugnance at the public revelations of the CIA’s special operations reinforced the deeper, historical US distaste for clandestine operations, and has tended to render assassination or anything that looks similar to it anathema in US political debate (see, for example, Lotrionte 2002: 85; Jenkins 1987: 1–2) This impulse reflects the wholly legitimate democratic desire that government activities be conducted openly, subject to public scrutiny. However, it is worth stressing that the cases to which the Church Committee was responding in the mid-1970s were very different in nature than more recent CIA efforts to kill, for example, Osama bin Laden or Abu Musab al-Zarqawi. In reviewing the details of these more recent CIA covert operations, however, it will be helpful to first briefly consider the conditions that prompted them, and in particular the emergence of mass terror attacks against the US and its citizens, especially by alQaeda, and also the degree to which the US itself has contributed to the emergence of those conditions. The Development of Anti-US Terrorism and US Counter-terrorism The various strands of the “new terrorism,” with its characteristic indiscriminate mass terror attacks, had been consolidating, as seen in Chapter 1, since the late

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1960s. The US received some early foretastes of the new terror, such as the killing of retiring US Ambassador Cleo Noel in Saudi Arabia in March 1973 and the attack on US Marines in Beirut in October 1983. In the late 1980s and 1990s, however, circumstances conduced to the emergence of a specifically anti-US new terrorism, particularly (although not exclusively) in the form of bin Laden’s al-Qaeda. What were these circumstances, and what was the degree of US involvement in bringing them about? Afghanistan and US Support for the Mujahideen At least one of the main sources of anti-US terrorism today was the Mujahideen who fought in Afghanistan against the Soviets in the 1980s. It is from this movement that al-Qaeda, for example, emerged. It is also in this struggle that the US is sometimes said to have nurtured the very terrorists who would turn against it in the 1990s (see, for example, Khalidi 2006: xiv–xvii). The Soviet Union invaded Afghanistan on Christmas Eve 1979. The Carter administration responded by boycotting the 1980 Olympic Games, imposing a grain embargo on the Soviet Union, and began to support Afghan rebel groups. The Reagan administration, elected in November 1980, stepped up support for Afghan resistance movements, distributing money and equipment through Pakistani Intelligence. Hafizullah Emadi reports US contributions of $625 million in aid – “the largest CIA covert operation since the Vietnam war.” The US also provided $430 million worth of commodities to refugees in Pakistan (Emadi 1990: 114). However, a variety of sources confirm that little or none of this US support was directed to the “Bureau of Services” that Osama bin Laden set up with Sheikh Abdullah Azzam in support of the holy war in Afghanistan (National Commission on Terrorist Attacks on the United States (NCTAUS) 2004: 56). Azzam and bin Laden had their own independent sources of support and training, emanating primarily from Saudi Arabia. Indeed, bin Laden himself has not only rejected the notion that he received support from the Americans (although he has his own reasons for doing so), he insists that they were more of a hindrance than a help. In an interview in 1998, bin Laden emphatically insisted: “The Americans are lying when they claim they helped us at any point, and we challenge them to present a single shred of evidence to prove it. In fact, they were a burden on us …” (in Lawrence 2005: 87). There does not at the moment appear to be evidence that the US created its later bin Laden problem, at least in any direct way. It neither produced the context in which bin Laden took up arms, nor did it aid him in doing so, except perhaps indirectly. What can be argued plausibly, despite bin Laden’s protestations to the contrary, is that the US contributed significantly to the defeat of the Soviet Union in Afghanistan and its embarrassed withdrawal between 1987 and 1989. Ironically, bin Laden frequently appeals to this example of defeating a superpower to justify his belief that the US, too, can be defeated (Lawrence 2005: 82–7, 159). But the specific factors that would instigate bin Laden’s declaration of jihad against the US would have to await the 1990s. In the mean time, the US would be subject to attacks from other quarters.

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Lebanon Debacle By the end of the 1980s, the US’s campaign of covert support for the resistance in Afghanistan appeared to have won it a major victory in the Cold War. In the mean time, however, other challenges would demand a more direct and assertive military response. On 23 October 1983, for example, 241 US Marines, sailors and soldiers were killed in a suicide truck bomb attack on their barracks in Beirut, Lebanon (by an Iranian-sponsored group that would eventually become today’s Hizbullah) (CNN 2003; Reuter 2004: 52–9). What the attackers were most immediately seeking with this attack, and a second devastating attack on the French barracks, was a withdrawal of foreign peacekeepers seeking to separate the factions in the Lebanese civil war. Their larger aim was the expulsion of Israeli forces, and the increase of Shiite autonomy, prestige, and influence in Lebanon. President Reagan responded to the attack on the US barracks by, among other things, quickly withdrawing the US marines from Lebanon, thus handing suicide bombing its first great victory. On the other hand, Reagan signed National Security Directive 138, calling for a “shift … from passive to active defense measures” in response to the threat of terrorism against Americans. In that pursuit, the Directive called upon the CIA to “develop plans and capability to preempt groups and individuals planning strikes against U.S. interests.” He also issued a presidential finding “authorizing worldwide covert action against terrorism” (NCTAUS 2004: 98, 113). Indeed, as Matthew Davis observed, the US idea of a “war on terror” properly begins with Reagan (Davis 2000). Reagan would also pioneer some characteristic US responses to terrorist attacks – missiles and bombing raids. The Berlin Bombing and Operation El Dorado Canyon, 1986 Following the 5 April 1986 bombing of a West Berlin night club frequented by US servicemen in which two servicemen and a Turkish woman were killed (and 200 injured), the US government accused the Libyan government of Mohammar alQaddafi of involvement. On 14 April, President Ronald Reagan (who had himself signed the most recent version of the Executive Order prohibiting assassination) launched a major retaliatory bombing raid, dubbed Operation El Dorado Canyon, against Libya. The bombing raid concentrated on three targets in the vicinity of Tripoli. One of these was the El Azzizya Barracks, Colonel Qaddafi’s home and headquarters. In fact, it seems that although US bombs landed around his residence, the Libyan leader was not injured, although one of the victims of the bombing raid was his adopted daughter. The attack is believed to have resulted in between 15 and 40 civilian fatalities as well as an unknown number of military casualties. The attack was condemned by the USSR, France, all of the Arab world, and many other states. Support for the action was voiced in particular by Britain, Australia, and Israel. The US government denied that the attack was specifically intended to kill Qaddafi – despite the fact that 9 of the 18 planes assigned to hit command and control centers were ordered to target Qaddafi’s tent. At the time, Secretary of State George Schulz claimed: “we are not trying to go after Qaddafi as such” (Richelson 2002: 264). The administration’s public position reflected doubts raised in the National

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Security Council meetings over whether the targeting of a foreign leader involved in the promotion of terror would be a violation of Presidential Order 12333. In the end, however, the administration went ahead with the operation, arguing that the Executive Order did not prohibit “death incidental to a military action,” even the death of a foreign leader (Lotrionte 2003: 76). The administration’s interpretation of Executive Order 12333 soon found some legal support. In the late 1980s, a US Army Judge Advocate General (JAG) concluded that under the laws of war, targeting of military leaders does not qualify as assassination. So if the attack on Libya could be considered as part of an armed conflict, for example, or a legitimate act of self-defense, then targeting Qaddafi would not violate the anti-assassination order. In a decision fraught with implications for terrorist targeting, the JAG also concluded that “the use of military force in peacetime against a known terrorist or terrorist organization … is a legitimate exercise of the international right of self-defense and does not constitute assassination” (Richelson 2002: 245). Lockerbie 1988 and the Work of the Counterterrorism Center The Berlin bombing also instigated the strengthening of the US government’s institutional resources for combating terrorism. In 1986, a Counterterrorism Center was created within the CIA, coordinating closely with the FBI and other security services. The value of FBI participation was amply demonstrated only a few years later when agents, cooperating with UK counterparts, traced to Libya bomb parts used in the sabotaging of Pan Am Flight 103 over Lockerbie, Scotland on 21 December 1988 resulting in 270 fatalities (including 189 Americans) (NCTAUS 2004: 75–6). Libya eventually accepted responsibility for the attack on 15 August 2003, and agreed to pay compensation to the victims. The precise motivation for the attack remains disputed, but may have included the US’s punitive bombing raid in 1986 and continuing Anglo-US responses to Libyan sponsorship of international terrorism (most particularly of the IRA). Still, continued terrorist attacks in the 1990s would fuel pressure for a more aggressive US approach to counter-terrorism. The Roots of al-Qaeda’s Jihad against the US One important terrorist threat to the US that emerged quite openly in the early 1990s was al-Qaeda. There is little mystery about what triggered al-Qaeda’s war on the US, or regarding its intentions. As Robert Pape aptly summarizes: “al-Qaeda did not turn toward attacking the United States until after 1990, when the United States sent troops to Saudi Arabia, Qatar, and Bahrain” (Pape 2005: 52). In 1990, following Saddam Hussein’s invasion of Kuwait, the US stationed 31,636 troops on the Arabian Peninsula (although the number dropped rapidly following the US-led, UN-sanctioned liberation of Kuwait, falling to 1472 by 1994). None the less, as bin Laden put it in an open letter to the “scholars of the Arabian Peninsula” in 1995 or 1996, “the enemy invaded the land of our umma, violated her honor, shed her blood, and occupied her sanctuaries” (Lawrence 2005: 15). Bin Laden exhorted the scholars to embrace jihad against the US.

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Of course, the roots of al-Qaeda’s hostility to the West in general and the US in particular run much deeper than this single event. The precise sources of this hostility have been the subject of a great deal of attention in recent years, and are the subject of a degree of scholarly disagreement. Nevertheless, a number of points are widely agreed on. Bin Laden has repeatedly invoked Western, and especially US, support for Israel. A deeper source of animosity is Western, and particularly US, policy in the Middle East, specifically the propping up of “apostate” regimes like those in Saudi Arabia and Egypt. A third apparent source of hostility is that the power and influence of “morally degenerate infidel” societies like those of the US and its Western allies is an affront to the truth of Islam (Wright 2006: 150–51, 171–5). Throughout the later 1990s, bin Laden continuously aired his grievances against the US, and announced al-Qaeda’s intentions. On 23 August 1996, he issued a statement in the form of juridical edict authorizing jihad against the US: “Men of the radiant future of our umma of Muhammad, raise the banner of jihad up high against the Judeo-US alliance that has occupied the holy places of Islam” (Lawrence 2005: 29). In November 1996, bin Laden gave an interview to an Australian Islamic journal in which he clearly stated that “terrorizing the American occupiers is a religious and logical obligation” for Muslims (Lawrence 2005: 39). In March 1997, in an interview with CNN, bin Laden stated clearly: “We declared jihad against the US government, because the US government is unjust, criminal and tyrannical … We have declared jihad against the US … so that we drive the Americans away from all Muslim countries” (Lawrence 2005: 47). Bin Laden stressed that “explosions, and killings of American soldiers will continue …. The concentration at this point of jihad is against the American occupiers” (Lawrence 2005: 52). Nor would bin Laden’s threat be limited to soldiers. In the announcement of the World Islamic Front, he unambiguously declared: “to kill the American and their allies – civilian and military – is an individual duty incumbent upon every Muslim in all countries” (Lawrence 2005: 61). Therefore, Bin Laden left no doubt, even before the attack on the US embassies in 1998, that he considered himself at war with the US. Still, the culmination of al-Qaeda’s campaign against the US would have to await the 1998–2001 period. In the mean time, the US would confront a first crude attack on the World Trade Center. The World Trade Center Bombing, 1993 At 12.17 p.m. on 26 February 1993, a truck bomb exploded in the parking garage of Tower 1 of New York’s World Trade Center, killing six and wounding over a thousand. On 7 February 1995, Ramzi Yousef was arrested by Pakistani Intelligence in connection with the crime, and then turned over to the US Diplomatic Security Service. He was convicted and sentenced on 5 September 1996 to 240 years in prison. Yousef, who had trained in one of bin Laden’s camps, received advice and financial support for his project from his uncle, Khalid Shaikh Mohammed, who would later be identified as the principal architect of the September 11th attacks (Wright 2006: 246). Although Yousef and several of his co-conspirators were successfully brought to justice through normal law enforcement procedures (complemented with effective international cooperation), his attack and flight through the Middle East illustrated

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both the US’s vulnerability to new forms of terrorism at home, and the typically international character of this new terrorism. Some of the difficulty that can attend the international pursuit of suspects was illustrated in attempts to track Khalid Shaikh Mohammed, who continued to conspire with Yousef in a number of attempted terrorist bombings in the two years after the World Trade Center attack. In late 1995, Mohammed was located in Qatar, and in January 1996, the US Attorney attained an indictment against him. However, before he could be taken into custody, Mohammed disappeared, probably tipped off by an official within the government of Qatar (NCTAUS 2004: 73). In the end, the US would not get him until after he helped kill almost 3000 people. The Bombing of the Federal Building in Oklahoma, 1995 In the mean time, the US public would be stunned by yet another attack on US soil, this with a far higher death toll. On 19 April 1995, a 5000-pound bomb planted in the lobby of the Murrah Federal Building in Oklahoma City went off, killing 168 people, including 19 children. Although the Islamic fundamentalists were initially suspected, the attack eventually turned out to be the work of homegrown terrorists – Timothy McVeigh and Terry Nicholls. McVeigh was taken into custody shortly after the bombing, for driving without a license plate, and in a few days was identified as the perpetrator of the attack, after which his accomplices were quickly rounded up. McVeigh was convicted on 2 June 1997, and received the death penalty. His accomplice, Terry Nicholls, eventually received 161 consecutive life sentences. The attack helped to spur a number of new US measures to combat terrorism. Clinton’s Counter-terror Policy President Clinton, for example, issued three classified presidential directives on counter-terrorism between 1995 and 1998 (Presidential Directives 39, 62, and 63), raising it to the highest level of government priority. He appointed Richard Clarke to a newly created position of National Coordinator of Security, Infrastructure Protection and Counterterrorism. Clarke was also given a seat at the Cabinet Level Principles Committee. Clinton also supported substantial increases in CIA funding earmarked for counter-terrorism. In 1996, the CIA organized a special issue unit of a dozen officers – codenamed Alec Station – devoted to gathering intelligence and organizing operations connected with bin Laden and his al-Qaeda network. New links between al-Qaeda and attacks on US troops, including in Aden and Somalia in 1992 and 1993 and the Manila air plot in the Philippines in 1994–95, were soon uncovered. By 1997, Alec Station had gathered intelligence from a wide range of sources that “al Qaeda had a military committee that was planning operations against U.S. interests worldwide and was actively trying to obtain nuclear materials” (NCTAUS 2004: 101, 109). In the meantime, the FBI Branch Office in New York along with the US Attorney’s Office of Southern New York obtained a (sealed) Grand Jury indictment of bin Laden in June 1998, and the CIA’s Counterterrorism Center developed and rehearsed a plan for bin Laden’s capture in Afghanistan.

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Based on reliable intelligence of bin Laden’s whereabouts, the CIA requested the go-ahead from the National Security Council for an operation to be conducted on 23 June 1998. However, on 29 May, permission was refused on the grounds of opposition from cabinet-level officials, who were concerned about “collateral damage,” both to tribal allies and to bin Laden himself. Most of all, they were worried that: the purpose and nature of the operation would be subject to unavoidable misinterpretation and misrepresentation – and probably recrimination – in the event that bin Laden, despite our best intentions and efforts, did not survive. (NCTAUS 2004: 113–14)

In short, if bin Laden got killed in a general mêlée, they were worried that the US would be bound to look like it was trying to kill him. In 1998 the administration’s reluctance to be seen internationally as targeting terrorists like bin Laden cost it an opportunity to neutralize him. The consequences of that choice would soon begin to become apparent. Operation Infinite Reach, 1998 On 7 August 1998, over 200 people were killed and thousands were injured in simultaneous car bomb explosions at the US embassies in the Tanzanian capital of Dar es Salaam and in the Kenyan capital of Nairobi. Responsibility for the attacks was claimed by al-Qaeda. In fact, it was later found that the attack had been organized under the direct supervision of bin Laden and his chief aids (NCTAUS 2004: 67). President Clinton responded along four tracks. He sought to freeze money flowing to terrorist organizations like al-Qaeda; he pursued arrest, extradition, and trial of those suspected of planning, carrying out, and facilitating the attacks; he signed a Memorandum of Notification permitting the CIA and its allies to use force in pursuit of bin Laden, and finally, he launched Operation Infinite Reach on 20 August, a set of retaliatory cruise missile attacks against terrorist training camps in the Khost Province of Afghanistan, and against installations believed to be connected with bin Laden in Sudan. Clinton justified this missile attack specifically as a military rather than a law enforcement response to terrorism: America has battled terrorism for many years. Where possible, we’ve used law enforcement and diplomatic tools to wage the fight …. But there have been and will be times when law enforcement and diplomatic tools are simply not enough, when our very national security is challenged and when we must take extraordinary steps to protect the safety of our citizens. With compelling evidence that the bin Laden network of terrorist groups was planning to mount further attacks against Americans and other freedom-loving people, I decided America must act. (White House, Office of the Press Secretary, 1998)

In this historically significant “Address to the Nation” Clinton explicitly abandoned the exclusive “law enforcement” model in dealing with al-Qaeda Terror. He announced his intention to use the armed forces to “target … terror,” and bin Laden in particular. Although the President did not specifically employ the expression, he

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was effectively declaring war on al-Qaeda. It is worth noting that he stressed in particular “compelling evidence that the bin Laden network was planning to mount further attacks.” Evidence of future planned attacks, particularly against US civilians, was key to the justification for military action. A Military Strike Intended to Kill bin Laden In explaining the decision to target terrorist training facilities in Afghanistan, Clinton stressed that the US had intelligence that a meeting of “key terrorist leaders,” including bin Laden, was to occur at the target point at that time. Although the strike was broadly directed first and foremost at degrading terrorist infrastructure, Clinton cited the presence of terrorist leaders as underlining the “urgency” of US action. In other words, one of the strike’s purposes (which in fact determined its timing) was also “to kill bin Laden and his chief lieutenants” (NCTAUS 2004: 116). This strike therefore unambiguously qualifies as an attempted terrorist targeting. Indeed, far from denying that the US was targeting bin Laden, Clinton justified the timing of the military action by pointing out that it would allow terrorist leaders to be targets. Some twenty people were killed in the Afghan strikes, but bin Laden himself was not harmed. Dozens of people were also injured in the Sudan strike. Unfortunately, the Sudan strike illustrates something of the dangers of broad military retaliations against purported terrorist infrastructure. The main target in Sudan was the al-Shifa pharmaceutical plant, which the US government believed was involved in the production of chemical weapons for bin Laden. The attack has been the subject of widespread criticism, both because the evidence suggesting the plant was producing a precursor chemical for nerve gas is inconclusive, and because the attack deprived Sudan of its primary indigenous source of pharmaceuticals. Noam Chomsky has insisted that the destruction of the plant has resulted in at least tens of thousands of otherwise avoidable deaths. Indeed, Chomsky argues (controversially) that the attack on the al-Shifa plant was at least comparable to those of September 11th, and that it demonstrates that the US is itself a “leading terrorist state” today (Chomsky 2001: 43–54; Hitchens 2001). While Chomsky’s numbers may be exaggerated, and his analogy between the two acts may be dubious (particularly with regard to their intentions), the serious consequences of the strike on the al-Shifa plant can by no means be discounted. On 20 December 1998, the CIA’s bin Laden unit again received clear intelligence on his whereabouts, and sought permission for a missile attack. By the time consultations among senior officials were completed, it was feared that bin Laden might have moved, and with a view to potential collateral damage, permission was refused. Another opportunity to neutralize bin Laden by targeting him had been missed. Frustrated by the cumbersome procedure, the CIA drafted a Notice of Memorandum specifically authorizing the use of lethal force against bin Laden. On 25 December 1998, President Clinton approved the wording. The administration’s position was that “under the law of armed conflict, killing a person who posed an imminent threat to the United States would be an act of self-defense, not an assassination.” According to testimony before the 9/11 Commission, the President’s position on bin Laden was clear: “he wanted him dead” (NCTAUS 2004: 130–33).

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Unfortunately, George Tenet, the Director of the Central Intelligence Agency, seems not to have fully appreciated the President’s position, and believed that the CIA was only authorized to kill bin Laden in the context of a failed attempt to capture him (NCTAUS 2004: 133). This (mis)perceived restraint significantly inhibited direct action against bin Laden, despite a battery of cruise missiles ready to launch. The CIA, for example, declined to take any direct action, despite “actionable” intelligence on bin Laden’s whereabouts from 9 to 12 February 1999, and again for five days in early May 1999. More opportunities to target bin Laden were thus missed even after the African embassy attacks for which the administration knew him to be responsible. Similarly, the CIA’s tribal allies, when informed that they were authorized to capture but not kill bin Laden, proved reluctant to put their lives at risk in an attack. As the former head of the CIA’s Alec Station put it, “we always talked about how much easier it would have been to kill him” (NCTAUS 2004: 133, 139–42, 188). The irony is that the CIA appears to have had both the formal authority to target bin Laden, as well as the President’s personal support. President Clinton again authorized operations to capture or kill bin Laden in July 1999, but no further “actionable” opportunities arose. At this point, the US had clearly adopted a targeting policy, at least with regard to bin Laden himself. The USS Cole But if the United States declined to exploit its opportunities to strike against bin Laden and his group, the reverse was not true. On 12 October 2000, a small boat approached the US Navy destroyer Cole where it was at anchor in the harbor of Aden, Yemen, and detonated several tons of explosives. The explosion ripped a hole in the side of the destroyer, killing 17 and injuring over 40 members of the ship’s crew. Within a month, US intelligence had connected the attack with al-Qaeda (indeed, they would eventually establish that it had been overseen personally by bin Laden). Bin Laden braced for a US retaliation, dispersing al-Qaeda leaders so that they would not all be killed in one US strike. But the US did not strike back (NCTAUS 2004: 190–92). In part, this was due to the political distraction of the election of 7 November, and the legal conflict over the outcome which ended only on 12 December with the Supreme Court’s decision in Bush v. Gore. Yet even after the inauguration of the new Bush administration on 20 January 2001, no direct retaliatory action was taken against al-Qaeda. By June, the Bush administration was receiving increasingly alarming intelligence about another impending al-Qaeda attack. High-level threat advisories were regularly circulated warning of an impending spectacular attack – with titles like “Bin Ladin Attack May be Imminent,” “Bin Ladin and Associates Making Near Term Threat,” “Bin Ladin Planning High-Profile Attacks,” and “Bin Ladin Threats are Real.” On 6 August, an article in the President’s Daily Briefing (PDB) was entitled “Bin Ladin determined to strike in U.S.” It was the 36th PDB item mentioning bin Laden or al-Qaeda up to that point in 2001 (NCTAUS 2004: 257–9). Still, by early September, a year after the USS Cole attack, the Bush administration was still taking preliminary steps toward implementing its own counter-terrorist strategy. Increased funds had been allocated for counter-terrorism, and a Presidential Memorandum of

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Notification (MON) had been prepared for signature which authorized a shift from the objective of rolling back al-Qaeda to “eliminating” it (NCTAUS 2004: 204–5, 210, 214). On 10 September, the National Security Advisor’s Office requested draft legal authorities for “broad covert action” against al-Qaeda, including “authority … to use ‘lethal force’” against al-Qaeda’s leadership (NCTAUS 2004: 214). In other words, it sought authorization to target the entire leadership of al-Qaeda. September 11th and the New “War on Terror” The following morning, on 11 September 2001, four commercial passenger jets departing respectively from Boston (two), Washington, and Newark were hijacked between 8.15 and 9.30 a.m. by 19 al-Qaeda agents. Two of the planes were flown into the World Trade Center towers in New York. Both buildings collapsed shortly after the impacts. A third plane was flown into the Pentagon in Arlington, Virginia. It is believed that the hijackers intended to fly the fourth plane into the Capitol building in Washington, but resistance from the passengers caused it to crash in a field in Pennsylvania. The attacks are believed to have caused at least 2974 fatalities (excluding the 19 hijackers). The damage to New York alone has been estimated at $95 billion (Wray 2002). In the weeks following September 11th, the Bush administration responded aggressively in a number of areas. The President, for example, declared a “war on terrorism” and enunciated the Bush doctrine of preventive war (Bush 2001a, 2001b; US Government 2002). He demanded that the Taliban government of Afghanistan turn bin Laden and his associates over to the US, and when the Taliban balked, he sent US forces to cooperate with the Northern Alliance in displacing them. The US began its war in Afghanistan on 7 October, after the Taliban leadership missed a final deadline to hand over bin Laden. The attack began with a broad range of air and missile strikes. Two notable targets of US air strikes were houses used by Taliban leader Mullah Omar and alQaeda leader bin Laden. However, the attacks were unsuccessful in “decapitating” either the Taliban or al-Qaeda’s leadership (Human Rights Watch 2003: 22). Full Adoption of a Targeting Strategy Later in October, the President clarified the legal authorization for targeting terrorists. On 25 October 2001, he finally signed a re-written and expanded version of the draft Memorandum of Notification, now designated National Security Presidential Directive 9 and entitled “Defeating the Terrorist Threat to the United States.” The directive remains classified, but is framed, in its re-written form, not only as a response to al-Qaeda, but as authorizing a “global war on terrorism.” It is believed to include authorization for the military and the CIA to use “lethal force” against terrorists who present a threat to the US (NCTAUS 2004, 333–4; Clarke 2004: 26; Woodward 2002: 97, 101). President Bush also issued a Presidential Finding on terrorism in October, and while its contents also remain classified, it is reported to reiterate President Clinton’s 1998 finding that Executive Order 12333 does not prevent the President

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from lawfully “singling out a terrorist for death by covert action” and specifically authorizing “the killing of bin Laden” (Richelson 2002: 261). Also in the aftermath of September 11th, the Defense Department’s legal advisers determined that the killing of selected individuals would not be illegal under the Army’s Law of War if the targets were “combatant forces of another nation, a guerilla force, or a terrorist or other organization whose actions pose a threat to the security of the United States.” On 22 July, Secretary of Defense Donald Rumsfeld issued a secret directive ordering Air Force General Charles Holland, the four-star commander of Special Operations, “to develop a plan to find and deal with members of terrorist organizations …. The objective is to capture terrorists for interrogation or, if necessary, to kill them, not simply to arrest them in a law-enforcement exercise” (Hersh 2002). In short, “despite the executive order banning assassinations, the Bush administration has reserved the right to kill those it believes are terrorists. Strikes are authorized by a collection of classified Presidential findings, legal opinions, and policy directives, some of which predate the September 11th, 2001 attacks” (David 2003b: 113). Although the administration refrained from officially announcing its intention to hunt down and kill terrorists who it felt posed a threat to US citizens and could not otherwise be neutralized, some of its policy documents included strong language that provides for the possibility of such operations. The 2003 National Strategy for Combating Terrorism asserts that the government’s goal is to “defeat” al-Qaeda, and describes its strategy as follows: “the Defeat goal is an aggressive, offensive strategy to eliminate capabilities that allow terrorists to exist and operate – attacking their sanctuaries; leadership; command, control and communications; material support and finances” (US Government 2003: 17). Here, the mention of “eliminating leadership” sounds very much like terrorist targeting, particularly as practiced by the US government, but the document does not actually specify the means that are to be used to eliminate leadership. The sentence could equally be read simply to refer to sustained military campaigns like that waged in Afghanistan in coordination with the Northern Alliance, or elimination by means of arrest, such as that of Khalid Sheikh Mohammed in Pakistan in 2003. The description could also, however, apply to the cases described below. In this respect, then, the US government may be said to have announced its terrorist targeting policy while keeping it an open secret. US Targeting Operations By the end of October 2001, the authorizing framework for killing not only bin Laden, but any member of al-Qaeda’s leadership (should arrest not be practicable) was in place. The remaining challenge was to show that the US could successfully execute such strikes. For several months, the CIA had been using the new Predator unmanned aerial vehicle for surveillance in Afghanistan and Pakistan (and possibly elsewhere). Now these Predators were armed with Hellfire missiles. The CIA’s armed Predators would become the primary weapon of the US’s targeting policy. The CIA would not have to wait long for an opportunity to try out its new weapon.

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Targeting Mohammed Atef, 2001 In mid-November 2001, a US Predator drone fired missiles at a house near Kabul, destroying Mohammed Atef’s home and fatally wounding him. Atef was one of bin Laden’s senior advisers. He had been indicted in the US for his prominent role in planning the 1998 bombings of US embassies in Tanzania and Kenya. The FBI had offered $5 million for information leading to Atef’s capture, and he had been included in the list of the FBI’s 22 most wanted terrorists released on 10 October 2001. His death was confirmed three days later by the Taliban ambassador Abd alSalam Dhaif (Schmitt 2002; Miller and Schmitt 2001). Attack on a Target Believed to be bin Laden, 2002 The US’s first successful targeting operation was followed up with a serious failure. At around 3 p.m. on 4 February 2002, CIA officers and officers attached to the US Central Command watched images relayed by an armed Predator drone flying reconnaissance over Afghanistan, near the remote town of Zhawar. The images were of a very tall man being greeted enthusiastically by a small group of Afghanis. The officers quickly became convinced that the tall man was bin Laden, and they requested permission to launch a Hellfire missile at him. There was some delay before the permission was given, during which time the meeting on the ground broke up. However, the tall man was shortly sighted again, coming out from some nearby trees along with two other men. The missile was launched, and struck its intended target, incinerating the area and killing all three men. It was later found that the victims were three local men who had been scavenging in the woods for scrap metal (Hersh 2002; Banks 2007: 120–21). Targeting Qaed Salim Sinan Al-Harethi, 2002 Almost a year after the successful targeting of Atef, the CIA scored a second success. Qaed Salim Sinan al-Harethi, the alleged leader of al-Qaeda in Yemen and the mastermind of the bombing of the USS Cole, had been wanted for some years by both Yemeni and US authorities. More than twenty people had been killed in December 2001 in a clash between heavily armed tribesmen allied with al-Harethi and Yemeni soldiers when the latter had attempted to arrest him (Whitaker 2002). On Sunday 3 November 2002, an unmanned US Predator reconnaissance aircraft launched a Hellfire missile at a car traveling in Northern Yemen. The car was (accurately) believed to be carrying al-Harethi. It was also carrying five other passengers. The car was incinerated. Yemeni security officials arrived shortly after the blast (a helicopter had been standing by), and tissue was collected for DNA testing. The following day, US and Yemeni officials confirmed that al-Harethi had indeed been killed. They also informed the public that four of the five other men in the car along with al-Harethi had been members of the Aden-Abyan Islamic Army, an outlawed terrorist group with links to al-Qaeda. The last passenger had been Kamal Derwish, an Arab-American who grew up near Buffalo, and according to the FBI, had recruited Americans for terrorist

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training at al-Qaeda camps (Hersh 2002). The wreckage of the car revealed remnants of communication equipment and traces of explosives (Banks 2007: 117). Much to the CIA’s surprise, and without coordinating with the Yemenis, the Department of Defense acknowledged the attack quasi-officially. At a Department of Defense press conference shortly after the attack, Paul D. Wolfowitz, the Deputy Secretary of Defense at the time, called it “a very successful tactical operation …. One hopes that each time you get a success like that, not only to have gotten rid of somebody dangerous, but to have imposed changes in their tactics and operations” (BBC News 2002). According to information leaked to reporters, al-Harethi was on a shortlist of “high value” targets “whose elimination, by capture or death, had been called for by President Bush.” A Defense Department spokesman indicated unofficially that, at the time, there were seven names on the “high value” target list (Hersh 2002). In light of the open acknowledgement of the operation, US spokespersons were soon pressed on whether this indicated a change of policy in regards to targeting. The administration had been at least nominally critical of the Israeli practice of targeting terrorists before September 11th, albeit with some occasional exceptional statements. Probably the best known “waiver” was the following statement on 2 August 2001, in which Vice-President Cheney suggested that a targeted killing policy might have “some justification”: If you’ve got an organization that has plotted or is plotting some kind of suicide bomber attack, for example, and they have evidence of who it is and where they’re located, I think there’s some justification in their trying to protect themselves by preempting. (Fox News Special Report 2001)

However, administration officials quickly clarified that the official policy line remained against targeted killing: the “administration at all levels deplores the violence there and that includes the targeted attacks” (White House Briefing, 2001; Luft 2003). Throughout the month, the administration continued to reaffirm its firm opposition to both the Israeli policy and practice of targeted killing. As Phillip T. Reeker, the Deputy Spokesman for the State Department, put it on 21 August 2001: “we have made known the US Government’s opposition to the policy and practice of targeted killings, and we are going to continue to urge the Israelis to desist from this policy” (DoS 2001). Following the Yemen operation, State Department Spokesman Richard Boucher commented that “our policy on targeted killings in the Israeli– Palestinian context has not changed.” He refused to talk about the Yemen attack, but suggested that US reasons for opposing targeted attacks in the Palestinian–Israeli situation might not apply to other situations (BBC News 2002). So the current US administration seems to take the view that, for reasons not wholly clear, their usually covert terrorist targetings are justified, while Israel’s official targetings are not. Targeting Haitham al-Yemeni, 2005 A lull in US targeting followed the flurry of attacks in 2002. This pause appears to have been occasioned primarily by the enormous investment of resources in Iraq (and

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Afghanistan). However, late on the night of 7–8 May 2005, a CIA Predator drone fired on and hit a car in Toorikhel, Pakistan, a suburb of Mirali in the province of North Waziristan. The car’s driver and a passenger were killed in the ensuing explosion. One of these was Haitham al-Yemeni, an alleged al-Qaeda figure who had been under CIA surveillance for over a week. CIA officials had hoped that he might lead them to bin Laden’s current location. The capture by Pakistani authorities of al-Qaeda leader Abu Faraj al-Libbi, however, led CIA officials to worry that al-Yemeni would go into hiding. They therefore decided to try to kill him before he could do so. The second victim has since been identified as Samiullah Khan, a local warlord. Pakistani officials, however, have denied publicly that any Predator attack took place. As to the US’s position, Amnesty International notes: “the CIA in Washington DC, would neither confirm nor deny the reports to Amnesty International, offering only ‘no comment’” (Amnesty International 2005; Priest 2005: A25; MSNBC News 2005). Hamza Rabia, 2005 The CIA’s successful targeting of Al-Yemeni was quickly followed up by a second operation in Pakistan. Between 1.45 and 2 a.m. local time on Thursday 1 December 2005, a Predator drone is reported to have fired as many as six Hellfire missiles at an alleged al-Qaeda safe house in Asorai, a suburb of Mirali, North Waziristan, Pakistan. Hamza Rabia, an Egyptian al-Qaeda leader and Chief Deputy to Abu Faraj al-Libbi (who was believed to have planned two assassination attempts on Pakistani President Pervez Musharraf), was killed in the attack. Two other Pakistanis and two other Arabs (believed to be Rabia’s Syrian bodyguards) occupying the safe house were also reported to have been killed in the blast. Again, the US did not acknowledge the attack officially, but marked fragments of Hellfire missiles found at the site, weapons used exclusively by the US’s Predators and bearing the initials “US,” left little doubt as to the source of the attack (Whitlock and Khan 2005; Fox News 2005). Attack on Ayman al-Zawahiri, 2006 A little over a month later, the CIA undertook a third targeting operation in Pakistan. On 13 January 2006, a CIA Predator drone fired a rocket at a house in Damadola, Pakistan, where US officials believed that al-Qaeda leader Ayman al-Zawahiri was holding a meeting with subordinates. Zawahiri is considered to be bin Laden’s senior lieutenant as well as his personal physician. The US has offered a $25 million reward for information leading to his capture. The Hellfire missile demolished the house, killing 18 people in and around the building, but Zawahiri was not one of them. The victims are reported to have included eight men, five women and five children. Initial reports from Pakistani officials that senior members of al-Qaeda were killed were later withdrawn. However, the attack caused widespread protest in Pakistan (Morgan 2006; Gall and Jehl 2006; Whitlock 2007).

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Targeting Abu Musab al-Zarqawi, 2006 Later in 2006, at around 6.15 p.m. on 7 June, US forces killed abu Musab al-Zarqawi along with five of his associates in a safe house about 35 miles north of Baghdad. Zarqawi, a radical Islamic militant originally from Jordan, had long been at the top of the US’s most wanted list in Iraq, and carried a $25 million price tag on his head, but had evaded capture for over three years. He had been the leader of Tawhid walJihad, a group that linked with al-Qaeda in 2004, following the US-led invasion, becoming al-Qaeda in Mesopotamia. Zarqawi led many brutal operations against US troops and civilians as well as against many Iraqis, particularly of the Shiite faith. Indeed, he had openly attempted to instigate a civil war between Shiites and Sunnis. He was personally responsible for the kidnapping and execution of US civilians, including by beheading, as captured on a gruesome video. Zarqawi was fatally wounded when the house was struck with two 500-pound bombs dropped by F-16 fighter aircraft (Burns 2006). This constituted the US’s highest-profile targeting operation, and probably its most successful. Targeting Abu Talha al-Sudani, Saleh Ali Saleh Nabhan, and Fazul Abdullah Mohammed, 2007 The United States launched several targeted strikes on al-Qaeda figures believed to be hiding in Somalia in 2007, following the ouster of the Union of Islamic Courts government by an Ethiopian-led invasion. The details of the operations, however, remain scanty and contested. US officials acknowledge at least one helicopter attack on terrorist suspects near the Kenyan border between 7 and 9 January 2007. Newspaper reports based on witness accounts ranged as high as three or possibly four attacks over those two days on separate locations along the Kenyan border. There were also accounts of the involvement of Ethiopian ground forces. Three of the targets of US strikes appear to have been Abu Talha al-Sudani, who is accused of financing al-Qaeda ventures including the African embassies attack of 1998, and Saleh Ali Saleh Nabhan and Fazul Abdullah Mohammed, two of the alleged organizers of the embassies attack. Estimates of fatalities from the operations ranged from ten (a US Intelligence official) to 150 (local witnesses). A US spokesman claimed that the fatalities were mainly Islamists allied with al-Qaeda (DeYoung 2007; CBS News 2007; Sengupta 2007). In a separate incident on 1 June 2007, a US warship off the Somali coast is reported to have fired cruise missiles at fleeing fighters near Bargal, a town on the coast of Puntland, an autonomous region in Somalia’s north. At least ten al-Qaeda militants are reported to have been killed, including six foreign fighters. No civilian casualties were confirmed (Sanders 2007; Gettleman 2007). Conclusion Compared to Israel, the United States came late and rather hesitantly to the game of terrorist targeting. US uneasiness with the policy is reflected both in the

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government’s reluctance to officially acknowledge its own operations as well as in its relatively sparing employment of them. US discomfort is also suggested in the Bush administration’s seemingly hypocritical condemnation of the Israeli terrorist targeting policy while surreptitiously pursuing a similar policy of its own. The deep US ambivalence concerning targeting can plausibly be attributed, at least in part, to its long-standing discomfort with covert operations in general and with the CIA’s regrettable history of undertaking manifestly illegal special operations that result in indefensible action and adverse publicity. In addition, the widespread (although not uniform) criticism surrounding the Israeli policy has raised concerns about the legality of terrorist targeting under international law. In the US, however, there appears to be solid political agreement, as reflected in the common conclusions of the Reagan, Clinton, and Bush administrations, that it is permissible to target leaders and operatives of terrorist groups that have attacked the US and its citizens, who look likely to do so again, and who are not within the government’s reach by other methods. The actual success of the US operations on the ground has been very mixed. There can be little doubt that targeting has permitted the neutralization of some terrorist leaders whom it would have been impractical to reach by other means. For example, to attempt to extract Rabia from Asorai or al-Yemeni from Toorikhel would certainly have been difficult and dangerous operations with only a remote chance of success and the likelihood of many civilian casualties. Yet many of the operations have failed to hit their intended targets, and in some cases may have harmed many bystanders (for example, the early January 2007 attacks in Somalia). The US style of targeting, typically employing Predator drones and Hellfire missiles, is desirable from the perspective of the protection it affords to US operatives, who can work from a remote location, often a US base in another country. This obviously minimizes the risks to which they are exposed. On the other hand, there is reason to be concerned that it may significantly elevate the risk of collateral damage to non-targets in some operations (as in the Zawahiri operation), or of hitting the wrong target entirely (as in the case of the man believed to be bin Laden targeted near Zhawar, Afghanistan). There are therefore aspects of the policy that warrant scrutiny and public deliberation. Unfortunately, in addition to other disadvantages that will become apparent in the next chapter, the unofficial character of the policy tends to prevent open deliberation over the means of its execution and how it might be improved. Finally, while there is evidence that most of the persons seemingly targeted thus far have been involved in al-Qaeda activities, there is no clear mechanism for assuring their continued involvement, the degree of that involvement, or indeed that the organization is, as its leaders claim, preparing attacks against US citizens. In sum, there can be no doubt that the United States has now joined Israel in pursuing a sustained policy of targeting terrorists. There is a great deal of controversy today over whether such policies are legal, moral, or wise. The following chapter begins to examine these questions by focusing on the issue of legality.

Chapter 5

The Legality of Targeting Terrorists Since 2001, Israeli and US terrorist targeting policies have given rise to a sharp debate among experts over the legality of the practice. On the side of legality, Robert Turner, the Associate Director of the University of Virginia’s Center for National Security Law, for example, holds that “the use of lethal force in dealing with terrorists does not violate international law or US Executive Orders” (Turner 1998: 17a,1 2003; Eichensehr 2003). Similarly, according to David B. Rivkin Jr., Lee A. Casey, and Darin R. Bartram, all partners at the offices of Baker & Hostetler in Washington, DC, the “policy of ‘targeted killings,’ at least to the extent that it has been carried out in the context of the current armed conflict, does not violate the applicable norms of international law” (Rivkin et al. 2006: 16). Indeed, Purdue Professor Louis R. Beres has argued that the targeting of elusive terrorist leaders is not only legally permissible, but “may be judged law-enforcing according to international law” (Beres 1995, 1997; see also Statman 2004; Kendall 2002). On the other hand, in a recent Expert Opinion written at the request of the petitioners in The Public Committee Against Torture in Israel et al. v. The Government of Israel et al. (PCATI), Antonio Cassesse, the former President of the International Criminal Tribunal for the former Yugoslavia, has argued that to hold terrorist targeting to be “lawful, would involve a blatant departure from the fundamental principles of international humanitarian law … [and indeed] would entail the undermining of the very foundation of that body of law.” Not only is targeting clearly unlawful, according to Cassesse, but it “may constitute a war crime” (Cassese 2005: 20; see also see Gross 2001, Nolte 2004, UNCHR 2002, 2004). Of course, disagreement over legal questions, especially in the field of international law, is hardly surprising. But this is not a marginal difference of interpretation or disagreement over how well-accepted legal principles apply to a particular case; this is a fundamental difference over the broad question of whether international law prohibits or permits states to deliberately kill a whole category of persons (that is, alleged terrorists). This chapter examines each of three primary jurisdictions in which a prosecution could take place – under domestic law in the territory where the targeting took place, under international law, and under the law of the country practicing terrorist targeting. At the international level, it considers the two most pertinent bodies of law

1 The quotation here is Eichensehr’s summary of Turner’s position in the foregoing article. Turner confirms, however, that the quotation accurately represents his view (see also Roth and Turner 2003: 403–9).

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– humanitarian law and human rights law – and relates its findings to some specific cases described in the preceding three chapters. Under Domestic Law Where it Occurs – Is Terrorist Targeting Murder? In one very familiar sense, terrorist targeting appears to be unambiguously illegal. It falls within the definition of murder under virtually all systems of domestic criminal law. An illustrative example can be found in the criminal law of Pakistan, where several US terrorist targetings have taken place (for example, the targeting of Haitham al-Yemeni on 7–8 May 2005, and of Hamza Rabia on 1 December 2005, both described in Chapter 4). According to Chapter XVI of the Pakistan Penal Code (1860) dealing with “Offences against the Human Body”: Whoever, with the intention of causing death, or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-e-amd [“murder”].2 (Pakistan Penal Code 1860: para. 300)

The act of targeting a terrorist certainly appears to fulfill the essential requirements of this definition. Targeting is pre-authorized and planned, and therefore intentional, and the intention is specifically to cause the death of a human being (the alleged terrorist). Under the Pakistan Penal Code, targeting is therefore clearly a qatl-e-amd, subject to sentences ranging from 25 years in prison to death (Pakistan Penal Code 1860: 302). A similar conclusion is likely in relation to the domestic law of other countries in which targetings have taken place and will continue to take place. Obviously, the criminal laws differ in each of these jurisdictions – which include Yemen, Afghanistan, the West Bank and the Gaza Strip, as well as several European countries. The elements of murder (or equivalents thereof), however, are fairly standard across most criminal codes. As a deliberate, planned killing of another human being, a terrorist targeting is a particularly clear-cut case. In relation to European countries, the status of terrorist targeting under the domestic laws of a typical state was illustrated dramatically by the prosecution of the six Mossad agents captured in Norway following Ahmed Bouchiki’s killing on 21 July 1973. As seen in Chapter 2, the six captured agents were sentenced (on 1 February 1974) following trial in a Norwegian court. Four of the agents were found guilty of involvement in a premeditated murder. Zvi Steinberg, the logistical agent, was given one year for gathering information for a foreign country. Marianne Gladnikoff received two-and-a-half years for involvement in a premeditated murder. Dan Arbel was sentenced to five years for having second-hand knowledge of a premeditated murder. Avraham Gemer and Sylvia Rafael were each given five-and-a-half years 2 Previously, this section of the criminal code ended with the expression “culpable homicide” (Sarkar 1956). In 1997, Pakistan invoked Qisa and Diyat ordinances altering the original language (Waheed 2004: 913–14).

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for premeditated murder (Klein 2005: 197). The court explained the relatively light sentences by noting that those who bore the heaviest responsibility for the murder – those who planned and authorized it – and therefore should have received the heaviest sentences, had escaped. There can therefore be little doubt that this terrorist targeting constituted premeditated murder under Norwegian criminal law. It is worth noting, however, that the Bouchiki case may be somewhat exceptional, not only in that the agents were caught in the country in which the terrorist targeting had been carried out, but also in that they got the wrong man. Still, those convicted would likely have been found guilty of participation in a murder under domestic criminal law even if their victim had actually been Ali Hassan Salameh. The issue for the Norwegian court was not the identity of the victim, but the nature of the crime committed. The view expressed by the Norwegian court seems expressive of most European countries today. EU representatives, for example, have been among the most emphatic in condemning the extrajudicial, and therefore illegal, character of terrorist targetings. For example, Swedish Foreign Minister Anna Lindh was among the most outspoken critics of the US targeting of Qaed Salim Sinan Al-Harethi in November 2002. She described the operation as “a summary execution that violates human rights.” “Even terrorists,” she insisted, “must be treated according to international law. Otherwise any country can start executing those whom they consider terrorists” (Machon 2006: 2–3). Similarly, Christopher Patten, the European Union’s External Relations Commissioner, condemned what he termed Israel’s “extrajudicial killings” in a speech to the Plenary Session of the European Parliament on 9 April 2002, remarking that “this kind of behavior seems not only to be aimed at the elimination of terror but the elimination of the Palestinian Authority and any achievements of the Oslo accords” (Patten 2002). So, while it must be emphasized that it has not been possible to comprehensively canvass the criminal law of all European countries in which targetings have occurred, it seems a plausible suggestion that terrorist targetings would qualify as murder under most European legal systems. However, the application of domestic criminal law in such cases may be contested legally or blocked politically. For example, the team or individual carrying out the targeting may escape back to the country which authorized the operation, thereby avoiding the immediate prospect of prosecution. The US’s use of unmanned Predator aerial vehicles to carry out targeted killings is a particularly effective means of protecting its agents from prosecution in the countries in which targetings take place. In the case of Israeli operations in the Palestinian-administrated zones in the West Bank or in the Gaza Strip, the overwhelming firepower of the IDF assures its personnel’s immunity from the administration of Palestinian justice. In such cases, it is clear that the authorizing country would not cooperate in any extradition request. The claim of territorial jurisdiction may thereby be frustrated, and the main remaining possibilities for judicial proceedings are claims of international jurisdiction, or a claim of national jurisdiction on the part of the authorizing country.

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The Appeal to International Law, and Three Objections to It Even in a case where those involved in a targeting operation were captured in the country in which it had occurred, there would still be potential legal grounds for arguing that their acts should be considered subject to international humanitarian law rather than domestic criminal law. In fact, the grounds for such a claim have become far stronger over the thirty years since the Bouchiki case, and especially over the last decade. The claim, in essence, would be that their actions involved legal uses of armed force under international law. One way of making this claim would be to argue that terrorist targetings are legitimate acts of armed self-defense short of war. In recent years, however, targetings have typically been framed more broadly as occurring within an armed conflict between targeting states and terrorist organizations. Many of the world’s governments today identity themselves as engaged in “wars on terror.” Israel and the United States in particular, as will be seen below, argue that their wars on terror are genuine armed conflicts, even if they are of a new kind, and that therefore, their use of military force is legitimate, at least against terrorist organizations which have attacked them and continue to threaten them. Accordingly, they both claim that their targeting operations fall within the jurisdiction of international law, and specifically, that body of law which is sometimes called the lex specialis, or law of war, or in more recent times, the law of “armed conflict.” More specifically still, they argue that their targeting operations are properly regulated by that part of the law of armed conflict which addresses the actual conduct of hostilities – that is, international humanitarian law. Critics of terrorist targeting, however, raise a number of objections to such attempts to justify targeting by appeal to humanitarian law. Three of these objections warrant particular attention. First, critics of terrorist targeting often raise doubts about whether there really is a literal “war on terror,” and therefore whether humanitarian law properly applies to such operations. Kenneth Roth, the Director of Human Rights Watch, for example, has suggested that the expression “war on terror” is best understood as rhetoric intended “metaphorically,” as “a mere hortatory device” similar to the “war on drugs” or Lyndon Johnson’s “war on poverty” (Roth 2004: 2–3; Plot 2005: 180, 173–4). In consequence, counter-terrorist policies and actions should be subject to the normal constraints of peacetime law. States should pursue terrorists through criminal law enforcement, as the US did successfully with perpetrators of the 1993 bombing of the World Trade Center. A second important objection is that regardless of whether terrorist targeting falls within the jurisdiction of humanitarian law or not, it still – in Anna Lindh’s words – “violates human rights.” The legal argument has been elaborated by Philip Alston, the UN’s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (the Rapporteur). The Rapporteur has forcefully argued that even if the ongoing struggle with international terrorists was defined as an armed conflict, it would still be subject to international human rights law (UNCHR 2004: 15). Under that law, he maintains, terrorist targeting violates the right to life and due process of law. Ultimately, it constitutes, as Christopher Patton suggested, a form of extrajudicial killing prohibited in international human rights law.

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A third important objection is articulated persuasively by critics like Yael Stein (Stein 2001a, 2001b: 11; Gross 2003: 351). She argues that it is doubtful whether cases of terrorist targeting like those carried out by Israel properly fall within the jurisdiction of humanitarian law, but that even if they did, they would remain illegal. Terrorist targeting, she maintains, is a form of assassination, which is prohibited both under conditions of peace and of war. In consequence, the targeting of terrorists is a criminal act whether or not it is properly subject to international humanitarian law. The targeting countries’ appeals to international humanitarian law, and the rebuttals advanced by critics, raise a number of difficult but important legal questions. The remainder of this chapter will address the following questions in order: Is targeting a form of assassination and hence prohibited under international law (whether in peacetime or war)? Is it a violation of international human rights law? Or can the targeting of terrorists be justified by appeal to international humanitarian law? The chapter also examines the question raised by Antonio Cassesse: Can terrorist targeting in some cases be a war crime? Answering these questions will provide a clearer picture of whether (and when) targeting terrorists is defensible under international law. The chapter then concludes by considering briefly whether the specific US and Israeli targeting policies each raise more particular problems under international law, and whether they can be justified within the legal systems of the United States and Israel themselves. Is Terrorist Targeting Assassination? The most frequent argument for the illegality of targeting terrorists is that it violates an international prohibition on assassination (Gross 2003: 351; Stein 2001a: 14, 2003: 128). Defenders of targeting, however, dispute this claim, arguing that the definition of assassination in international law is narrow and does not encompass terrorist targeting in times of either peace or war (David 2003b: 112–13; Statman 2004: 180). In this dispute, the defenders of targeting have the more persuasive legal case, at least based on the law as it exists today. Leading studies of international law addressing assassination have concluded that the prohibition is narrowly defined in treaties and does not preclude terrorist targeting. For example, as Michael Schmitt, the Director of the Advanced Program in Security Studies at the George C. Marshall European Center for Security Studies, notes in his seminal 1992 study of law relating to “state-sponsored assassination,” the solitary international treaty which specifically addresses assassination in times of peace is the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (Schmitt 1992: 618; Beres 1995). But the Convention only prohibits “political assassination.” More specifically, it addresses only the assassination of internationally protected persons (officials of states and intergovernmental organizations). Terrorist targeting, however, is generally not directed against internationally protected persons, and is therefore generally not “political assassination” as described in the Convention. What the Convention indicates is that terrorist targeting cannot legally be used against public officials.

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Furthermore, Schmitt emphasizes that states have a right to act in self-defense enshrined in Article 51 of the UN Charter. When a state’s citizens are subject to armed attack, this right can be invoked. Moreover, an action taken in legitimate “self-defense” is not considered “political” for the purposes of the Convention. Armed attack is not clearly defined in the Charter, but there seems to be growing acknowledgement today (as will be discussed below) that terrorist violence can rise to the level of an armed attack, and therefore trigger a right of self-defense. In so far as states can successfully invoke this right of self-defense, their use of military force against the terrorist groups which have attacked them would not be criminalized under the Convention. However, critics like Stein may still point out that the use of military force in selfdefense is subject to humanitarian law, and that “assassination” is forbidden under humanitarian law. So even in using military force in self-defense, it remains illegal to target terrorists. This argument, however, depends on whether terrorist targeting fits within the meaning of assassination in humanitarian law. So what is the meaning of “assassination” under humanitarian law? It is different than in peacetime law, but again the definition is narrow and does not generally apply to terrorist targetings. Schmitt points out that in humanitarian law, two important international treaties touch on assassination (although not by name). Both of these treaties are acknowledged today as constituting customary law, and therefore apply universally to states and persons. Article 23(b) of the 1899 Hague II Convention asserts that “it is especially forbidden to kill or wound treacherously individuals belonging to the hostile nation or army” (Italics added). This provision is echoed in contemporary army manuals, sometimes with specific reference to assassination (for example, US Army Field Manual 27–10, Article 31). The second treaty that addresses assassination is the First Additional Protocol of the Geneva Convention (1977). Article 37 states: It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.

Two examples of perfidy would be attacking from under a white flag or while in civilian guise. In so far as terrorist targeting does not involve perfidy or treachery, it is not assassination under humanitarian law. This is not to say, however, that no terrorist targetings have ever involved perfidy; some have. A case in point is the failed Israeli targeting of Khaled Mashal, the chief of Hamas’s Political Bureau, in Amman on 25 September 1997. As described in Chapter 2, Mossad agents in civilian attire managed to inject Mashal with poison, but were apprehended by Jordanian authorities while attempting to leave the country. Israeli Prime Minister Netanyahu was eventually compelled to supply the antidote to save Mashal’s life. Nevertheless, Israel’s use of agents in civilian guise to poison Mashal clearly violated the Hague/Geneva prohibition on the use of treachery/ perfidy, rendering the attack an illegal assassination attempt.

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Schmitt plausibly concludes that while some forms of deliberate state-directed killing are prohibited under international law (both in peacetime and wartime), some are permitted. His example of permissible killing is, appropriately enough, legally conducted military operations directed at “combating terrorism”: Whether terrorism amounts to armed conflict is disputable. If it does, then states can engage terrorists directly and individually. Even if it does not, states have a generally recognized right of self-defense under international law, acknowledged in the UN Charter. Thus, if the targeted individual engages in activity that would qualify him as a combatant during an armed conflict, attacking him is legal. (Schmitt 1992: 644)

Therefore, targeting terrorists does not, at least in principle, fall under the international prohibition on assassination (providing it is not perfidious or directed against public officials). However, that does not establish that the policy is legal. It might still violate other elements of international law. Some critics argue, for example, that it violates human rights law. Does Targeting Terrorists Violate the Human Right to Life? The UN’s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has argued in a number of reports and statements that terrorist targeting violates the “right to life” guaranteed in Article 3 of the Universal Declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights, and made “non-derogable” in Article 4(2) of the latter (UNCHR 2004: 15–16; see also Stein 2001a: 7, 2003: 130). The argument is clear. Terrorists are human beings. All human beings have an unequivocal right to life (except perhaps for cases of capital punishment following due process of law). Terrorist targeting is intended to deprive alleged terrorists of life without due process of law, and therefore unquestionably violates their human rights. Because it constitutes a deprivation of persons’ right to life without due process of law, targeting is also sometimes characterized as a form of “extrajudicial execution.” However, this expression is not clearly defined in international law. The UN’s Economic and Social Council has drafted a recommendation of principles condemning extrajudicial killing, but these principles leave it to individual states to frame legislation defining and prohibiting it. Amnesty International defines the term as “unlawful and deliberate killing carried out by order of a government or with its acquiescence” (Kendall 2002: 1071). Amnesty condemns governments for relying on it as “an alternative to arrest.” The expression “extrajudicial killing” is most typically employed to describe cases of illicit state violence against domestic political opponents, such as “disappearances” (where political opponents are secretly abducted and killed by their own governments). Defenders of targeting object that in contrast to cases that could be characterized as extrajudicial killings, terrorist targetings occur abroad rather than at home, and only where arrest is not generally a viable alternative. Moreover, targeting actions are not undertaken in light of political opposition or even past crime, but in order to forestall future violence (Guiora 2004: 329–30; Kendall 2002: 1071–3). These

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are important distinctions, and may be sufficient to distinguish targeting from “extrajudicial killing,” but they do not get to the heart of the matter. The most plausible legal defense of terrorist targeting in view of its apparent violation of the human right to life would be to claim that the human right to life is not fully applicable to contexts of legitimate military actions that fall within the jurisdiction of humanitarian law. Terrorist targetings compliant with humanitarian standards would then neither involve a deprivation of rights nor be unlawful. This is exactly the claim that the targeting countries advance. They characteristically argue that they are involved in an armed conflict with terrorist organizations, and therefore humanitarian law has primary application. Targetings may also be subject to humanitarian law if they are legitimate acts of self-defense short of war intended to prevent further attacks by terrorist groups. Although there are some differences among legal authorities over whether and how human rights law applies in situations subject to humanitarian law, there is widespread agreement that where the (jus ad bellum) criteria for the legitimate use of military force are met, humanitarian law must take precedence over human rights law. The International Court of Justice (ICJ) discussed this point precisely in connection with the right to life (as provided in the International Covenant of Civil and Political Rights) in a seminal advisory opinion in 1996. The ICJ held that while the right to life did not disappear in situations subject to humanitarian law, such as armed conflict (or legitimate exercises of self-defense short of war), it had to be reinterpreted in terms of humanitarian law: the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself. (ICJ 1996: para. 25)

This common view of the relation between human rights and humanitarian law articulated by the ICJ has clear implications for the practice of targeting in situations subject to humanitarian law. These implications are well summarized by David Kretzmer, the Wayne Professor of International Law at the Hebrew University in Jerusalem: The implications of this theory in the present context seem clear. If the targeted killings take place within the context of an armed conflict between the victim state and the terrorist group … their legality will have to be decided on the basis of international humanitarian law [(IHL)]. If such killings are permitted under IHL, they will not be regarded as arbitrary deprivations of life under article 6 of the ICCPR [and other overlapping human rights conventions]. (Kretzmer 2005: 186)

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On the view articulated by the ICJ then, in situations properly subject to humanitarian law, only killings that violate that law would violate human rights law. There is therefore a strong case that if a targeting operation is properly subject to humanitarian law (for example, if it occurs in the context of an armed conflict or a legitimate exercise of the right of self-defense short of war), then it would not constitute a violation of rights or an extrajudicial killing unless it violated the provisions of humanitarian law. Therefore, the key question is: “How compelling are the claims that targeting actions may be properly subject to humanitarian law?” Can Targeting Operations be Subject to the Law of War? The Rapporteur raised the issue of the apparent violation of the human right to life inherent in terrorist targeting in a letter to the US Government following its 3 November 2002 targeting operation in Yemen (described in Chapter 4). The Rapporteur reported that “the United States,” in a written response: pointed out that since Al-Qaida was waging war unlawfully against it, the situation constituted an armed conflict and thus “international humanitarian law is the applicable law.” In its view, “allegations stemming from any military operations conducted during the course” of such armed conflict “do not fall within the mandate of the Special Rapporteur,” or of the [Human Rights] Commission itself. (UNCHR 2004: 15)

In essence, the US argued that its operation occurred within a context of armed conflict subject to humanitarian law. Under humanitarian law, it is permissible to kill an enemy provided that (1) the killing is not carried out perfidiously (or contrary to other specific humanitarian prohibitions), and (2) it does not violate the three core humanitarian principles of (a) distinction, (b) necessity, and (c) proportionality. Since its Yemen operation was carried out in full compliance with both humanitarian law and principle, the US government insisted that it was fully legal. Moreover, it asserted that since the operation was subject to humanitarian law, it was outside the domain of human rights law, and therefore the Rapporteur’s jurisdiction (along with that of the Human Rights Commission that gave him his mandate). The US response is not without some initial plausibility. Both al-Qaeda and the US government appear to regard themselves as at war with one another. Bin Laden has, in his own words, continuously “declared jihad against the US government” since 1996 (Lawrence 2005: 46–7, 23–30, 41–2, 48, 52, 61, 69–70). On the US side, on the morning of 12 September 2001, a little before noon, President Bush responded with a declaration of his own: “the deliberate and deadly attacks that were carried out yesterday against our country were more than acts of terror, they were acts of war” (Bush 2001a). With this statement, Bush launched what he has termed a “global war on terrorism” (Bush 2006). In the President’s description on 29 September 2001, “our war on terror will be much broader than the battlefields and beachheads of the past. The war will be fought wherever terrorists hide, or run, or plan” (Bush 2001b). On 14 September 2001, Congress formally authorized the President’s use of armed force by passing a joint resolution authorizing the President to “use all necessary and

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appropriate force” against those who perpetrated the 11 September 2001 terrorist attacks on the United States (Public Law 107–40 (S.J. Res. 23)). Similarly, Israel and the Palestinian armed resistance organizations that it (along with many other states) designates as terrorist groups consider themselves at war with one another. The Palestinian organizations, such as Hamas and the PFLP, consider themselves engaged in legitimate armed struggle (or a jihad) against foreign (Israeli) occupation. (see, for example, Article 7, Hamas Convenant, 1988). Moreover, they characteristically explain their use of atypical military tactics – such as suicide bombing – by reference to what Fathi Shikaki called the “unequal balance of power.” In Hamas leader Sayeed Siyam’s words: “we do not own Apache helicopters ourselves, so we use our own methods” (Pape 2005: 31–3). On the other side of the conflict, the Israeli government has recognized a state of armed conflict with the Palestinian resistance organizations at least since early in the second Intifada. In the words of Colonel Daniel Reisner, the Head of the International Law Branch of the IDF Legal Division, in a press conference on 15 November 2000: The current situation, the fact that now a large percentage of the attacks involve live weapons, that we are facing a Palestinian authority, that we are facing a Palestinian Security Service which in part is taking participation in hostilities, has brought us to the conclusion that we are no longer in the realm of peace …. We are definitely in the realm of armed conflict. (IMFA 2000)

So again both sides see themselves as engaged in armed conflict. Indeed, in 2002, as noted in Chapter 2, Prime Minister Sharon went as far as to declare that Israel “is at war, a war with terror” (CBC 2002). However, the issue raised by the US response to the Rapporteur’s letter is not a matter of mere political claims or perception. It is rather a legal claim. The Americans (and Israelis) claim to be in a legal situation of armed conflict, and therefore that the body of law which has primary application is international humanitarian law rather than human rights law (or domestic criminal law). So the question is not how the different sides portray their use of armed force, but whether the violence meets the legal definition of “armed conflict” (Duffy 2005: 218–19). A good deal hangs on this legal question (although, as noted, humanitarian law could also potentially be invoked if targeting operations were legitimate acts of self-defense short of war). If the assumption of the US response to the Rapporteur is correct – that is, that they are engaged in armed conflict against al-Qaeda – then their right under international humanitarian law to kill their enemies (when necessary) would follow. As Christopher Greenwood notes in The Handbook of Humanitarian Law in Armed Conflicts (2000): “humanitarian law accepts that one of the legitimate objects of warfare is to disable enemy combatants (and in many cases this necessarily involves killing)” (Greenwood 2000: 19-20). Therefore, a key question is whether the assumption underlying the US response is correct. In short, the answer is that the US government’s argument that its Yemen operation took place in a situation of armed conflict, and was therefore primarily subject to humanitarian law, is controversial but plausible. Moreover, as will be seen, there

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is also a narrower but less controversial justification available to targeting states through the right to use armed force in self-defense short of war (albeit one that targeting states have not emphasized recently). Is there a State of Armed Conflict between Targeting States and Terrorist Groups? The targeting states’ argument that they are in a state of armed conflict with terrorists subject to humanitarian law is controversial because the application of humanitarian law was traditionally limited to situations of war, and war was traditionally defined as armed conflict between the forces of two sovereign states. For example, in a frequently quoted 1905 definition, Lawrence Oppenheim held that “war is a contention of two or more states through their armed forces, for the purposes of overpowering each other and imposing such conditions of peace as the victor pleases” (in O’Connell 2005a: 3). This narrow conception of war held sway throughout the first half of the twentieth century. In the latter half of the century, however, the ambit of humanitarian law broadened considerably. As Greenwood, for example, notes: whereas the older humanitarian treaties applied only to a ‘war’, today humanitarian law is applicable in any international armed conflict, even if the parties to that conflict have not declared war and do not recognize that they are in a state of war. (Greenwood 2000: 10)

Moreover, the 1977 First Additional Protocol to the Geneva Conventions of 1949 addresses “armed conflict in which peoples are fighting against colonial domination, foreign occupation and against racist regimes” (Article 1.4), while the Second Additional Protocol addresses “non-international armed conflict.” Both of these latter cases of armed conflict involve states fighting armed non-governmental organizations rather than other states. Clearly, a state of armed conflict and humanitarian law now apply to far more than the clash of states’ armed forces. The key question in relation to the US and Israeli claims about “wars on terror” is whether the legal definition of “armed conflict” is now broad enough to encompass a low-intensity, asymmetric conflict between a state (or coalition of states) and an elusive international terrorist organization (or group of similar organizations), and therefore whether humanitarian law should be presumed to have primary application in relation to states’ general use of armed force against such terrorist organizations. Some leading legal commentators have expressed doubt about whether the war on terror constitutes a general state of armed conflict even with terrorist organizations like al-Qaeda. For example, Helen Duffy (the Legal Director of INTERIGHTS, an international human rights law center) raises doubts about whether the US war on al-Qaeda “can meet the criteria for the contemporary definition of armed conflict” in her 2005 The “War on Terror” and the Framework of International Law (Duffy 2005: 250–51). For one thing, she points out that a legal state of armed conflict must involve at least two clearly identifiable parties with recognizable armed forces engaged in the conflict. Duffy, however, doubts that terrorist organizations and their armed forces can be identified and distinguished with adequate rigor. She asks, for example, “how one can define and identify with sufficient clarity the relationship between disparate individuals and their membership, support, or sympathy for al-

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Qaeda?” (Duffy 2005: 252). In other words, how is it possible to be certain who does and who does not qualify as an enemy combatant? The difficulty in clearly specifying “al-Qaeda … as an identifiable and distinct party to a conflict” leads Duffy to conclude that “asserting that an armed conflict can be waged with an entity such as al-Qaeda may not be an accurate assessment of the law as it stood at the time of the September 11th attacks, or indeed as it stands in the first few years thereafter …” (Duffy 2005: 254, italics added). Duffy’s position finds some support in recent jurisprudence. As Kretzmer points out, the ICJ in its 2004 Advisory Opinion on the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory “opined that only an attack by a state can constitute the type of armed attack contemplated by Article 51 of the UN Charter,” and therefore trigger a right of self-defense, and sometimes war (Kretzmer 2005: 186). At the same time, Kretzmer points out that “three of the judges on the court dissociated themselves from the court’s opinion on this issue.” He then argues, citing impressive evidence, that the court’s opinion on this issue “does not reflect the view of most experts” (Kretzmer 2005: 186, esp. fn. 70). The ICJ’s position also seems at odds with that of the Security Council and general state practice following September 11th (Schmitt 2003: 32–5). Duffy also acknowledges that “the law has been moving toward recognizing” armed conflicts with nongovernmental “organizations,” and that September 11th has now sown “the seeds of debate … as to whether it may be, or should be, possible for an armed conflict to arise between states and entities such as al-Qaeda.” Noting some arguments in favor of such recognition, she remarks that “this is an area deserving of further analysis” where “legal development” could unfold (Duffy 2005: 252–4; see also Downes 2004: 294). In the mean time, however, she emphasizes that “the lethal targeting of those who fight with the adversaries forces … may amount to murder if there is no armed conflict …” (Duffy 2005: 229). Correspondingly, she suggests that the US targeting of Qaed Salim Sinan al-Harethi in Yemen in 2002 should be condemned as a violation of the human right to life (Duffy 2005: 340–44). In contrast with Duffy’s position, many contemporary legal scholars have argued that situations of armed conflict, or at least self-defense subject to humanitarian law, can and do arise between states and terrorist groups, and in such situations terrorist targeting can be legal (provided that it coheres with the rules of humanitarian law). These scholars draw on two general legal theories to explain how and where humanitarian law applies. One theory maintains that targeting can be a legitimate use of limited armed force in self-defense following a terrorist armed attack. This can be termed the “self-defense” theory. The other theory suggests that general situations of armed conflict now exist with terrorist groups, and that humanitarian law permits and regulates that “general use of counter-force” against such groups, including targeting. This can be termed the “armed conflict” theory (and it is this theory that has been adopted by the United States and Israel, as seen above). Both theories, which will be examined in more detail below, would permit some legitimate use of terrorist targeting. Both are also ultimately founded on a common idea: it is now recognized that a terrorist attack can qualify legally as an “armed attack,” and therefore trigger the inherent right of self-defense enshrined in Article 51 of the UN Charter.

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Many legal experts see the attacks of September 11th, and the reaction of the international community to them, as having established beyond doubt that a terrorist attack can qualify legally as an “armed attack” in the sense of the UN Charter. Yoram Dinstein, for example, in the fourth edition of his seminal War, Aggression and Selfdefense (2005), writes: The simple proposition that forcible action taken against a state may constitute an armed attack, even if the perpetrators are non-state actors [for example, a terrorist group] operating from a foreign state … was categorically upheld in previous editions of the present book … all lingering doubts on this issue have been dispelled as a result of the response of the international community to the shocking events of 11 September 2001. (Dinstein 2005: 206–7)

Dinstein cites three international responses in particular, each of which recognizes a US right of self-defense in response to the September 11th attacks. This right of self-defense, as he notes, is only legal under the UN Charter in response to an “armed attack,” and triggers a right to use force in self-defense subject to international humanitarian law. First and most importantly, he notes UN Security Council Resolutions 1368 and 1373, passed in the wake of September 11th, which both affirm the “right of individual and collective self-defense in accordance with the Charter” in the context of the “horrifying terrorist attacks” (Dinstein 2005: 207; UNSC 2001a, 2001b). Moreover, as Michael Schmitt notes: “the Council reaffirmed 1368 and 1373 on numerous occasions after October 7th, the day US and UK forces launched Operation Enduring Freedom against al Qaeda and the Taliban” (Schmitt 2004b: 747–8). Second, Dinstein notes that NATO voted to invoke, for the first time, Article 5 of the North Atlantic Treaty (1949), providing that “an armed attack against one or more of the Allies … ‘shall be considered an attack against them all’” (Dinstein 2005: 207). He stresses that “armed attack” is employed with specific reference to Article 51 of the UN Charter and the right of self-defense. Finally, Dinstein notes that in September 2001, the members of the Organization of American States similarly declared that “these terrorist attacks against the United States are attacks against all American States,” again with specific reference to Article 51 of the UN Charter as well as Article 3 of the Rio Treaty and the right of self-defense (see also Schmitt 2003: 8–23). Dinstein’s evidence from the immediate aftermath of the September 11th attacks illustrates a clear willingness on the part of states and international organizations to recognize that the September 11th terrorist attacks constituted an armed attack. Article 51 of the UN Charter recognizes “the inherent right of individual or collective selfdefense if an armed attack occurs.” Dinstein’s evidence then suggests that the United States enjoyed a right of self-defense in response to the September 11th attacks , and hence a corresponding right to employ armed force in self-defense against terrorist groups under the auspices of international humanitarian law (Dinstein 2005: 222). The Self-defense Theory What is far less clear is how much armed force can legitimately be employed in self-defense following an armed attack, and with what, if any, limitations. The

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implications of Article 51 for the use of force have been a subject of intense debate since its inception, and they have only become more fiercely contested in light of terrorist attacks. In the nineteenth and early twentieth centuries, “every state had a right … to embark upon war whenever it pleased,” and thus to employ general armed force against its opponent (Dinstein 2005: 75). Under the Kellogg-Briand Pact of 1928, states renounced war as an instrument of national policy, but retained a right to go to war (or into what could be described today as a general armed conflict) when attacked by another state or states (Dinstein 2005: 83–5). Today, the UN Charter prohibits member states not only from “the use of force” except in the situation of self-defense, but even from “the threat” to use it. Moreover, in most contemporary cases the occasions on which armed force can be used even in self-defense are limited by certain conditions embedded in customary international law – specifically, conditions of necessity and proportionality, which will be described below. As will be seen, these conditions are distinct from the humanitarian principles of necessity and proportionality that regulate the actual conduct of military operations. When an armed attack is not excessively grave, the law only permits the use of armed force in self-defense when these conditions are met. Such uses of armed force in self-defense are subject to humanitarian law, but do not necessarily create a general situation of war or armed conflict. They can therefore be described as limited uses of force in self-defense short of war. However, states are also generally understood retain the right to declare war in response to an attack if it is of sufficient gravity, and therefore to use comprehensive armed force subject to humanitarian law (Dinstein 2005: 238–9). Unfortunately, the exact standard of gravity required to trigger such a comprehensive use of force is subject to varying interpretations. The possibility of armed attacks by terrorist groups only further complicates the question. What seems to be widely accepted today is that states which have been subject to an armed attack, including by terrorists, may employ defensive armed force short of war to protect themselves, their territory, and their citizens. Many legal scholars who are skeptical of the broader claims of a war on terror accept this view (O’Connell 2002: 7, 11; Greenwood 2003: 360). One such scholar is Mary Ellen O’Connell, the Short Professor of Law at Notre Dame and the author of International Law and the Use of Force (O’Connell 2005a). O’Connell is a sharp critic of the idea of a “war on terror,” but none the less accepts that armed force can lawfully be used against terrorist organizations in self-defense in certain circumstances. She notes, for example, that the right of self-defense is generally held to include the right to use military force when necessary “to repel an armed attack in progress, [or] to prevent future enemy attacks following an initial attack” (O’Connell 2002: 7, italics added). For example, she argues that “if terrorists are planning a series of attacks in a terror campaign, the [victim] state may respond to prevent future attacks of which it has evidence” (O’Connell 2002: 9–10). Two key questions raised by this right are when the state facing attack can initiate the use of armed force, and what restraints it is subject to. Dinstein’s answer to these questions in his seminal War, Aggression and Self-defense are among the most specific and influential. The following paragraphs summarize his main findings.

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Dinstein distinguishes between two types of force that can be used in response to an armed attack – specifically, “interceptive” and “preventive” force. “Interceptive” force can be used to repel an initial armed attack, including terrorist attacks. He argues that interceptive force is legal once the attacking party has “committed itself to armed attack in an ostensibly irreversible way” (Dinstein 2005: 191, 208). Once an armed attack has occurred, however, Dinstein insists that “purely preventive measures are justified against [further] terrorist attacks.” This includes the “recourse to cross-border counter-force against terrorists and armed bands” – an exercise he calls “extra-territorial law enforcement” (Dinstein 2005: 208, 247). Moreover, Dinstein stresses that when exercising such counter-force under humanitarian law, “there is nothing inherently wrong in the targeting of enemy combatants. Enemy military personnel can be attacked either collectively or individually” (Dinstein 2003a: 147). Dinstein also leaves no doubt that this right of “preventive” self-defense following an initial attack includes cases where the state acting as host to the terrorists does not cooperate: a state that has been attacked “is entitled to enforce international law extra-territorially if and when the [terrorist host] state is unable or unwilling to prevent repetition of the attack” (Dinstein 2005: 247). There can be little doubt then that, on Dinstein’s account at least, self-defense can encompass the use of terrorist targeting, even without the consent of the host state. However, it is critical to note that Dinstein and other legal scholars accept that the use of force in self-defense short of war remains subject to certain conditions. As noted above, the most important of these conditions are necessity and proportionality. Dinstein stresses that in a 1996 advisory opinion, the ICJ recognized these two conditions as now constituting customary international law (ICJ 1996: 245; Dinstein 2005: 208). As Christine Gray of Cambridge notes in the latest edition of her International Law and the Use of Force (2004), these two conditions are the only commonly agreed upon requirements, and can be said to represent a “minimum test” for the use of armed force in self-defense. Indeed, she notes that in general state practice, necessity and proportionality “are often the only factors relied upon in deciding the legality of particular actions” (Gray 2004: 124). In the wake of an armed terrorist attack, necessity requires at least two things, according to Dinstein: first, “a repetition of the [terrorist] attack must be expected, so that the extra-territorial law enforcement can qualify as defensive and not purely punitive”; second, “[t]he absence of alternative means for putting an end to the operations of the armed bands or terrorists” (Dinstein 2005: 250; Schmitt 2003: 36). Proportionality requires that the state’s “operations are to be directed exclusively against the armed band or terrorists.” These are the basic conditions on the limited use of armed force in self-defense. Dinstein also suggests a third, more controversial, criteria for the use of “extraterritorial armed force” which he terms “immediacy.” Immediacy requires “that there must not be an undue time lag between the armed attack and the exercise of self-defense” (Dinstein 2005: 210; O’Connell 2002: 9). He notes, however, that this “condition ought not to be construed too strictly,” especially in cases of terrorist attack. States must be permitted the time to gather intelligence, pin the blame on the guilty parties, track down the implicated terrorists, and find an opportunity to deal with them proportionately (without excessively endangering civilians). The “immediacy”

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condition appears to be further loosened where targeting states obtain consent from the state on whose territory terrorists are located (Dinstein 2005: 250, 112). Many states and scholars reject Dinstein’s insistence on the condition of immediacy. Some focus exclusively on necessity and proportionality (for example, Vitkowsky 2007; Sofaer 2003), and some replace immediacy with a more forwardlooking condition of “imminence” (for example, Skopets 2006, Maggs 2006). Schmitt, for example, insists that: self-defense may only be conducted against an attack that is imminent or on-going …. In the context of terrorism, this point may occur well before the planned attack due to the difficulty of locating and tracking terrorists. Imminency is not measured by the objective time differential between the act of self-defense and the attack it is meant to prevent, but instead by the extent to which the self-defense occurred during the last window of opportunity. (Schmitt 2003: 67)

Schmitt’s “last window” criterion seems more commensurate with the spirit of selfdefense, in that it does not lapse while the threat of terrorist attacks remains ongoing. It also permits the threatened state to take action well before the threatened attack when this appears to be necessary to be certain of preventing it. Schmitt’s stress on imminent attack rather than immediacy seems to represent an increasingly standard view (see, for example, UN Panel 2004: para. 188). The foregoing account suggests a strong case that terrorist targeting operations can potentially meet the conditions on the use of armed force in self-defense short of war. Indeed, in some respects, terrorist targeting comports especially well with these conditions, and in particular the core conditions of necessity and proportionality. Targeting is a form of surgical attack directed at key terrorists. In this sense, targeting fits well with proportionality (which requires that armed force be directed solely at terrorists). Moreover, because targeting is a focused, flexible use of armed force, it can also be employed selectively once alternatives have been exhausted and the necessity of using armed force is established. Further, in contrast to major military operations, it does not commit the attacked state to a sustained military presence in the state playing host to the terrorist threat, and thus does not open up longer-term difficulties with adhering to necessity and proportionality. Finally, it also seems a good fit with Schmitt’s criteria of imminence. Specifically, the “targeted” character of such operations permits the state acting in self-defense maximum flexibility to wait for the final window of opportunity. The only arguable condition of self-defense which could impose a general horizon on terrorist targeting is Dinstein’s condition of immediacy, and even that was framed in relatively flexible terms in order to accommodate the necessary gathering of intelligence and tracking of terrorists – especially in cases where targeting states obtain permission to use armed force from states hosting terrorists. Further, additional armed terrorist attacks (or, it seems reasonable, foiled attacks) may re-set the immediacy condition. None the less, it must be noted that Dinstein’s proposed condition could eventually establish a hard temporal limit beyond which the use of preventive force would become illegal reprisal. The military alternatives available to a formerly attacked state would revert to the use of “interceptive” force if a new attack was launched (Dinstein 2005: 191).

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The Armed Conflict Theory Some states and legal scholars, however, see the September 11th attack (and perhaps the larger pattern of al-Qaeda attacks) as very grave indeed, and find the self-defense argument for the limited use of military force only to prevent further attacks by terrorist groups too cautious. As Dinstein notes (quoting J.L. Kunz), “there is no doubt that, in some situations, ‘The right to self-defense is … a right to resort to war’” (Dinstein 2005: 235). Many legal scholars have argued, for example, that the United States had a right to go to war following September 11th, and has exercised it, resulting in a situation of war or general armed conflict with al-Qaeda. Clearly, that was the intention of President Bush (as seen above). Thus, in the words of Greg Travalio (the Stanley Professor of Law at Ohio State University) and John Altenburg (Counsel at Greenberg, Traurig), “there is no doubt that the United States and others are engaged in a ‘war’ against terrorism no less real than many other wars fought in the past” (Travalio and Altenburg 2003: 100–101). In the words of Roy Schöndorf of Deveboise and Plimpton in the NYU Law Review: “it is the law of armed conflict, and not that of peace, that should be the [general] frame of reference …” (Schöndorf 2005: 5). Indeed, Schöndorf argues that this is now the prevailing view in the legal literature (Schöndorf 2005: 14; see also Jinks 2003: 9; Newton 2003: 382–5; Biggio 2002: 1; Slaughter and Burke-White 2002: 1–2). The implication of the “armed conflict” view is that the US may employ military force aggressively against al-Qaeda with the purpose of destroying it, and not solely to pre-empt planned attacks. While there are many specific differences among scholars who support this position (for example, over whether conflict with non-state actors like al-Qaeda is best framed as an inter-state or intra-state armed conflict), there is considerable agreement that in such armed conflicts, terrorist operatives are subject to attack, including targeted attacks – just as combatants are subject to attack in more conventional armed conflicts. As Dinstein observes, in armed conflict, “all combatants can be lawfully targeted” (Dinstein 2004: 94). In particular, he concurs with Schmitt that that in a situation of armed conflict, terrorists can be targeted individually, provided that the operation is consistent with the laws of war. Dinstein interestingly illustrates this point with reference to Israel’s armed conflict with Palestinian terrorist groups during the second Intifada: “the use by Israel of helicopters (firing missiles), tanks and regular infantry units in 2001/3 to target individual Palestinian fighters accused of terrorism was not in breach of LOIAC [the Law of International Armed Conflict]” (Dinstein 2004: 94–5). Although it is not without difficulties, a weighty legal case can be made for treating some ongoing struggles with terrorist groups under the general framework of armed conflict or war. The international recognition that violence perpetrated by non-state groups like al-Qaeda can rise to the level of “armed attacks” is an important component in this case, but those who support it can also draw on other important legal sources. For example, Nathaniel Berman of Brooklyn Law School has argued that the worldwide struggle with al-Qaeda appears to meet the influential definition of armed conflict outlined by the Appeals Chamber of the International Criminal Tribunal for

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the former Yugoslavia (ICTY) in 1995 (Berman 2004: 32–3;3 see O’Connell 2005b: 3–4 for a contrary view). The ICTY found, in Tadic Interlocutory Appeal: that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflict and extends beyond the cessation of hostilities until a general conclusion of peace is achieved; or, in the case of internal conflicts, a peaceful settlement is achieved. (ICTY 1995: para. 70, italics added)

The key point to note here is that the ICTY’s definition of “armed conflict” included anywhere where there was “protracted armed violence between governmental authorities and organized armed groups.” Berman and others have stressed that the September 11th attacks were not isolated incidents, but part of a larger pattern of attacks on US installations and citizens that included the attacks on the USS Cole on 12 October 2000 (17 fatalities and 40 injuries) and on the US Embassies in Tanzania and Kenya on 7 August 1998 (in which at least 235 people were killed and over two thousand injured). Bin Laden and other al-Qaeda leaders also allegedly helped to train some of the perpetrators of the 1993 World Trade Center Bombing, and have claimed responsibility for the 1993 attack on US Special Forces personnel in Somalia, as well as three distinct 1992 bombings aimed at killing US personnel in Yemen (Schmitt 2003: 11). The US government has responded to these attacks with military campaigns directed at least in part against al-Qaeda which have resulted in literally thousands of fatalities, for example Operation Enduring Freedom in Afghanistan. The United States continues to struggle with al-Qaeda both in Afghanistan and in Iraq today. This pattern may therefore well be argued to constitute “protracted armed violence between governmental authorities and organized armed groups,” and therefore to qualify as armed conflict. It may also be argued to, at least at times, have surpassed the threshold of “intensity” that is sometimes argued to define armed conflicts (see, for example, O’Connell 2005b: 3). The ICTY’s definition of armed conflict appears to even more clearly encompass the type of violence that characterized the second Intifada beginning in September 2000. This included both the violence committed by organized armed Palestinian groups like Hamas and the PIJ against Israelis (resulting in 1084 Israeli fatalities and 7484 injuries between September 2000 and the end of 2005; ITIC 2005) and the violence committed by Israeli Security Forces against Palestinians (resulting in 4267 fatalities as of September 2007, according to B’Tselem 2007). Again, the conflict appears to have at times at least surpassed any relevant “intensity” thresholds. Both the US struggle with al-Qaeda and the Israeli struggle with Palestinian terrorist groups then appear to meet the standard of protracted violence between armed organizations and governments, and therefore to meet the ICTY’s definition of “armed conflict,” and therefore to permit general military operations subject to humanitarian law. Scholars arguing that an armed conflict exists today between states like the US and Israel and the terrorist groups that have carried out attacks against them can also draw on important decisions of the Israeli and US Supreme Courts. In a series of 3 He allows that a doubt could be raised over the sporadic nature of the violence.

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decisions, the Supreme Court of Israel has unambiguously accepted the notion that a state of “armed conflict” exists, and has existed from the start of the first Intifada, between the Israeli state and Palestinian terrorist organizations. Ahraon Barak, the then President of the SCI, made this point clearly in the SCI’s unanimous decision in the recent case of The Public Committee Against Torture in Israel et al. v. The Government of Israel et al.: The [SCI’s] general, principled starting point is that between Israel and the various terrorist organizations active in Judea, Samaria, and the Gaza Strip … a continuous situation of armed conflict has existed since the first Intifada. The Supreme Court has discussed the existence of that conflict in a series of judgments …. In one case I wrote: Since late September 2000, severe combat has been taking place in the areas of Judea and Samaria. It is not police activity. It is an armed conflict. (HCJ 7015/02) This approach is in line with the definition of armed conflict in the international literature…. Humanitarian law is the lex specialis which applies in the case of armed conflict. (SCI 2006: paras 16–17)

The case quoted here, decided in December 2006, is the one mentioned in Chapters 1 and 3 outlining the official Israeli guidelines for the targeted killing of terrorists. The SCI’s argument is not only that humanitarian law applies to the armed conflict between Israel and Palestinian terrorist organizations, but that humanitarian law applies specifically to the Israeli practice of targeted killing. Although the Supreme Court of the United States has not yet considered a case specifically dealing with the question of terrorist targeting, it appears to have indicated that it accepts the “war on terror” as a genuine armed conflict subject to international humanitarian law. In Hamdan v. Rumsfeld, Secretary of Defense, et al., decided on 29 June 2006, the Supreme Court ruled in favor of the claim advanced by an alleged al-Qaeda enemy combatant detained by the US Government (Salim Ahmed Hamdan) that he was not subject to trial by military commission because, among other things, the trial would violate his rights under international humanitarian law. Specifically, the court “conclude[d] that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ [that is, the Uniform Code of Military Justice] and the Geneva Conventions” (United States Supreme Court (USSC) 2006: Opinion of the Court: 2). So it appears that the court accepts (at least provisionally) the state’s position that the US is in an armed conflict with al-Qaeda subject to international humanitarian law. Indeed, in a dissenting opinion, Justice Thomas went so far as to specifically “treat Osama bin Laden’s 1996 declaration of Jihad against Americans [and not the 11 September 2001 attacks] as the inception of the war” (USSC 2006: Stevens, 35fn). The majority, however, “do not question the government’s position that the war commenced with the events of September 11, 2001.” They focus “on the September 11th, 2001 attacks that the government characterizes as the relevant ‘acts of war,’ and on the measure that authorized the President’s deployment of military force [that is, Congress’s Authorization of the Use of Military Force by the President (AUMF)]” (USSC 2006: Stevens, 35).

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In focusing on the AUMF, and the invocation of the President’s war powers, as officially initiating a condition of armed conflict with al-Qaeda, the Supreme Court appears also to have accurately reflected the intention of Congress. Congress’s AUMF explicitly went beyond authorizing war with states sponsoring terror, or states which permitted terrorists to operate on their territory. It rather permitted the use of all necessary and appropriate force against both organizations and persons involved in the September 11th attacks. Specifically, Congress authorized the President to: use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 … in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” (Public Law 107–40 (S.J. Res 35), Section 2a., italics added)

The Supreme Court merely added that regardless of whether this exercise of force were to be directed against a sponsoring nation, a terrorist group, or an individual, it remained subject to humanitarian law. These decisions rendered by the US Supreme Court and the Supreme Court of Israel establish important legal precedents that go some way to confirming the positions that terrorist organizations can constitute belligerents in a war with terror. In summary, then, while it is premature to declare the question of whether a “war on terror” can qualify as a general armed conflict in the legal sense settled, both Israel and the United States maintain that it can and does so qualify, and their case seems to be well founded and getting stronger. Not only can they point to a clear pattern of legal development toward recognition of armed conflict with non-state actors like terrorist groups, as well as some strongly supportive judgments and expert opinions before 2001, but also to a transitional event in the September 11th attacks, and then to clear precedents from states and international institutions in the wake of that event. Most importantly, they can point to strong support in judgments of their own supreme courts (and the US Congress). Obviously, these courts are the supreme interpreters of US and Israeli law. They are also, however, important sources of precedent for the larger international legal community, and it may well be that the judgments rendered by the courts will effectively resolve the controversy over the legal status of “wars on terror,” at least in so far as states’ military operations are conducted exclusively against groups that have carried out armed attacks against them and demonstrate the intention to continue to do so. After all, even Helen Duffy, who raised doubts in 2005 over whether the law could be said to have made the transition to recognizing “armed conflict against an organization” such as a terrorist group (or groups), was prepared to acknowledge that “this perspective, while not perhaps reflecting current law, signals a possible direction for future legal development” (Duffy 2005: 252; see also Downes 2004: 294; O’Connell 2005b: 5). Further, if the US and Israeli struggles with specific terrorist organizations can be defined as armed conflicts, then the two states can carry out military operations against the terrorist organizations which attacked them, including terrorist targeting operations, so long as those operations comply with humanitarian law.

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None the less, it may be argued that the ambiguous legal status of “wars on terror” is not yet fully resolved at the moment. Some leading legal scholars continue to argue against the view that a general state of armed conflict now exists between states like the US and Israel and specific terrorist groups that have attacked them (for example, O’Connell 2005b; Greenwood 2003). Moreover, state practice remains less than fully consolidated on this question. Yet even if the legal case for a general condition of armed conflict with nonstate organizations remains uncertain, there does seem to be a very strong case that terrorist violence of the type experienced by the United States and Israel qualifies legally as an “armed attack” and triggers a right of self-defense short of war. Many of the legal scholars critical of the general “armed conflict” framework in relation to the war on terror none the less accept a right of self-defense in the wake of armed attacks, including the use of military force “to prevent further enemy attacks following an initial attack,” and specifically where “attacks are planned, though not yet underway” (O’Connell 2002: 7, 11; see also Greenwood 2003: 360). These can be termed “planned imminent attacks.” A strong case can then be made that military operations can legally be used in self-defense following an armed attack by a terrorist group provided that they are necessary to prevent further terrorist attacks and are compliant with humanitarian law and other relevant conditions (evidently accepting an “immediacy” condition would pose a harder restraint than “imminency” or neither). Targeting states themselves are inclined to defend targeting operations, when they are compelled to do so, by appeal to a condition of general “armed conflict” or war with terrorist organizations. This is understandable both because the case for such a claim is in many respects plausible, and because the armed conflict position offers them great flexibility of action. Yet that should not obscure the fact that there is another, more limited justification for at least some targeting operations available to them in terms of self-defense short of war. Is Terrorist Targeting Permissible under Humanitarian Law? Some critics of terrorists targeting, however, challenge the legitimacy of such operations whether they are justified in terms of a self-defense theory or an armed conflict theory. In particular, these critics argue that the targeting of terrorists is inherently illegal because it systematically violates the very humanitarian law by which it claims justification (on either the armed conflict or self-defense theories). As noted above, humanitarian law permits attacks, even lethal attacks, on enemy combatants, but generally prohibits attacks against civilians. So if it could be shown that terrorists were properly classified as civilians rather than combatants, then targeting them might constitute a systematic violation of the law of armed combat, and indeed of its core principle of distinction (see, for example, Stein 2003: 129; Amnesty International 2001: 29; UNCHR 2004: paras 41–4). This line of argument – that terrorists are not combatants, but civilians – looks initially implausible. After all, as seen above, terrorists do not typically present themselves as civilians uninvolved in combat. They present themselves as resistance

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fighters, guerrillas, martyrs in a noble but asymmetrical struggle (Post et al. 2003: 175–83). As Tamar Meisels insists, “they themselves do not deny the military nature of their deeds; indeed, they take pride in it” (Meisels 2004: 303). None the less, this is precisely the argument made by Amnesty International and others. Yael Stein, for example, emphasizes that what is pertinent for the legal determination of combatant status is not how people think of themselves or present themselves, but whether they meet the specific criteria embedded in the conventions and customs of humanitarian law. She points out that international humanitarian law only recognizes two basic categories of persons, combatants and civilians, and that therefore, anyone who is not a combatant must be a civilian (Stein 2003: 128–9). She then points out that the legal definition of a combatant is relatively narrow. For example, under Article 4 of the 1949 Third Geneva Convention Relative to the Treatment of Prisoners of War: anyone belonging to the armed forces of a party to a conflict is a “combatant.” This definition applies not only to combatants in a regular army, but also to combatants in militias belonging to one of the parties, provided they meet four conditions: being commanded by a person responsible for his subordinates, having a fixed distinctive sign recognizable at a distance, carrying arms openly, and conducting their operations in accordance with the laws and customs of war. (Stein 2003: 129)

If terrorists fail to meet these conditions, Stein maintains, they are not combatants, but civilians. Terrorists typically do not wear fixed signs visible at a distance (that is, uniforms) or conduct their operations in accordance with the laws and customs of war – indeed, their defining characteristic is attacking noncombatants, which directly violates the core humanitarian principle of distinction (between combatant and civilian). Terrorists are therefore, according to Stein, legally civilians. As civilians, terrorists cannot be attacked without violating the law of war. Targeting terrorists is therefore illegal under humanitarian law. Presented this way, the legal argument advanced by the critics of targeting, including Stein and the Rapporteur, looks persuasive. Defenders of targeting, however, may raise two important objections: in the first place, the definition that Stein quotes is only one of several that occur in international conventions. There are also broader definitions of combatants in humanitarian law, and on some other definitions, terrorists might qualify as combatants (and therefore might not enjoy civilian immunity from attack). For example, Article 43 of the First Additional Protocol defines combatants simply as “all organized armed forces, groups and units,” whether under the authority of “a government or an authority not recognized by an adverse party.” This definition could be argued to encompass terrorist organizations involved in a sustained asymmetrical struggle. Moreover, the criteria for combatant status that Stein draws from the Geneva Convention definitions have often been read as setting out the requirements to be a fully legal combatant who can legitimately claim “prisoner of war” status if captured (Henckaerts and Doswald-Beck 2005: 15). Framed this way, the definition leaves room for a category of unlawful combatants (or “combatants without status”) who cannot claim full “prisoner of war” status if captured, because they do not comply fully with the laws of armed conflict. This interpretation of the passage seems especially

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attractive because it imputes to the framers of the law the plausible intention to create an incentive to comply fully with the laws of armed conflict rather than to reward those who violate the rules of combat by providing them with additional protection (that is, civilian status with corresponding immunity from armed attack). In the second place, defenders of targeting may respond to Stein’s claim that terrorists are civilians and should not be harmed, by pointing out that even if terrorists are treated as civilians, it is a long-standing rule of humanitarian law that if civilians participate in combat operations, they lose their immunity from deliberate attack. Therefore, even if the argument that terrorists are civilians were to be accepted, they would still lose their civilian protections as soon as they began to participate in combat operations including deliberate illegal attacks on civilians. Critics of targeting may respond forcefully, however, to both of the defenders’ arguments. On the question of combatant status, they may argue that even acknowledging the fact that there are multiple legal definitions of combatant, and that some may encompass alleged terrorists, the status of terrorists remains ambiguous, because there are at least some definitions under which they do not qualify as combatants. The Third Geneva Convention of 1949 Relative to the Treatment of Prisoners of War provides that where there is any doubt over combatant status, the individuals in question “shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal” (Article 5). This legal argument may be further buttressed by a practical consideration: humanitarian law conventions have, to date, avoided recognizing any third category between combatant and civilian, for a very good reason. A third category is best avoided because it offers a legal avenue toward the harming of civilians – in the same way that during the Second World War the dubious category of “quasi-combatant” (interpreted to include those working in war industries) was used to justify the strategic bombing of urban centers (Watkin 2005: 10). In response to the second argument offered by defenders of targeting, critics may point out that while it is true there is a long-standing rule that civilians who participate in combat operations lose their noncombatant immunity, defenders of targeting exaggerate the scope of this exception to the core principle of distinction. Stein, for example, points to Article 51(3) of the First Additional Protocol to the Geneva Convention, which provides that “civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.” She reads this to mean that civilians enjoy protection except when actually firing on enemy soldiers, “and as soon as they cease to do so, they regain protection …. They maintain their civilian status …. They cannot be hunted down and summarily executed” (Stein 2003: 129). Amnesty International similarly asserts, with specific reference to the Israeli–Palestinian case, that: Armed Palestinians who directly participate in hostilities – for example by shooting at Israeli soldiers or civilians – lose their protected status for the duration of the attack …. [But] They are civilians …. Because they are not combatants, the fact that they participated in armed attack at an earlier point cannot justify targeting them for death later on. (Amnesty International 2001: 29)

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Indeed, since terrorists are civilians, targeting them violates the core principle of humanitarian law – that is, the principle of distinction between civilians and combatants. Defenders of targeting may retort in turn, however, that the position argued by Stein and Amnesty International is unpersuasive, both in relation to whether terrorists must legally be treated as civilians and over when civilians lose their immunity from attack. On the former question, they may forcefully contend that most commentators, including the International Committee of the Red Cross (ICRC), recognize that international humanitarian law is unclear on how to categorize organized armed groups, particularly where they “directly participat[e] in hostilities” against states (Henckaerts 2006: 11; Henckaerts and Doswald-Beck 2005: 12–13, 21–4; Watkin 2005: 1–7). “Undoubtedly,” as the ICRC concludes in its Commentary to Article 43 of the First Additional Protocol (defining combatants), “there is room here for some margin of judgment” (Pilloud et al. 1987: para. 1679; Schmitt 2004a: 507–10). States may therefore claim a reasonable margin of interpretation in assessing combat status in specific cases. Since terrorists can seemingly qualify as combatants under at least some definitions in the conventional law, and since nobody, least of all the terrorists themselves, deny that they are engaged in combat activities (albeit illegally directed primarily against civilians), states are within their rights to treat them as combatants, especially where they do so openly with judicial and legislative support. Indeed, it may be forcefully argued that not treating “terrorists” as “combatants” in a “war on terror” is simply counter-intuitive: as Steven David puts it in relation to the Israeli case, “clearly, Palestinians armed with automatic weapons and bombs intent on killing Israeli citizens are not civilians” (David 2003b: 139). In response to the critics’ second point, defenders may argue that even if states were compelled to treat terrorists as civilians, they would not be prevented in most cases from targeting them. Critics of targeting, including Stein, Amnesty, and the Rapporteur, themselves agree that states can legally target civilians (including terrorists) if they “directly participate” in combat activities. They then interpret “direct participation” very narrowly. But “direct participation” need not be limited to the actual moment of firing a gun at a civilian or setting off a bomb. As will be seen below, for example, the SCI advanced a case for interpreting “direct participation” more broadly. Indeed, the two arguments in defense of terrorist targeting outlined in the last two paragraphs encapsulate the two main justificatory strategies being elaborated by targeting states today: countries employing targeting can either respond to the charge of the illegality of targeting terrorists under international humanitarian law by arguing (1) that terrorists are (unlawful) combatants who flout the rules of armed conflict, or (2) that they are civilians who participate directly and consistently in combat, and therefore constitute legitimate military targets. Strikingly, the United States and Israel seem to diverge in their preferred legal strategy, the US taking the first course of defining terrorists as “unlawful combatants” (that is, combatants who lose their claim to POW status by systematically violating the laws of war), and the Israelis seeing them as civilians illegally but continuously taking part in hostilities – although they confusingly also use the term “unlawful combatants” to describe them. Even more confusingly, the governments (and others) have at

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various times described the “unlawful combatants” as “illegal combatants,” or in some cases “illegal enemy combatants,” although these latter expressions have no established meaning in humanitarian law (see, for example, United States Congress 2006; ABC News 2004; see also Human Rights Watch 2002). For present purposes of examining the US and Israeli legal positions on targeting, only the expression “unlawful combatant” will be used, with the proviso that it has significantly different meanings in the Israeli and US contexts. The two countries’ legal positions on terrorist targeting may also be said to be at different stages of articulation. The US legal position on targeting is naturally somewhat fragmentary, as the government has yet to officially acknowledge the practice, but it can be filled out in terms of their more elaborated position on “unlawful combatants” in general and the Guantanamo detainees in particular. By contrast, the SCI’s recent ruling on the legality of terrorist targeting lays out its understanding of the legal framework regulating terrorist targeting in some detail. The US’s Implicit Defense of Terrorist Targeting US officials generally refer to their enemy in the “war on terror” as “unlawful combatants.” This terminology has been used in senior officials’ public statements, in Congressional legislation concerning enemy detainees such as the Military Commissions Act of 2006 (MCA), and in the administration’s legal submissions relating to challenges of the treatment of prisoners at Guantanamo Bay and elsewhere (see, for example, White House 2004, 2007a, 2007b; US Court of Appeal 2003: 16; US Congress 2006) The expression “unlawful combatant” has generated a good deal of controversy, particularly following President Bush’s 7 February 2002 order to treat captured Taliban fighters as “unlawful combatants” (Washington Post 2002). There has been argument both over the meaning of the expression and over whether it has an established place in international law. After all, the expression does not appear in the international conventions relating to humanitarian law (although some scholars argue that it can be negatively inferred from the conventions on the law of war, and is reflected in the special status of mercenaries and spies) (see, for example, Watkin 2005: 6).4 It is also not directly endorsed in the major decisions of international judicial bodies (although some judgments may imply the possibility of such a category) (see, for example, ICTY 1998: para. 271). Unlawful combatancy has, however, been widely discussed by legal authorities from the beginning of the century, has been acknowledged by some of the most important of these, including the ICRC, and has been recognized by some governments (ICRC 2005, Dormann 2003: 145–50; Watkin 2005: 6–7). More particularly, it has clear precedent in US law, most famously in the 1942 judgment of the US Supreme Court in Ex parte Quirin, in which the court upheld the conviction by military commission of six German saboteurs who had infiltrated the United States under

4 For a list of expert sources from around 1942, see Ex parte Quirin (USSC 1942: fn. 8, 12).

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orders to disrupt its war industries. Justice Stone, delivering the opinion of the court, asserted the legal category of unlawful combatants vigorously: By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. … Our government … has recognized that there is a class of unlawful belligerents not entitled to that privilege [that is, POW status], including those who though combatants do not wear “fixed and distinctive emblems ….” [These] have the status of unlawful combatants punishable as such by military commission. This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this government by its enactment of the Fifteenth Article of War. (USSC 1942: 30–31, 35–6)

Justice Stone proceeded to note that the distinction between lawful and unlawful combatants had been written into the Rules of Land Warfare promulgated by the War Department. In particular, these rules provided that “‘men and bodies of men, who, without being lawful belligerents,’ ‘nevertheless commit hostile acts of any kind’ are not entitled to the privileges of prisoners of war if captured and may be tried by military commission and punished by death.” Of course, if they are not captured, they remain combatants and are subject to attack by the enemy like any other combatant. The US Supreme Court drew significantly on Quirin in Hamdan v. Rumsfeld (USSC 2006). So in the US approach to the war on terror, terrorists are combatants, but ones who have lost their legitimacy by systematically violating the laws of war, and who can therefore be stripped of most of the privileges and protections enjoyed by legal combatants when captured. If they are not captured, however, they remain combatants (albeit illegal ones), and can be attacked. On this view, terrorist targetings are simply combat missions directed against combatants who lack full privileges if captured. By treating terrorists as (unlawful) combatants rather than civilians, US forces entirely sidestep the issues raised by Stein and Amnesty concerning the protections terrorists should enjoy as civilians. So, for example, where Stein and Amnesty argue that when terrorists complete a mission and return to civilian life, they regain their civilian protection and cannot be attacked (under the principle of distinction), the US position suggests that when terrorists complete a mission and mix indistinguishably with the local civilian population, they are only further violating the law of war by obscuring their combatant status. They may therefore legitimately continue to be attacked. Moreover, they are illegally exposing the local civilians to the danger of collateral harm from legitimate counter-attacks aimed at them. However, this US understanding of unlawful combatants has been subject to intense and well-argued criticism for effectively creating a class of persons with “no rights under IHL [International Humanitarian Law]” (see, for example, Hajjar

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2006: 31). This classification has invited abuse, particularly in the form of secret detention, intensive interrogation, including techniques that are, in the expression of the ICRC, “tantamount to torture” (Hajjar 2006: 33, 31–4). By contrast, the Israeli formulation of unlawful combatants, although in some respects less intuitive than the US’s, remains much more thoroughly embedded in existing law and provides a more robust set of rights for terrorists if captured (see, for example, ICRC 2005). The Israeli formulation thereby avoids some of the serious dangers connected with the US definition. The Supreme Court of Israel’s Position on Targeting Unlawful Combatants In The Public Committee Against Torture in Israel et al. v. The Government of Israel et al. (2006), the petitioners asked the SCI to rule that the government’s policy of targeting terrorists is illegal – that is, contrary to Israeli and/or international law. The SCI ultimately rejected this claim, holding that “harming” terrorists, “even if the result is death, is permitted, on the condition that there is no other less harmful means, and on the condition that innocent civilians are not harmed. Harm to the latter must be proportionate” (SCI 2006: para. 60). The SCI insisted that potential targetings must be carefully assessed on a case-by-case basis, but also laid out five baseline requirements for assessing the legitimacy of operations. The SCI’s decision also, like that of Justice Stone, embraced a category of unlawful combatants. Despite the similar terminology, however, the SCI ultimately took a very different view from its US counterpart on the “correct classification of the terrorist organizations and their members” (SCI 2006: Rivlin Opinion, para. 2). Specifically, while the SCI adopted the terminology of “unlawful combatants,” it in fact construed these as unprivileged “civilians,” rather than, as in the US construction, “combatants” having lost their privileges. In an opinion concurring with the SCI’s decision, Judge Rivlin drew attention to the differences between what he calls the “two paths” of classification open to the court – that is, either to accept a category of unprivileged combatant not explicitly present in black letter treaty law (as the US has), or to work within the explicit text of existing treaties to distinguish a “new group” of civilians – what Rivlin calls “uncivilized civilians” (that is, terrorists). To assess the strengths and weaknesses of these positions, however, requires an examination of the SCI’s construction of the classification of “unlawful combatant.” President Barak reported that in oral and written arguments, the Israeli state (the respondent in the case) had asked the SCI to recognize a category of unlawful combatant similar to the US category – that is, international law-breaking combatants who have lost their POW privileges and can be tried by military commission. The SCI decided to consider this request strictly in terms of existing law (“not … of desirable law”), and to consider only two sources: “international treaty law and customary international law” (SCI 2006: para. 28). On that basis, President Barak wrote, “it does not appear to us that we were presented with data sufficient to allow us to say, at the present time, that such a third category has been recognized in customary international law” (SCI 2006: para. 28). None the less, President Barak did not abandon the category of “unlawful combatants.” Rather, he reconstructed it on the basis of existing international

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humanitarian law by classifying terrorists engaging in violence against Israeli citizens and security personnel as “civilians taking direct part in hostilities,” and argued that by doing so, they lose their civilian immunity, at least for a time, and become legitimate targets of armed attack by Israeli forces – they become “unlawful combatants” (SCI 2006: Section VI). President Barak then invoked Article 51(3) of the First Additional Protocol, which he argued is now part of customary international law binding on Israel. This article provides that “civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities” (SCI 2006: para. 31). Correspondingly, if civilians (including terrorists) do take part in hostilities, they lose their “immunity” and are “subject to the risks of attack just like a combatant.” Drawing on diverse precedents, President Barak interpreted “taking part in hostilities” as acts that “by their nature or purpose are intended to cause harm to the army” or “civilians” (SCI 2006: para. 33). Therefore, he concluded, the state of Israel is undeniably within its rights to target unlawful combatants engaged in actions intended to cause harm to its civilians (that is, terrorists). Unfortunately, this line of argument appears to run directly into the objections raised by Stein and Amnesty (see above). They stressed that Article 51(3) permits action against unlawful combatants “only and for such time as they take direct part in hostilities” (italics added). As noted above, they read this article narrowly as permitting Israel only to take action against terrorists for the “duration of their [illegal] attacks” – that is, when caught red-handed in the midst of attacks. As soon as the terrorist action is complete, the terrorist would revert from an unprotected to a fully protected civilian who could be arrested and tried through normal law enforcement, but who could not legally be attacked. Further, in a legal opinion supporting the plaintiffs, Antonio Cassesse provided some forceful argument explaining why Article 51(3) should be read narrowly: The rationale behind the prohibition to target a civilian who does not take a direct part in hostilities, despite his possible (previous or future) involvement in fighting, is linked to the need to avoid killing innocent civilians …. Clearly, if a belligerent were allowed to fire at any enemy civilians simply suspected of in some sort planning or conspiring to plan military attacks, or of having planned or directed hostile actions, the basic foundations of IHL [International Humanitarian Law] would be undermined. The fundamental distinction between civilians and combatants would be called into question and the whole body of IHL would eventually be eroded. (Cassese 2005: 10)

A narrow reading of Article 51(3) is thus essential to maintaining the key combatant– civilian distinction at the heart of international humanitarian law. None the less, President Barak argued that the contemporary state of international law allows for a good deal of latitude in interpreting “direct participation”, and that there are good reasons for preferring a broader reading. He offered two basic points. In the first place, he drew extensively on the legal literature to show that there is no common agreement on the meaning of “direct participation.” In their compendious 2005 ICRC study Customary International Humanitarian Law, for example, Henckaerts and Doswald-Beck suggest that “it is fair to conclude … that a clear and uniform definition of direct participation in hostilities has not been developed in state practice” (Henckaerts and Doswald-Beck 2005: 23). In the second place, Barak

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drew on Michael Schmitt to identify a number of compelling reasons for generally preferring a broad reading of “direct participation.” In Professor Schmitt’s view: Gray areas should be interpreted liberally, i.e., in favor of finding direct participation. One of the seminal purposes of the law is to make possible a clear distinction between civilians and combatants. Suggesting that civilians retain their immunity even when they are intricately involved in a conflict is to engender disrespect for the law by combatants endangered by their activities. Moreover, a liberal approach creates an incentive for civilians to remain as distant from the conflict as possible – in doing so they can better avoid being charged with participation in the conflict and are less liable to being directly targeted. (Schmitt 2004a: 509; SCI 2006: para. 34)

Another way of putting Schmitt’s point is that imposing too narrow an interpretation on “direct participation” generates a perverse incentive for those who wish to participate in a conflict, and particularly for those on the weaker side of an asymmetrical conflict, to do so as civilians, so as to remain largely protected from retaliation from the militarily stronger side. Moreover, the temptation to exploit the law in this way (in what has been called the “revolving door” effect) must be even more extreme if there are safe havens available where local authorities will not cooperate in criminal enforcement. Terrorists could then operate with virtual impunity, vulnerable only at the moment they actually launched attacks. When this impunity is combined, for example, with the relatively new strategy of suicide bombing, in which the terrorist abandons interest in escaping following the attack, a situation is created where the terrorists attain a troubling freedom of operation. Finally, the legal effect of such strategy would also be to the terrorists’ benefit, confusing the status of combatant and civilians as they make rapid switches back and forth, thus undermining the meaning of the law of war itself and so obscuring the criminal nature of their own actions. There are good reasons then to be concerned about the consequences of a “narrow reading” of direct participation on the capacity of the law to protect civilians. It may also be argued that a narrow reading of direct participation is in some respects implausible. If the criteria Stein and Amnesty cite to identify a combatant were taken at face value, then militias, irregular troops, partisans, guerrillas, spies, and saboteurs would all, at least in so far as they do not wear uniforms, have to be treated as civilians rather than as combatants, and this result seems counter-intuitive and at odds with traditional practice as well as with other provisions of the Geneva conventions, for instance those relating to the treatment of spies (for example, Article 46 of the First Additional Protocol). Indeed, if Stein and Amnesty’s criteria are taken as the exclusive basis for who does and does not qualify as a combatant, then members of militias could always render themselves civilians (and therefore immune from enemy attack) simply by violating the laws of war (the fourth criteria for recognition as a combatant being “conducting their operations in accordance with the laws and customs of war”). Perhaps, however, the best argument against the narrow reading is simply to contrast it with a more plausible alternative. Stein and Amnesty’s narrow reading of “direct participation”, taken at face value, would entail that terrorists must be seen as civilians during all preparation and retreat from attack – even between repeated attacks (for they only “lose their protected status for the duration of the attack,” and

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“as soon as they cease … they regain protection”). Professor Cassesse is less rigid on this point. He allows that “a civilian who is engaging in a military deployment preceding the launching of an attack in which he is to participate, is to be considered as participating in combat in so far as he carries arms openly during the deployment [but] …. [w]eapons must be visible” (Cassese 2005: 7). Of course, if terrorists choose to hide their weapons, they retain their civilian protection and cannot be attacked, even if engaged in military deployment preceding an assault. Professor Cassese notes that civilian protection presents a special difficulty in the case of suicide bombers. By contrast, Professor Schmitt offers the following alternative reading of the phrase “taking part in hostilities” with particular reference to terrorist groups: Assume that the group has committed terrorism against the state and is expected to do so again in the future. In this scenario … the various terrorist acts may be regarded as part of a continuous operation. This characterization is analogous to the battle/war distinction. Once war has commenced, the initiation of each battle is not evaluated separately …. The situation is one of self-defense …. A tactic of targeting individuals merits no deviation from this general rule. (Schmitt 1992: 649)

On this alternative reading, terrorists who have committed attacks in the past and intend to do so again are assumed to be engaged in an ongoing struggle, and therefore remain legitimate targets, including when planning and deploying for further operations. President Barak concurs with this general assessment: a civilian who has joined a terrorist organization which has become his ‘home’, and … commits a chain of atrocities, with short periods of rest between them, loses his immunity from attack ‘for such time’ as he is committing the chain of acts. Indeed, regarding such a civilian, the rest between hostilities is nothing other than preparation for the next hostility. (SCI 2006: para. 39)

In other words, once linked with a chain of attacks, terrorists do not regain civilian protections when they leave the scene of an attack. They remain unlawful combatants. Still, as Kenneth Roth, the Director of Human Rights Watch, points out, even on a broad reading of “direct participation” and “for such time,” unlawful combatancy, once established, cannot be assumed to continue indefinitely. He argues that terrorists may regain civilian immunity if their membership in a terrorist organization is “subsequently withdrawn” (Roth 2004: 4–5). But the criteria he suggests requires elaboration – for example, how explicit must a break with a terrorist organization be? Schmitt offers a helpful standard for making this assessment: Once an individual has opted into hostilities, he or she remains a valid military objective until unambiguously opting out. This may occur through extended non-participation or an affirmative act of withdrawal [from violent activity]. (Schmitt 2004a: 510)

These standards are attractive in so far as they offer potential targets a choice of a slow, passive means of regaining civilian immunity or a quick, active means. Still, they introduce a good deal of interpretive complexity without wholly shutting the revolving door – for example, how long a period of non-participation is required

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before one ceases to be a direct participant in terrorism (and how can non-participation be proven)? On the other hand, does permitting withdrawal through an affirmative act not threaten to reopen the revolving door, allowing organizations and individuals to carry out attacks and then declare themselves civilians again? The interpretive complexity of determining when a terrorist ceases to reasonably be regarded as such suggests that the rote application of rules is bound to prove unsatisfactory (especially once the rules become known to the terrorists). It might therefore be compellingly argued that this determination is best made by a competent, independent, judicial authority in light of the known facts of individual cases. Similarly, President Barak argues that in a case like this, where there is no common agreement upon how to define a key term, there is no choice but to proceed “case by case.” In terms of rough guidelines, he suggests that it is at least clear that “a civilian is taking part in hostilities when using weapons in an armed conflict, while gathering intelligence, or while preparing himself for the hostilities” (SCI 2006: para. 33). He further emphasizes that this is “the accepted definition,” supported by many precedents. For example, the Inter-American Commission for Human Rights (IACHR) concluded in 1999 that civilians clearly participate directly “when they prepare for, participate in, and return from combat,” and hence become “subject to direct attack” (IACHR 1999: ch. 4.2, paras 53–6) On the other side of the question, the IACHR concluded that the category of “indirect participation” should be limited to those with no active involvement in operations, such as those who “express sympathy for the cause of one or more of the parties” or who “sell goods to one or more of the parties” (IACHR 1999: ch. 4.2, paras 53, 56). In other words, a civilian who only morally supports terror attacks, or who sells food (or other goods unrelated to combat activities) to those engaged in attacks, is not “directly” involved, and therefore does not lose his or her civilian immunity from attack. Within these rough parameters, however, President Barak concludes that states should have some flexibility to make their case in light of the peculiar circumstances in each situation, although he also stresses that “well based information is needed,” and must be “most thoroughly verified” to meet a “heavy” “burden of proof” (SCI 2006: para. 40). Moreover, after a targeting attack “a thorough investigation regarding the precision of the identification of the target and the circumstances of the attack upon him is to be performed.” In cases that involve collateral damage, investigations must also assess whether the operation met the proportionality test. Finally, “in order to intensify that [objective] character, and ensure a maximum of that required objectivity, it is best to expose that examination to judicial review” (SCI 2006: para. 54). In both the US and Israeli cases then, strong arguments can be offered in principle for the legality of treating terrorists as (unlawful) combatants, and therefore for targeting operations under humanitarian law. The Israeli case is more thoroughly embedded in the mainstream of international law. Yet, as Judge Rivlin notes, the US model corresponds better in some respects to the reality of contemporary terrorism. In President Barak’s own words: “in today’s realities, a terrorist organization is likely to have considerable military capabilities. At times, they have military capabilities that exceed those of states” (SCI 2006: para. 21). It is thus not difficult to see their agents as combatants, even if unlawful ones. The US position also seems to offer

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a desirable clarity and consistency that is less apparent in the more convoluted Israeli case-by-case approach: al-Qaeda terrorists are enemy combatants, and can be attacked at any time and in any way consistent with humanitarian law. But the Israeli position has some important advantages. For example, it avoids the legal black hole in which the US reading leaves unlawful combatants, enjoying neither the rights of combatants or civilians. In the SCI’s view, when unlawful combatants are captured, they remain civilians and therefore retain a baseline of rights. In the Israeli practice, they may be subject to administrative detention (under the authority of the Chief of Staff of the Armed Forces), but their incarceration remains subject to judicial review by a (civilian) district court (both initially and every six months thereafter) (Dinstein 2003b: 156). Moreover, as the requirement for review suggests, detention is only a temporary option. Unlawful combatants can (and should) be brought to trial under the criminal law. The SCI’s approach also attempts a greater degree of discrimination in target selection, proposing a caseby-case approach focusing on individuals directly involved in terror activities and posing a future danger to Israelis. These are important considerations, arguably more important than those favoring the US approach, although some doubts remain regarding the means that the SCI provides for assuring compliance with them. For example, the SCI’s careful, case-by-case approach seems at odds with its requirement only for retrospective independent oversight. The SCI’s Evidentiary Folly With this last point in mind, it will be worthwhile to briefly consider an insightful critique of the SCI’s decision on targeting that recently appeared in the Yale Law Journal and which would apply even more emphatically to the US government’s position. In it, Kristen Eichensehr charged the SCI with “evidentiary folly” (Eichensehr 2007: 1873). The SCI, she noted, framed its decision within the parameters of Article 51(3) of the First Additional Protocol, which provides that civilians only lose their combatant immunity “for such time” as they “directly participate” in combat. She pointed out accurately, however, that the SCI significantly “broadened the definition” of each expression. The result, she observed, was to sharply expand the range of both who can be targeted and when they can be targeted. For example, the expanded “direct participation” criterion permits not only the targeting of leaders and planners, but also those “providing [certain] services to unlawful combatants and participating voluntarily as human shields” (Eichensehr 2007: 1875). The implication of the expanded “for such time” interpretation is that “a terrorist may be permissibly targeted for weeks instead of for the hours immediately surrounding an attack” (Eichensehr 2007: 1877). Yet Eichensehr’s difficulties are not so much with the expanded definitions themselves (for example, she approves the inclusion of “those who decide upon or plan attacks”) as with what she regards as the SCI’s disregard for the “important evidentiary function” of the narrow definitions and its failure to compensate for them (Eichensehr 2007: 1873, 1876). The essence of Eichensehr’s argument is that because targeting states formerly had to wait until the last moment to intercept terrorists, there could be little doubt about who was involved in terrorist operations and about

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their intentions. In this way, the narrow “for such time” and “direct involvement” standards served an evidentiary function. Her point is that while the SCI may have had reason to expand the definitions, it should also have commensurately increased the evidentiary requirements for targeting. In particular, it may be noted that the SCI did not require the state to present any evidence to an independent authority on how or when targets had been involved in terrorist activities before undertaking a strike. The case for stronger requirements is one that will be examined further in Chapters 7 and 8. In the mean time, it must be sufficient to say that the argument for a heightened evidentiary requirement is not an objection to targeting itself, but a claim that rigorous and intensive (judicial) oversight is an essential requirement for any such policy. With these concerns in mind, it will be appropriate to consider the seriousness of errors in targeting operations, and in particular whether some operations can qualify, as Antonio Cassese suggested, as war crimes. Can Terrorist Targeting be a War Crime? Allowing that terrorist targeting is, at least in principle, permissible under humanitarian law, there remains an argument that in some cases it has been carried out in a fashion that renders it a crime under that law. This case has recently been advanced, for example, by Demian Casey in the Syracuse Journal of International Law and Commerce (Casey 2005). Casey focuses on the killing of Salah Shehadeh, the head of Hamas’s West Bank military wing. The strength of his analysis emanates not from the effects of targeting on the terrorists themselves, but from the unintended but foreseeable collateral impact on civilians. On 22 July 2002, following a series of bloody terrorist attacks claimed by Hamas under Shehadeh’s leadership, an Israeli F-16 fighter-jet dropped a one-ton bomb into Shehadeh’s apartment, bringing down the entire three-storey building and damaging several adjacent buildings (as described in Chapter 3). Fourteen civilians were killed, including nine children. An Israeli inquiry later found that “the procedures followed by the IDF operation were correct and professional, as were the operational assessments.” The IDF noted, moreover, that the targeting had been previously put off eight times due to danger to civilians, and that if intelligence had indicated the presence of civilians, “the timing or method of the operation would have been changed” (Meyerstein 2002). However, Casey notes that the IDF was at least aware of the presence of Shehadeh’s wife, Leila Safira, at the residence, and did not reschedule the attack or even reduce the size of the bomb it intended to drop on the building (Casey 2005: 338). It may be added that given the timing and locale of the attack, and the ordnance used, the IDF should have had reasonable foresight of the potential for multiple civilian casualties. Casey notes, moreover, that civilians have constituted between 30 and 35 per cent of casualties connected with Israeli targetings (Casey 2005: 316). Casey assesses the legitimacy of the attack in the light of three distinct war crimes specified in the 1998 Statute of Rome, the legal mandate of the International Criminal Court (ICC): (1) willful killing (of civilians), (2) attacking civilians, and (3) excessive intentional death, injury, or damage. The criteria for establishing each crime are

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essentially that the perpetrator launched the attack, that the attack caused the proscribed result, and that the perpetrator knew that the attack would cause the proscribed result. Casey concludes that in the case of each crime (and especially the last), the attack on Shehadeh met all three criteria and therefore constituted a war crime. Moreover, the Shehadeh case is by no means unique, although it is perhaps an especially extreme example. It seems likely that a similar legal case might be made against the US attack on a person they erroneously believed to be bin Laden and two companions on 4 February 2002 (described in Chapter 4). Similarly, it has already been shown that Israel’s perfidious 1997 attack on Khaled Mashal violated prohibitions on assassination under humanitarian law. Of course, a defense against Casey’s charge in the Shehadeh targeting (and in regards to the others cases mentioned) could be mounted, particularly concerning the third criterion – that is, that the attacker knew the attack would harm civilians. It is notoriously difficult to establish what planners knew. But the size of the bomb, the nature of the target, as well as the known presence of Shehadeh’s wife, undermine the credibility of this defense, especially in relation to the last charge of causing excessive intentional death, injury or damage. Similarly, the US authorities who targeted the suspicious persons in Afghanistan in 2002 could surely argue that they genuinely believed the “tall figure” to be bin Laden, although they apparently had no evidence to support this belief nor any information regarding the two figures conversing with him, which tends to belie any claim to have taken adequate precaution to assure the safety of civilians. If they did not know the target’s identity, that may be argued to be a product of their negligence. Casey’s argument therefore carries conviction, and not solely with the one case he examines in detail. It is important to note, however, that his argument is directed not to the targeting of terrorists per se, but to failures of implementation – specifically, to failures to take adequate precaution to protect civilians. What Casey’s argument exposes is the need for rigorous oversight of terrorist targeting to assure adherence to robust standards of civilian protection, and the serious legal implications of failures to uphold international standards. In summary, there seems to be a strong case that terrorist targetings are permissible in certain conditions under humanitarian law – in particular to prevent repetitions of armed attack by terrorist organizations. Yet there is also evidence that some actual cases of targeting have violated the rules of humanitarian law and may constitute war crimes. This conclusion suggests that states that have experienced armed attacks by terrorist groups may be legally permitted to use terrorist targeting under appropriate circumstances, but there is also a need to assure that it is only used in such circumstances. Establishing such assurances would seem to require more rigorous independent oversight of targeting operations. Finally, in so far as legitimate targets can only be determined on a case-by-case basis, and persuasive evidence must be required and carefully assessed, there is a strong case for some type of prior judicial determination of the combat status of proposed targets. The final section of this chapter turns from international law to the legality of the particular US and Israeli programs under their own domestic laws. In shifting from the general question of the permissibility of terrorist targeting to the particular programs pursued by the US and Israel, however, a final challenge to the legality of

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both of the particular programs under international law must be considered. The first concerns the failure of the US government to officially acknowledge its policy. The second involves the charge that Israel’s status as an occupying power disqualifies it from targeting terrorists in the West Bank and Gaza Strip. These issues will be briefly examined in turn, before focusing on the legality of targeting under domestic US and Israeli law respectively. Does the Secrecy of the US Policy Affect its Legality? A final concern about the US targeting policy in relation to international law concerns its actual practice, rather than its legal justification in principle; specifically, does the US government’s refusal to officially acknowledge its targeting policy undermine the case for its legality under international humanitarian law? The short answer is that it threatens to – especially since, if the foregoing analysis is correct, states’ use of military force against transnational terrorist organizations represent a complex, contested, and evolving area of international law. An important consideration in assessing what international law, and particularly customary law, does and does not permit is the official practice of states, both in terms of what they do and what they say about it. For example, in establishing a new rule of customary international law, it is only official state practices that are considered. As Jean-Marie Henckaerts puts it in the recent ICRC study, Customary International Humanitarian Law: “States wishing to change an existing rule of customary international law have to do so through official practice and must claim to be acting as of right” (Henckaerts 2006: 9; Henckaerts and Doswald-Beck 2005: xxxvii–viii, xxxii–iv). Only then can the state be seen as advancing a serious legal position. On the other hand, a policy that is “denied by the government itself” produces the contrary impression – that the state recognizes implicitly that it is violating international law and therefore must disavow its own policy. Therefore, the unofficial character of the US terrorist targeting policy itself produces perhaps the most pointed argument against the legality of the policy. Here it is worth quoting the US judge Abraham D. Sofaer from his 1989 Waldemar Lecture in International Law, which examined precisely the legal foundations of US counter-terrorist policies: While the US regards attacks on terrorists being protected in the sovereign territory of other States as potentially justifiable when undertaken in self-defense, a State’s ability to establish the legality of such action depends on its willingness openly to accept responsibility for the attack, to explain the basis for its action, and to demonstrate that reasonable efforts were made prior to the attack to convince the State whose territorial sovereignty was violated to prevent the offender’s unlawful activities …. A state cannot act secretly and without public justification in its self defense, however, and expect nonetheless to have its actions condoned by the world community. (Sofaer 1989: 121)

Here, not only is Judge Sofaer’s reasoning sound, but his warning to US policymakers is prescient. Again, this is not a criticism of terrorist targeting per se, which Judge Sofaer in fact defends when necessary to protect the safety of citizens, but of the clandestine exercise of such policy. The criticism does, however, reinforce the

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necessity for the US, if it intends to continue the practice of terrorist targeting, to make it a matter of official policy, and to ensure that it is carried out in full compliance with international law. Does the Law of Occupation Effectively Prohibit Israeli Targeting? A last issue of humanitarian law also warrants examination in relation to the specific circumstances of Israeli targeting policy. Some critics have argued that Israel is an occupying power in the West Bank and the Gaza Strip, and that as an occupying power, it has special obligations to persons living in those territories under the Fourth Geneva Convention of 1949 (ratified by Israel on 6 July 1951) which would preclude subjecting them to targeting operations (see, for example, UNGA 2001: 6–10; Kretzmer 2005: 206). Specifically, the argument runs that all persons living in occupied territory are protected persons under the Fourth Geneva Convention, subject to the legal administration of the occupying power, but also carrying rights to humane treatment and protection from all acts of violence – rights that are flagrantly violated by terrorist targeting. However, while there may be a persuasive case that at least parts of the territories should be viewed as occupied today, the claim does not necessarily determine the strict illegality of Israeli targeting practices (and for that reason, was dismissed by the SCI). To see why the law of occupation does not necessarily present a decisive bar to Israeli targeting policy, it is necessary first to dispose of a red herring that is frequently thrown into discussions of this issue. The Israeli government has long maintained that the territories are not “occupied” in the legal sense of the Fourth Geneva Convention. This argument is unpersuasive, for reasons that were well elaborated by the ICJ in its decision on The Legal Consequences of the Construction of the Wall in Occupied Palestinian Territory (ICJ 2004: para. 78; UNGA 2001: 6–10). Indeed, Kretzmer points out that “there are numerous decisions and dicta of the [Supreme] Court [of Israel] accepting [the occupation] framework” (Kretzmer 2005: 205–6). Accepting the status of an occupying power under the Fourth Geneva Convention creates some important difficulties for Israeli policy, and especially its settlement policies. Yet, contrary to first appearances, it does not necessarily preclude all use of terrorist targeting. Admittedly, Article 27 seems at first glance incompatible with such policy. It provides that all persons subject to belligerent occupation are entitled: in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

This permanent provision might certainly be thought to decisively preclude the targeting of terrorists resident in the occupied territory, because terrorists would qualify as protected persons. Yet, another permanent Article provides the Israeli government with a convenient exception clause which clearly applies to those it believes to be dangerous terrorists:

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Art. 5: Where in the territory of a Party to the conflict, the latter [occupying state] is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Article 5 explicitly exempts the occupying state from respecting the rights of protected persons outlined in Article 27 in cases where the occupying state “is satisfied” that the persons in question presents an urgent threat to its own security (including the safety of its citizens). There can be little doubt that a sustained campaign of suicide bombing against the occupying power’s urban centers can reasonably be construed as threatening its security. Israel could therefore reasonably regard those directly involved in such attacks as having forfeited their protections under the Fourth Geneva Convention. Terrorist targeting is certainly a very harsh measure, and doubtless somewhat at odds with the spirit of the Convention (particularly its general call for “humane” treatment), but the key legal issue is whether, in the Israeli government’s estimate, it is a “necessary” means to preserve the security of its citizens. It is worth recalling in this context President Barak’s observation that today, terrorist groups have considerable military capabilities, at times exceeding those of states. Where a terrorist group employs such capabilities to subject the civilian population of an occupying power to a sustained campaign of terror, the use of military force may be warranted to restore the security of the state and protect its own civilian population. In order to protect the bulk of the population under occupation, however, the use of such force should be as precise and surgical as possible. A case could therefore be made for the use of terrorist targeting under the appropriate circumstances. In recent years, moreover, two further strategies for justifying terrorist targeting operations have become available to the Israeli government. First, it is the view of many commentators that the initiation of the Oslo process in 1993 changed the status of the territories, or at least parts thereof. Under the Oslo agreements, the West Bank was divided into three administrative zones: in “Zone A,” both civil and security matters were transferred to the Palestinian Authority; in “Zone B,” Israel retained responsibility for security, while civil administration was transferred to the Palestinian Authority, and in “Zone C,” Israel remained responsible for both security and civil administration. Many legal experts argued that Israel, having ceded authority in “Zone A” and to a lesser extent in “Zone B,” could no longer be regarded as an occupying power with consequent responsibilities under the Geneva Conventions (Watson 2000: 176; Kretzmer 2005: 206). Others have argued that since Israel still has the ability to exercise effective control (and does effectively control entry and exit points), it should still be regarded as an occupying power throughout the West Bank. The relevant criteria for establishing the end of an occupation and the consequent legal status of the territories remain hotly disputed today. The situation has been further complicated since 2000 by Israel’s re-occupation of certain areas of “Zone A” in the West Bank on one hand, and by its withdrawal of both settlers and military forces from the Gaza Strip in 2005 on the other. The upshot of all this is that even accepting that Israel did have the responsibilities of an occupying power

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following the conquest of the West Bank and the Gaza Strip in 1967, it is not clear whether, where, and to what extent it retains those responsibilities today. Finally, it is the view of the Israeli government, as noted above, that the second Intifada precipitated a level of violence sufficient to create a state of “armed conflict.” As noted above, the protracted level of violence seemed to meet the definition of armed conflict outlined by the ICTY. Indeed, the UN Special Rapporteur of the Commission for Human Rights sent to the region in February and again in August 2001 came to this same conclusion: In February 2001, the Human Right Inquiry Commission had difficulty in categorizing the situation as a non-international armed conflict, defined … as “protracted armed conflict between governmental authorities and organized armed groups.” Today, as a result of frequent exchanges of gunfire between the Israel Defense Forces and Palestinian gunmen, it is probable that this threshold has been met …. (UNGA 2001)

It is worth stressing that Rapporteur had already come to this conclusion on the basis of events observed in August and September 2001. It should also be remembered that the ICTY definition of armed conflict specified that once established, the condition of armed conflict continued “until a general conclusion of peace is achieved; or, in the case of internal conflicts, a peaceful settlement is achieved.” Finally, in a situation of armed conflict, humanitarian law has primary application. As noted above, legitimate terrorist targetings can be conducted subject to that law. In summary, while the Israeli situation may be argued to be different and in some respects more complex vis-à-vis Palestinian terrorist organizations than the US position vis-à-vis al-Qaeda, these differences do not appear to impact decisively on the ultimate legality of targeting policies under international law. It is finally to the legality of such policies under domestic US and Israeli law which the last section of this chapter turns. Is Terrorist Targeting Legal Under the Targeting Countries’ Own Laws? International law does not exhaust the potential legal challenges to terrorist targeting. Critics of terrorist targeting also frequently raise the charge that targeting states violate their own laws in authorizing such action. In relation to the United States, the charge is typically that targeting violates Executive Order 12333 prohibiting any federal employees from involvement in assassination. In relation to Israel, it is typically that targeting violates the country’s Basic Law: Human Dignity and Liberty, adopted in 1992. As will be seen, however, neither complaint proves compelling. Terrorist Targeting and US Law Many critics of US policy have noted that Executive Order 12333 appears to prohibit an assassination policy (Rubin 2006; Harder 2002; Jenkins 1987: 6–7). As noted in Chapter 4, Executive Order 12333 requires that: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to

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engage in, assassination.” The order is both categorical and comprehensive as far as assassination is concerned. Executive Order 12333 does not, however, legally prohibit targeting terrorists today. In the first place, as Kristen Eichensehr points out, the Order is a matter of “US policy – not law” (Eichensehr 2003: 37). Moreover, just as such orders are signed and given their authority by one president, subsequent presidents may “circumvent or nullify them” without consulting Congress. Circumvention, she suggests, has been the strategy employed by President Bush. According to a report from Bob Woodward of the Washington Post, President Bush’s October 2001 Presidential Directive established that the assassination prohibition does not apply during wartime (Woodward 2002). Correspondingly, the President allegedly directed the CIA to “use all necessary means” to eliminate bin Laden and al-Qaeda, including targeting operations (Stone 2003: 2). In short, the President legitimately authorized the CIA to kill bin Laden and his associates, while at the same time assuring that this would not be a violation of Executive Order 12333. Eichensehr portrays this as a fairly sharp break in US policy. As seen in Chapter 4, however, the willingness of the US Executive to specifically target enemy leadership in the context of military operations was evident at least from the Reagan administration onwards. Indeed, as Steven David points out, “the United States had little trouble defending its efforts to kill Muhammar al-Qaddafi in 1986 or Osama bin Laden in 1998 using bombs and cruise missiles” although a general condition of “armed conflict” did not apply. Indeed, he stresses that in the views of Presidents Reagan and Clinton, “because they were military operations and not carried out under false pretences, the ban on assassination did not apply” (David 2003b: 113). In other words, the view that Executive Order 12333 did not apply to military operations (let alone situations of armed conflict) long pre-dated George W. Bush. Indeed, there is good reason to believe that the Executive Order was always intended to apply quite narrowly, and was never meant to preclude the use of terrorist targeting under appropriate circumstances. Michael Schmitt’s careful analysis of the Order’s origin, history, and the various legal interpretations that have been offered of it by the Department of Defense and the Justice Department lead him to conclude that while the Order’s import has at times been misunderstood or exaggerated, it was never intended to do more than incorporate the narrow international legal ban on “political assassination” into the practice of US foreign policy. Schmitt therefore concludes, under the “US operational code”: If there is a state of armed conflict, the ban on assassination is governed by the law of armed conflict, and the focus is on the issue of treachery …. [If an attack is not treacherous, it does not violate the ban. On the other hand,] a killing must be politically motivated to constitute an assassination during peacetime …. As a general rule the more highly placed the target, the more likely it is that the killing is political. [However,] [a]cts of self-defense that comport with the principles of necessity and proportionality under international law trigger the rules applying to armed conflict. Under these rules political motivation becomes irrelevant. (Schmitt 1992: 675)

In essence, then, in wartime, Executive Order 12333 only bans treacherous or perfidious assassination, and in peacetime, the political killing of leaders or state officials.

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Schmitt’s analysis clarifies why bin Laden and his al-Qaeda associates can be targeted, whether in peacetime or in war, without violating the Executive Order. Other leading authorities have drawn similar conclusions. For example, in a seminal memorandum published in Army Lawyer in December 1989 by William Hays Parks, the Special Assistant to the Judge Advocate General of the Army and one of the pre-eminent US experts on the application of international law to military affairs, concurred that: A decision by the President to employ clandestine, low visibility or overt military force would not constitute assassination if the U.S. military forces were employed against the combatant forces of another nation, a guerilla force or a terrorist or other organization whose actions pose a threat to the security of the United States. (Hays Parks 1989: 8)

Moreover, he specifically stressed that this remains the case whether conditions are those of peace or armed conflict: [the] use of military force against legitimate targets in times of war, or against similar targets in times of peace where such individuals or groups pose an immediate threat to United States citizens or the national security of the United States, as determined by competent authority, does not constitute assassination or conspiracy to engage in assassination, and would not be prohibited by the proscription in EO 12333 or international law. (Hays Parks 1989: 4, italics added)

Therefore, in so far as al-Qaeda is determined by competent authority to pose an immediate threat to US citizens, the Executive Order would not prohibit targeting its active members. Other scholars have gone further and vigorously argued that the US Executive Order does not even prohibit the killing of foreign leaders during wartime, let alone terrorists. For example, Georgetown Law Professor Catherine Lotrionte stressed that the Executive Order was a response to the findings and recommendations of the Church and Pike Committees (summarized in Chapter 4). But the committees’ conclusions were framed explicitly to exclude wartime conditions. The Church Committee, for example, insisted that “short of war, assassination is incompatible with American principles, international order and legitimacy” (Church Committee 1975: 1, italics added). The committee, in other words, limited its findings to peacetime conditions. Similarly, in announcing the Executive Order, President Ford stressed its application to peacetime conditions (as well as to public officials): he was, he said, “making it a crime to assassinate or attempt to assassinate a foreign official in peacetime” (Ford 1979: 362, 364, italics added). The Executive Order should therefore not be seen as protecting anyone, even foreign political leaders, from military actions under conditions of armed conflict. Thus, Lotrionte concludes: “the Presidential orders against assassination were intended to prohibit the killing of foreign political leaders [only] as long as the United States was not engaged in armed conflict with the countries of those leaders” (Lotrionte 2003: 76). On this reading, the killing of terrorists during wartime would even more clearly not constitute a violation, or even legitimate circumvention, of the Executive Order.

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However, one need not embrace the position of Lotrionte and others that Executive Order 12333 does not apply to wartime conditions at all to recognize a strong and growing (although not uniform) agreement that whatever the nuances of the Executive Order’s ambit, it does not prohibit targeting international terrorists who have committed acts of mass and indiscriminate violence against US citizens and seek to do so again (see, for example, Sofaer 1989: 116–21; Bazan 2002; Banks and Raven-Hasen 2003: 745–50; Canestaro 2003: 1; Turner 2003: 787–9, 808–10; Wachtel 2005: 678–80, 709–10; Machon 2006: 22; Yoo 2006: 48–69). Once this is recognized, it becomes clear that although it is within the President’s prerogative to reinterpret, circumvent, or rescind the Executive Order, it is unnecessary to do so because the order does not in fact prohibit the terrorist targeting policy he has authorized. In summary, Executive Order 12333 is not a legal prohibition, but a statement of policy. Furthermore, it is amenable to reinterpretation (or indeed revocation) by subsequent presidents. There is, however, good reason to believe that reinterpretation is unnecessary in the case of the targeting of terrorists because the order was never intended to prohibit it. Terrorist Targeting and Israeli Domestic Law Some critics of Israeli terrorist targeting argue that the practice violates Israel’s Basic Law: Human Dignity and Liberty. Yael Stein provides an effective articulation of their case. Article 2 of the law, she observes, guarantees that “there shall be no violation of the life, body or dignity of any person as such.” She also notes that Article 4 states that “all persons are entitled to protection of their life, body and dignity” (Stein 2003: 131). Both of these articles, she points out, guarantee a “right to life” which is clearly violated by targeting. It is also worth noting that both articles refer not only to citizens, but to all persons, without any express geographical restriction. There can therefore be little doubt that the law covers the Israeli government’s treatment of Palestinians in the West Bank and the Gaza Strip. It therefore appears that Israel’s own Basic Law prohibits terrorist targeting. None the less, Steven David shows that the conclusion of illegality is premature. The Basic Law, he points out, allows for the suspension of Articles 2 and 4 “by a law fitting the values of the state of Israel, designed for a proper purpose, and to an extent no greater than required or by such a law enacted with explicit authorization therein” (David 2003b: 114–15). David goes on to point out that Israeli law has permitted such a suspension. As described in Chapter 3, Judge Advocate General Menachem Finkelstein ruled that the targeting of terrorists was permissible under certain conditions – for example, when necessary “to prevent an imminent or future terrorist attack.” This goal could seemingly be said to involve “a proper purpose” “fitting the values of the state of Israel.” Indeed, Kasher and Yadlin go so far as to say that “it is the prime duty of a democratic state [like Israel] to effectively defend its citizens against any danger posed to their lives and well being by acts or activities of terror, both in the short and in the long run” (Kasher and Yadlin 2005b: 8, 2005c: 64). While there are grounds for doubting that the prime duty of democratic states like Israel is protecting its citizens specifically from terrorism, as opposed to famine, or war, or pestilence, for example, there can be little doubt that it is an important

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duty. If so, the Israeli practice of terrorist targeting appears to have not only proper authority, but also appropriate purpose to warrant an exemption from Articles 2 and 4 as provided within the Basic Law itself. Moreover, in December 2006, the SCI rejected a petition to declare targeting illegal. The SCI accepted that many (although not all) targetings were legal under the present circumstances, and issued its own rules. The supreme legal authority in Israel thus gave a limited endorsement to the practice of targeting terrorists. None the less, it should be kept in mind that it is always possible that the SCI is mistaken, and will reverse itself at some future juncture. Until it does, however, defenders of terrorist targeting have extremely strong grounds for arguing that the practice, at least within the guidelines set down by the SCI, does not violate Israeli law. Conclusion This chapter has examined the legal status of terrorist targeting under several bodies of law, and considered arguments for which body of law properly applies in such cases. It was found that terrorist targeting is illegal under the domestic criminal laws of the countries in which it takes place. However, targetings could be legal under international humanitarian law, provided that targeting states possessed a right to use armed force against terrorist groups. It also showed that a strong case can be made that states can possess such a right. In particular, there is growing evidence that terrorist attacks, like that of September 11th or those connected with the second Intifada, can legally constitute “armed attacks” that trigger a state’s right of selfdefense under Article 51 of the UN Charter. The right of self-defense involves the right to use armed force subject to conditions of necessity and proportionality. Legal debate continues today over whether further conditions, such as “imminence” and “immediacy,” also apply. Providing that terrorist targetings do not exceed the right of self-defense, and are compliant with humanitarian law, there is a strong case that they may be legal. Defenders of targeting are, however, divided over how far the right of self-defense extends in the wake of armed attacks by terrorist organizations. Some defenders interpret the resulting situation as one of armed conflict or war between terrorist organizations and the states against which they have carried out armed attacks. They argue that states at war with terrorist groups may use terrorist targeting to attack their enemies regularly in a manner analogous to the use of conventional military operations against the armed forces of another state. This is the position that has been officially adopted by both the US and Israeli governments in recent years. Defenders also argue forcefully that where targeting can be justified as lawful (either in self-defense or in the context of armed conflict), and where it is carried out in compliance with the rules of humanitarian law, it does not constitute a violation of human rights. Human rights embedded in international conventions like the International Convention on Civil and Political Rights are to be interpreted in light of the humanitarian law specially applicable to such situations. Terrorist targeting in these cases is therefore not properly characterized as extrajudicial killing. It also does not appear to meet the existing definition of assassination in international law,

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at least to the degree that it avoids perfidy and is not directed against public officials. Further, defenders appear to be on strong ground in arguing that terrorist targeting is, at least in principle, also compatible with the domestic laws of the United States and Israel. The practice of terrorist targeting thus appears to be legally defensible, at least in some circumstances. At the same time, critics of targeting make a compelling case that at least some specific attacks in recent years, such as that against Salah Shehadeh, have violated humanitarian laws and may be said to constitute war crimes. In this way, critics draw salutary attention to the need for tighter regulation to ensure that targetings are carried out in compliance with legal standards. In particular, the critiques they offer highlight the importance of a fair and authoritative determination of the combat status of targets – an issue that, as Duffy, Roth, and Eichensehr point out, can be hazy around the periphery of nongovernmental actors like terrorist organizations. The critiques also accentuate the importance of independent oversight to ensure that targeting operations are planned and carried out with adequate provision for civilians’ safety. In addition, critics draw attention to the necessity that such policies be announced and defended officially, and that specific operations be officially acknowledged after the fact (even if, by their nature, they must be carried out covertly). Some critics of terrorist targeting have also argued more ambitiously that the US conflict with al-Qaeda and the Israeli conflict with Palestinian terrorist groups do not qualify legally as armed conflicts or wars. While there seems to be growing support for the idea of armed conflict with terrorist organizations, it must be allowed that the issue is by no means closed. Whether armed conflict with terrorist groups has emerged or will emerge as part of customary international law will only become certain with the passage of time. Yet if the US and Israeli cases for being in armed conflict with terrorist groups remain inconclusive, there remains the more basic case for at least a limited form of targeting based on the right of self-defense. There is a very strong case and wide support today for the idea that terrorist violence can rise to the level of armed attack against states, instigating a right of self-defense which would warrant some use of military force abroad short of war to pre-empt further attacks. The justification of targeting on this self-defense framework would require evidence not only that targets were directly involved in terrorist violence, but also that the terrorist organization was preparing further attacks. This limited framework for targeting seems even more resilient than the armed conflict theory in the face of the various legal hurdles discussed in this chapter. However, pursuing targeting on this basis would create additional challenges for target selection, reduce the range of justifiable operations, and in that sense would likely entail a degree of risk that a terrorist attack might not be prevented. At the same time, it might reduce the likelihood of an error, collateral damage, or even a war crime. Ultimately, which, if any, model of targeting will be accepted within customary international law will likely not only be an issue of legal argument, but also one of state practice, and therefore a question of politics, and perhaps morality. Critics of terrorist targeting, moreover, can correctly point out that even if there is a convincing case that terrorist targeting is sometimes legal, that does not mean that it should be

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used, or used often. It may still be the case, for example, that such policy is politically unwise. It is to this contentious question that the following chapter turns.

Chapter 6

The Politics of Targeting Terrorists Parallel to the ongoing debate about the legality of targeting terrorists, a second dispute continues today over whether a policy of targeting terrorists is politically prudent. Indeed, many commentators see this as the most important issue in assessing the policy; as Ward Thomas has recently put it in regards to Israeli policy: “The most trenchant criticism of the Israeli policy of targeted killings … rests neither on morality nor international law, but on prudence: that it has made Israeli citizens less, rather than more, secure …” (Thomas 2005: 38). Thomas goes on to note that this criticism of the political wisdom of employing terrorist targeting raises at least two distinct considerations. It is not only a question of whether current terrorist attacks can be prevented or deterred, but also of what the policies’ implications are for Israel’s “long-term security” – whether, for example, it will encourage more terrorism over the long term, or reduce it. Yet Thomas’s two considerations do not yet exhaust the complexity of assessing the wisdom of targeting terrorists. Its prospects of contributing to the short- and long-term security of targeting states are also influenced by the way that other states, international institutions, and nongovernmental organizations react to and are affected by targetings. So there is an international dimension to the question of the political wisdom of terrorist targeting that also requires consideration – how will pursuing a policy of terrorist targeting affect relations with other states and international organizations, and even perhaps influence the international environment itself? Assessing the political wisdom of targeting terrorists is therefore a complex matter. There are at least three dimensions to the issue that demand attention: (1) short-term considerations of the impact of targeting on the level of violence and the numbers of dead and injured on both sides of the conflicts; (2) strategic considerations concerning the impact of targeting on longer-term political goals, including the struggle with terrorist organizations, and (3) diplomatic considerations concerning international perception and reaction to terrorist targeting. Much of recent writing addressing the consequences of terrorist targeting has focused on the short-term impact of the policy, and, particularly in the Israeli case, the charge that targeting terrorists tends to aggravate the cycle of violence between terrorists and the states that target them. This is wholly understandable, as the shortterm prospects for security seem at once less speculative and more urgent in terms of the blood that is currently being shed. It is, however, the longer-term prospects of the wars on terror which are likely to have the greater ramifications in human, social, and political terms, and the policy of targeting terrorists appears likely, at least at the present time, to play a significant role in these struggles, whether for better or worse.

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Among the least carefully considered dimensions of this question is the influence of the international community in shaping the effect of targeting operations, and how it is in turn influenced by these policies. All three political dimensions, therefore, require attention, and will be treated sequentially below. One general point must be repeated before turning to the practical arguments for and against targeting – that arrest, where practical, is always to be preferred to targeting. This represents at least one general point of agreement between critics and defenders of such policies. It is also a direct implication of the humanitarian principle of necessity, which requires that military operations always employ the least force necessary to attain the strategic objective (here, neutralizing terrorist threats to civilians). In the Israeli case, it is also a matter of policy and a specific legal requirement set down by both the Judge Advocate General and the Supreme Court of Israel (SCI 2006, para. 40). Less is known about the details of the US policy, but as indicated in Chapter 4, it appears that arrest has been the preferred option. After all, thousands of arrests of terrorist suspects have been made in comparison with a relatively small number of targeting operations. Moreover, it is a common feature of the known US terrorist targeting cases that arrest would have been extremely difficult. This difficulty is well illustrated in the case of Qaed Salim Sinan al-Harethi discussed in Chapter 4. Less than a year before he was targeted by a CIA Predator, 20 people were killed in a clash with tribesmen when Yemeni authorities tried (unsuccessfully) to arrest him. This common preference for arrest is not solely a matter of law. Arrest is also obviously more humane and less controversial. It also carries an important practical advantage: it preserves the possibility of gaining information from terrorists, often “information useful in preventing additional attacks” (Eisenstadt 2001). Arrest, however, is not always practical. As the Director of the Washington Institute’s Military and Security Studies Program, Michael Eisenstadt, observes in relation to the Israeli policy: it is not always possible to dispatch an undercover team deep into Palestinian areas in order to snatch “wanted” men. By using snipers, explosive devices, and antitank missiles, Israel can strike at targeted individuals in the heart of any of the major Palestinian cities or towns without incurring the military risks or political costs associated with entering “Area A.” (Eisenstadt 2001)

One needs only to imagine the chaos that would been created by an attempt to arrest Abdul Aziz Rantisi or Salah Shehadeh in Gaza City, or to have gone after Ali Hassan Salameh with his 17 armed guards in the heart of Beirut during Operation Spring of Youth in 1973. Moreover, the same point can be made regarding dispatching US teams to remote Pakistani villages near the Afghan border or to Tora Bora before the full-scale invasion of Afghanistan. The obvious impracticality of any such plan was apparently a major reason why CIA tribal allies were reluctant to go after bin Laden in the late 1990s. As noted in Chapter 4, the CIA officials in charge of the al-Qaeda task force stressed repeatedly how much easier it would be to simply kill him – and President Clinton eventually acceded on those grounds (Clarke 2004: 185–6, 204; NCTAUS 2004. 132–3, 142, 176). Another case frequently cited to illustrate the

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challenges that can confront arrest operations is the Battle of Mogadishu – that is, the events on which the book and film Black Hawk Down are based. On 3 October 1993, a US operation to arrest two members of the Habr Gidr clan resulted in two MH-60 Black Hawk helicopters being shot down, and ultimately, to the killing of 18 US servicepersons, the injury of over 70 others, and the deaths of at least 500 Somalis among more than a thousand casualties (Bowden 2001: 333). A smallerscale example, but closer to the current subject, is provided by an Israeli operation in the West Bank. On Thursday 4 January 2007, an undercover unit of the IDF attempted to arrest a Palestinian militant in a daylight raid in Ramallah. The soldiers had the target trapped in an office building, but when they attempted to arrest him, he resisted and tried to escape. He turned out to be armed, and an exchange of fire ensued. The target was shot, but ultimately escaped. However, the undercover unit was then attacked by “gunmen and civilians throwing stones” and prevented from withdrawing. “Four Palestinians were killed during the fighting and 20 others were injured” (Harel 2007). The key question at the heart of political controversies over the prudence of terrorist targeting is therefore, if arrest is impractical, but there is compelling evidence that a potential target is involved in terrorist activities that mortally threaten citizens and there is actionable intelligence on their whereabouts, should they be targeted if an operation can be designed that does not disproportionately endanger civilians? Defenders of targeting argue “yes,” among other reasons, because the operation, if successful, will prevent specific acts of terrorist violence and possibly deter others. Critics argue “no,” and one of their most frequent and most powerful arguments is because such operations are likely to generate a cycle of retaliations, increasing the level of terrorist violence and reducing the security not only of civilians in the vicinity of terrorist bases of operation, but also within the targeting state. Does Targeting Terrorists Generate a Rising Cycle of Violence? The idea that targeting terrorists perpetuates and even intensifies a cycle of violence is certainly a popular refrain among its critics – particularly in relation to Israeli policy (Amnesty International 2001: 1; Gross 2003: 357; Stein 2003: 133). In Gal Luft’s apt summary, critics hold that targeting terrorists is “operationally senseless because assassinating Palestinian militants only brings harsh retaliatory action, resulting in even more Israeli casualties” (Luft 2003: 3). The pattern that concerns critics is well illustrated by two of the cases described in Chapter 2 – the targetings of Yehiya Ayyash and Abu Ali Mustafa (Mustafa Zibri). Ayyash was killed in January 1996 while talking on a cellphone that had been booby-trapped by Shin Bet. However, in the two months following Ayyash’s death, Israel was rocked by four bus bombings resulting in more than fifty deaths. The organizations that claimed responsibility characterized the attacks as retaliations for Ayyash’s killing (Katz 1999: 275–86). Similarly, the targeting of PFLP leader Abu Ali Mustafa on 27 August 2001 was followed by the adoption of the suicide bombing tactic by the Al-Aqsa Martyrs’ Brigades (AMB). The result was “the most concentrated bombing campaign” up to that point in the second Intifada, and

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by some counts, record Israeli injuries due to suicide bombings (David 2002: 9; Guardian 2001). Moreover, Mustafa’s targeting was followed two months later by the first ever assassination of an Israeli Cabinet Minister, Rehavam Zeevi. The PFLP, which orchestrated the attack, asserted that the assassination was retaliation for the killing of its leader, Mustafa. These cases provide persuasive anecdotal evidence that targeting operations can precipitate what appear to be retaliatory acts of terrorism. Critics of targeting add that such retaliatory attacks against Israelis also tend to provoke further targeting operations, which in turn instigate further retaliation, and can therefore lead to an escalating cycle of violence (Gross 2003: 357; Stein 2003: 133). Critics therefore express an understandable concern that the violence may escalate out of control. Some recent statistical studies have lent further credence to at least some of these worries. Empirical Studies of the Impact of Targeting Two recently published empirical studies appear to provide quantitative evidence of the pattern already apparent in the anecdotal cases. The first study, published by Edward Kaplan (Yale University), Alex Mintz (Texas A&M), and Shaul Mashal and Claudio Samban (Tel Aviv University) in 2005, offers a statistical examination of the patterns of suicide bombing during the first three years of the second Intifada in relation to two types of counter-terrorist measures – “targeted killing” and “preventive arrest.” It purports to provide “the first empirical support for previous suggestions that offensive military measures are unlikely to prove effective against suicide bombings” (Kaplan et al. 2005: 233–4). In fact, as far as terrorist targetings are concerned, the “analysis suggests that such hits are counterproductive.” They appear to spark “recruitment to the terror stock” (Kaplan et al. 2005: 232). The authors recommend that countries confronted with sustained terrorist campaigns invest their resources in preventive arrest rather than targeting.1 A second study examining the pattern of Palestinian suicide bombings during the second Intifada (up to 12 July 2005), published by Robert Brym and Bader Araj of the University of Toronto, broadly confirms the findings of the first study. Brym and Araj collected reports of the precipitants of Palestinian suicide bombings from a range of sources, primarily from English and Arabic newspapers. They considered both the motives (“the reasons suicide bombers gave for their actions in statements they made prior to attacking”) and rationales (“the reasons organizational leaders give for undertaking specific suicide missions”) for the suicide bombings (Brym and Araj 2006: 1974–75). They found that fully 82 per cent of identifiable precipitants were reactive (to Israeli actions), and the single most sited provocation was “assassination of organizational leaders.” Their findings therefore included the following: “our analysis of precipitants leads us to conclude that most suicide bombings were revenge or retaliatory attacks and were advertised as such by the insurgents” (Brym and Araj 2006: 1978). 1 Kaplan, Mintz, and Mishal collaborated on another study published in 2006 based on shot-noise model that found that targeted killings increased the number of suicide bombing attempts but decreased their effectiveness (Kaplan et al. 2006: 561).

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However, a third empirical study focusing specifically on the impact of Israeli terrorist targetings challenges the finding of the first two studies. This 2006 study by Mohammed Hafez and Joseph Hatfield of the University of Missouri has a number of features that recommend it. It is the broadest of the three studies in scope, encompassing the impact of terrorist targeting not only on suicide bombings, but on the full range of terrorist attacks, differentiated by type, and including, as far as possible, foiled attacks. On the other hand, it differentiates between Israeli operations on the basis of whether they target terrorist leaders or mid-level militants, and according to whether they are accompanied by general military incursions. It is, moreover, based on the most carefully constructed and verified database, and tests the widest range of hypotheses, specifically, that terrorist targetings: (1) “deter militant organizations from planning more attacks”; (2) “produce a backlash effect”; (3) cause a “disruption effect” that “diminishes the number and success rate of attacks,” and (4) diminish Palestinian violence “when combined with major military incursions” (Hafez and Hatfield 2006: 360). It is also the most recent of the three studies (although it only covers the second Intifada up to 16 June 2004). In contrast with the two earlier studies, Hafez and Hatfield found that “the rate of [Palestinian terrorist] attacks did not vary significantly with the application of targeted [killings] ….” In essence, then, terrorist targetings “do not increase violence” (Hafez and Hatfield 2006: 378, 371). At the same time, while they did find a very clear and persistent decline in the success rate of Palestinian terror attacks during the period under investigation, they found “little support” for the proposition that this decline was influenced by the suppressive effect of terrorist targetings (Hafez and Hatfield 2006: 373–4, 378). The only “statistically significant” effect of terrorist targetings was a “very mild” disruption of the workings of militant groups over a two-week period following targeting attacks. However, this effect explained “at best only 7 percent of the variation of Palestinian violence,” an impact that they regarded as of “little practical significance.” They therefore concluded that terrorist targetings “do not quell violence, but they do not increase violence either” (Hafez and Hatfield 2006: 373, 378). They suggested that the sharp decline in the success rate of Palestinian attacks was likely primarily accounted for by “defensive measures,” including the building of the separation barrier and a robust Israeli security presence in the West Bank. Finally, they suggested that while the utility of targeting as an instrument for reducing terrorist violence is open to question, it may still be “useful as a political tool to signal a state’s determination to punish terrorists and placate an angry public.” So there is some disagreement over the empirical evidence on the effectiveness of terrorist targeting. What can be made of these differences? Does terrorist targeting provoke escalating violence? And how revealing are these studies of that general relationship? For reasons that have been outlined above, there is a good case for regarding the last study and its conclusions as the most authoritative to date, although it is by no means clear how generalizable its findings are. There are also some specific reasons to be cautious in interpreting the first two studies, at least in terms of their significance to the debate over the impact of terrorist targeting on overall levels of violence, and in particular on the security of the targeting state’s own citizens.

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Reservations Regarding the Linkage of Targeting and Escalating Violence Both the Kaplan et al. and the Brym and Araj studies are primarily focused on explaining Palestinian suicide bombing, in relation to which both are relevant and informative. They reflect only indirectly, however, on the effectiveness of terrorist targeting, and in particular on its influence on overall levels of violence. For one thing, while suicide bombings are certainly the most lethal and “high-profile” form of terrorism, they do not necessarily always mirror the overall level of terrorist violence (Pape 2005: 9). The studies therefore relate only partially to the key claim of elevated overall levels of terrorist violence. The types of methodology employed in the two studies also raises concerns. For example, the type of data employed in the Brym and Araj study is open to question. They rely, as noted above, primarily on the justifications/rationalizations for suicide bombings offered by terrorist organizations. However, the reliability of these claims is dubious. Terrorist organizations, it may be pointed out, have an incentive to claim that they act in retaliation in order to reinforce their self-justification and to deter future targetings – as Tamar Meisels notes: “whether these strikes are indeed the outcome of any particular assassination is always an issue of contention” (Meisels 2004: 319). The Brym and Araj study also seems to methodologically favor negative data regarding the effect of terrorist targeting over positive. The reason for this is that the study begins from suicide bombings and then tries to trace these back to a cause (even, at times, across several months; Brym and Araj 2006: 1978), which generally takes the form of an Israeli action, usually a targeting operation. However, it appears that this strategy of backward retracing would simply miss any terrorist targeting operation that terrorists did not link with a retaliatory attack – in other words, it ignores any terrorist targeting operation that did not (allegedly) produce retaliation, or even more strikingly, which disrupted a retaliatory operation. The strategy can thus reveal how many suicide bombings were (allegedly) precipitated by “reactive” rather than “positive” rationales, but it cannot say anything about what proportion of terrorist targetings produced (alleged) retaliations, and what proportion did not cause, or even prevented, terrorist attacks. The Kaplan et al. study also raises some methodological questions. The study “models suicide bombing attempts as a function of the number of terrorists available for the planning and execution of attacks, and refers to this number as the terror stock” (Kaplan et al. 2005: 226). The authors assume that the terror stock is a function of recruitment and removals. The latter “removal” variables (suicides, targeted hits, arrests, other factors) are based on observed data, whereas the recruitment rate must be estimated as a latent variable. Recruitment rates were estimated in various ways, all of which propose recruitment to vary as a function of targeted hits. Kaplan et al. sought to disprove the hypothesis that targeted hits dampen recruitment rates, in turn driving down the terror stock, and consequently lessening the probability of a suicide bombing attack in the subsequent period. The model is estimated with data from 2000 to 2003. Their results suggested that recruitment increases, not decreases, after targeted hits, especially successful hits. Targeting is therefore counterproductive, according to these findings. Although the authors note that there was a sharp decline

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in suicide bombings in 2003 (continuing into 2004), their data suggests that it was “preventive arrests rather than targeted killings that seem more responsible for this outcome” (Kaplan et al. 2005: 225–6). The study therefore makes a strong case that terrorist targeting increases rather decreases suicide bombing attacks, and probably by implication, terrorist attacks more generally. Yet this finding is less decisive than it might first appear. For example, the authors’ key claim is that their terror stock model fits the data from 2000 to 2003, but the goodness of fit measures they report (for example, p = 0.1433, likelihood-ratio p = 0.2324) are not strong (a p measure of less than 0.05 being a more conventional standard of significance). The authors also do not report coefficients for all the variables in their model, including the one for preventive arrests, so it is hard to determine how significant a factor this was in explaining the decline in suicide bombings in 2003 (and continuing into 2004). Moreover, it must be stressed that several of the key variables in the model reflect unobserved relationships and had to be estimated, including the constant recruitment rate in the baseline model. Yet the authors provide no explanation about how this rate was estimated. Finally, there is reason to be cautious about the key assumption that the number of suicide attacks is a direct function of the terror stock. Anecdotal reports coming out of the West Bank and Gaza Strip (including from the terrorist organizations themselves) indicate, if anything, a continual surplus of volunteers (see, for example, PBS 2002a; Reuter 2004: 107–23; David 2003b: 118). As one Israeli security official aptly summarized: “for every Palestinian gunman killed there are five new volunteers for suicide missions.” Nasra Hassan reported in The New Yorker in late 2001 that the biggest problem confronted by Hamas “is the hordes of young men who beat on [their] doors clamoring to be sent” (Hassan 2001). If these reports are accurate, it seems unlikely that changes in the pace of suicide bombings could plausibly be attributed to changes in the number of volunteers. Indeed, it may be conjectured that the number of actual suicide attacks is tied more closely to numbers of planners, leaders, bomb makers, as well as materials and opportunities. If this conjecture is accurate, it may be that targeting attacks can have a suppressive effect on terror attacks even if they tend to raise general recruitment rates. Most of these issues are traceable to the admirable ambition of the Kaplan et al. study – to test a specific explanatory model as a way of making sense of an apparent relationship between targetings and suicide attacks. But the necessary reliance of their model on a certain amount of guesswork unavoidably leaves their analysis open to important questions. By comparison, the last study by Hafez and Hatfield is grounded in a more conservative methodology focusing precisely on testing the actual relationship of terrorist targeting and terrorist attacks generally. Beginning from the established instances of targeting (distinguishing them according to the seniority of the target and whether they are coordinated with larger military operations), it examines the changing levels of Palestinian violence in the period that followed, in one-, two-, three-, and four-week increments (distinguishing “suicide bombings, non-suicide bombings, sporadic shootings, organized armed infiltrations, rocket attacks, and other forms of lethal violence) (Hafez and Hatfield 2006: 366). This methodology has clear advantages, particularly in so far as it focuses on the direct correlation of

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variables in the recorded data without relying on latent variables or the problematic claims of terrorist groups. On the other hand, it also suffers from some limitations. For example, as the Brym and Araj study suggests, the lag between an action and retaliation may be more than four weeks, in which case it will not show up in Hafez and Hatfield’s results. The study may then underestimate the degree of retaliatory violence. On the other hand, the methodology could equally under-represent the suppressive effect of terrorist targeting. Hafez and Hatfield fully recognize the limitations of their study, and stress in particular that it would be “premature to generalize the findings on targeted [killings] without further analysis of the factors that contributed to the decline in the success rate of Palestinian attacks” (Hafez and Hatfield 2006: 379). None the less, the study goes some distance to show at least that there is at the moment no hard evidence of a strong effect, either provocative or suppressive, from individual terrorist targetings over the following four weeks in the period of the second Intifada under study. These results concur with and complement the analysis of B’Tselem statistics presented at the end of Chapter 3. The results concur in so far as both found no consistent relationship between targeting attacks and levels of violence. The analyses complement one another in two respects. In the first place, the two analyses each provide an important time dimension missing on the other. The analysis in Chapter 3, for example, was based on data organized on a month-by-month basis, and consequently focused on evaluating the impact of terrorist operations on violence in the three months following the targeting attacks. It found no statistically significant increase or decrease over the following months. It could not rule out, however, a retaliatory effect in the immediate period following targeting operations. The Hafez and Hatfield study corrects this deficiency by illustrating that the four weeks immediately following targeting operations also exhibit no statistically significant relationship. On the other hand, the analysis of the B’Tselem numbers provided in Chapter 3 found that the findings of Hafez and Hatfield extended beyond four weeks, to at least three months. The second manner in which the studies complement one another is in the way they measure impacts. Where Hafez and Hatfield examined numbers of terrorist attacks (differentiated by type), the examination in Chapter 3 focused on Palestinian and Israeli fatalities. The fact that the two studies came to similar results employing different measures tends to reinforce both sets of results. The fact that numbers of attacks were relatively unaffected by numbers of targeting operations helps to explain why there were no consistent variations in numbers of fatalities. At the same time, the fact that numbers of fatalities did not vary with numbers of targeting operations suggests that the number of terrorist attacks was a faithful measure of levels of violence (that is, that terrorist attacks did not change in terms of lethality or scope). Together, the two sets of results make a significant case that terrorist targetings tended neither to escalate nor diminish overall levels of violence in either the immediate or short run during at least the years of the second Intifada that were examined. The available evidence on the effect of terrorist targetings on the level of violence is therefore not, despite some partial initial findings, very supportive of the argument that terrorist targetings contribute to a rising cycle of violence. On the other hand, it

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is also not very supportive of the contrasting claim that terrorist targetings effectively suppress violence. What, then, if anything, can targeting’s defenders say in support of the claim that targeting diminishes terrorism? What Remains of the Case that Targeting Terrorists Effectively Prevents Violence? Defenders of targeting like David, Byman, and Luft do not deny that terrorist organizations often attempt and sometimes succeed in conducting retaliatory attacks following targeting operations, and that such a pattern is perceptible particularly during the first years of the second Intifada. Steven David, for example, acknowledges in reference to the early months of the Intifada that “a much stronger case can be made that targeted killing actually increases the number of Israelis killed, by provoking retaliation, than it saves by eliminating key terrorists” (David 2002: 9, 2003b: 118– 19). None the less, they argue for the practicality of a targeting on two basic grounds: (1) the relationship between targeting operations and the suppression of terrorist violence is more plausible than critics suggest, and (2) there are reasons to think that the relationship is growing stronger over time, and becoming more evident. In the first place, defenders of targeting argue that it would be premature to dismiss the idea that it can act to significantly suppress terrorist violence on the basis of studies such as those summarized above (David 2002: 20–21, 2003b: 125–6; Luft 2003: 3; Byman 2006: 103–4). One key point in this argument is that the studies that have been conducted to date have been relatively narrow in scope. The three recent studies summarized above, for example, examine only (1) the first years (approximately three, five and four years respectively) of (2) the second Palestinian Intifada. All of the studies then focus on a relatively short period of comparatively intense violence in what has been a very long conflict between Israelis and Palestinians, as described in Chapter 2. It is not obvious that their findings would hold for other periods of the Palestinian–Israeli conflict, let alone for other cases like the US conflict with al-Qaeda. Moreover, in the larger history of terrorist targeting, there is a good deal of at least anecdotal evidence, particularly in connection with the Israeli–Palestinian conflict, that terrorist targeting can effectively eliminate sources of terrorist violence without instigating retaliatory attacks. As seen in Chapter 2, for example, in July 1956 the IDF Intelligence Division used targeting to suppress, at least for a time, a damaging terrorist campaign by Palestinian fedayeen attacking across the Egyptian and Jordanian borders. In the 1970s, Mossad succeeded in eradicating Black September, and more generally in greatly reducing terrorist attacks in Europe by Palestinian organizations. In early 1978, Mossad succeeded in poisoning Wadi Haddad, the leader of the PFLP – EO, leading to the dissolution of his organization. In July 1979, Israeli agents shot Zuhir Mokhsan, precipitating the disintegration of his ATzaika organization. In March 1988, Israel succeeded in killing Khalil al-Wazir (Abu Jihad), Arafat’s second in command, seriously weakening the PLO’s capacity to carry out successful attacks – without significant retaliation. On 28 October 1995, Israeli forces killed Fathi Shikaki, the head of Palestinian Islamic Jihad, in Malta, disrupting the organization and rendering it unable to carry out major operations against Israel for several years. These cases provide anecdotal evidence that at

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least at some junctures, Israel has been able to use terrorist targeting effectively to suppress rather than escalate violence. Similarly, over the past six years the CIA has successfully targeted at least five leading al-Qaeda figures without al-Qaeda retaliating with a major attack on a US homeland target. Moreover, it seems improbable that the issue of targetings would be decisive in prompting an al-Qaeda decision to attack the US. It can then be argued that the US has been able to use terrorist targeting to harm al-Qaeda’s leadership and perhaps reduce its capabilities without raising the level or danger of terrorist violence against its civilians. These counter-cases raise doubts about the generalizability of the data from the second Intifada. Moreover, there remains a forceful second argument, as noted above, that over time, targetings can do cumulative harm to terrorist groups, impeding their effectiveness and degrading their capacity to continue effective terrorist activities (Luft 2003: 3; David 2002: 6). Daniel Byman explains the logic as follows: Contrary to popular myth, the number of skilled terrorists is quite limited. Bomb makers, terrorism trainers, forgers, recruiters, and terrorist leaders are scarce; they need many months, if not years, to gain enough experience to be effective. When these individuals are arrested or killed, their organizations are disrupted. The groups may still be able to attract recruits, but lacking expertise, these new recruits will not pose the same kind of threat. (Byman 2006: 103–4)

As Stephen David aptly summarizes: “If these people are eliminated, the ability to mount attacks is degraded” (David 2002: 6–7). Over time, the argument runs, a sustained campaign of terrorist targeting can significantly reduce key capabilities, and thereby diminish the ability of terrorist organizations to carry out effective attacks. This second argument seems plausible, and finds some support both among experts on terrorist organizations as well as in data on the number and quality of their operations. Defenders of targeting point to the steadily falling number of attacks carried out in 2002–2006 by Palestinian terror organizations like Hamas and the PIJ which have been worst hit by terrorist targetings (ITIC 2005: 3–7). They point also to the steadily increasing proportion of foiled attacks and the declining effectiveness of the attacks that are actually carried out (see, for example, ITIC 2005). Byman, for instance, points to the recorded fall in the lethality of Hamas attacks from 3.9 deaths per attack in 2001 to 0.11 in 2005 (Byman 2006: 103). Khaled Hroub, the author of Hamas: Political Thought and Practice (2000), concurs: “On the ground, there is no question that Hamas has been seriously weakened by the decimation of its ranks through assassination … as is obvious from the decreased number of suicide attacks and Hamas’ inability to retaliate immediately for the assassinations of Yassin and Rantisi” (Hroub 2004: 33). Indeed, Rantisi himself “conceded that targeted killing had made things harder for the organization” (Byman 2006: 104–5). In fact, following the targeting of Rantisi, Hamas was compelled to stop publicly naming its leaders (for their safety). David also points to the clear priority terrorist groups place on stopping targeting when negotiating with Israel as evidence of its devastating impact (David 2002: 16–21, 2003b: 122–6). He concludes: “There is no question that Israel’s policy of targeted killing has hurt the capability of its Arab adversaries to prosecute attacks against Israel” (David 2002: 6).

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In Statman’s apt summary of the Israeli case, “Israel’s targeted killings have shattered Palestinian terrorist groups and made it difficult for them to conduct effective operations” (Byman 2006: 103). However, some defenders, including Byman, have argued that “to achieve such an effect on a terrorist group requires a rapid pace of attacks against it” (Byman 2006: 104). The pace of targetings achieved by Israelis in the 1980s and 1990s did not generally result (apart from a few spectacular successes such as the targeting of Fathi Shikaki) in sharp reductions in attacks against Israel. Daniel Byman also offers an account of the declining capability of Palestinian terrorist groups during the second Intifada that helps to explain why the pattern does not show up clearly in statistical studies like those summarized above. He argues that such studies ignore the changing situation and behavior of Palestinian terrorist groups in recent years: while before 2002 these groups may have had a reserve capacity that permitted them to carry out retaliatory attacks where strategically warranted, by early 2002, “groups such as the PIJ and Hamas seemed to be operating more or less at full capacity” (Byman 2006: 101). In consequence, they were either unable to retaliate, or “rushed” operations in an attempt to retaliate, resulting in the increased failure rate and falling lethality observed. However, while Byman’s account of the gradual suppressive effect of terrorist targeting does help to explain the declining number and lethality of Palestinian terrorist attacks following early 2002, it is important to stress that it is not the only possible explanation for this pattern. For example, both the Kaplan et al. and the Hafez and Hatfield studies suggested that the principal explanations for the declines in attacks were improved “defensive measures.” None the less, a long-term suppressive effect from targeting cannot be ruled out on the basis of available evidence. Stepping back from the particular arguments toward the larger picture, a couple of preliminary conclusions can be drawn in regard to the effects of targeting on the level of terrorist violence: (1) the matter is still obviously highly controversial; (2) the empirical findings to date are preliminary, and generally based on limited periods of the second Intifada (the generalizability of which is problematic); (3) the most authoritative study to date suggests that there is no hard evidence to support either of the hypotheses that targeting has a strong practical effect on increasing or decreasing overall levels of terrorist violence, and (4) both defenders and critics may point to some evidence that supports their views. From these results, it may be concluded that the matter remains under legitimate dispute, and that it is not unreasonable for the US, and particularly Israel (which has had some success with the policy before), to believe that it will reduce violence in the long run, or for critics to believe that it is likely to increase violence, or indeed, that its effects one way or the other may be negligible. Even in light of this ambiguous conclusion, however, critics may argue forcefully that in the absence of any clear evidence of a strong impact on suppressing violence, and given the problematic and dangerous nature of the policy, it would be wisest to desist. In particular, they can point to the possibility of a legal, political, and moral disaster of a botched operation (like the killing of Ahmed Bouchiki or the failed attempt on Khaled Mashal). In the absence of a very clear, tangible, and substantial reduction in violence, critics may forcefully argue that no reasonable and responsible government would embrace such a policy.

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Defenders of terrorist targeting may then respond by arguing that even accepting the position that there is no hard evidence regarding the effect of terrorist targeting on overall levels of violence, there remain compelling strategic reasons for continuing to employ it. Indeed, in their study, Hafez and Hatfield allude to some of these considerations as possible means of justifying a terrorist targeting policy: “This study,” they write, “does not address the political dimensions” of terrorist targetings: Especially their potential to signal one’s determination to fight back, demonstrate strength to placate an angry public, or as a means of retributive justice. It may well be that the political utility of targeted [killing] is more effective than its military one. (Hafez and Hatfield 2006: 361)

These claims, however, are also contested by critics, and carry the debate into a different realm of strategic political purposes beyond immediate security. It is to these issues that the following section turns. Is Terrorist Targeting in the Strategic Interests of States? The strategic justifications that advocates of terrorist targeting advance can be distilled into four basic claims: 1. It allows states to seize the initiative against terrorist groups and to attack them at their weakest rather trying to defend against them where they are at their strongest. 2. It is the least bad offensive counter-terrorist strategy available. 3. It is important to sustaining morale at home in the face of terrorist campaigns. 4. It is tactically desirable to send the right message to terrorist organizations and as a bargaining chip to use in negotiations involving them. Is Offense the Best form of Defense when Confronting Terrorists? One important reason for pursuing targeting even if it is not clear that it will reduce short-term levels of terrorist violence is that terrorism is extremely difficult to fight purely on the defensive. In the words of Thomas Henriksen, a senior fellow at the Hoover Institute: “Given the near impossibility of defending countless terrorist targets in streets, restaurants, airports, bus stations, and other public sites, preemption of attacks is the only reasonable deterrent measure” (Henriksen 2007: 22). Efforts to secure every avenue of attack are enormously costly, not only financially, but in terms of domestic civil rights, and indeed in terms of the basic trust and sense of security that is the bedrock assumption of any decent society. To raise just one illustrative example, in the week 5–12 August 2007, President Bush signed into law a new measure that “broadly expanded the governments power to eavesdrop on the international telephone calls and email messages of American citizens without a warrant” (Risen 2007). At the same time, the National Intelligence Estimate “suggests … that the threat of terrorism against the United States is growing worse”

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(Shane 2007). Here, the sacrifice of privacy to improve defensive measures is neatly combined with an apparent loss of security. Even Israel, with the ultimate defensive measure, its separation barrier/wall, feels compelled to keep an army in the West Bank (and increasingly frequently, in the Gaza Strip) to prevent attacks, and still the missiles continue to fall on Sderot. Moreover, maintaining a purely defensive posture becomes all the more difficult, as noted by Professor Robert Pape of the University of Chicago, author of Dying to Win: The Strategic Logic of Suicide Terrorism (2005), if one is confronted with suicide terrorists who are willing to give their lives to ensure the success of their attack (Pape 2005: 28). On 30 January 2007, Israel, despite all its defenses, despite having a tahdi’a with most of Palestinian terrorist organizations, and despite the fact that these groups have been almost exclusively preoccupied with a civil war in the territories, was hit with another suicide bombing, killing three in a bakery in Eilat (Myre 2007). But if it is impossible to defend a tiny country like Israel, of around 6.5 million people and with a land mass of 21,000 square kilometers, how can it be possible to defend indefinitely a country like the United States, of 300 million people and with a land mass of 9,631,420 square kilometers (with an almost 9000-kilometer border with Canada and an over 3000-kilometer border with Mexico, in addition to 19,924 kilometers of coastline) (CIA 2006)? The deficiencies of US homeland security are well known. While specific weaknesses can be progressively corrected, there is a strong case that purely defensive measures are unlikely to forestall attacks indefinitely (see, for example, PBS 2002b). Nationals and installations abroad further compound the challenge. Defenders of targeting argue that it is therefore wise for both the Israeli and US governments to go, as Kristen Eichensehr recently put it, “on the offensive” (Eichensehr 2003). In general, offensive measures are distinguished from defensive measures (like improved homeland security and freezing terrorist assets), in that they pursue terrorist organizations back to their bases of operations and seek disrupt, damage, and even destroy such organizations. In essence, defenders of targeting argue that in confronting terrorism, the best form of defense is a good offense. As David puts it in relation to Israeli policy: Terrorism is essentially an offensive action, making counter-offensive actions such as targeted killing an especially effective response. It is exceedingly difficult for Israel to defend itself from terror attacks or to deter terror attacks by Palestinians. In terms of defense there are literally tens of thousands of targets in Israel for Palestinian terrorists. Power stations, government bureaus, bus depots, airports, skyscrapers, open-air markets and sports stadiums – the list is endless. It is impossible to defend them all, especially against a determined adversary that can choose the time and place of attack. (David 2002: 6)

An offensive strategy seeks to take the choice of time and place away from terrorists, to attack and destroy their leadership, capability, and communication at the time and place of the targeting state’s choice. This objective is well encapsulated in the US’s National Strategy for Combating Terrorism, which calls for “an aggressive, offensive strategy to eliminate capabilities that allow terrorists to exist and operate – attacking their sanctuaries; leadership; command and control and communications

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…” (Machon 2006: 8–11). An offensive targeting strategy permits attacks on terrorist groups at all levels, although the focus is typically on the leadership. Defenders of targeting argue that an offensive strategy has additional advantages. For instance, the tactic also permits an element of surprise (as suggested in President Bush’s phrase “sudden justice”). On one hand, this feature of targeting may permit states to catch terrorists when they are isolated, and consequently reduce the danger posed to non-targets. On the other hand, the element of surprise may also contribute to a chilling effect on others involved in terrorist activities. As Meisels remarks: “wanted arch-terrorists do not go about their business as usual. Instead, they move around incessantly hoping to confound their enemy, presumably at considerable cost to their missions and public images” (Meisels 2004: 318). In essence, defenders insist that by keeping terrorist operatives, and especially leaders, “on the run,” a targeting policy prevents them from exploiting the inevitable weaknesses in the attacking state’s defenses effectively (David 2002: 7; Eichensehr 2003). In particular, defenders argue that being kept on the run significantly disrupts terrorist groups’ internal communications and planning. As Byman argues: “To avoid elimination, the terrorists must constantly change location, keep those locations secret, and keep their heads down, all of which reduces the flow of information in their organization and makes internal communications problematic and dangerous …” (Byman 2006: 104). Moreover, keeping terrorists on the run makes their work more personally difficult, and thus may help to deter such activities. As Byman continues: “Over time, the stress of such demands on terrorists becomes enormous. Operatives cannot visit their parents or children without risking death. Rantisi, Yassin’s successor, was killed on 17 April 2004 when he broke his cautious routine to visit his home” (Byman 2006: 104). In summary, defenders of targeting argue that it is wise for the US and Israel to pursue an offensive strategy against terrorist groups that have attacked them. Such a strategy throws terrorists on the defensive, deters participation in terrorist activities, and perhaps most importantly, has the potential to disrupt and perhaps destroy terrorist organizations themselves. To these points, defenders add that terrorist targeting is less costly, dangerous, and generally harmful than the alternative offensive strategies available. Is Terrorist Targeting the Least Undesirable Offensive Counter-terrorist Strategy? Among the offensive strategies available to combat terrorism, targeting’s defenders further insist that terrorist targeting is often the best of a bad lot – in the words of Michael Eisenstadt, it is “the least undesirable option” (Eisenstadt 2001; David 2003b: 123). The primary alternative offensive counter-terrorist measures intended to disrupt and damage terrorist groups and assets overseas are military raids and full-scale military invasions/occupations. These options can be referred to together as “major military operations.” Targeting’s defenders argue that major military operations do not exhibit the precision or relative cleanliness of terrorist targeting, and therefore do not seem as attractive as sustained counter-terrorist strategies. Much the same can be said for the idea of arresting or kidnapping terrorists in uncooperative foreign jurisdictions and transporting them home to stand trial (some of the difficulties of

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which were outlined in relation to Eichmann and Mengele in Chapter 2, and with relation to more recent examples at the beginning of this chapter). Defenders of targeting generally allow that in at least some circumstances, a strong case can be made for military operations. The US operation to remove the Taliban is widely (although not universally) accepted as justified in the light of the Taliban’s refusal to apprehend and extradite bin Laden, and particularly in light of the regime’s long history of association and support for al-Qaeda (see, for example, UN Security Council Resolution 1267 (1999)). Similarly, Israel enjoyed considerable support among both states and international institutions in July 2006 for its right to take at least some military action against Hizbullah in Lebanon (although many states, international organizations, and NGOs later criticized the disproportionality of Israel’s bombing campaign particularly in so far as it caused excessive harm to civilians). Nevertheless, major military operations are high-risk operations with enormous downsides. The downsides of both small and large military operations are similar in type although different in magnitude: (1) they cause more death and injury among the civilian population than targeting; (2) they constitute a much greater imposition on the civilian population – particularly when they lead to an occupation, which inevitably generates humiliations and resentments that feed the popularity of terrorist groups; (3) they often generate thunderous international condemnation, especially when they prove lengthy, and (4) they tend to be enormously costly in terms of both blood and money. The disadvantages of military operations are clearly evident in the Israeli case. Based on figures provided by the International Policy Institute for Counterterrorism, David estimates that about twenty times as many Palestinians had been killed by 2003 as a result of Israeli incursions than had been killed by targeted killing (David 2003b: 124). It is not surprising, then, that both Palestinians and the international community have been harsh in their criticism of Israeli military operations in the West Bank and Gaza Strip. A case in point is Israel’s Operation Defensive Shield, initiated on 28 March 2002 following a particularly lethal suicide bombing at a Passover Seder in Netanya. The operation, which involved the re-occupation of Palestinian cities like Jenin, Nablus, Ramallah, and Bethlehem, was harshly condemned by the international community led by the UN. The UN Special Coordinator in the Middle East, Terje Roed Larsen, described Israel’s re-occupation of Jenin as “horrifying beyond belief.” Indeed, as noted in Chapter 3, Israel was widely charged with committing a “massacre” in Jenin, including by the UN and leading human rights groups. Although these claims were later debunked, it was not before serious harm had been done to Israel’s image abroad (Starr 2002). UN General Secretary Kofi Annan wrote Prime Minister Sharon a bluntly worded letter condemning the operation, and calling on Israel to employ “only weapons and methods that minimize the danger to the lives and property of Palestinian civilians” (New York Times 2002). David argues that this call amounts to a request that Israel rely less on major military operations, and more on targeting operations (David 2003b: 123). Such a request might be expected to be greeted warmly given that of the 233 Israeli soldiers reported killed in the West Bank and Gaza Strip during the second Intifada, few if any appear to have been engaged in targeting operations (although many were engaged in arrest operations, searches for tunnels, and so on) (B’Tselem 2007). Moreover, the financial cost of targeting

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operations, while not known, would presumably be negligible in comparison to the enormous and continuing costs of a sizable permanent Israeli military presence in the West Bank. In all of these respects, targeting operations seem vastly preferable, from an Israeli perspective, to military incursions or occupation. The preferability of terrorist targeting to major military operations is even clearer on the US government’s side. The invasion of Afghanistan had claimed 640 coalition combatants (including 418 Americans) by August 2007, including a record 191 in 2006 (up from 130 in 2005 and 58 in 2004) (CNN 2007a). Civilian casualty counts in Afghanistan are subject to some controversy, but a widely cited LA Times study reported between 1067 and 1200 civilian deaths in the first four-and-a-half months of the coalition campaign alone (Zucchino 2002). A recent UN report gives a figure of at least 593 civilian casualties in the first half of 2007, although some other accounts are much higher (Bergen and Tiedemann 2007: B04). Recently, reports have begun to proliferate in the press of the Taliban’s gradual return to dominance in parts of the country and of the possibility of the coalition’s ultimate defeat (for example, Moreau et al. 2006). The US’s 2003 invasion of Iraq provides an even grimmer cautionary tale about the costs that can attend major military operations, although critics have rightly pointed out that the intervention seems to have little real connection with the war on terror. As of 1 August 2007, the death toll of US service members and civilian workers for the Department of Defense stood at 3647 (Farrell 2007). A recent paper by Linda Bilmes and Joseph Stiglitz estimated the total cost of the war (assuming a full exit by 2010) at between $700 billion and $1 trillion without macro-economic costs, and between $1 and $2 trillion total with them (Bilmes and Stiglitz 2006: 13, 30). Although there is no official count, recent studies have estimated the number of Iraqi fatalities due to the war as high as 650,000 (CNN 2006). The UN recently reported a death toll for Iraqi civilians in 2006 alone at over 34000 (Tavernise 2007). It hardly seems necessary at the moment to belabor the tremendously negative international coverage of, and reaction to, the US-led invasion. By contrast with military operations such as these, the costs of terrorist targetings appear to be far less. For example, not one US operative is known to have been lost in the course of targeting operations. The total civilian casualties resulting from US terrorist targeting operations are unknown, but by the end of 2006, at least twenty people appear to have been killed. This is a low-end estimate, but it represents around one-fiftieth of the low end of the Los Angeles Times estimate of civilian casualties for the first four-and-a-half months in Afghanistan alone. The direct financial costs of CIA targeting operations are unknown, but seem likely to be small by comparison with the campaign in Afghanistan. Moreover, in comparison with major military operations, US terrorist targetings, as Byman notes, “have not yet provoked much controversy” (Byman 2006: 96; O’Connell 2005b: 5). There thus seems little doubt that from the perspective of either US or local casualties, or in terms of public perceptions or costs, terrorist targetings have manifold advantages over major military operations. Where it is a viable option, terrorist targeting may be argued to be the preferable offensive tactic.

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The Dangers of Offensive Strategy The case for Israelis and Americans to prefer targeting operations, where possible, over major military operations seems persuasive. But is it? It may be pointed out from a critical vantage that the force of the argument relies on the acceptance of an initial assumption, that some offensive response is desirable. But the validity of the assumption is by no means self-evident. Several studies of counter-terrorist operations have suggested that the targeting countries might be better off concentrating their resources on improved defensive measures (for example, Hafez and Hatfield 2006: 378–9; Pape 2003: 356). Why, critics may then ask, is an offensive response necessary at all? Or, even if some US action against al-Qaeda and its Taliban supporters was justified, why is it necessary to continue with offensive operations outside Afghanistan? As noted above, defenders emphasize the point that given the number of attractive targets available, no defense can be seamless. Defense should therefore be supplemented by measures to keep terrorists off the offensive. Otherwise, they will find the weak link. But a two-part response to this argument may be suggested: first, defenses do not necessarily have to be perfectly seamless, they only need to be good enough to frustrate terrorists in practice; second, offensive strategies will only contribute to defense against terrorist attack if they are effective, which has yet to be established. On the other hand, if they are counter-productive, as critics charge, they are likely to put additional stress on what are acknowledged to be imperfect defenses. At any rate, since the effect of offensive operations is unknown, it can be argued forcefully that it is sensible to invest the limited resources available in areas whose benefits are not subject to serious doubt – such as hardening defenses. Moreover, it may be pointed out that the argument that terrorist targeting is of relatively little cost is misleading, for in order to be effective, it must rely on an enormous and efficient intelligence network (an even greater burden in the US case, where terrorist threats may be relatively widespread geographically) (Byman 2006: 107). Finally, it may be argued, adopting a purely defensive posture might be hugely beneficial in the war of ideas, since terrorist organizations effectively exploit charges that targeting countries are committed to aggressive, violent, and even unlawful policies around the world, and targeting can play into that image (Scharf 2004). This criticism potentially undercuts much of the force behind the strategic case for targeting because it challenges its crucial premise – the importance of taking the offensive. Still, there remain at least two tactics by which defenders of terrorist targeting may strengthen their crucial premise: they may argue that taking the offensive (preferably by targeting terrorists) (1) contributes to sustaining morale at home, and (2) is tactically necessary to send the right message to terrorist organizations. Political Purposes: Keeping Heart The claim that it is necessary to pursue offensive action against terrorists (with the implication that this should involve terrorist targeting) for domestic political reasons can be distilled into the following claim: striking back is necessary to sustain domestic morale. This argument turns on the idea that terrorism is as much an attack

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on the spirit of a people as it is an act of physical violence. As Ariel Sharon observed concerning Palestinian terrorism: “the object of this terror was not just killing and destruction, it was the demoralization of the people through the permanent disruption of normal life” (Sharon 2005: 96). The suggestion here is that a campaign of terror, particularly of the mass terror connected with suicide attacks, can lead to a growing collective sense of futility and hopelessness in the attacked society, particularly when there is little sense of the government taking effective action to combat terror. In David’s words: “withstanding repeated attacks without responding can lead to a sense of impotence and malaise that ultimately weakens a society’s ability to protect itself” (David 2002: 17). Pape argues forcefully that the purpose of suicide terrorism in particular is always this type of “political coercion,” to break the will of a people to resist, to compel them to embrace a policy of concessions and appeasement. He stresses especially that every historically recorded suicide terrorist campaign has been directed against a democracy, precisely because they are perceived to be politically vulnerable (Pape 2005: 38–60). Democracies are seen as responsive to the mood of the people, and it is the people that indiscriminate mass violence is meant to intimidate. Terrorist targeting is therefore, among other things, a way for the government to combat the social and psychological effects of terrorism – to give the population a sense of efficacy in the face of a relentless threat. In the Israeli case, for example, Byman argues that “by bolstering public morale, the targeted killings have helped to counter one of the terrorists’ primary objectives: to reduce the faith of Israelis in their own government” (Byman 2006: 102, italics added). David suggests that the need to sustain morale in the face of terror helps to account for the popularity of targeting in Israel and in the US following September 11th in spite of the fact that many people thought that it was more likely to increase than to decrease the threat of attack. As he notes: Public opinion polls support the … goals of targeted killing. In the United States, for example, 65 percent of Americans polled supported assassinations in the Mideast, even though 40 percent said such actions would increase the likelihood that more attacks would be carried out against the United States (only 28 percent said assassinations would decrease attacks against Americans). Similarly, only 19 percent of Israelis polled said targeted killings have [by 2002] decreased terrorism while 32 percent said it had done the opposite (37 percent believe it has had no effect on terrorism). And yet 70 percent of Israelis (in this poll) supported the policy of targeted killing. (David 2002: 18)

In another article, David cites a “poll published in Ma’ariv in July 2001,” during the period when Palestinian retaliations to Israeli targetings were most successful, that “found that 90 percent of the Israeli public supported the policy” (David 2002: 7–8). He remarks that in Israel, “there appears to be a near-universal belief that that targeted killing represents an appropriate response to the terror attacks that afflict the population.” More recent polls indicate more controversy over targeting, but suggest that the policy retains a core popularity, even in cases where retaliation is feared. A 2004 poll taken by the Israeli daily Yedioth Ahronoth following the highly controversial assassination of Sheikh Yassin, for example, showed that “60 percent of Israelis

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support the decision to kill Sheikh Ahmed Yassin, [although] 81 percent expected a surge in retaliatory terrorism following the attack” (Hafez and Hatfield 2007: 359). There is also evidence that the US’s endorsement of terrorist targeting is not just an emotional reaction to the September 11th attacks, but is at once more deeply rooted historically, and continues to be the predominant attitude today. On the historical side, a study by Sidney Appleton published in Public Opinion Quarterly in 2000 illustrated a deep shift in public responses to targeting terrorists before September 11th. The same basic question was repeated in two Gallup polls in 1986 and 1998: “Should the U.S. order the CIA to assassinate known terrorists before they can commit future terrorist acts?” While a plurality of respondents in 1986 answered negatively (48 per cent against versus 40 per cent in favor), the attitude had shifted sharply by 1998, to 54 in favor versus only 35 per cent opposed (with 11 per cent responding “don’t know”) (Appleton 2000: 507). This shift in US attitudes may be explained at least in part by the 1998 African embassy attacks. Both this poll and the later one cited by David suggest that while there was significant disagreement over the policy, a solid majority in endorsed it. Moreover, there is some suggestive evidence that terrorist targeting continues to enjoy significant popular support in the US. For example, a USA Today poll published in September 2005 reported that “seven out of eight Americans say it remains important to the United States for bin Laden to be captured or killed” (Nichols 2005). Evidently, this poll also endorses the possibility of capturing bin Laden, but what is important for current purposes is that it endorses his killing as a legitimate and acceptable goal. Even more strikingly, US politicians have recently been responding to the continuing popular enthusiasm for killing bin Laden and other al-Qaeda leaders. Senator Barak Obama, seeking to boost his popularity in the midst of his struggle with Hillary Clinton for the Democratic presidential nomination, declared on 1 August 2007: “it was a terrible mistake to fail to act when we had a chance to take out an al-Qaeda leadership meeting in 2005. If we have actionable intelligence about highvalue terrorist targets and President Musharraf won’t act, we will.” Senator Clinton quickly responded with a similar declaration: “If we had actionable intelligence that Osama bin Laden or other high value targets were in Pakistan I would ensure that they were targeted and killed or captured” (Dorning 2007). Republican candidates quickly followed suit, with the then frontrunner, Giuliani, declaring: “I would take that option” (New York Times 20072). The President finally chimed in on 6 August, insisting essentially that the “US would kill Osama bin Laden and other al-Qaida leaders believed to be hiding in Pakistan if it had ‘actionable intelligence’” (MacAskill 2007). US leaders across the political spectrum thus express a striking degree of consensus in favor of terrorist targeting. And in fact, this consensus has endured for some time. John Kerry, the last Democratic presidential candidate, also declared that he would “hunt and kill the terrorists wherever they are” (Thomas 2005: 35). 2 Giuliani’s comment was made in an interview on the Charlie Rose Show on 1 August, but is reported by the Moderator, George Stephanopoulos. In the debate, Giuliani seeks to give some nuance to the remark.

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Moreover, as noted in Chapter 4, the policy was initiated by the last Democratic president, Bill Clinton. If these leaders are any reflection of the polity they represent, it would seem fair to say that, as in Israel, there appears to be a widespread belief that targeted killing represents an appropriate response to terror attacks combined with threats of continued violence. All of this evidence suggests that terrorist targeting has been a reasonably popular counter-terrorist measure in both the US and Israel. Yet it does not bear out the claim that terrorist targeting necessarily works to uphold public morale in relation to wars on terror, nor the broader claim that boosting morale is in some sense necessitated by the domestic political situations. To begin with, even taken at face value, the evidence cited fails to logically establish any relationship between targeting and public morale. It suggests that in the US and Israel, many people recently voiced support for some targeting actions, and some recognized that these actions might instigate retaliation. But neither of these facts are necessarily linked to public morale. Because people want certain individuals to be targeted does not establish that their morale will be enhanced by targeting operations in general, or even by the successful targeting of the individuals they have selected. Indeed, the effect of the elimination of enemy leaders may not be emotionally uplifting, especially if accompanied by civilian casualties, and may indeed diminish public commitment to continuing the struggle by removing an object of anger. A litany of terrorist targetings might decrease the sense of the need to continue to fight, increase the sense of futility, and generally foster disaffection with the “war effort.” What the polls cited do show is a certain amount of popular support for terrorist targeting, or at least the targeting of terrorist leaders. This popularity may certainly be argued to be a point in its favor. But the fact that a policy has (or had) a degree of political support is not in itself sufficient reason to pursue it. After all, the majority is not always right, and political winds can change. There was, for example, widespread US support for the invasion of Iraq in 2003, and now much of the populace regards the decision to invade as having been an error, and many political leaders have changed their positions (Sussman 2007). As Thomas’s comment at the beginning of this chapter suggests, sensible policy will be based on political prudence and longterm strategic considerations, as well as, it may be hoped, sound moral judgment. How terrorist targeting will perform on these criteria remains to be established, but it surely cannot be determined by polling numbers. A final potential concern about the polling evidence cited by defenders relates not so much to terrorist targeting as a general offensive counter-terrorist strategy, but with targeting in specific kinds of cases. For example, much of the US evidence concerned the targeting of specific individuals (such as bin Laden) who may be perceived to pose an especially urgent threat. Similarly, Appleton’s polling question refers to targeting “known terrorists before they can commit future terrorist acts.” The question therefore suggests a policy restricted to targets whose terrorist credentials can somehow be established beyond reasonable doubt. The latter part of the phrase may even suggest that the policy in question be restricted to known terrorists who are actually in the course of planning or carrying out future attacks. In essence, then, some of the evidence cited suggests not so much a popular endorsement of a targeting

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as an offensive counter-terrorist strategy, but support for targeting operations in some exceptional cases. In sum, the arguments for terrorist targeting (and offensive strategy more generally) on the basis of popular morale are not fully convincing. While there is substantial evidence of the policies’ domestic popularity in both Israel and the United States (even in the acknowledgement that it may raise the risk of retaliation), that apparent fact in itself directly establishes neither the necessity nor the desirability of a targeting policy. The need to offer strong public justifications for the policy therefore remains. One other important avenue for seeking justification for an offensive policy in general and terrorist targeting in particular is in terms of its psychological and strategic impact on the calculations of terrorist groups. Two considerations in particular stand out: (1) that targeting may be necessary to create an effective bargaining chip with terrorist groups, and (2) that it may be necessary to send the right message of defiance and resistance to terrorist groups. If sent credibly, this message could encourage terrorist groups to reconsider their own strategy. Again, these arguments have some plausibility, but are, at least to a degree, open to sharp contestation. Is Terrorist Targeting an Effective Bargaining Chip? Defenders of targeting have pointed out that it has had the advantage of providing governments with a source of bargaining leverage with terrorist organizations. This argument is primarily advanced in relation to the Israeli–Palestinian conflict, where many people see negotiations as necessary and desirable, even with terrorist groups. It is far more doubtful whether negotiation is necessary or desirable between the United States and al-Qaeda (as noted in Chapter 1). In the Israeli case, defenders have argued that terrorist targeting has provided the government with an important bargaining chip, particularly in trying to negotiate ceasefires or periods of calm with Palestinian terrorist organizations. In David’s summary, “leaders of Palestinian organizations have acknowledged that the slaying of their leaders and operatives has hurt them and that they are prepared to modify or cease attacks against Israeli civilians if Israel would suspend its practice of targeted killings” (David 2002: 21). Indeed, a suspension of targeted killings has often been the number one negotiating demand of Palestinian terrorist organizations. For example, “Islamic Jihad and Hamas [unilaterally] agreed to refrain from launching attacks in pre-1967 Israel in December 2001 so long as Israel refrained from targeting its leaders” (David 2003b: 120). When “Prime Minister Sharon met with three PA leaders” a short time later, on 30 January 2002, they again put a suspension of targeting at the top of their bargaining agenda: “when asked for their negotiating position, first on their list was an end to targeted killings.” Moreover, the call for a halt to targeting has remained at the top of their agenda, and is one of the key preconditions for a hudna, or ceasefire. It is also widely believed that a halt to targeting was among the main motivations of the Palestinian terrorist groups in agreeing to the tahdi’a (or period of calm) in 2005, and to the more recent ceasefire (Byman 2006: 104–5). While the evidence is more anecdotal than systematic, there

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does appear to be reason to suspect, at least provisionally, that targeting operations have influenced the strategic calculations of Palestinian terrorist organizations. However, even focusing on the Israeli–Palestinian case and taking targeting’s influence on bargaining at face value, it is not clear what its longer-term strategic significance is. Even, for example, if it could be said to help create the conditions for negotiation towards temporary ceasefires, it may also be argued to complicate the underlying conflicts that stand in the way of substantive negotiation toward a resolution to the conflict. In short, more aggression and more martyrs’ blood shed in defense of the occupation may well make ultimate compromise more difficult, even for moderate Palestinian leaders (Thomas 2005: 38). It has also been noted above that there is some evidence that targeting contributes to the legitimacy and popularity of terrorist organizations, and possibly to recruitment levels as well. More strictly, even if the use of terrorist targeting can create leverage that may facilitate the negotiation of temporary ceasefires in some cases, it does not follow that it is critical even in those cases. At best, the argument seems to suggest that it may sometimes be a positive contributing factor. To make the case that it is strategically critical to setting up the condition for resolving state confrontations with terrorist organizations, a more general case has to be made regarding the kinds of calculations made by terrorist organizations in selecting the means to pursue their political agendas. Arguably the most fertile basis for making the more general case that terrorist targeting can have a favorable general impact on the strategic calculation of terrorist organizations is Robert Pape’s impressive recent research on suicide bombing campaigns based on analysis of his comprehensive data bank of suicide bombings around the world from their modern appearance around 1980 up until 2003. In contrast with earlier studies which focused on the “irrationality” of suicide bombers, Pape’s principal conclusion is that “suicide terrorism follows a strategic logic. Even if many suicide attackers are irrational or fanatical, the leadership groups that recruit and direct them are not” (Pape 2003: 343–4, 2005: 4, 21–3, 27–8, 38). He argues that the actual record of attacks (rather than the claims of terrorists) indicates that resistance organizations choose terror tactics, and suicide terrorism in particular, quite rationally and deliberately, and indeed, for good reason – as Pape puts it, “it works” (Pape 2003: 350). Their “coercive strategy” is simple: “to cause mounting civilian costs to overwhelm the target state’s interest in the issue in dispute and so to cause it to concede the terrorists’ political demands” (Pape 2003: 346). Suicide terrorism is particularly well suited to this coercive strategy, for two reasons: (1) it is the most powerfully coercive terrorist strategy available (because it causes the most harm and is most difficult to stop), and (2) it is the strategy with the most favorable record of strategic success (Pape suggests that six of eleven campaigns have led to “noticeable concessions” to terrorist demands) (Pape 2003: 346–7, 351). He argues that the strategic character of suicide bombings is illustrated in their: 1. timing – nearly all suicide attacks occur in organized, coherent campaigns, not as isolated or randomly timed incidents; 2. nationalist goals - suicide terrorist campaigns are directed at gaining control

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what terrorists see as their national homeland territory; and 3. target selection – all suicide terrorist campaigns in the last two decades have been aimed at democracies, which make more suitable targets from the terrorists’ point of view. (Pape 2003: 347–9) In short, resistance organizations choose suicide terrorism strategically as the most likely means to achieve their understandable political purpose of attaining sovereign control of what they consider to be their own territory. But if the rationale for adopting suicide terrorism is cold political calculation, then the attacked state may affect the terrorist group’s behavior, for better or for worse, by changing the elements of its calculation. The most obvious means of doing this is what Pape terms a policy of “denial” – in essence, the state demonstrates to the terrorist organization that it “cannot win the dispute regardless of its level of effort, and therefore fighting to a finish is pointless” (Pape 2003: 346). An especially powerful way of sending this message is by publicly choosing a strategy of targeting terrorists even while acknowledging that this may increase retaliations. The message sent is that the state is committed to fighting, and that even increased levels of terrorist violence will not compel it to make concessions. If the terrorist organizations are rational, then they should be encouraged to desist – particularly since, as Pape notes, suicide terrorism is an especially high-risk and costly strategy, especially in terms of “support among the terrorists’ own community” (Pape 2003: 345). Moreover, the rationale for stopping should be even stronger if the state is willing to consider a ceasefire (especially to permit negotiations). Terrorist targeting can then be a powerful and effective means of signaling crucial state intentions to terrorist organizations. This strategic argument from the state’s perspective carries a good deal of force, and arguably finds some historical support in the various hudnas, tahdi’a, and/or ceasefires that have arisen between the Israelis and the various Palestinian terrorist organizations. On the other hand, however, there are also some obvious difficulties with the strategy of sending messages through terrorist targeting. For one thing, terrorist organizations are likely to be very difficult to convince. After all, terrorist targeting campaigns are strategically directed against democracies precisely because it is believed that they will not be able to resist coercive pressure for long, whatever intentions the government may signal. Moreover, it is extremely difficult (if not impossible) for democracies to fully control the content of their own domestic political discourse and consequently the full range of signals being sent to terrorist organizations. Terrorist organizations will often be aware of domestic opposition and debate in the targeting state and its leadership, and will make their own calculations of its probable future policy. Finally, it is worth recalling the impact of targetings on terrorist organizations, especially in the short run, appear to be mixed – while operations may be disrupted for a time, they also seem to increase the legitimacy and popularity of terrorist organizations and to elevate recruitment levels for operations (and, it may be added, increase terrorist grievances). The result is that in the short term, a targeting campaign may not detrimentally affect the calculus sustaining suicide terror campaigns. Shifting the strategic calculus is likely to be a very long-

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term project, which greatly increases the problems associated with the credibility and consistency of messages sent by democratic governments and the popular press. Pape’s analysis leads him to a conclusion about targeting the leadership of terrorist organizations similar that of Hafez and Hatfield: “Although decapitation of suicide terrorist organizations can disrupt their operations temporarily, it rarely yields long term gains” (Pape 2003: 356). More generally, he cautions against over-reliance on offensive counter-terrorism operations: “Offensive military action or concessions alone rarely work for long” (Pape 2003: 356). His point, however, is not to counsel against ever employing counter-terrorist measures like terrorist targeting, which he acknowledges have sometimes contributed importantly to diminishing terrorist threats, but rather to stress, like Hafez and Hatfield, that the primary focus should be on home defense: “given the limits of offense and of concessions, homeland security and defensive efforts generally must be a core part of any solution” (Pape 2003: 356). An Objection to Terrorist Targeting as Offensive Strategy Thus far, none of the arguments advanced in support of terrorist targeting as a general offensive strategy in a war with terrorism (either in the US or the Israeli case) seems entirely compelling. Indeed, in some cases the arguments seemed more supportive of a limited and selective targeting policy, to be employed against notorious terrorist leaders to prevent imminent attacks. It may be that a more compelling case can be made for a limited, defensive strategy along these lines. The following section will outline such a policy. Before turning to that alternative, however, it will be useful to consider one final objection to an aggressive counter-terrorist targeting strategy. In short, there seems to be a dangerous tension between what makes targeting effective as a general offensive strategy, and the legal restrictions under which it is supposed to operate. In essence, where the judicial imperative restrains, the political imperative impels. Even on the broader “armed conflict” theory, the legal justification of targeting requires clear targets – cases in which an individual’s active and continuing participation in terrorist operations can be established unambiguously with “strong and convincing evidence.” On the other hand, the political rationale for terrorist targeting – as a means of taking the initiative from terrorists, for preventing attacks, for generating political leverage against terrorist groups, and even for sustaining morale at home – may require that operations be frequent. As Byman put it: “to achieve … an effect on a terrorist group requires a rapid pace of attacks on it” (Byman 2006: 104). There therefore appears to be a dangerous tension between the legal constraint of terrorist targetings on one side, and its strategic employment as an offensive counter-terrorist strategy on the other. This is not to say that a targeting as an offensive counter-terrorist strategy will necessarily lead to any breach of the law, but only that it may foster a dangerous temptation to push the legal envelope. This temptation may be avoided, or at least diminished, in relation to a more judicious “defensive” targeting strategy.

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Targeting as an Active Defense Strategy In response to these important concerns, defenders of targeting can adopt an alternate strategy, presenting terrorist targeting not as a general offensive counter-terrorist strategy, but as a selective defensive one – that is, as limited to cases where there is strong evidence of a direct and imminent threat. For example, Amos Guiora, a University of Utah Professor of Law, has recently defended a policy he calls “targeted killing as active self-defense” (Guiora 2004). The focus of Guiora’s analysis is Israeli policy, but it has obvious implications for US policy as well. Under Guiora’s active defense policy: “An individual will only be targeted if he presents a serious threat to public order and safety based on criminal evidence and/or reliable, corroborated intelligence clearly implicating him.” Guiora further specifies the term “serious threat” as when terrorists or their organizations are “planning to attack” (Guiora 2004: 322, 325). The active self-defense approach thus limits targeting operations to cases where there is substantial evidence that targets or the organizations in which they are direct participants are engaged in planning and preparing attacks. In particular, Guiora stresses that legitimate targets include “doers” and “senders” alike (that is, leaders and planners, as well as operatives actually charged with carrying out operations). This active defense approach to targeting has a number of advantages. Most importantly, it seems more strongly politically justifiable than terrorist targeting as an offensive strategy because it is less reliant on the contested impact of terrorist targeting on overall levels of terrorist violence, or on strategic benefits which are difficult to anticipate or quantify. It can rely on a much simpler and more powerful argument. In essence, as most defenders of targeting stress, all governments have a basic obligation to protect their own citizens (see, for example, Kasher and Yadlin 2005a: 45). Indeed, in many theories of government (especially contract theories, like those of Hobbes and Locke), the protection of citizens is government’s primary justification. If a state has been attacked by a terrorist group (or groups) and has reliable, corroborated intelligence that a further mass terror attack is planned against its citizens, and is unable to neutralize this danger through less violent means (such as preventive arrest, or coordination with the security forces of other countries), on this view it has good reason to examine other means at its disposal, including targeting. Targeting may not be appropriate in every case – for example, it may not be justifiable if it involves a disproportionate threat to civilians. Similarly, where the danger is remote, a resort to military force may be premature. But where a threat is, for example, substantial, imminent, and demonstrable, a case can be made that government has good reason to examine the viability of targeting operations. Indeed, an argument could be made that a government would be remiss not to consider such options. In addition, an active self-defense targeting policy may allow a state to achieve some of the strategic objectives that defenders associated with an offensive targeting strategy, and to do so at lesser cost. It may be argued, for example, that an active self-defense strategy would cohere better with apparent public support for targeting than the offensive alternative, and so contribute equally or better to the maintenance of public morale (if any such effect can be expected). As noted above, much of the evidence of public support for targeting involves specific categories like “known

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terrorists before they can commit future terrorist acts,” or terrorist leaders such as bin Laden (who publicly announces his active efforts to carry out further terrorist attacks). An active self-defense strategy would allow such terrorists to be targeted (at least in so far as there is evidence that future attacks are being planned), while tending to discourage action in more marginal cases. For these reasons, it might also be expected to avoid some domestic controversy which might undermine public morale. Defensive targeting operations may at the same time be sufficient to send the message to terrorist groups of the state’s commitment to resist (rather than negotiate or concede). Moreover, the message sent by targeting operations will tend to be stronger the less internal opposition is occasioned by the policy. An active self-defense strategy might also provide some of the tactical benefits that defenders associate with targeting as an offensive strategy. That is, it may still disrupt and deter terrorist organizations, at least in so far as they are actively planning attacks. In these conditions, terrorists will still be in danger of surprise attacks, and thus forced to remain elusive, even on the run. It may also provide an important bargaining chip in cases where states seek ceasefires or periods of calm. Finally, it may be argued that an active self-defense strategy can attain these advantages while instigating less of the political harms that can follow from offensive targeting strategies. These include enhancing the popularity, legitimacy of terrorist organizations among the populations they claim to represent, increased recruitment, and possibly increased retaliatory attacks. In summary, the active self-defense approach to targeting rests on a far firmer political justification than the offensive alternative. It also potentially permits the achievement of many of the strategic advantages connected with the offensive strategy while incurring fewer of the harms that seem to flow from such policy. It remains to be seen, however, whether the active self-defense strategy involves defects of its own, and if so, how serious they are. Criticisms of Targeting as an Active Self-defense Strategy While the active self-defense approach to targeting exhibits some attractive features in comparison with an offensive approach, it also raises legitimate concerns. One important concern follows from Guiora’s invocation of criminal evidence and/or corroborated intelligence. In order for this requirement to constrain state practice effectively, there must be some credible and authoritative process for assessing this material. Guiora seems satisfied that the IDF generally assesses such material adequately and restrains itself appropriately (Guiora 2004: 322–3, 333–4). This is an assertion that will not satisfy many critics, who are often skeptical of the IDF’s procedures and motives (see, for example, Amnesty International 2001: 6–8; Stein 2001a: 11–13). In order for the restraint implied in the active self-defense strategy to be credible, it may be argued that some credible type of independent oversight (such as was called for by the SCI in 2006) is necessary. Granting for the moment that targeting as active self-defense can be restrained in the way Guiora envisions, it must also be acknowledged that it is far less ambitious than the offensive approach to targeting. The active self-defense approach accepts a reduced hope of degrading the capabilities of terrorist organizations over the

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long term in exchange for a tighter focus on preventing immediate threats. By consequence, it might be argued to tend to perpetuate conflicts with terrorism rather than contribute to their resolution. In addition, in contrast with the offensive approach, the active self-defense approach appears to impose even greater demands on intelligence services. Rather than simply identifying active members of terrorist organizations, the active selfdefense strategy requires the gathering of intelligence on actual planned attacks. This is bound to be difficult. Terrorist attacks rely heavily on secrecy. Terrorist groups are notoriously elusive, and are organized in part with the intention to protect such information. So an active self-defense strategy suggests an enormous investment in intelligence work. At the same time, it must be acknowledged that narrowing the focus of terrorist targetings to only cases of planned attacks that can be clearly established (rather than to active members of terrorist organizations) involves the possibility that an attack which could have been prevented will not be. Finally, even if there is a plausible case for accepting the trade-offs involved in the active self-defense strategy of terrorist targeting in terms of national strategic goals, critics may still point to the reaction of the international community as a potentially countervailing consideration. It is to these concerns that the final section of this chapter is devoted. Terrorist Targeting in International Politics In assessing the broader implications of targeting terrorists for the targeting states’ diplomatic relations, critics can certainly point to strong condemnations by the UN and human rights organizations like Amnesty International (Amnesty International 2001, 2003, 2005; UN News Service 2004; UNPR 2004). They can also point to an enormous backlog of diplomatic statements from the majority of states condemning the practice, and some strong opposition at home (see, for example, UNHRC 2004; B’Tselem 2001). Together, these criticisms comprise a substantial chorus of continuous condemnation. In particular, the UN Rapporteur and groups like Amnesty remain vocally opposed to terrorist targeting in general. Yet it may be asked what exactly targeting states have to fear from such criticism. It is not clear what critics can do to actually stop the practice, beyond a continued campaign to mobilize the public. The United States and Israel are not, for example, participants in the International Criminal Court, and their targets are not states who could bring complaints before the International Court of Justice. Moreover, no unfavorable resolution is likely to be passed by the UN Security Council. The United States and Israel thus have little to fear, in terms of actions that might force them to desist. There are, none the less, compelling reasons for both Israel and the United States to be at least circumspect in their targeting of terrorists, so as to avoid intensive international criticism in the immediate term, and to permit them to pursue a wider and more explicit international endorsement in the longer term. In the first place, they have reason to seek the active cooperation of other countries in their wars on terror. Even President Bush, seen by many as the arch-unilateralist, has acknowledged

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that prosecuting a war on terror “requires a coalition, it can’t be done without one” (Woodward 2002: 113). Most obviously, the United States needs the help of countries in which terrorists have been and may still be active. Byman offers a compelling example in the capture of Khalid Sheikh Mohammed, an alleged mastermind of the September 11th attack. Mohammed’s capture involved “the intense cooperation of the security services of Germany, Pakistan, and Switzerland” (Byman 2006: 108). The defection from the coalition fighting terror of any of the several countries “with a major jihadist presence,” like Pakistan, Malaysia, or Morocco, would be a severe setback in the US’s war on terror. The same point can be made with reference to US targeting operations, which are best undertaken with the permission and cooperation of the states in whose territory they are carried out. This is perhaps less of an issue for Israel, which is unlikely to receive permission from outside authorities, and is less dependent on direct international support in its struggle with the Palestinian and other terrorist organizations. For the US effort, however, international cooperation it is crucial. In the second place, excessive use of terrorist targeting threatens to further harm US and Israeli reputations. Even defenders of targeting like Byman recognize that “[t]he United States risks diminishing its status as an upholder of international law” if it pursues too aggressive a targeting policy (Byman 2006: 100, 106), while on the Israeli side, “the killings carry a diplomatic cost that contributes to Israel’s isolation.” In the third place, both countries share an interest in diminishing rather than increasing the next generation of terrorists. Both countries’ struggles with terrorist organizations are in part a “war of ideas” over what has sometimes been called “hearts and minds” in the Moslem world – not so much to win them over, as to prevent them for opting for terrorist violence as a means of political self-expression (see, for example, US Government 2006: 9–12; Van Evera 2006: 15–23). In this context, international criticism of US and Israeli counter-terrorist policies, including targeting, has been extremely damaging, especially charges that the policies violate international law. To the extent that US and Israeli actions have been perceived to fall outside the law of war, and hence to be forms of illegitimate violence, they have lent a degree of legitimacy to terrorist organizations, and have thus contributed to their popularity in certain parts of the world (the victory of Hamas in the Palestinian legislative election of 25 January 2006 is perhaps the most spectacular manifestation of this trend). If the targeting states purportedly fighting terrorism regularly violate the law, how can they credibly condemn terrorists for doing the same thing? This legitimizing effect is most evident in parts of the world that sympathize with terrorist organizations’ announced objectives (such as freeing Palestine or forcing US influence out of the Middle East), if not necessarily with their means. Lending growing legitimacy in these regions to terrorist groups threatens to undermine the ideational dimension of the war on terror and to contribute to the nurture of a new, larger, and more extreme generation of terrorists, and hence to diminishing the possibility of a successful outcome to the two countries struggles with terrorist groups. Little could be more detrimental to the struggle against terrorism than to allow the distinction between terrorism and counter-terrorism to become blurred. The United States and Israel therefore have a strong interest in restraining their targeting policies, focusing on clear-cut cases, and avoiding excessive harm to civilians. In the longer

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term, if they continue to employ targeting, they have a strong interest in mobilizing international law to clearly distinguish their policies from those of terrorists. To do that, they need to be able to point to clear, well-established, broadly supported rules and distinctions – in essence, they have an interest in building a strong consensus that humanitarian law is on their side. To do so, they will have to provide credible assurances of adequate oversight, safeguards, and restraints to ensure that military force is employed solely against bona fide terrorists, and particularly those who pose a direct and imminent threat to their civilians. Finally, in reflecting on the international dimensions of terrorist targeting, it is necessary not only to consider the strategic interests of targeting states, but also the more general health and stability of the international legal and political order itself. Here, three factors stand out in particular. First, the credibility and authority of international law has taken a terrible beating in the last six years, particularly at the hands of the United States, the world’s superpower (see, for example, Vorkink and Scheik 2006: 2). For instance, in its policy on detainees and its invasion of Iraq, the United States has publicly flouted international law, and correspondingly diminished the force of that law in dealing with cases like Iran’s nuclear program. There is an enormous need today to bring the conduct of the war on terror into coherence with international humanitarian law – not only in terms of the prospects for its success, but also in terms of the credibility and authority of international law itself. Second, a continued failure to reach a reasonable understanding on terrorist targeting could have a detrimental impact on the broader international political environment. For example, some commentators have observed that the unregulated employment of targeting, even against terrorists, may undermine the longstanding international norm against political assassination, and therefore endanger public officials. One thoughtful commentator who has raised such concerns is Ward Thomas, a professor at the College of the Holy Cross and the author of The Ethics of Destruction (2001). While Thomas recognizes that “the assassination taboo may not apply as strongly in response to terrorism,” he none the less expresses worries that “even actions taken against non-state terrorist actors are, in the long run, likely to undermine the norm as a whole, thus eroding the barriers to the use of assassination in other circumstances” (Thomas 2001: 82). Such an eventuality would likely be harmful to the international practice of politics in general, but could be especially threatening to a relatively open society like the United States. Judge Sofaer summarized the point well in 1991: “the United States has a substantial interest in discouraging the acceptance of the killing of political leaders as a routine measure, even in self-defense. Tyrants and terrorists are likely to be better than Americans at this sort of thing” (Sofaer 1991: 28). The point may be illustrated in the Israeli case by reference to the assassination of Rehavam Zeevi, its Minister of Tourism, in October 2001. In spite of the long-term danger, however, Thomas interestingly does not recommend abandoning terrorist targeting. He writes: neither the United States nor any other state can or should renounce targeting those individuals who, through non-state organizations, wield violence outside the purview of international law and pose significant threats to its interests or its citizens. (Thomas 2005: 34–5)

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Thomas argues that not only do such operations have “a strong claim to legality,” but that in some circumstances they may be necessary – “non-violent means may not always suffice.” Terrorist groups like al-Qaeda are immune to diplomatic and economic pressure, and are often beyond the reach of criminal justice. In such cases, “pre-emption against imminent danger is and always must remain a sovereign prerogative” (Thomas 2005: 36). Yet if it is accepted that “targeting members of violent non-state organizations may be appropriate and desirable in certain circumstances,” how is erosion of the norm against assassination to be prevented, or at least minimized? Thomas makes several suggestions which amount ultimately to something akin to an official version of Guiora’s active self-defense strategy. First of all, states need to be prudent and restrained in employing terrorist targeting, for “in few cases will a single killing yield decisive benefits ….” In particular, he emphasizes the criterion of “preemption against imminent danger.” Second, he suggests that targeting states need to be explicit about what their policy is. Third, in their explicit policy, they must clearly “distinguish between sovereign states and transnational, non-state organizations and categorically reject the direct personal targeting of government officials, whether in war or in peace” (Thomas 2005: 35–6). Thomas makes a strong case that together, these restraints on the US (and by implication the Israeli) targeting policy would assure that it will do as little damage as possible to norms like that against assassination. He forcefully argues that avoiding such damage is, among other things, in the US’s (and, one might add, Israel’s) interest. Finally, he adds one last but important recommendation as to how that interest might be assured. He recommends that the United States “view international law as part of the solution rather than part of the problem” (Thomas 2005: 37). In particular, he recommends that the US lead “a multilateral effort to reassess some provisions of international law that may be inadequate to deal with modern challenges.” Attaining international agreement on such rules would provide a particularly powerful means of limiting any detrimental impact from targeting on international norms. A third notable worry about the impact of terrorist targeting on the stability and health of the international order is that in some such circumstances, particularly where one state does not approve the use of targeting on its territory by another state, terrorist targeting could be interpreted as a violation of its sovereignty (see, for example, Duffy 2005: 342). In such cases, terrorist targetings could lead to significant disputes between states. In response, it may be noted that there are many gray areas of international law that can lead to inter-state dispute, and there are mechanisms for resolving such disputes. Moreover, such difficulties need not always arise. The US targeting operations appear to have largely occurred with the approval or tolerance of the states on whose territories it has undertaken operations. Israeli operations in the West Bank and Gaza Strip are not generally seen to raise sovereignty issues because Palestine is not yet generally regarded as an independent state. Yet it remains true that the practice of terrorist targeting could raise issues of sovereignty and self-defense that are both highly complicated and contested today, and could lead to disputes. Tal Becker, a former Vice-Chairman of the Legal Committee of the UN General

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Assembly, provides a helpful overview of some of the key issues of disagreement in his recent book Terrorism and the State: Rethinking State Responsibility (2006). Becker identifies at least three competing perspectives on the contemporary law regulating the use of terrorist targeting on foreign territory. He begins by observing that some legal experts continue to uphold the view that the use of military force against non-state actors like terrorists is always illegal, wherever it occurs, but notes that this view has lost much currency since September 11th. A more mainstream view is that terrorist attacks may amount to armed attacks, but the right of self-defense can only be exercised on neutral ground (for example, the high seas), or if the state from whose territory the terrorists operate (or host state) either fostered the terrorism, or alternatively, if the host state gives its permission for counter-terror operations on its territory. A third influential group of experts holds that a state that has been subject to armed attack has a right to take military action against terrorists regardless of whether the host state fostered the terrorist activities or gives permission for the operation (although an attempt should at least be made to gain their cooperation) (Becker 2006: 158–65). In this latter case, however, as noted in Chapter 5, military action must be directed only at the terrorists, and in some accounts, only to prevent further attacks (see, for example, Dinstein 2005: 244–51). Critics of targeting are therefore right to note a potentially dangerous legal ambiguity here. There could be cases where a terrorist targeting operation (especially without permission from the host state) would appear legal to some, and an illegal violation of sovereignty to others. Yet it also appears to be the case that most experts accept that some military actions against terrorists on the territory of another state may be legitimate, particularly when undertaken in self-defense. There is a great need here to clarify what the relevant rules are governing the use of counter-terrorist force on the territory of another state. This provides one more reason for the kind of multilateral international effort to clarify the international rules regulating the use of counter-terrorist force called for by Thomas. Pending a general clarification of the framework of international law regulating the use of terrorist targeting, however, what seems most important is to ensure that counter-terrorist counter-force is employed with great restraint and responsibility – for example, in legitimately exigent situations to prevent repetitions of armed terrorist attacks, with maximum precision and precaution, and as far as possible, with consent. Again, these considerations seem to favor active self-defense rather than an offensive terrorist targeting strategy. They also reinforce the need, noted earlier, for some credible form of independent oversight to ensure that targeting actions are taken only in genuine self-defense, only against terrorists who present a direct threat. The concern regarding legal disputes over terrorist targeting operations might also be mitigated considerably if targeting states can be induced to officially acknowledge their operations (post facto), and were prepared to defend them in public and assume legal liability for errors. Finally, it should be made clear that at a minimum, targeting states should seek the permission of other sovereign states to carry out targeting operations on their territory. Only where states hosting terrorist groups that carry out attacks are unable or unwilling to either prevent planned terrorist attacks themselves or to give permission to the state facing attack to act pre-emptively should unilateral military action be

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considered. In such circumstances, the targeting state should be prepared to justify its action politically before the international community, as well as to potentially defend it legally before an international court. All of this will not, of course, eliminate the possibility of international disputes pending clarification of the rules, but it would arguably considerably diminish the danger connected with such disputes, and provide potential means for their resolution. None the less, the possibility of instigating inter-state disputes must be factored into any overall assessment of targeting policy. Conclusion In summary, a plausible case can be made for the political prudence of pursuing a terrorist targeting policy at least in some cases, particularly in self-defense scenarios. This case does not depend, however, on the general impact of targeting operations on levels of terrorist violence. The effect of targeting on short-, medium-, and longterm levels of violence is unclear and contested, and appears to vary somewhat for different cases and periods. There are few empirical studies of this relationship, and what studies there are focus exclusively on one period of one case of dubious generalizability (the first five years of the second Intifada). The latest and most compelling of these studies indicates that particular targeting operations neither significantly increased nor decreased levels of violence in that case (a conclusion which complemented the results obtained in Chapter 3). The broader historical record suggests some cases and periods in which it was an effective means of suppressing terrorist violence, and others in which it was not. It appears that it tends to foster some ingredients of terrorist violence (recruitment and popular support) while hindering other aspects of operations (disrupting communications, eliminating leadership and technical know-how). Ultimately, the impact on the level of violence will be the product of the complex and not fully predictable interaction of these and other political elements. The broader strategic political implications of terrorist targeting are also contested, but at least the factors in play are a little clearer. There is evidence that in general, targeting operations offer better cost–benefit trade-offs than alternative offensive strategies, and exhibit some popularity in the countries practicing targeting (in spite of the belief that they may lead to retaliations). There is also some anecdotal evidence that targeting may provide states with a significant bargaining chip, particularly in pursuit of ceasefires with terrorist groups, and it may be a means of sending a message of “denial” to terrorist groups, although the credibility of such messages remains uncertain. However, these arguments seem neither individually nor collectively sufficient to warrant an offensive targeting strategy. It may, for example, be argued that even if terrorist targeting is – where it can be used effectively – the most cost-effective offensive strategy, it remains to be shown that an offensive strategy is required. Popularity, and even popular morale, for example, seem inadequate grounds for a policy as harmful and politically hazardous as terrorist targeting. Finally, there is an important tension

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between the offensive goal of eradicating terrorist organizations and the insistence that targeting can be constrained to clear-cut and unambiguous cases. A stronger strategic case can arguably be offered for a policy of targeting as active self-defense. Rather than pursuing a goal of eradicating enemy terrorist organizations, this strategy focuses on preventing planned attacks. While more modest in ambition, such a policy would not depend on contested claims about the capacity of targeting operations to destroy, or eliminate the capabilities of, terrorist organizations. It would rather be grounded in the state’s responsibility to protect its citizens, in this case by preventing actual planned attacks. Still, an active self-defense strategy can draw on some of the same considerations as an offensive targeting strategy – it would likely have a better cost–benefit trade-off than alternate offensive strategies, would enjoy a degree of popular support, and could send a message to terrorist groups and provide states with a bargaining chip. At the same time, it may do less to contribute to the legitimacy or recruitment of terrorist organizations. However, the active self-defense strategy makes enormous demands of intelligence gathering, abandons the ambition of wiping terrorist organizations out completely, and allows the possibility that an attack which could have been prevented may occur. In short, the active self-defense strategy reflects by no means an easy trade-off. The question of the wisdom of terrorist targeting is also informed by the way it affects and is affected by international politics. Three issues stand out in particular. First, terrorist targeting could potentially undermine the stability of the international norm against assassination. Second, in some such cases, the use of targeting could be perceived as a violation of sovereignty, and could potentially contribute to international disputes. Third, continued disagreements over the legitimacy of terrorist targeting have tended to discredit the war on terror, particularly in relation to the struggle over ideas, and to effectively undermine the authority of international law. These legitimate concerns suggest the need to clarify the international law regulating terrorist targeting (that is, whether, where, when, and how it can be legitimately employed). In the mean time, the potential ill-effects can be importantly mitigated by following the types of guidelines suggested by the active self-defense strategy, but they cannot be eliminated entirely. They must therefore be factored into any assessment of the political prudence of targeting policies. At the same time, it may plausibly be argued that it is unreasonable to expect governments to forgo action in the face of repeated attacks and threats from international terrorists coupled with compelling evidence of a further planned attack, and especially in the absence of other viable means to neutralize the threat. A government’s failure to pre-empt such an attack might be devastating. The political wisdom of employing targeting operations is thus a complex question that seems very much bound up, as the legal question is, with the particulars of the case. As with issues of legality, the political case for using targeting is generally stronger the more it relies on the government’s obligation to protect its citizens. But it is not only legal and political issues that should be considered in formulating an assessment of terrorist targeting. Moral considerations must also play a role, and it is to these that Chapter 7 turns.

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Chapter 7

The Morality of Targeting Terrorists The last two chapters have suggested that there is a strong case that terrorist targeting may be legal in at least some cases, and that there is a political case (although by no means an overwhelming one) for pursuing it under certain circumstances. A question remains: Is it morally defensible? Strong arguments have been advanced on both sides of this contentious question. Indeed, the rising incidence of terrorist targeting since 2000, both by Israel and the United States, has inspired a growing body of work, from scholarly publications to popular books and films, that grapple with the moral issues at stake. Too often, these contributions have taken the form of polemics, presenting only one side of the issue in exaggerated terms. Recently, however, a few scholars have begun to examine the moral issues associated with terrorist targeting more carefully, and to respond to one another’s arguments (for example, David 2003b; Stein 2003; Statman 2003; Gross 2003). It is from these exchanges that the most insightful and compelling arguments have emerged, and they will receive the bulk of the attention in this chapter. Moreover, even on this controversial question, not all is disagreement. Some important common moral reference points concerning targeting have emerged among leading spokespeople for either side of the question. For example, there is a wide agreement, including among even some of the strongest defenders of targeting, that preventive arrest is, where possible, preferable to targeting. For instance, Kasher and Yadlin, probably the most trenchant philosophical defenders of targeting, allow that: “if there is a way to capture and arrest a person who is crucially participating in carrying out an act of terror, without jeopardizing the life of combatants, he or she ought to be captured rather than killed” (Kasher and Yadlin 2005a: 51; IMFA 2003b; Ignatieff 2004: 133; Stein 2003: 130). Some disagreement often remains between critics and defenders over how much danger to combatants (or indeed other civilians) is tolerable, but they generally agree that where such danger is not excessive, arrest should be pursued. There is also a general moral consensus, one which includes some of targeting’s toughest critics, that targeting operations are justifiable at least under some circumstances. For example, where political leaders are confronted, in Michael Gross’s words, with “an immediate and otherwise unavoidable grave or mortal threat that cannot be eliminated by less violent means,” then “[targeted] killings can be justified in self-defense …” (Gross 2003: 351–2, 2004: 103, 109). Similarly, Yael Stein allows that “A killing could sometimes be lawful in specific and individual cases,” including cases of immediate pre-emption. She goes on to stress, however, that the debate is really not about some exceptional cases, but rather “concerns a

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policy of providing systematic justification for such actions” (Stein 2003: 128). Exceptional cases notwithstanding, she argues that a systematic policy of targeting should be considered “illegal, as well as immoral” (Stein 2003: 128). Amnesty International similarly makes an exception for “targeting … against those posing an immediate imminent danger to life” (Amnesty International 2001: 3). Other critics, including the Executive Director of Human Rights Watch, have similarly acknowledged that some individual cases of targeting, particularly those involving direct self-defense, seem justified (Roth 2004: 3–4). As with Stein, critics’ objections are primarily to a systematic or “regularized” targeting policy. In essence, then, preemptively killing terrorists when they are on their way to carry out an attack seems relatively uncontroversial. Such uncontroversial targetings will be termed “real-time interceptions” in this chapter. These points of general agreement provide moral landmarks that help to define the terrain of moral disagreement. The hard cases are those where arrest is impractical, where the potential target is not currently carrying out an attack, but is deemed to be a significant danger. The key question is whether, in such circumstances, it is morally permissible for the state to deliberately kill people it claims to know are terrorists. At least two kinds of moral defense have been advanced to justify terrorist targetings in cases other than real-time interceptions. These can be described as the broad and the narrow defenses. The broad defense endorses terrorist targeting as a legitimate general tactic in a war on terror (providing it is directed exclusively against genuine terrorists and does not produce excessive collateral damage). The narrow defense, by contrast, portrays terrorist targeting as an exceptional expedient, warranted only in relation to certain extreme cases (but including at least some circumstances other than real-time interceptions). Both defenses have been subject to some serious criticism. This chapter begins by outlining the broad moral defense, and then raises and evaluates some of the main moral objections that have been offered in response to it. In the latter part of the chapter, the narrow (“lesser evil”) defense is considered as an alternative approach that avoids many of the most pointed concerns advanced by critics of the broad defense. The chapter then ends by outlining and examining two recent moral arguments against targeting that challenge the narrow defense. The concluding discussion suggests that at least under current circumstances, there is a plausible case for a narrow moral defense of terrorist targeting, although significant concerns remain about assuring state compliance with moral guidelines. Is there a Compelling General Moral Defense of Terrorist Targeting? One of the broadest and most compelling defenses of targeting in the context of a war on terror is offered by Daniel Statman. He argues that: if one accepts the moral legitimacy of the large-scale killing of combatants in conventional (what are soon to be called “old-fashioned” wars), one cannot object – on moral grounds – to the targeted killing of terrorists in wars against terror. (Statman 2004: 179)

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Here, Statman poses a potent challenge to critics of terrorist targeting – to explain why a surgical strike against a terrorist is morally worse than the large-scale killing of ordinary combatants (who may personally be guilty of nothing at all) on a conventional battlefield. Some readers, such as those who are pacifists, may of course reject this argument on the ground that killing in traditional combat is itself morally wrong. But if Statman is right that most people have reason to accept the moral justification of killing in combat, then it seems he has a legitimate, and indeed powerful, claim in defense of terrorist targeting. Michael Walzer makes a similar point with specific reference to terrorist leaders like Osama bin Laden. Rather than drawing an analogy with the large-scale killing of combatants in “old-fashioned wars,” however, Walzer refers to the recent practice of bombing terrorist training camps as his point of comparison: It would seem odd to say that it is legitimate to attack a group of terrorists-in-training in a camp in Afghanistan, say, but not legitimate to go after the man who is planning the operation for which the others are training. That can’t be right. (Walzer 2004: 140)

Walzer’s formulation updates the context, but lays out a similar challenge to critics: to show why the mass killing of low-level (terrorist) combatants is preferable to the surgical killing of an enemy leader. Again, some readers may reject this argument on the simple grounds that bombing terrorist training camps is immoral. Indeed, the legitimacy of such attacks is probably more widely disputed than killing in conventional combat. But at minimum in some cases, such as the missile attacks on al-Qaeda training camps authorized by President Clinton in 1998 in the wake of the African embassy attacks, there has been considerable (and growing) acceptance of their justification (Schmitt 2004a: 746). Therefore, at very least, it may be said that Walzer’s argument puts the onus on critics to explain why such acts are morally illegitimate in the context of a war on terror. Of course, both Statman and Walzer stress that targeting, like bombing or conventional attacks, must remain subject to the laws of war. Walzer, for example, in a New York Times article in September 2001, has laid out rules regulating terrorist targeting. “We have to find legitimate targets,” he wrote, “people actually engaged in organizing, supporting and carrying out terrorist activities. And we must be able to hit those targets without killing large numbers of innocent people” (Walzer 2001; Statman 2004: 185–8). He remarks, however, that if these criteria are met – and here with particular reference to Israeli targeting practices – “I don’t believe it matters, from a moral point of view, whether the targets are groups of people or single individuals.” Similarly, Statman sees no moral reason to allow the killing of soldiers in uniform while holding terrorists out of uniform inviolable. Moreover, if terrorist targeting is morally no worse than these other widely accepted policies, they reasonably suggest that there is no reason that terrorist targeting should not be accepted as a regular weapon of war, no different than bombing enemy combatants or attacking and killing them in traditional forms of combat. Provided that targets are directly involved in serious terrorist activity and “large numbers” of innocent people are not killed, targeting may, according to these views, be used regularly in relation to what are described above as hard cases.

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Statman and Walzer’s arguments present some obvious challenges to critics of terrorist targeting. On some conventional moral grounds, the targeting operations look not only as defensible as the alternatives they cite, but in some respects preferable. For one thing, terrorist targetings appear to involve much less killing than the alternatives. They pinpoint a person, rather than destroying a whole group. Moreover, it may be argued that they do more harm to the enemy through eliminating key strategic figures than could be accomplished by killing a large number of lowlevel operatives. In addition, in both formulations, the targeting attacks appear to pinpoint those who bear a special burden of moral guilt – terrorists as opposed to soldiers in Statman’s formulation, and terrorist planners and leaders as opposed to trainees in Walzer’s. Terrorist targeting can therefore be argued to comport well with at least two types of important moral intuitions – those connected with the moral conduct of war, and those connected with the pursuit of criminal justice. In evaluating Statman and Walzer’s arguments, it will be helpful to flesh out the moral force of these connections in a little more detail, beginning with the moral conduct of war, and then turning to criminal justice. Is Terrorist Targeting a Moral Way to Conduct War on Terror? There is a plausible argument that the moral strengths of targeting are in exactly those areas that have traditionally been considered most salient in morally assessing the conduct of war, at least in the West – that is, just war theory. Catharine Lotrionte offers a useful summary of these principles governing the conduct of war: (a.) … action must be directed against the opponent, not against innocent people, and (b.) the means of combat must be proportionate to the just ends envisioned and must be under the control of a competent authority. (Lotrionte 2002: 90)

Terrorist targeting is a policy arguably designed precisely to meet these two criteria. The just end envisioned is to prevent the deliberate murder of noncombatants (that is, terrorism). The means of combat is a surgical attack on enemy combatants, designed to eliminate the enemy while leaving noncombatants (and perhaps even lower-level combatants) unscathed. Finally, the policy is directly under “the control” of the highest authorities. In the Israeli case, it appears that targets are individually approved by the Prime Minister on the advice of his military advisers, and often the Security Cabinet. The precise review and vetting procedure introduced by President Bush’s 2001 Presidential Finding is not publicly known, but reports and associated orders indicate a “multilayered and rigorous” process, including a list of high-value targets approved personally by the President, on the advice of senior officials, along with specific criteria covering scenarios in which other targets might be hit (Banks 2007: 116, 123). Thus, even as trenchant a critic of terrorist targeting as Michael Gross allows that terrorist targeting generally “avoids the pitfalls of disproportionality, nondiscrimination (by targeting only the terror suspect) and the fear of violating noncombatant immunity” (Gross 2004: 113). So, in principle, terrorist targeting appears to cohere very closely with traditional standards for the moral evaluation of

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the conduct of war. All that said, critics may still ask whether the practice has lived up to the principle. Defenders of targeting can argue with some force that, at least in recent years, operations by Israel and the United States do not appear to have been deliberately directed at noncombatants – at least in terms of the operations that have come to public attention, and assuming at least the loose accuracy of the information about the targets disseminated by the governments. There have been a few cases where critics have raised serious questions (for example, the targeting of Dr. Thabet Thabet in December 2000, in the Israeli case; Amnesty International 2001: 8, 16–17). In most cases, however, the direct involvement of targets in terrorist operations does not appear to be disputed. Defenders of targeting may also argue that recent terrorist targetings have, in practice, generally been relatively proportional, at least in comparison with alternative military operations. Since the start of the second Intifada, it appears that around 60 per cent of fatalities associated with Israeli targeting operations have been intended targets (in total, 218 of 367 fatalities resulting from targeting operations, according to B’Tselem as of September 2007). It is likely, moreover, that at least some of the non-targeted fatalities were in fact combatants, although the number is not known. Further, for all the attention that they have received to date, Israeli targeting operations have resulted in the deaths of at most 149 of approximately 2178 Palestinians who, according to B’Tselem, were not involved in hostilities but were killed by Israeli Security forces in the course of the second Intifada (B’Tselem 20071). The figures for known US operations are variously reported, but according to mainstream press reports, they include at least five al-Qaeda leaders and ten alleged terrorist operatives, but are also reported to have killed at least twenty civilians (excluding contested casualties from air strikes in Somalia in 2007). None the less, Statman argues that “the moral legitimacy of targeted killing becomes … clearer when compared to the [main] alternative means of fighting [transnational] terror – that is, the massive invasion of the community that shelters and supports the terrorists…” (Statman 2004: 186–7). The number of civilian fatalities resulting from targetings, even if it is in fact much higher than reported, still remains small in comparison to the 1000–1200 civilian casualties in the first four-and-a-half months in Afghanistan alone (Zucchino 2002). If the US could have effectively targeted the al-Qaeda leadership in Afghanistan rather than invading, it would be difficult to argue that it would not have been a more proportionate tactic. Drawing on arguments such as this one, defenders make the case that although imperfect, terrorist targeting is the least morally undesirable tactic to combat terrorists capable of eluding arrest (or capable of imposing an unacceptably high price to bring them into custody). Defenders sometimes drive this point home by challenging critics to suggest a preferable alternative policy. Unfortunately, critics all too often duck the challenge. Consider, for example, the recent debate between 1 This is an approximate number based on combining statistics as of September 2007 on Palestinians who did not take part in hostilities and were killed by Israeli Security Forces in the territories and in Israel, with non-targeted casualties resulting from Israeli targeted killings.

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Stephen David and Yael Stein in the pages of Ethics and International Affairs over the Israeli policy of targeting terrorists. At the close of his opening contribution, David lays out the following challenge: it is not enough to oppose Israel’s policy of targeted killing. Critics of this approach need to provide an alternative. Aside from anti-Israeli extremists and pacifists, few counsel Israel to simply endure suicide bombing attacks and do nothing. (David 2003b: 125)

In her response to David’s article, Yael Stein writes: David’s claim that critics of the policy must offer an alternative is not convincing. Finding legal solutions is the army’s duty. Laws of war were written by military experts well aware of the problems arising in wartime. (Stein 2003: 137)

Here, Stein refuses the challenge to identify any morally preferable, or even plausible, alternative to targeting as a means of combating terrorists who cannot practically be arrested. The problem, she writes, rather unconvincingly, is the army’s. Her own role is limited to criticism. If, however, there is no morally preferable or even plausible alternative to terrorist targeting that better respects the principle of proportionality, then it seems likely that terrorist targeting meets the criteria for the conduct of a just war. None the less, some defenders of terrorist targeting are not satisfied simply to argue that it is a just way to conduct a war against terror, but also argue that it provides for an important kind of criminal justice. Does Targeting Provide a Modicum of Criminal Justice? Some defenders of targeting, including Statman, argue that it is just for terrorist killers themselves to be killed: Those people targeted [terrorists] committed terrible crimes. Evildoers deserve to suffer in response and in a way suited to their crimes. Palestinian terrorists with blood on their hands therefore deserve death, the ultimate punishment for their crimes. Hence, the targeted killing of these terrorists is justified. (Statman 2004: 188)

Stephen David puts it even more succinctly: “Since Palestinian terrorists are bent on killing Israeli civilians, killing them in return is a fitting reaction” (David 2003b: 123). In other words, targeting provides a moral form of retribution (David 2003b: 122; 2002: 18; Statman 2004: 188–9). In the sense used here, retribution is “not motivated by revenge,” nor indeed does it have any “utilitarian component,” such as deterring future attacks or reducing levels of violence (David 2002: 18). It is rather “driven by the belief that offenders need to be punished because punishment is warranted.” Retributive action is therefore solely devoted to the “punishment of the guilty,” regardless of the consequences of such punishment. In essence, in so far as justice involves an ideal of just deserts – of the guilty being appropriately punished – the targeting of terrorists can contribute significantly. Thus, as David has it, “even if the policy of targeted killing does not reduce Israeli casualties, even if it increases them, such a policy is [morally] justified because

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it is only through this approach that the terrorists get what they inflict on others – a violent death” (David 2002: 18). Indeed, David asserts that “Israel’s policy of targeted killing, stripped of its utilitarian contributions, is retribution plain and simple” (David 2002: 18, 2003B: 122). Yet this second moral argument must at best be seen as an additional supplement to the first. For even defenders of targeting like Statman and David who invoke retributive justice as a consideration allow that targeting is only acceptable as long as terrorists remain active. If terrorists retire or repudiate violence or are otherwise placed hors de combat, they cease to be legitimate targets. Although their moral responsibility remains unchanged, there ceases to be a viable case for punishment through targeting. The retributive rationale for targeting thus remains subordinate to its justification as armed conflict with terrorism. In essence, retributive justice is a frequent by-product of combating terrorist organizations, at least in theory. It need not, however, for that reason be insignificant. In sum, defenders of targeting appear to offer a substantial moral case for including the tactic as a regular element in states’ counter-terrorist arsenal, providing that operations meet certain basic criteria. Specifically, it should be employed solely where arrest is not a viable option, consistently with Walzer’s criteria of only targeting legitimate, active terrorists, and only in cases where large numbers of civilian fatalities can be avoided. Walzer’s argument draws primarily on the traditional moral guidelines for the conduct of just war. Statman’s argument combines the morality of war with an appeal to common moral intuitions connected with criminal justice. Assessing the real efficacy of their case, however, requires an examination of the various kinds of moral objections that can be raised against targeting policies. Some of these objections will be considered below, beginning with two specific points connected with the general defense of targeting sketched above, and then turning to more general moral criticisms of targeting operations. The moral defense of targeting sketched above is open to at least two specific objections. First, the arguments advanced by Statman and Walzer assume that the most relevant moral framework for assessing targeting is the morality of war. Some critics have forcefully disputed this assumption, however, arguing that the pertinent moral framework is rather law enforcement (for example, Amnesty International 2001: 29; Roth 2004: 2–3). The war analogy thus requires further explanation and defense. In the second place, the argument as sketched above tries to have it both ways, supplementing intuitions about the morality of war with the morality of criminal justice. Yet there is surely a danger in mixing these moral spheres (Gross 2003: 353). For example, although the argument as outlined subordinates the retributive aspect of targeting to its use as a legitimate form of combat, is there not likely to be a continual temptation to deliver the “ultimate punishment,” as Statman puts it, to “terrorists with blood on their hands,” even when they are hors de combat, or when they could be arrested, or when their targeting may present a disproportionate danger to civilians? Defenders of targeting can, of course, largely resolve these concerns by opting solely for either the morality of law enforcement or of war, but only at the cost of at least some of the intuitive appeal of their defense of a general targeting policy. But that appeal is likely to be important in answering the more general moral case against terrorist targeting.

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In the most general terms, the primary moral objection to a “regularized” policy of targeting terrorists is that once it moves beyond immediate interception of terrorists actually in the act of carrying out an attack, it too easily degenerates into “summary execution” – in effect, state-administrated murder (Calhoun 2003: 212). As Stein argues, for example, “it is almost impossible to form guidelines that clearly distinguish between those considered legitimate targets and those who do not pose a sufficient threat to warrant targeting,” let alone effectively police such guidelines (Stein 2001a: 11; Nolte 2004: 114). Moreover, this difficulty is exacerbated in practice, “due to the utter lack of external scrutiny of the security forces, be it public or judicial” (Stein 2001a: 12). Further, as shown in Chapter 5, where terrorist targeting goes wrong, it can amount to a war crime. Such crime constitutes not only a legal liability, but more importantly, a moral calamity. Critics correspondingly argue that targeting should be limited to cases of what could be termed “real-time interception,” where terrorists are actually executing a plan of attack. Apart from such interceptions, critics of targeting appear to favor a reliance on law enforcement techniques (including preventive arrest) and improved (legal) defensive measures. Although such measures are bound to be imperfect, they may be argued to be, on balance, morally preferable to targeting, given the dangers inherent in the latter. Above all, critics stress the “great risk of harming bystanders” in targeting operations (Stein 2001a: 9). It is to a closer examination of this argument that the chapter now turns. Is Terrorist Targeting Immoral because of the Danger of Collateral Damage it Involves? Probably the most popular objection to the practice of terrorist targeting is that there is, in Stein’s words, “a great risk of injuring people other than the target” (Stein 2001a: 8). In essence, targeting is bound to result in harm to noncombatants, and such harm is a moral wrong. It is no coincidence that this argument is so frequently made; it is simple, clear, and powerful. Indeed, terrorist targetings are not only frequently carried out in the midst of civilian populations, but are also often carried out against targets that are hard to distinguish from civilians – terrorists typically do not wear uniforms or external insignia, and in many cases, do not bear arms openly. There can be little doubt that in many cases, attacks against such terrorists will pose a significant threat to civilians. In fact, it may be pointed out that some of the force of Statman and Walzer’s moral comparisons derives precisely from obscuring this feature of terrorist targeting. Statman suggests that terrorist targeting is morally equivalent to fighting a uniformed enemy on a conventional battlefield. Walzer suggests that terrorist targeting is morally equivalent to bombing terrorist training camps. One element notably absent from both of these scenarios is the presence of civilians. Yet it is a morally salient feature of terrorist targeting that it often must take place in the midst of civilian populations against targets that are frequently indistinguishable from civilians. A more accurate moral equivalent might therefore be attacking enemy forces or terrorist training camps in the suburbs of a city. In those circumstances, it is not as clear that the conventional attacks or bombings envisioned by Statman and Walzer would be morally justifiable.

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Questions of proportionality would need to be addressed. Correspondingly, even if it is conceded that terrorist targetings are morally no worse than carrying out such attacks (presenting a significant and perhaps disproportionate danger to civilians), they still might not be morally justifiable. In other words, the observation that terrorist targetings are likely to produce a significant danger to civilians threatens to drive a wedge between the practice of targeting and the relatively unproblematic scenarios that Statman and Walzer invoke as a basis for comparison. After all, even a small number of civilian casualties may be regarded as a moral disaster. As Walzer himself aptly remarks: “the destruction of the innocent, whatever its purpose, is a kind of blasphemy against our deepest moral commitments. (This is true even in a supreme emergency, when we cannot do anything else.)” (Walzer 2000: 262). An ultimate and irremediable harm is done. Moreover, the loss of civilian lives, especially of manifest innocents such as children, can be plausibly linked with harmful moral consequences: it fuels more hatred and violence while undermining the distinction between terrorist and counter-terrorist actions (Ignatieff 2004: 130). It is thus not only morally disastrous in itself, but can lead to a cascade of moral harms. At least four distinct lines of argument have been raised by defenders of targeting in response to the charge that it is immoral on the grounds of the harm it causes to civilians. The first line of argument is that the terrorists started it. Specifically, terrorists initiated at least the armed phase of conflict with attacks on civilians. States, which are obligated to protect their citizens, then have little choice but to accept the condition of armed combat, and in such situations, civilians sometimes die. But the final responsibility for these deaths lies with the terrorists who resorted to systematic violence (against civilians) in the first place. In other words, by killing civilians, and forcing the state to react, terrorists are also responsible for civilians killed in the retaliation (see, for example, IMFA 2003b). The second line of argument is that terrorists characteristically seek safety by hiding among civilians. This action compounds their initial crime, for it amounts to the illegal use of civilians as shields. It is thus again the terrorists themselves who bear direct responsibility for civilian deaths (Kasher and Yadlin 2005a: 50–4; Statman 2004: 186; IMFA 2003b). The third argument is that the civilian deaths caused by targeting are, in contrast to the crimes of terrorists, unintended. Indeed, extensive safeguards exist to avoid, or at least minimize, civilian casualties (David 2002: 17). The fourth and final claim is that, in so far as terrorist organizers and planners are intent on killing civilians, the failure to eliminate them will usually result in far more civilian deaths, stretching into an indefinite future, than will be caused in unintended collateral damage by targeting them. In this way, the moral difference of intention also contributes to a consequential justification based on minimizing civilian casualties. Drawing on these arguments, the IMFA ends its online justification of its own “targeting operations” with the following conclusion: “In the final analysis, responsibility for all the casualties lies with the Palestinian leadership, which has initiated the violence and refuses to bring it to an end. Were Palestinian violence and terrorism to end, Israel would have no reason to take preventive countermeasures” (IMFA 2003b).

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These arguments carry considerable weight. They show that terrorists themselves must bear some responsibility for the loss of civilian lives in targeting operations. Yet as strong as the points are, they are insufficient to sustain the IMFA’s sweeping conclusion that the terrorists bear sole responsibility. It may be that targetings greatly contribute to the effectiveness of wars on terror, and may even be necessary to a successful outcome, but it is implausible to argue that they are strictly necessary to states’ survival, and that the doctrine of necessity eliminates moral choice and thus washes clean the hands of those who authorize and execute such measures. There is no credible evidence that other means (including strengthened homeland security) will be insufficient to at least mitigate terrorism, and even reduce it to tolerable levels. There is also no credible evidence that states face a genuine danger of collapse even if the terrible toll of terrorist atrocities were to continue unabated. Michael Ignatieff, for example, in his thoughtful book The Lesser Evil: Political Ethics in an Age of Terror, provides a brief but useful overview of sustained terrorist campaigns against liberal democracies. He convincingly concludes that “terrorism has never succeeded in breaking apart a liberal democracy” (Ignatieff 2004: 66–76, 80). Yet Ignatieff also cautions that where terrorist attacks have occurred, “all democracies have been damaged by it.” Even if democracies have not been destroyed, armed terrorist attacks may still pose, in Statman’s words, a “threat to the vital interests of a given community” (Statman 2004: 197). In particular, it may harm the quality of both individual and collective life. As Ignatieff aptly summarizes: “a people living in fear are not free” (Ignatieff 2004: 5). “The condition of fear,” Jean Elshtain forcefully argues, “leads to severe isolation,” undermining the capacity for trust, cooperation, and collective deliberation, and consequently our capacity to work together “to attain justice, or serve the common good, or preserve and protect political liberty.” As she puts it, without “ordinary civic peace,” which it “is the primary responsibility of government to provide,” “the goods we cherish become elusive” (Elshtain 2003: 46–8). Along these lines, one might argue that terrorism, and particularly the “new terrorism,” is intended to attack the life of democracy rather than the continuity of its institutions. Whether such attacks have been as harmful as Elshtain fears is open to question. It has been remarked that democracies have short memories, and in this case that may be a merciful truth. In many respects, life seems to be returning to something resembling normal in the United States, and more recently in Israel. Still, whether there will be deeper and longer-lasting psychological effects remains to be seen. Moreover, whatever the lasting harms, it is a good bet that they will be seriously exacerbated by further attacks. A case can correspondingly be made that states which have been subject to major terrorist attacks have a moral right to defend the social character of their national lives as well as the lives and health of their citizens. In particular, in cases where not neutralizing a dangerous terrorist poses a major threat to many civilians into an indefinite future (as in the fourth claim), the moral case for taking action may be especially strong. Still, having an arguable moral right to act in self-defense does not relieve states of the responsibility for the manner in which it is exercised or the consequences that result. There are choices. States that have been attacked could choose to limit themselves to pursuing terrorists through law enforcement measures and improved

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international coordination and/or improved homeland defense. Some countries have made this choice. The decision to try to preserve a quality of collective life at home, or even the lives of citizens, at the cost of risking innocent lives abroad remains a moral choice, and one that carries responsibility even if that responsibility is shared. None of this is to say the choice to target terrorists is unjustified. It is to say, however, that to deny all moral responsibility for the consequences of terrorist targeting, as the IMFA’s statement on terrorist targeting appears to do, is to engage in moral self-deception. An example of the dangers inherent in downplaying moral responsibility for the unintended effects of targeted killing can be found in Asa Kasher and Amos Yadlin’s recent proposed guidelines for Israel’s policy of terrorist targeting. Kasher and Yadlin offer an especially tough-minded defense of targeting. They argue that if a state is compelled to fight terror beyond its borders to protect its citizens, it “does not have to shoulder responsibility for the fact that persons who are involved in terror operate in the vicinity of persons who are not” (Kasher and Yadlin 2005b: 17–18, 15). By consequence, they insist that in carrying out terrorist targeting operations, the state should prioritize the safety of its own combatants over the safety of noncombatants who happen to be in the vicinity (and who are not under its effective control). They acknowledge that this view departs from the conventional principle of distinction between combatants and noncombatants, according to which the protection of noncombatants is prioritized over that of combatants. Still, they insist that in the context of targeting terrorists, the state is not responsible for the environment where it is compelled to act. Consequently, “jeopardizing combatants rather than bystanders during a military act against a terrorist would mean shouldering responsibility for the mixed nature of the vicinity for no reason at all” (Kasher and Yadlin 2005b: 8, 18–19). The implication of this position appears to be that in carrying out terrorist targeting operations, soldiers may be justified in choosing to endanger noncombatants rather than exposing themselves or their comrades to similar danger. The Kasher/Yadlin position provokes a host of potential objections, both moral and practical. Critics may point out, for example, that such guidelines provide the army with a convenient cover in case they cause civilian casualties (that is, they can say that the alternative was to endanger troops), and may argue that the result of providing such cover will ultimately be higher civilian casualties. For present purposes, however, another objection stands out: the deliberate choice to endanger a noncombatant, particularly when alternatives (endangering only combatants) are available, cannot plausibly be said to be without “intention,” even if the state’s forces have not chosen the location of the confrontation with terrorists. There remain alternatives – for example, to accept the risk to combatants. Yet according to the widely accepted definition of terrorism adopted and defended here, it is intentionally harming noncombatants that primarily defines terrorism. Actions that the Kasher/ Yadlin guidelines permit may thus be argued to come dangerously close, at least for many people, to terrorism, and therefore to threaten to compromise the distinction between counter-terrorism and terrorism. This result illustrates the danger of discounting state moral responsibility for civilian casualties. What is troubling about the Kasher/Yadlin position can be further clarified by contrasting it with a more conventional approach to morally assessing collateral damage, specifically Walzer’s influential formulation of the “doctrine of double

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effect.” This doctrine, rooted in the just war tradition, provides a framework for assessing when collateral damage in the context of a military operations can be justified. The key idea here is that soldiers may justifiably act in pursuit of a good effect (for example, neutralizing an enemy) which is none the less accompanied by an (unintended) bad effect (for example, unintended harm to some noncombatants) if they do so in a manner strictly consistent with willing only the good effect. They thus produce a “double effect,” which may be morally justified. In Walzer’s formulation, the doctrine of double effect requires that: 1. The act is good in itself or at least indifferent, which means, for our purposes, that it is a legitimate act of war. 2. The direct effect is morally acceptable – the destruction of military supplies, for example, or the killing of enemy soldiers. 3. The intention of the actor is good, that is, he aims only at the acceptable effect; the evil effect is not one of his ends, nor is it a means to his ends, and, aware of the evil involved, he seeks to minimize it, accepting costs to himself. 4. The good effect is sufficiently good to compensate for allowing the evil effect; it must be justifiable under Sidgwick’s proportionality rule. (Walzer 2000: 153–5, italics added) The fourth clause is obviously a formulation of the humanitarian principle of proportionality. But the real burden of double effect, Walzer argues, is carried by the third clause. The soldier (or commander) must show that only the good effect is intended, and that all reasonable caution has been taken to avoid the accompanying bad effect. Walzer argues that meeting this standard involves soldiers “accepting a certain risk” (Walzer 2000: 152). In his seminal Just and Unjust Wars, Walzer offers the example of a passage from a soldier’s (Frank Richards’) memoir of the First World War, in which he and other soldiers are clearing out enemy soldiers dug into cellars in newly recaptured French territory. In order to avoid ambushes, the soldiers cleared the cellars by throwing grenades into them. In some cases, however, families were hiding in the cellars. Although simply throwing grenades into the cellars would have maximized the safety of Richards and his comrades, they felt compelled to call warnings into the cellars and to give anyone hiding time to come out. This behavior considerably raised the danger to Richards and his colleagues by potentially alerting enemy soldiers to their presence and intentions. Still, Walzer argues that this danger is what double effect, properly understood, requires (Walzer 2000: 155). This formulation of the doctrine of double effect seems more plausible and attractive than the Kasher/Yadlin alternative. For one thing, it denies the armed forces a general cover for harm done to civilians, and sets out demanding criteria for justifying operations that produce such results (including, where appropriate, accepting a degree of risk). It also keeps the distinction relatively clear between terrorist and counter-terrorist: in short, counter-terrorists (1) act only to pre-empt or prevent terrorist violence (and so to protect noncombatants); (2) do not target noncombatants; (3) indeed, take all reasonable measures to secure the protection of civilians, and (4) do so even to the point of placing themselves or their operatives at considerable additional risk to protect civilians (Walzer 2004: 60–62, 136–7). Each of these

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conditions emphasizes the priority placed on the protection of noncombatants, and so distinguishes counter-terrorist operations (including targetings) from terrorist acts which intentionally use violence directed against civilians to intimidate a population or coerce a government. This distinction is both moral and legal – upholding the core humanitarian principles of distinction, necessity and proportionality. For reasons developed above, it cannot be said to wholly release soldiers or those who command them from moral responsibility for harm to civilians arising as a by-product of counter-terror operations. Still, it can be argued strongly that it both reduces such moral responsibility and sharply distinguishes the character of such counter-terrorist operations from the terrorist violence they seek to suppress. Unfortunately, it is far from clear to what degree targeting states have been willing to put their soldiers at risk to protect civilians. The issue is most evident in the case of US operations which have relied almost exclusively on the use of unmanned aerial vehicles (drones). One possible consequence is, as noted above, a comparatively high rate of civilian casualties associated with US operations. The strategy was also arguably illustrated in the Israeli conduct of its war in Lebanon in 2006, in which it, at least initially, attempted to defeat Hizbullah primarily through reliance on air power, even though this resulted in what many states and international actors saw as an unacceptably high rate of civilian casualties (see, for example, Human Rights Watch 2007). Doubtless, Israel’s reliance on air power preserved the lives of its soldiers, but the trade-off that it appeared to have chosen, particularly early in the conflict, was to sacrifice Lebanese civilians to safeguard its own armed forces. Not only was this a morally dubious policy in the light of humanitarian principle of necessity and the underlying doctrine of double effect, but it carried corresponding practical consequences. The eventual effect of this policy was to reverse the considerable initial international sympathy in the conflict, and to lend credence to accusations that the Israelis were the real terrorists, or at any rate were no different from the terrorists they were attacking. Thus, the thrust of this analysis is two closely related conclusions. First, contrary to the protestations of the Israeli Ministry of Foreign Affairs, targeting states do incur partial moral responsibility for any harm to foreign civilians caused by terrorist targeting operations (although much of the responsibility arguably also falls on the terrorist themselves). Targeting states should therefore acknowledge, apologize for, and where appropriate, redress such harms. Second, targeting states have a corresponding moral responsibility to minimize the danger of harm to civilians attendant on targeting operations, and one that goes beyond the standards suggested, for example, by Kasher and Yadlin. If targeting states choose to conduct a war on terrorism, then they must uphold the core principle of the morality of war – that is, the principle of distinction between combatant and noncombatant. If the United States and Israel plan to continue to employ a strategy of targeting terrorists, they should adopt the double effect standard described by Walzer rather than privileging the protection of their own soldiers and operatives over foreign civilians. The latter strategy reflects an understandable and even laudable concern with the safety of their own soldiers. But it violates not only the principle of distinction, but also the humanitarian principle of necessity (since it fails to choose the least harmful means of accomplishing the military objective). Moreover, when such

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a policy results in the unnecessary endangerment of noncombatants, it undermines the legal and moral justifications for the targeting policy and its distinction from terrorism. By consequence, it also tends to consolidate international opposition to terrorist targeting. The critics’ charge that terrorist targeting is immoral in view of the danger it poses to civilians thus carries a good deal of weight, particularly where deployed against a regular or systematic targeting policy. In particular, it draws attention to the moral responsibility for such harms incurred by targeting states, and their failures in some cases to take adequate precautions to prevent such harms. Yet it does not necessarily undermine the legitimacy of all such operations, particularly where they are carried out with due attention to double effect, and where the dangers to civilians posed by terrorists are especially grave. Critics, however, do not rely exclusively on this one strong line of argument. They also argue that terrorist targeting can be morally harmful even when it exclusively strikes its intended target, either because the target selection was mistaken, or because it reflects a political calculus involving far more than the protection of the targeting state’s civilians. It is to these arguments that the next section turns. Is Terrorist Targeting Immoral in View of the Danger of Error or Abuse? Even if terrorist targeting is not necessarily immoral in view of the danger it poses to civilians, it may still involve other types of moral hazard. One point stressed by critics is the ineradicable danger that states may “err in the identification of the victim” (Stein 2001a: 9; Calhoun 2003: 209–11). As Yael Stein points out, even a well-established, independent judicial system, with generous provision for appeals in capital cases, sometimes gets it wrong – even a lot of the time. One credible study, for example, shows that in 68 per cent of trials resulting in the death penalty between 1973 and 1995, the US Courts of Appeal found reasons for withdrawing the death penalty or retrying the case. In 82 per cent of retrials, the death penalty was commuted, and in 7 per cent the accused was actually acquitted (Stein 2001a: 10). This is what Richelson terms the “oops factor” (Richelson 2002: 253). And evidently, there have been real cases in which terrorist targeters have mistaken the identity of the their victims – for example, Israel’s mistaken killing of Ahmed Bouchiki (as described in Chapter 2), or when the CIA killed three men in Afghanistan on 4 February 2002 having mistaken one of them for bin Laden (as detailed in Chapter 4). Defenders of targeting may seek to minimize such cases by suggesting that the targeting states are at war with terrorist groups and in such wars civilians sometimes get hurt, and that law and conventional morality accept the regrettable inevitability of such harms. But the targeting operations cited above are not cases of collateral damage where, despite reasonable precautions, civilians got hurt in the course of necessary attacks on legitimate military objectives. They are cases where civilians were the (mistaken) target. Critics therefore have a strong basis to argue that such mistakes represent a special problem, particularly in connection with a regularized targeting policy, and that this problem cannot be neutralized by appeal to the inevitable violence of war.

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In defense of terrorist targeting operations, it may be argued that these mistakes closely followed the adoption of new targeting policies by the Israelis (that is, the Wrath of God) and the Americans (in the wake of September 11th) respectively. Better procedures, improved safeguards, and more experienced teams may be argued to have significantly reduced the likelihood of error. In the Israeli case in particular, the Supreme Court of Israel’s requirement for independent oversight and possible judicial review in the case of any civilian fatalities may be expected to further discipline operations. Critics, on the other hand, could argue that these last assurances do not apply at all to the US case, and even in the Israeli case cannot eliminate the possibility of human error. Moreover, the chance of error is likely to rise in some proportion with the number of operations undertaken. It is therefore especially likely that a regularized targeting policy will eventually result in an error. A closely related concern is that of potential abuse. At least two kinds of potential abuse have been emphasized by critics, specifically over-use and political use. The former concern is that targeting states may come to rely too much on terrorist targeting even where other means of neutralizing potential threats are available. An Amnesty International investigation of Israeli targetings early in the second Intifada found, for example, that “[i]n some of the cases … the targets were killed in circumstances where they might easily have been arrested” (Amnesty International 2001: 8). Some of the cases investigated were described briefly in Chapter 3. A second form of abuse is emphasized, for example, by Sari Nusseibeh in his recent autobiography. In essence, Nusseibeh charges that the Israeli government has frequently used terrorist targetings to pursue political objectives unrelated to (and even sometimes opposed to) ensuring the security of Israeli civilians. This does not necessarily mean that they knowingly violated the rules regarding when and how targetings could be carried out, but rather that they made choices within those rules with an eye to an independent political agenda. In January 2002, for example, Nusseibeh argues that: Just as word of the ceasefire came, the Israeli prime minister [Sharon] ordered the assassination in broad daylight of a highly revered and popular militant activist in Tulkarem. The order was carried out, and Palestinian violence flared up again in response. And so it was, each time there seemed to be a lull, Sharon stoked the fires like a witch her brew. (Nusseibeh 2007: 459)

More specifically, Nusseibeh charges that the Israeli government targeted Abu Jihad after he had effectively “opted for nonviolence” because it preferred to deal with violent Palestinian elements that it could crush militarily than with non-violent advocates with whom it would have to negotiate: “Terrorism, in other words, had nothing to do with the Israeli government’s decision to eliminate him” (Nusseibeh 2007: 285–6). Nusseibeh also charges that the Israeli government often focused targeting operations against the PLO (rather than Hamas) in an attempt to weaken it in relation to Hamas and divide Palestinian politics. Amnesty International has similarly accused Israeli of pursing “a policy of carrying out assassinations of political opponents” (Amnesty International 2001: 6).

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Yael Stein has also charged the Israeli government with using terrorist targetings for political purposes. She points in particular to the killing of Dr. Thabet on December 2000 as an example of an unjustified attack. In particular, she cites press reports suggesting that the targeting was “carried out following an explicit order by Prime Minister Ehud Barak to expand the circle of people whom it is legitimate to assassinate to include political activists” (Stein 2003: 135). According to this view, part of the point of the operation was to deter political activism. Indeed, there is some evidence that many Israelis harbor deep suspicions of their own governments’ use of targeting policies. For example, in a poll by the daily newspaper Yedioth Ahronoth (reported in the Washington Post in 2003), 40 per cent of Israelis said they believed the government “had used targeted killings to sabotage a new, US-backed peace process” (Moore 2003). Evidently, these accusations against the Israeli government are highly controversial, and it is well beyond the scope of this book to assess their validity. They are worth mentioning because they point to a legitimate hazard of a targeting policy, particularly in a regularized form – even without harming civilians or making mistakes regarding the terrorist involvement or identity of targets, a targeting policy could be abused or exploited in pursuit of political ends different from, and less reputable than, the security of civilians. Defenders are likely to have a very different view of the likelihood of such abuse. They will also likely point to the use of checks and safeguards, and particularly in the Israeli case, the SCI’s requirement for independent oversight of the policy. But none of these mechanisms can entirely exclude the possibility that a government, army, or agency might exploit a general targeting policy to its own political ends without, for example, violating Walzer’s criteria for permissible operations. The concerns about over-use and abuse thus raise significant worries about how the compliance of targeting states, not only to the letter, but also to the spirit of legal and moral justifications, can be assured. Is Terrorist Targeting Immoral by Association? A further moral complaint against terrorist targeting, particularly as a regular counter-terrorist tactic, involves criticizing the supporting policies that are alleged to be required to practice it effectively. In particular, critics have denounced practices connected with the collection of the intelligence necessary to plan terrorist targeting operations. In relation to Israeli practice, the argument characteristically focuses on the use of spies, informants, and treachery to gather the information necessary to identify threats and to target terrorists before they act. In Gross’s words, the Israeli “assassination policy fueled by collaboration wreaks havoc on the Palestinian community” (Gross 2003: 358–9, 2004: 101; Amnesty International 2001: 9). In the US case, the charge of immorality is connected with the accumulation of evidence by means of the torture and/or rendition of foreign combatants (see, for example, Hajjar 2006: 33). The suggestion is that in so far as the targeting of terrorists requires

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these other immoral practices, such as coercing informants or torturing detainees, it itself becomes immoral by association. While the basic charge is similar in the US and Israeli cases, the associated practices are distinct and warrant separate treatment. In the Israeli case, targeting advocates may wonder what critics are objecting to – neither spying itself nor the use of informants seem either immoral or unusual. What concerns critics, however, is not the intelligence gathering itself, but the consequences for Palestinian society. Palestinians summarily execute suspected spies and collaborators, including doubtless some who are innocent – B’Tselem has recorded 120 executions of alleged collaborators since September 2000 (B’Tselem 2007). In addition to being unjust and immoral, such executions feed fear, violence, and social instability in Palestinian society (Abdel-Jawad 2001: 18). No doubt they do. If, however, the moral fault derives from summary executions by Palestinians, then targetings’ defenders may argue with reason that it is a stretch to blame the Israeli terrorist targeting policy, even if it can be loosely connected as a facilitating condition. Targeting in no way requires Palestinian authorities or self-appointed gangs to forgo due legal process. Responsibility lies with those who circumvent justice. Using spies or informants does not seem to make Israel responsible for conditions under the Palestinian Authority any more than it made the United States responsible for the Soviet Gulag, or the Soviets for Senator McCarthy and the House Un-American Activities Committee. Still, targeting’s critics try to reinforce this linkage by stressing that the Israelis sometimes coerce cooperation by threatening Palestinians’ families or property (Stein 2003: 127; Gross 2003: 358–9). This charge is more troubling than the former one, in that the alleged associated practice is undoubtedly morally objectionable and is purportedly being performed by the targeting state itself. Targeting’s defenders, however, will likely argue that no conclusive evidence of any such systematic policy has emerged to date, and if there are isolated cases, then these can be corrected without compromising the entire targeting program. Nevertheless, it would be a matter of some concern if the targeting program effectively promotes this type of behavior. So this second formulation of the argument by association involves a troubling, if thus far unsubstantiated, charge. The US case of moral tainting by association with torture is more straightforward. Torture is morally abhorrent and absolutely prohibited in international law, just as cruel and unusual punishment is prohibited in the US Constitution. If torture were required for an effective targeting policy, then the policy would surely be morally tainted by association. However, to this argument, targeting’s defenders may respond that there does not appear to be any compelling reason to believe that torture is necessary to carrying out a targeting program. For example, there is ample evidence that US Agencies have sometimes been able to gather good intelligence on al-Qaeda activities through voluntary contributions, or by offering financial compensation (see, for example, NCTAUS 2004: 109). Moreover, the idea of torture’s necessity seems to be undermined by the example of the Israelis. A 1999 Israeli High Court ruling imposed an absolute ban on the use of torture, and yet the Israelis run a far more extensive program of terrorist targeting than the US does (although, it should be

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noted, some human rights organizations have charged that Shin Bet still occasionally uses methods that would qualify as torture under international law; Hasson 2007). Moreover, while US interrogations of detainees have sometimes involved torture, the evidence of a necessary relationship between torture and the US targeting policy has yet to be established. Indeed, it seems intuitively implausible that eliminating the targeting option and relying solely on preventive arrest would reduce pressure to gain actionable intelligence, including by harsh interrogation. Finally, if the moral problem lies with torture, then targeting’s defenders can argue that that is where it needs to be addressed. Again, the difficulty here is that argument by association is weak and in this case also rests on little empirical evidence. Still, the suggestion that terrorist targeting effectively encourages the use of torture to try to extract actionable intelligence remains troubling, even if the causal relationship remains contentious. Is Targeting Terrorists a Slippery Moral Slope? One final argument frequently advanced against the broad defense of terrorist targeting is the “slippery slope” – even if targeting is not immoral at the moment, it may evolve in immoral directions (Stein 2001a: 11; Gross 2003: 360). However, this type of argument, like that of tainting by association, lacks some of the logical force of the earlier critiques because it relies on a purported tendency rather than a logical necessity. Yet some of what it lacks in logical rigor it makes up for by drawing force from another source of authority. Specifically, it draws on a seeming historical pattern, in this case the historical pattern of covert special operations to escape regulatory control – as illustrated, for example, by the CIA’s practice of assassination in the 1950s and 1960s or in the Spanish and South African cases cited in Chapter 1. An especially troubling case that can be cited in this context is the Phoenix Program in Vietnam, as discussed in Chapter 4. It is worth noting, however, that in that case, the vast bulk of operations (and killings) were carried out by South Vietnamese Provincial Reconnaissance Units rather than US forces. Still, there is little doubt that US forces played a major role in setting the program up, and were aware of many of the shocking details of how it was being carried out. The Israeli historical record (as described in Chapter 2) is even more troubling. In the early 1960s, for example, Israel employed targeting against civilian rocket scientists working for the Egyptian government. In the early 1970s, following the Munich attack, it pursued a campaign of targeting against persons it connected with the PLO, some of whom (like Wa’el Zu’aytir) it now appears had no direct role in the attack, and indeed whose connections to terrorism may have been peripheral. In the 1980s, there is evidence that Shin Bet actually executed suspects connected with terrorism (such as Murshid Nakhas) whom it already had in custody. Critics therefore have some reason to ask whether the Israeli government can be trusted to uphold defensible moral standards in carrying out its terrorist targeting policy. Defenders of targeting often ignore this type of argument. However, they could argue, first, that citing these historical incidents hardly demonstrates a recent pattern

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of deterioration in targeting practices. More generally, they could respond that the slippery slope does not militate so much against targeting terrorists itself, as against carrying it out in secret without adequate oversight. But this is only partially the case with the Israeli and US policies. While the Israelis are more forthright in avowing their policy since 2000, the US administration has also unofficially acknowledged some CIA targetings – and, most recently, appears to have officially recognized an operation in Somalia (Cloud 2007). If this pattern continues, it may well open the way to legislative oversight, and even judicial review. On the other hand, the Israeli policy has been subject to judicial review, and if the SCI’s decision is implemented, will be subject to independent oversight, and in case of collateral damage, to objective and possibly judicial review. A 20 January 2008 Haaretz story reported that the government ministries were currently at work formulating the guidelines for objective review panels to consider cases over the foregoing year in which civilians were injured (Yoaz 2008). These safeguards are likely to operate as powerful restraints on any general deterioration of the policy toward an illegal dirty war in the style of the Spanish GAL or South Africans “securocracy” or the pacification program promoted by the CIA. It may also be pointed out that the US government, while at least until recently less forthright about its policy than the Israelis, has also been more restrained in the numbers of attacks that it carries out. Moreover, given the US government’s high and controversial profile in the contemporary world, there may be a basis to argue that many, if not necessarily all, US operations will come to public light. Evidently, however, this provides a very limited and contingent comfort. Critics are therefore on strong ground to demand proper acknowledgment and rigorous oversight if the policy is to continue. Moreover, critics may also point to a number of features of recent US and Israeli policies that strongly suggest a degree of recklessness in their conduct of the war on terror, and by consequence raise doubts about empowering these states to employ terrorist targeting as a regular counter-terrorist strategy. The United States, for example, is reported by the Washington Post (as of November 2006) to have detained over 83,000 foreign citizens since September 2001, at least 108 of whom died in custody. At least 26 of these cases have been investigated by the military as possible homicides (while 95 military personnel had been charged with misconduct and at least 75 convicted as of late 2006). In addition, more than a hundred prisoners have been rendered to their native countries (Shrader 2005). Human Rights NGOs have reported as many as 34 homicides in US custody, including 8–12 victims tortured to death (BBC News 2006b). Israel, for its part, is accused of having “indiscriminately” killed approximately 900 Lebanese civilians during its 34-day conflict with Hizbullah in the summer of 2006 (Human Rights Watch 2007). In particular, it is widely accused of having used cluster bombs and phosphorus shells in the direct vicinity of civilians, in violation of international humanitarian law (BBC News 2007b; Rappaport 2006; Human Rights Watch 2006). While not all of these numbers have been established beyond doubt, they do raise serious questions over whether the states in question can reasonably be entrusted to carry out a regular terrorist targeting policy responsibly.

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Summary Assessment of the Broad Defense of Terrorist Targeting In sum, targeting’s defenders such as Statman and Walzer advance a potent justification for the regularized use of terrorist targeting in the context of wars on terror, on the basis of both the morality of war and the morality of criminal justice (at least assuming the legitimacy of the comparative practices they cite). Critics, however, raise a number of telling objections and concerns. In particular, they emphasize the moral issue of collateral damage, and despite a spectrum of elusive strategies on defenders’ part, drive home the case that at least partial responsibility for the moral disaster of civilian casualties is unavoidable. While defenders point out that this danger of harming civilians is often present in conventional military operations as well, critics may retort that it is especially characteristic of terrorist targeting operations. They may also point out that there remains a danger of errors in target selection, and that this danger is likely to be elevated in relation to a regularized targeting policy. There are also worries regarding the susceptibility of a regularized targeting policy to political abuse, along with possible associations to coerced collaboration and torture, and the possibility of the deterioration of operations into something resembling a dirty war. Furthermore, targeting states’ execution of wars on terror to date raises serious doubts as to whether they can reasonably be entrusted with as potentially dangerous and harmful a policy as terrorist targeting. So where does this leave the case for a regularized terrorist targeting policy? It is controversial, to say the least. Formulating a judgment, at least based on the arguments presented, is likely to turn on factors such as the following: (1) the magnitude of the perceived threat of mass terrorist attacks; (2) the perceived moral legitimacy of the comparative practices that Statman and Walzer cite, and (3) how deeply the different exposures to collateral damage drives a wedge between these practices and terrorist targetings (modulated by an assessment of the further moral concerns raised regarding targeting). There is room for a good deal of legitimate disagreement around all three of these questions, particularly the last. Is there a Defensible “Narrow” Justification of Terrorist Targeting? Yet even if the broad justification of terrorist targeting is deemed, on balance, to be problematic, there remains a second, narrow strategy for defending terrorist targeting that warrants attention. Michael Ignatieff, for instance, argues that terrorist targeting (and here he specifically gives the example of the Israeli policy) can be “justified as a lesser evil” rather than as a general counter-terrorist strategy (Ignatieff 2004: 129). That is, rather than arguing that terrorist targeting is no worse than some other tactic of war, Ignatieff allows that it is not normally a justifiable policy even in a struggle against terrorist organizations – it is rather an “evil.” Nevertheless, he argues that circumstances may sometimes conspire to render it the lesser of two evils, and in such exceptional circumstances, it may legitimately be used. Correspondingly, Ignatieff imposes more stringent criteria than Statman and Walzer on when terrorist targeting can be used. He argues specifically that it should only be employed “where information exists that the targets in question are planning imminent attacks that

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cannot be stopped in any other ways” (Ignatieff 2004: 133). In effect, Ignatieff frames terrorist targeting as an “active self-defense” strategy of the type discussed in the last chapter. Although it is not spelled out, it will be assumed for the purposes of the following analysis that Ignatieff’s standard requires either that individual terrorists themselves are planning attacks, or that they are active members in the operational branches of terrorist organizations which are planning imminent attacks. Ignatieff also stresses that targeting operations must remain subject to “administrative and legislative review in camera” – indeed, he suggests the possibility of a judicial body comprised of federal judges, similar to the Foreign Intelligence Surveillance Court, to review proposed targeting operations (Ignatieff 2004: 134; see also Byman 2006: 111). Although Ignatieff does not elaborate the proposal in detail, the idea appears to be that the court would consider not the guilt or innocence of potential targets, but whether there is sufficient evidence to identify them as combatants. It might also consider the question of whether there is sufficient evidence of planned imminent attacks to warrant targeting operations. Finally, it could also review targeting operations post facto to ensure that all the requirements and standards for targeting were respected (for example, that targeting had only gone ahead in the absence of other practicable means of neutralizing the combatant, that the danger to civilians was not disproportionate, and that proper precautions were taken). Ignatieff’s idea for prior review of evidence of combatant status and planned attacks provides a potentially plausible means for the authoritative review of the criminal evidence and/or multiple sources of intelligence required on Guiora’s active self-defense model (discussed in Chapter 6), and indeed potentially fills the evidentiary gap identified by Eichensehr in the SCI’s 2006 decision on terrorist targeting (discussed in Chapter 5). One likely ramification of Ignatieff’s criteria and oversight is that targeting operations would likely be used far more rarely and selectively than under the broad moral defense. At the same time, Ignatieff’s criteria go beyond what critics of targeting have been willing to allow, because they do not limit targeting operations to real-time interceptions – they permit the targeting of terrorists where there is credible evidence of planned attacks to be carried out in the imminent future. Although Ignatieff does not spell out precisely what planning imminent attacks requires in this context, the implication can be construed to be twofold: (1) there must be a clear intention to carry out attacks against citizens of the targeting state, and (2) there must be actual and tangible preparations being made – participants are being trained, equipped, and/or instructed, weapons are being gathered or prepared, and the like. As far as the issue of target selection is concerned, the identification of possible targets would presumably be based either on the individual’s own activities or a finding of their direct involvement in the terror activities of a group planning imminent attacks along the lines suggested by the SCI. Ignatieff does not spell out the evidentiary standards of his proposed judicial body, but it seems likely that it would at least reach Guiora’s standard of multiple independent and credible sources of intelligence (and ideally, something more closely approaching criminal evidence). Ignatieff also stresses that terrorist targeting should be seen as a temporary expedient to be used only in cases where terrorist groups are “actively engaged in hostilities against a democratic state,” and even then, only in the absence of some

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other means of apprehending terrorists who hide beyond the administrative reach of the state whose citizens they have attacked and intend to continue attacking (Ignatieff 2004: 133). His defense of targeting is therefore not only narrow, but also contingent on a prior pattern of attacks and the absence of a plausible mechanism to apprehend terrorists operating from countries unable or unwilling to bring them to justice. Ignatieff’s narrow defense draws strength from three very plausible intuitions: (1) mass-casualty terrorist attacks comprise very great harms, not only to their victims and their families and friends, but often to the entire societies in which they have occurred (see, for example, Scheffler 2006); (2) the window of realtime interception is exceedingly small, and must sometimes effectively forgo the opportunity to prevent successful attacks (see, for example, Schmitt 2004a: 756), and (3) a restriction of targeting operations to real-time interception also forgoes the opportunity to eliminate leaders and planners who organize and direct terrorist operations but may never expose themselves personally. Ayman al-Zawahiri, for example, may not expose himself personally to arrest or interception, regardless of how many operatives he may help to train and pay and send overseas. Yet he continues to represent one of the great sources of al-Qaeda terror. A policy which holds out at least the prospect of his neutralization (as a planner of imminent attacks) thus holds a substantial attraction. Ignatieff’s narrow justification is also of special interest because it promises to mitigate many of the difficulties that arise with the broader defense. For example, since it is only to be used to prevent a planned imminent attack, targeting is likely to be used more rarely than it would be on the broad defense, and consequently, it is likely to produce a lower total number of non-target fatalities. Furthermore, the moral justification for endangering civilians will generally be clearer (that is, to save noncombatants who face imminent danger). A more restricted and carefully regulated policy also offers fewer opportunities for political abuse, and is likely to reduce the possibilities for error – although again, the mere possibility cannot be wholly eradicated. Also, a more restricted and regulated “lesser evil” policy, which permits targeting only in exceptional circumstances, is less likely to promote immoral associated practices, or to slide down the slippery slope towards a dirty war. Indeed, Ignatieff’s justification also helps to mitigate some of the concerns raised in the last chapter regarding the possible political ramifications of terrorist targeting. For example, a “lesser evil” justification need not depend on a contested general relationship between terrorist targeting and overall levels of violence, but could rather focus on the need to prevent specific, impending operations. Moreover, Ignatieff’s “lesser evil” targeting framework would help to soften Ward Thomas’s concerns about erosion of the general international norm against assassination. In fact, Ignatieff’s proposal closely mirrors Thomas’s own suggestion that it would be prudent to limit targeting operations to the “pre-emption of imminent danger.” It can also draw on the firmer “self-defense” legal framework outlined in Chapter 5 (rather than the more contentious “armed conflict” theory). Most importantly, Ignatieff’s justification makes sense of the powerful intuition that there are at least some cases where terrorist targetings are probably warranted. Chapter 4, for example, noted a series of opportunities that the CIA had to kill bin Laden and other senior leadership of al Qaeda in 1999 after the African embassy

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attacks but before September 11th. Alec Station had gathered considerable data on his involvement in past plots against the United States. It also gathered extensive intelligence indicating that “al Qaeda … was planning operations against U.S. interests worldwide,” although, of course, bin Laden made no secret of this fact (and continues not to) (NCTAUS 2004: 109). The FBI even had a sealed Grand Jury indictment against bin Laden. Yet officials hesitated because they were uncertain of the propriety of deliberately killing bin Laden – although by December 1998, President Clinton had specifically found that bin Laden “posed an imminent threat to the United States.” With the benefit of hindsight, this hesitancy seems regrettable. The targeting appears to have been (and most likely would continue to be) justifiable in a “lesser evil” framework. Ignatieff’s narrow justification for targeting seems initially plausible, both in terms of at least some of the cases that it would allow, and in terms of avoiding some of the greater dangers associated with a regularized policy. It also invokes more specific forms of oversight to ensure that targeting operations are carried out in accordance with the narrow criteria. In this way, it presents a rather different and in some ways more robust challenge to critics of targeting than the broad justification. Critics are challenged to go beyond their usual invocation of the dangers of targeting excesses. They are challenged to confront the character of the act itself. Ignatieff’s narrow justification of targeting, however, is of comparatively recent vintage, and has to date received relatively little direct attention from critics, who are apt to focus either on the broad justification or, even more frequently, on the actual current practice of states. Evidently, Israel and the United States have not officially adopted a “lesser evil” approach to targeting, nor the types of safeguards Ignatieff suggests. Indeed, Ignatieff’s criteria seem in some respects to be slightly more restrictive than the SCI’s guidelines. As with Ignatieff’s guidelines, the SCI stressed the requirement of “direct participation” in acts of terrorism and the importance of examining each case on its own merits. But President Barak, writing for the SCI, held back from explicitly requiring that attacks be imminently planned before members of a terrorist organization can be targeted. Rather, he insisted that they must be direct participants in terrorist attacks who pose a continuing threat to Israelis, although he also stressed that the standard of proof for “direct participation” must be very high. Moreover, President Barak insisted that all state decisions should be retroactively vetted by a credible independent authority (in some cases, subject to review by a judicial authority), whereas Ignatieff’s “lesser evil” approach can be construed to call for prior approval by a judicial body as a general standard. One of the great points of interest in Ignatieff’s narrow defense is that it provides a very minimalist test case for whether there are morally compelling grounds for permitting targeting beyond the commonly accepted cases of real-time interception. One unfortunate consequence is a dearth of direct criticism and analysis of his relatively narrow position. Still, in recent years a couple of very broad moral critiques of terrorist targeting have been developed that would address the range of cases that Ignatieff’s criteria would allow (along with all of the other cases). The boldest and most sophisticated attempt along these lines has been offered by Michael Gross in his moral critique of what he calls “named killings.’ A second general moral critique of terrorist targeting can be discerned in Stephen Spielberg’s controversial 2005 Oscar-nominated film

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Munich, which re-tells the story of the most famous terrorist targeting operation of all. The two critiques are considered in turn below. Are Terrorist Targetings Immoral as “Named Killings”? The criticisms of terrorist targeting considered thus far have focused on different problematic aspects of the policy, and in particular the high degree of moral hazard it involves. The broadest and most sophisticated critique of terrorist targeting, however, involves a comprehensive moral condemnation of any policy that involves the identification and deliberate killing of a particular person – or what can be termed a “named killing” (short of real-time interception). This critique has been articulately advanced by Michael Gross in a series of recent articles. It will be argued below that this critique is less compelling than it at first appears to be. Michael Gross condemns terrorist targeting not in terms of its occasional unintended effects or the mere possibility that it may be abused, but in terms of its very defining character – because it deliberately selects, or “targets,” its victims for death in advance. The reason why this presents a moral problem takes some explaining. As Tamar Meisels noted, it is not immediately self-evident what is morally objectionable about targeting terrorists in itself, particularly if operations meet the standards of civilian protection outlined in the last section – “the idea of ‘killing the bad guys,” she opines, “seems rather a good thing” (Meisels 2004: 298). Indeed, in an age when transnational terrorist networks are prepared to conduct sustained campaigns from foreign bases where they move seamlessly through civilian populations, the strategy of tracking down and surgically eliminating terrorists seems especially plausible. As Gross, one of its most telling critics, concedes: in an age when low intensity war is increasingly replacing conventional armed conflict, and pinpoint attacks against combatants are preferred to indiscriminate assaults on mixed populations of civilians and soldiers, assassination should be particularly attractive. Timetested, it is the paradigmatic “smart” weapon: identify your prey, hunt him down and kill him. (Gross 2004: 99)

Indeed, Steven David has argued that of all Israel’s responses to Palestinian terror, the “pinpoint” quality of targeting operations makes it the policy most consistent with Kofi Annan’s call for Israel to employ “more discrete, focused actions” in defending itself against terrorism (David 2003b: 123–4). Despite its virtues, however, Gross insists that targeted killing “evokes particular revulsion,” even when used only “as a tactic of war” (Gross 2004: 99). Gross argues that what inspires this instinctive revulsion is, paradoxically, the fact that the violence is directed against a specific person rather than against generic soldiers in an enemy army. The point is that the targets are specific, known individuals, and this seems to make a moral difference – it makes targeting a “morally abhorrent practice,” and in his estimation, a form of “assassination” (Gross 2003: 364). To understand why targeting is, in his view, so anathematized even in war, it is necessary to first consider why killing the enemy is accepted as morally justifiable in a condition of armed conflict. Gross argues that the root justification for killing

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enemy soldiers is an extension of the criminal law principle of “self-defense.” Under the criminal law principle of self-defense, Gross argues, victims are only permitted to kill their attacker in self-defense when the attacker is “morally non-innocent” – so, for example, if the attacker lacks intent to harm or is operating with diminished moral capacities, these considerations “may require [the victim] to disable rather than kill an [innocent aggressor] even at some risk to himself” (Gross 2004: 103). Evidently, however, this moral constraint on self-defense is considerably loosened under circumstances of armed conflict: Soldiers may be killed in self-defense under circumstances that far outstrip those that constrain ordinary self-defense. Any soldier may be killed during armed conflict at any time whether armed or unarmed, whether posing a grievous threat or not, and whether innocent or not …. Material and moral non-innocence no longer characterize aggressors. Nevertheless, we are certain that soldiers may legitimately kill each other. (Gross 2004: 104; Statman 2003: 775–6)

But why, Gross asks, is this ethical principle suspended in situations of armed conflict? He argues that the key factor here is anonymity: “soldiers fight anonymously, as agents of the political communities they defend” (Gross 2003: 362). Soldiers confronting one another on a field of battle cannot know anything about one another’s moral innocence or non-innocence. What they do know is that the enemy will kill them if he can, and that they must fight not only to protect themselves, but “to protect [their] community.” So the soldiers end up, according to Gross, “fighting each other not as individuals but as agents of their respective polities … in the collective name of their community” (Gross 2004: 105). In Gross’s words, each army is seen as a “collective identity … [which] assumes the [enemy] soldier’s identification with the [enemy] state so that the state’s guilt might coherently devolve on the individual” (Gross 2004: 106). It is thus the belligerent states that supply “the moral and material conditions [that is, guilt] that justify [killing in] self-defense” (Gross 2004: 104). That is, the moral innocence of the individual enemy soldiers does not matter as long as they are seen as anonymous agents of their state – because the moral and material non-innocence of the state they represent is sufficient to make them a legitimate target. Soldiers killing in battle could then be justified consistently with the principle of self-defense. At first glance, however, Gross acknowledges that this might appear to provide a powerful argument for the moral legitimacy of killing enemy combatants, including terrorists: “If one has a right to kill in self-defense during wartime, why not a corollary right to assassinate, not by treachery but simply by naming and hunting down an armed adversary?” (Gross 2004: 103, 99). In short, if it is morally legitimate to kill an armed adversary in the course of a battle, why would it not be equally moral to kill an armed adversary in camp before the battle, or in a building where he takes refuge, or even while at home on leave, or – in a case of special interest here – while meeting with colleagues planning an operation? Why would this moral justification not cover targeting terrorists? Gross argues that not only does the argument not morally justify targeting, it condemns it: “As attractive as the argument might seem, assassination is not easily justified as a form of self-defense, and is confounded by the justification of self-

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defense killing in general and killing in war in particular” (Gross 2004: 103, 99). The difficulty that arises in the cases of terrorist targetings (even if undertaken in a context of armed conflict) is that the moral appeal to the principle of self-defense “hinges on a single necessary condition, namely anonymity” (Gross 2004: 106). But in the case of terrorist targeting, the target is, by definition, not an anonymous soldier of the enemy, but is named and individually known. The veil of ignorance between the belligerents is therefore pierced, and the target cannot be thought to carry the material and moral non-innocence of his nation. “Once named,” Gross concludes, “victims of assassination must [themselves] be morally and materially non-innocent aggressors [that is, for their killing to be morally defensible]. Often they are not and under these circumstances assassination violates the conditions of killing in selfdefense” (Gross 2004: 107). However, this argument, even if accepted at face value, hardly seems to warrant Gross’s blanket condemnation of terrorist targeting as a “morally abhorrent practice,” and indeed, as a form of “assassination.” In particular, it does not present a compelling moral case against going after the kinds of targets permitted according to Ignatieff’s criteria. In the first place, Gross himself argues that terrorist targeting is morally “defensible” in certain circumstances. These include, for example, when a state is confronted with what have been termed “ticking bombs” – that is, in the case of “necessary interdiction to prevent otherwise unavoidable threats to civilian populations” (Gross 2003: 351). It may well be argued that Ignatieff’s planners of imminent attacks would fit into this latter exceptional group (who present otherwise unavoidable threats to civilian populations). Even from Gross’s perspective, then, it appears that terrorist targeting is not always morally abhorrent assassination. Moreover, even if Ignatieff’s imminent planners were for some reason excluded from the exceptional category, or if slightly more permissive criteria like the SCI’s “direct participation” criterion is considered, Gross’s critique lacks bite. The crux of his argument is that only the morally non-innocent should be targeted in combat (and that in conventional wars, this non-innocence devolves onto anonymous soldiers from the states they represent). Anonymity is essential precisely because the soldiers themselves may personally be innocent (for example, they may be forced conscripts who personally oppose the war). However, Gross himself admits that “international terrorists … are neither materially nor morally innocent” (Gross 2004: 109). This is especially clear in cases like the “imminent planners” whose targeting Ignatieff defends, or indeed the cases of “direct participation” that may be permitted by the SCI’s decisions. But if such terrorists are individually morally and materially noninnocent, then the legitimacy of targeting operations against them does not depend on their anonymous incorporation into the moral condition of their sponsoring state – if indeed they even have such a sponsoring state. Their own individual guilt is sufficient to warrant their targeting under the principle of self-defense. In other words, far from condemning terrorist targeting, particularly in the forms defended by Ignatieff and the SCI, Gross’s argument offers a powerful moral defense of the policy: such terrorists can morally be targeted under the principle of self-defense because they represent material threats to the lives of others and are morally noninnocent. Consequently, Gross’s argument effectively appears to validate the very practice it sets out to morally condemn.

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It may also be argued that Gross’s argument suffers from other deficiencies which reinforce its unintended support for terrorist targeting (at the very least in relation to the types of cases defended by Ignatieff and the SCI). For example, Daniel Statman has contended with some force that “the argument from named killing is ungrounded” because it relies on a morally unjustified preference for anonymous killings (Statman 2003: 776–7). To begin with, Statman notes that what Gross thinks makes normal killing in war acceptable is that they are “depersonalized killing[s] which [reduce] individual human beings to the status of ‘the enemy’” (Statman 2003: 777). Concurring with Richard Norman, however, Statman stresses that such anonymous killings “totally ignore the humanity of their victim,” and, it might be added, systematically relieve the person doing the killing of the moral responsibility for their act (Norman 1995: 188). By contrast, terrorist targetings involve the surgical killing of known persons in view of specific (war) crimes they have committed and specific threats they pose to civilians. Notably, targeting does not depersonalize targets, or relieve targeters of responsibility either for the selection of targets or for the means by which targeting operations are carried out. In particular, Statman’s point is that such terrorist targeting is morally preferable to killing in war because it is not depersonalized. But Statman points out that from Gross’s perspective, “depersonalization is, surprisingly, a moral advantage,” and makes normal killing in war acceptable (Statman 2003: 777). For Statman and Norman, however, depersonalization “is at the root of the evil involved in wartime killing” (Statman 2003: 777). Moreover, once the morally dubious character of “depersonalized” killings is taken into account, the relative assessment of targetings needs to be reconsidered. In Statman’s view: Far from being “morally abhorrent,” assassination of the sort under discussion expresses the appropriate respect for human life during wartime. In assassination, human beings are killed not because they are ‘the enemy’, but because they bear special responsibility or play a special role in the enemy’s aggression. This is particularly true in war against terrorism, where those targeted are personally responsible for atrocities against innocent lives. (Statman 2003: 777)

This responsibility is especially clear in instances such as those contemplated by Ignatieff where it can be established that targets have committed and are “planning imminent attacks,” or even those the SCI considered where targets are “directly participating” in sustained terrorist campaigns. In short, Statman cogently argues that depersonalized anonymous killings are morally more problematic than killings that can be justified personally, by reference to direct involvement in campaigns of unlawful violence. Contrary to Gross, therefore, it seems to Statman that it is more morally defensible to kill terrorists who have committed atrocities and plan to commit more, than to kill unknown soldiers who may not only be wholly morally innocent, but may also have been compelled into combat. On this point, Statman’s objection seems forceful. It is more morally defensible to kill the guilty than the innocent (or depersonalized unknowns). Moreover, Statman’s objection raises the question of whether it really is anonymity and collective agency that allows us to be “certain that it is acceptable for soldiers to kill in war.” As Gross himself admits, the criminal principle of self-defense is not the only way of making sense of the widespread acceptance of killing the enemy in

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war. The traditional political realist view, for example, is simply inter armes silent leges (“in war the [peacetime] laws are silent”). In Statman’s apt summary, realists “see war as constituting a separate sphere with its own set of rules, which are, after all, almost universally accepted” (Statman 2004: 182). In consequence, they see no need to derive the moral permissibility of individual soldiers killing in war from any principle of peacetime law, like the criminal law of self-defense, or to connect it with contemporary jus ad bellum (law governing the legitimate declaration of war). Here, the realist position seems plausible. After all, war may pre-date law, and certainly law related to warfare. If, however, the key justification of killing in war is not seen as the principle of self-defense, then there is no need to invoke Gross’s argument about how individual soldiers’ identities are subsumed into the collective moral identity of the state for which they fight. Furthermore, if collectivization is not assumed, then the need for anonymity disappears. This result (abandoning the moral requirement of anonymity) is highly plausible, because in practice, there are cases in which armies have attempted to eliminate specific officers of the opposed army without incurring moral condemnation. The case of the US Armed Forces’ elimination of Admiral Yamamoto, examined in Chapter 4, provides one of the clearest and best-documented cases. But just because he was not anonymous – because the Americans were aware of the Admiral’s personal presence on the Japanese military aircraft, and they viewed him as a high-value target because they believed him to be key to the Japanese naval war effort – were they morally forbidden to go after the plane or shoot it down? The claim seems counter-intuitive. The contention that the US operation against Yamamoto discussed in Chapter 4 was unjustified seems neither morally compelling nor practical. Why should Admiral Yamamoto have been awarded special protection because he was such an effective enemy leader (in particular for his planning of the attack at Pearl Harbor) that he became personally known to the US leadership? Why would attacking him be morally unacceptable, while attacking the ordinary sailor whom he ordered into combat is justified? Indeed, as Walzer and Statman argue, the opposite seems closer to the truth. It seems morally more dubious to kill the ordinary soldiers who are likely to have been drafted and have little control over where and how they fight, than to go after the military leadership who exercise a greater degree of control over whether, where, and how they fight, and therefore can be held morally responsible for their choices. In short, neither leadership nor success nor being personally known to the other side seem to be morally pertinent reasons to exempt someone from targeting. Moreover, it seems both counter-intuitive and counter-productive to pursue a policy whereby the enemies’ most effective combat leaders are off limits from any operation (that is, can only be killed incidentally in the course of operations designed to kill unknown enemy soldiers). But if anonymity is not the key distinction between acceptable and unacceptable killing in combat, then there seems little reason to believe that self-defense is the principle that leads us to be “certain that it is acceptable for soldiers to kill in combat.” Moreover, as Gross himself concedes, interpreting the right to kill in war through the principle of self-defense clashes with some very common intuitions about fighting war. For example, he notes, it raises the following problem: “if soldiers

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gain their right to self-defense by their affiliation with the state, then they should lose it when their state is an aggressor” and the opposed state is not (Gross 2004: 105). The absence of collective guilt among soldiers being attacked would render them illegitimate targets even if they were seen as anonymous representatives of their own state (which is the victim rather than the aggressor). In this circumstance, according to Gross’s self-defense view, the soldiers of the innocent state could kill the anonymous combatants on the other side (who carry the collective guilt of their aggressor state), but could not be legitimately attacked. But this situation conflicts with normal moral intuitions about war. As Gross himself acknowledges: “every Allied soldier knew that his German counterpart has a right to self-defense even if his nation does not” (Gross 2004: 105). In sum, the project of morally justifying killing in wartime by reference to the criminal law principle of self-defense (with a corresponding preference for anonymity) seems bound to fail. Correspondingly, the moral condemnation of targeting operations (including those endorsed by Ignatieff and the SCI) because they breach the veil of depersonalization (which makes a self-defense justification possible) equally fails. The argument based on anonymity is not, however, the only important recent moral critique of terrorist targeting in general. Does Terrorist Targeting Impose Unacceptable Costs on the Targeters? A second general critique of terrorist targeting deserving of critical attention is represented in Steven Spielberg’s recent Oscar-nominated film Munich. This historically inspired film is an adaptation of George Jonas’s controversial book Vengeance: The True Story of an Israeli Counter-terrorist Team (1984). The book is in turn based on the contested testimony of a man (referred to in the book as “Avner”) who claims to have been the leader of an Israeli-targeted killing team. The book re-tells the story of Israel’s so-called “Wrath of God” operation following the murder of 11 Israeli athletes during the 1972 Munich Olympics. The film approaches the moral issue of targeting from a refreshingly novel angle. The essential idea is that all violence exacts “a psychic toll” on those asked to carry it out. As the screenplay’s co-author, Tony Kushner, puts it: “Munich dramatizes the toll violence takes” (Kushner 2006: M1). “Blood has its costs,” as Manohla Dargis, the New York Times film critic, summarizes: “even blood shed in righteous defense” (Dargis 2005: E1, E26). In Roger Cohen’s words: “revenge, however necessary, is also depleting” (Cohen 2006). In Spielberg’s own words, targeting terrorists “can change people, burden them, brutalize them, lead to their ethical decline” (quoted in Burston 2006). The result, as illustrated in the film, is an eventual crisis of identity for many of those asked to carry out terrorist targetings. The claim that terrorist targeting does psychological and moral harm to those tasked with carrying it out (that is, it “lead[s] to their ethical decline”) sets up an interesting and relatively original argument for not employing terrorist targeting (at least beyond cases of real-time interception). Where the more conventional moral criticisms focus primarily on the harms done to the communities in which terrorists reside – for example, through collateral damage or errors or political abuse or immoral

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associated practices – Munich approaches the issue from a different angle. It focuses on the targeting state’s obligations to protect its own soldiers and agents. In essence, the film suggests that terrorist targetings tend to produce what could be termed a “crisis effect”: the targeting, even of terrorists, leads to a loss of humanity on the part of targeters, to psychological deterioration, and to eventual moral breakdown. If this claim is true, it could form the basis of a moral argument to refrain from using targeted killing (except perhaps in cases of real-time interception). In short, states should not use terrorist targeting because, in addition to other potential harms, it endangers the moral and psychological health of its own operatives. At very least, this would provide one significant moral reason for refraining from targeting, even in the narrow range of cases that would meet Ignatieff’s criterion of planning imminent attacks, or the slightly wider range of “direct participation” cases accepted by the SCI. However, it must be emphasized that many of the cases actually depicted in the film would not meet Ignatieff’s narrow criterion for terrorist targeting – that is, there is no direct evidence, at least as represented in the film, that some of the targets are involved in planning imminent attacks against Israel (for example, Zu’Aytir or Hamshari). Other cases may be argued to meet the criterion – for example, Ali Hassan Salameh, who, it is suggested in the course of the film, is deeply involved in planning and directing attacks against Israel. The key point for what can be termed the film’s “crisis effect” argument, however, is that all of these targetings, regardless of what criteria they meet, appear to contribute to an apparent “ethical decline” on the part of Israeli operatives. How, then, is this shown? The “ethical decline” is exemplified by the experience of Avner’s team. Robert, the bomb-maker, finally gives a terrible cri de coeur: “to be righteous, that’s a beautiful thing, that’s Jewish. That’s what I know. That’s what I was taught. Now I’m losing that. If I lose that, that’s everything, that’s my soul!” The process of “ethical decline” is played out most strikingly in the evolution of the movie’s protagonist, Avner himself. The film illustrates the progressive deterioration of his personality in what Manohla Dargis describes as his increasingly “anxious eyes and jittery hands” (Dargis 2005: E1). As she notes, Avner “is never more human than when faced with killing another person,” and with each killing, he becomes increasingly paranoid and conflicted. His ambivalence is further intensified when three members of his own team (Carl, Robert, and Hans) are liquidated in revenge-for-revenge killings. Repeatedly, Avner is shown sitting by a window in the dark, holding his gun, unable to sleep. Paranoia feeds on guilt and self-doubt. At one point late in the film, when he tries to go to bed, Avner becomes haunted by the idea that his telephone and mattress are booby-trapped in the same way his team had booby-trapped those of their victims. He ends up disassembling the phone and tearing the mattress apart. Finally, he resorts to sleeping on the floor of his closet, gun in hand. By the time Avner finally decides that he can stand it no longer, it is too late. There are only two of the original team left, and they have killed seven people, including several who were not on their original hit list. The final unintended victim is a young Palestinian who Avner kills when caught by surprise during an attempt to kill the team’s primary target. Avner’s horrified reaction marks his breaking point. He rejoins his family in Brooklyn, but quickly becomes convinced that Mossad is

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now trying to abduct his daughter. This leads him to storm into the Israeli Embassy making wild threats. Later, when his handler, Ephraim, comes to recruit him for another mission, he not only refuses the assignment, but admits that he has come to doubt the justice of the whole targeting operation, and indeed, has lost confidence in the country that authorized it. Not only is he now uncertain about whether those they killed were appropriate targets, but he also wonders whether any such operation can be morally justified in principle. As David Brooks put it in the New York Times: “Avner loses faith in his mission, in Zionism, in Israel itself” (Brooks 2005). So one theme of Munich is that, in addition to other harms, campaigns of terrorist targeting may exact a heavy psychological toll on those asked to hunt and kill terrorists. Paradoxically, the film even seems to suggest that part of this moral and psychological harm is connected precisely with the effort to avoid or minimize other moral harms connected with terrorist targeting. For example, finding ways to kill targets like Zu’Aytir and Hamshari which do not endanger civilians compel Avner’s team to study them, to get to know their habits, to learn about their families’ schedules – to understand how they think and behave. But the effect of this knowledge and understanding is precisely to personalize the targets in the targeter’s eyes. Ironically, this is an issue that terrorists carrying out mass “new” terror attacks can avoid – the essence of the attacks is that they are indiscriminate, that those who carry them out do not care who they kill or maim. The film thus makes the interesting suggestion that targeting attacks, at least when carried out with appropriate precaution, are at least in some respects characteristically more morally burdensome than terrorist attacks themselves. If it is plausible that targeted killings exact a heavy psychological toll on those who carry them out, then that is certainly a point against them. But how strong a point is it? Even accepting the claim at face value, one may wonder how different is the request that some make such sacrifices on behalf of the collective good from, say, that of what police are expected to do when they are mandated to shoot to kill. And after all, soldiers are routinely asked to kill the enemy on behalf of their countries. Indeed, the life of a soldier is notoriously depersonalizing, and it is worth noting that, historically, many soldiers have been draftees. Avner and his teammates, however, as both the film and Jonas’s book stress, volunteered to undertake their hazardous duty. A further difficulty with the central “brutalization” and “ethical decline” theme in Munich is that the psychological effects of such violence are in fact ambiguous. It is not at all clear that killing someone, or even several people, in the manner in which Avner claims to have done must always produce long-term psychological damage. Indeed, it is instructive to note that neither in Jonas’s book nor in either of the other two historical accounts of the “Wrath of God” operation, are there any indications of such psychological trauma and self-doubt – in fact, they demonstrate exactly the opposite. In Jonas’s book, neither Avner nor the members of his team are shown to be affected by crises of conscience over the justice of their mission, nor by the profound paranoia and self-doubts portrayed in the film. These are embellishments added by Kushner and Spielberg; they are, however, embellishments that profoundly alter the dynamics of the story – so much so that Jonas has written: “while Spielberg’s Munich follows the letter of my book … [t]he spirit is almost the opposite” (Jonas 2006: 44– 9). In fact, Avner “never questioned the morality of what his country asked him to

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do.” Jonas states clearly and emphatically in Vengeance that Avner “has absolutely no qualms about anything he did” (Jonas 2005: 335). Similarly, in a new foreword to the 2005 edition, Avner himself describes terrorist targeting as a just and balanced response “in the face of terrorism.” He insists: “if I had it all to do again, I would make the same choice …. I make no apologies for the mission my team and I carried out in the 1970s – and, indeed, am proud that I was able to serve my country in this way” (Jonas 2005: 19). This is obviously not the morally tormented, disenchanted Avner depicted as the moral focal point of Munich. Aaron Klein, author of 2005’s Striking Back: The 1972 Munich Olympics Massacre and Israel’s Deadly Response, was asked in an interview whether the portrayal of Avner in Spielberg’s film rings true to him. He responded: I spoke with and interviewed more than 50 sources, most of them ex-Mossad agents and commanders and leaders. I didn’t come across someone who had doubts. They are very proud of what they did. They are – they see themselves as the carrier of the sword, the people who did a holy work, a holy job, in this whole apparatus of assassinations. I don’t see – I didn’t meet anyone who had remorse or second thoughts or – whatsoever. (Siegel 2005)

Again, the evidence is hardly supportive of the “crisis effect” argument. Finally, in his One Day in September (2000), Simon Reeve reports no crises of conscience or profound doubts among the operatives and officers carrying out the terrorist targeting. In reference to the campaign’s most aggressive operation, for example, the “Spring of Youth” attack on senior PLO officials in Beirut, he reports “jubilation” among operatives at opportunities to strike against those responsible for Munich and “no doubts about the legitimacy of the operation …. The operation was a source of honor and pride to Israelis” (Reeve 2000: 176, 183). Moreover, all of these reported reactions are consistent with the recent research on the psychology of killing – for example, Lieutenant-Colonel Dave Grossman’s Pulitzer Prize-nominated On Killing: The Psychological Effects of Learning to Kill in War and Society (1995). While Grossman does identify a “universal human phobia” regarding killing other human beings, he also emphasizes that the stress produced by killing can be moderated by a range of “kill-enabling” factors. These kill-enabling factors include the legitimacy of the authority ordering the act, the intensity of the authorization, the degree to which the agents identify with the group represented by the authority, the size of the group, the intensity of group support, the extent of the agents’ training, and their own personal convictions regarding what needs to be done (Grossman 1995: 186–92). The prominence of all these factors in the “Wrath of God” operation helps to explain why those involved with it did not experience the kind of psychological trauma that may normally be expected following the killing of another human being. It is also worth noting here that these factors would be even more emphatically in play in relation to the more limited range of targeting operations that would be permitted under Ignatieff’s criterion, or even the SCI’s. Ignatieff’s criterion limits targeting operations to cases where terrorists are actually planning imminent attacks. Targetings are therefore undertaken only to pre-empt specific and substantial harms to fellow citizens, and only against those who are directly involved in attempting to bring about such harms. Such operations are likely

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to be the ones most easily reconciled with agents’ own convictions regarding what needs to be done, as well as to be most broadly and intensely supported by the wider political community and its leadership. Something similar might be argued regarding the SCI’s requirement that only those “directly involved” in terrorist attacks be targeted. Moreover, in addition to employing much narrower criteria for targeting than seemingly employed in the “Wrath of God” campaign, the kinds of targeting that Ignatieff and the SCI seek to justify are to take the form not of a sustained campaign, but of exceptional responses in exigent circumstances judged on a caseby-case basis. They are therefore unlikely to have the same kind of cumulative effect on operatives. None the less, what an examination of the historical accounts of the “Wrath of God” operation reveals is that even at the level of a campaign, and even one seemingly employing far looser criteria for target selection and far less oversight, there is little evidence of a “crisis effect” on operatives that might ground a general moral objection to targeting. If, however, all this evidence (including its own sources) directly contradicts the central theme of Munich, why did Spielberg and Kushner insist on distorting their “historically inspired” film in this way? In a brief article about the movie, Kushner describes his cousin-in-law, Janice, posing the following question: Why does the movie show Mossad agents having doubts and regrets about killing terrorists when apparently they never have doubts and regrets? Why did you make that up?

Kushner answers: I’ve never killed anyone, but my instincts as a person and a playwright … suggest that people in general don’t kill without feeling torn up about it …. Unless you’re a sociopath, and who wants to watch a movie about sociopaths. (Kushner 2006: M1)

On his own account, Kushner thus relies on his own dramatic sense of what it might be like to kill someone, rather than on Avner’s own testimony (or indeed, on any historical account of the events). Spielberg and Kushner’s “ethical decline” theme thus appears to be more normative than descriptive, more an “imaginative” than “historical” fiction. It represents how they would like people to be, rather than a nuanced account of how they are. But if it is only their imaginative creations, and not the actual historical agents, who suffer from the moral anguish that gives force to their “crisis effect” theme, then the concern they raise carries little actual moral weight. In sum, any necessary correlation between terrorist targeting and a “crisis effect” seems largely wishful thinking on the part of Kushner and Spielberg. While targeting may introduce the possibility of such an effect, the likelihood does not seem great, particularly in terms of the relatively restricted use of targeting permitted by Ignatieff’s narrow “lesser evil” defense. Moreover, to the degree that a raw danger exists, it is at least partially amenable to effective management (of kill-enabling factors). Finally, even if there were a tight correlation, there is good reason to doubt that it would constitute a morally decisive consideration, for it represents a danger that is regularly accepted in parallel situations.

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Summary Assessment of the Narrow Defense of Terrorist Targeting The two general moral critiques of targeting explored here have relatively little bite against Ignatieff’s “narrow” defense of targeting. Gross’s case that such targetings are morally abhorrent as “named killings” was not compelling. Spielberg’s suggestion in Munich that targeting in general tends to produce “ethical decline” and moral crisis in those asked to perform it turned out to be poorly grounded in both history and psychology. This seems likely to particularly be the case in relation to the kinds of operations permitted by Ignatieff’s criterion (against those planning imminent attacks) and in view of their likely relatively restricted number. Moreover, neither critique impedes the strong positive case that grounds Ignatieff’s “lesser evil” defense of targeting terrorists who are “planning imminent attack”: specifically, (1) that the harm being averted is very great; (2) that relying solely on interception provides too perilously small a window to ensure that the great harm can be averted in all cases, and (3) that targeting potentially goes to the heart of the terrorist threat (the leaders and planners), whereas interception, at best, addresses only the symptom (those sent to carry out acts of terror). These considerations appear to provide a plausible warrant for Ignatieff’s case that those planning imminent terrorist attacks can legitimately be considered for targeting on a case-by-case basis, at least in the wake of an initial armed terrorist attack. Moreover, Ignatieff’s narrow defense of targeting links its criteria for target selection to fairly robust mechanisms for judicial oversight and review of operations. The “lesser evil” approach to targeting also exhibits some important potential advantages. For instance, Ignatieff’s narrow justification complies with Thomas’s recommendations for protecting the international norm against assassination. A further point in its favor is that the kinds of targeting operations it permits – against planners and leaders who hide beyond the reach of the law – appears to cohere well with the kinds of operations Americans and Israelis think most justified (for example, against the leadership of al-Qaeda or the military leadership of Palestinian organizations like Hamas). Of course, this is far from saying that Ignatieff’s narrow defense of targeting is unproblematic. To begin with, while it is generally less vulnerable to the kinds of objections that are characteristically raised against the broad defense of targeting, it also does not neutralize them entirely. For example, while it reduces the opportunities for abuse and recklessness on the part of targeting states, it does not eliminate them. Moreover, it is by no means clear that a more limited number of targeting would produce a lower proportion of collateral harms (although the total number would be likely to be less in view of fewer operations). There is also no assurance that errors might not be made (although again restricting targeting to planners of imminent attacks would likely have the effect of at least reducing the danger of error by comparison with the broad justification). Indeed, it is no less possible that an operation could go badly awry and result in a serious crime, perhaps even a war crime. For example, the targeting of Salah Shehadeh discussed in Chapters 3 and 5 appears at least likely to have met Ignatieff’s requirement that operations be limited to planners of imminent attacks (although its execution likely violated his requirement of all precautions being taken to protect civilians). Ignatieff’s narrow justification

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also does not preclude the possibility of political exploitation of the policy (although by requiring that targets be planning imminent attacks, and insisting on independent judicial oversight of the implementation of the policy, he certainly diminishes the threat). It is probably the issue raised by this last point – that is, the need to assume faithful state compliance with these criteria – that grounds the most serious objection to even a narrow defense of targeting. Moreover, Ignatieff’s narrow defense of targeting appears likely to sacrifice some of the advantages that defenders of terrorist targeting argue are connected with sustained and intense targeting campaigns. It has been suggested by defenders of terrorist targeting, for example, that the capacity for terrorist targeting to degrade the capabilities of terrorist groups to carry out attacks might depend in part on the density of operations. The “lesser evil” approach to targeting may not permit the requisite level of concentration in targeting operations. It is not wholly clear, however, how important this objection is, as the evidence for this relationship remains anecdotal. In the end, one’s evaluation of the moral case that Ignatieff offers is likely to depend on some background assessments similar to those that came into play in assessing the broad justification – including (1) the magnitude of the threat of mass terrorist attacks; (2) whether some terrorist planners and leaders are important and elusive enough to warrant targeting, and (3) whether the danger of collateral damage is great enough to undermine the positive moral case for targeting terrorists planning imminent attack. Yet defenders of Ignatieff’s view may argue with conviction that these determinations are best made on a case-by-case basis, and that accepting his narrow justification allows such determinations to be made (with appropriate independent oversight), whereas accepting the critics’ position allowing only realtime interceptions does not. On the other side, embracing the broad defense for targeting may be too permissive, allowing states to opt for targeting even where the threat of attack is remote. In this light, it seems fair to say that whereas both the broad justification and the hard-line critical position are fundamentally contested, Ignatieff’s narrow justification represents at least a plausible compromise. On the one hand, the narrow “lesser evil” framework for targeting seems coherent with critics’ recognition, noted at the beginning of this chapter, that targeting operations can be legitimate in cases of “immediate danger to life,” or in “self-defense” in “individual cases.” Evidently, it pushes the envelope of legitimate operations beyond the real time interceptions that critics actually endorse, but it does so by appealing to the same principle, of acting only in self-defense against “imminent attack” and while avoiding the systematic policy of targeting to which critics primarily object. It may thus be said to stretch the principle of self-defense, but not to break from it. On the other hand, the “lesser evil” position may be said to recognize and endorse the central insight of defenders of targeting, that it makes no moral sense to say that it is legitimate to kill anonymous soldiers in war but not to kill terrorists, or to say that it is legitimate to kill terrorists carrying out operations but not go after leaders and planners. The “lesser evil” position allows terrorist operatives and planners to be targeted when they behave like combatants (that is, preparing and carrying out attacks). Most importantly, the “lesser evil” position appeals to the powerful intuitions of both defenders and critics simultaneously, illuminating a place between real-time

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interception and preventive arrest where these considerations overlap. While this does not imply that the policy should be adopted in all circumstances, it at least suggests that it deserves consideration in some. It is, at a minimum, a position that warrants further examination. Conclusion This chapter focused on the evaluation of moral arguments for and against terrorist targeting. It began by noting certain points of broad agreement (the preference for arrest and legitimacy of real-time interception) which helped to define the range of moral disagreement. It then considered two types of moral defense for terrorist targeting staking out different claims on the area of disagreement. Both defenses were framed as responses to an initial armed terrorist attack. First, the chapter considered a broad defense that permitted a relatively regularized use of terrorist targeting as a weapon in the counter-terrorist arsenal of states (providing that arrest was not an option, targets were bona fide terrorists, and large numbers of civilians were not injured). Second, the chapter examined a narrow justification allowing targeting only in cases where there was strong evidence that terrorists were involved in planning imminent attacks, and seeking to ensure compliance with this criterion with the help, for example, of judicial oversight. It then considered objections to the two justifications for targeting from the position that only realtime interceptions were legitimate. It concluded, based on its analysis, that while the broad defense of targeting and the hard-line rejectionist position were best described as fundamentally contested, the narrow justification could be described as offering a plausible compromise that responded to many of the strongest concerns raised by critics and defenders. While this does not suggest that targeting employing the narrow justification would be appropriate to all cases, it does suggest that it warrants consideration in some. It also does not suggest that Ignatieff’s justification/criterion is the only one that can meet the standard of moral plausibility. For example, it does not explore whether the slightly wider criteria suggested by the Supreme Court of Israel would meet the same standard of plausibility. However, the chapter does at least suggest some parameters for assessing the moral plausibility of different targeting guidelines, whether broad or narrow. These parameters have some implications for the current practice of targeted killing by both the United States and Israel. For example, critics raised serious moral concerns regarding the secret practice of terrorist targeting, and the refusal to assume responsibilities for targeting actions. They also objected forcefully to the selection of targets without oversight. They offered forceful argument that such practices could lead to serious and evitable moral harms, such as misuse or political exploitation of targeting, and the possibility of degeneration of operations into a dirty war. Targeting operations should be acknowledged openly, and thus subjected to public debate. They also should be subject to credible independent scrutiny, and ideally, to judicial oversight. The arguments from critics concerning the danger of collateral damage as not only a legal but a moral problem also have important implications for the practice of terrorist targeting. Targeting states should be prepared to assume at least partial

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responsibility for harms done to civilians in the course of targeting operations, regardless of specific circumstances. This moral responsibility suggests that states should be willing to risk their own soldiers or combatants when there is a significant likelihood that such risk will reduce the danger to civilians. It also provides a reason for accepting some financial liability for harms done to bystanders. Finally, terrorist targeting policies, if they are to be justified, must avoid association with deplorable moral practices like coerced collaboration and torture. If targeting becomes dependent on such practices, then it becomes tainted by association and loses moral credibility. Meeting these criteria does not, of course, establish that every targeting is morally defensible. Even if, for example, the narrow criteria for targeting are accepted in principle, there remain serious and legitimate concerns regarding assuring state compliance in practice. On the other hand, failing to meet the criteria, at least once a program is up and running, raises serious doubts about the moral case for pursuing a targeting policy.

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Chapter 8

Talking about Targeting This book has critically examined the controversial terrorist targeting policies currently being pursued by the United States and Israel, as well as some of the current legal, political, and moral debates around these policies. Although many issues remain contested, several points seem clear. First, the ramifications of these policies can be tremendous. There are lives at stake in the decisions about whether or not to undertake targeting operations. These include not only the lives of the alleged terrorists, but also those of bystanders and the potential victims of terrorism. Second, powerful arguments have been advanced both for and against terrorist targeting. On the one hand, defenders forcefully contend that in cases in which terrorists pose an urgent threat to citizens, states have a right, and perhaps even an obligation to act in defense of their citizens. Moreover, there is a strong case that in at least some circumstances, targeting is a legal means of attacking terrorists. Finally, there are good reasons to think that terrorist targeting is morally preferable to alternative counter-terrorist strategies, such as major military operations, which can cost more lives in the long run. On the other hand, critics have raised compelling concerns about targeting operations. In the first place, such operations pose a significant danger to noncombatants. It is also extremely difficult to ensure that targeting operations are carried out solely in direct defense of civilians (and not out of revenge or in connection with some broader political strategy). What is more, there are dangers that the use of targeting might eventually undermine the broader international norm against assassination. Third, there are also at least some commonly accepted points between defenders and critics. For example, terrorist targeting is a dangerous and divisive strategy that is unlikely to resolve terrorist threats on its own. Wherever possible, preventive arrest is preferable. None the less, there are at least some cases in which targeting may be necessary and appropriate, such as the real time interception of terrorists “posing an immediate imminent danger to life” (Amnesty International 2001: 3). Where disagreement arises is over whether suspected terrorists who pose an unavoidable threat, but who are not actually in the act of carrying out a terrorist attack, can be targeted, and if so, when and how? The analysis in this book suggests several rules of thumb regarding when targeting operations look more or less defensible from moral, legal, and political points of view. For example, from the moral perspective, targetings look (relatively) more defensible:

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The more clearly they constitute a last resort; The more imminent the danger to civilians; The greater the magnitude of the danger; The more careful and successful the operation itself is in avoiding harm to civilians; 5. The more it focuses on known and active terrorists. 1. 2. 3. 4.

On the basis of international law, targetings look comparatively more justifiable: 7. The closer the targeting occurs to a situation of conventional armed combat; 8. The clearer the military character of the operation; 9. The better established it is that the target qualifies as a combatant (and is not merely a political leader or spokesperson); 10. The more compliant the conduct of the operation is with humanitarian law; 11. The more clearly the targeting takes place in response to a prior attack and in order to prevent a future one. Finally, from the political perspective, targetings look most tolerable when: 12. They do not produce retaliation or strategic benefits for the terrorists (for example, alienating a local population); 13. They do not raise issues of sovereignty – for example, when they are undertaken with the consent of the host country; 14. There is clear political support at home, and as much support as possible abroad. In light of these rules of thumb, I think that there are at least four main alternative strategies available to targeting states like the United States and Israel in regards to terrorist targeting in the future. First, if the United States and Israel plan to continue to pursue targeting policies, one strategic alternative available to them would be to focus only on the more strongly justifiable operations in order to minimize opposition to their targeting policies. This focused strategy might help to reduce the intensity of international and internal criticism. Of course, the terrorist threats and pre-emptive opportunities which arise may not fit neatly into the most justifiable scenarios. Moreover, even a measured and restrained version of the policy would continue to be seen by many critics as illegal, immoral and ineffective, even if less flagrantly so. Further, even a limited use of targeting without strict regulation and internationally accepted parameters might tend to undermine the international norm against assassination and the authority of the laws of war. A second possible strategy would be to abandon terrorist targeting beyond realtime interception, and focus exclusively on criminal law strategies and improved international cooperation. This would presumably reduce international and internal criticism, and perhaps improve targeting states’ images in regions that terrorist groups purport to represent. But it would also provide little short term hope of reaching many terrorists in their safe-havens. Moreover, it would involve the disadvantage of

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relieving pressure on terrorist organizations and giving them more flexibility to carry out attacks at the times and places of their own advantage. It is also worth noting that the window of real-time interception of terrorist attacks tends to be quite small, so it is possible that some evitable terrorist attacks would fail to be prevented. A third possible strategy would be to downplay the sorts of guidelines outlined above and to pursue a highly aggressive targeting strategy. This might be done, for example, in hopes of weakening and destroying terrorist groups before opposition to targeting policies can intensify, and before some of the harms attendant on such a policy fully manifest themselves. These harms include eroding international norms, such as that against assassination, contributing to the legitimacy of terrorist groups (particularly in the regions they purport to represent), and causing local hostility in regions where targetings are carried out. It is worth noting here that defenders of targeting like Byman have argued, with the support of at least anecdotal evidence, that in order to seriously harm terrorist groups, targetings have to come at a rapid pace (see Chapter 6). That requirement will represent a special challenge to the Americans who face a terrorist group that is not only widely dispersed, but frequently embedded in civilian populations. The fourth strategic alternative carries arguably the greatest challenge, but also the greatest potential to contribute to ongoing struggles against terrorism in the long run. In essence, targeting states could follow Ward Thomas’ advice and initiate a multilateral international discussion on terrorist targeting and international law with the purpose of building a coalition around a defensible normative framework to regulate the use of targeting operations. Such international discussion could be complemented with opening up a discourse at home over whether and when pursuing targeting actions may be appropriate, and trying to build up some domestic consensus on this issue, ideally one that overlaps at some point with the outcomes of international deliberation. It is on this last strategy of opening up discussions and seeking reasonable compromises over terrorist targeting that this final chapter focuses. To date, the idea of an international compromise on terrorist targeting has received relatively little attention. One explanation for this is the unofficial character of the American policy, at least until recently. The US refusal to officially acknowledge or discuss its policy has presented an obvious obstacle to any serious deliberations, either at home or abroad, of under what circumstances terrorist targeting policies might be justifiable. Another explanation is that an important stream of contemporary opinion not only dismisses the case for terrorist targeting, but views the subject matter itself as objectionable. According to these critics, the potential ramifications of terrorist targeting are so negative that it should not even be given a forum. An illustrative example of this view is provided by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (hereafter, the Rapporteur), who included the following remarks in his 2004 report to the United Nations Economic and Social Council: it is increasingly common to read arguments along the lines that ‘targeting and eliminating known terrorists is more efficient and costs fewer lives than waging conventional war.’ While there are a great many empirical arguments that might be made in order to show that such strategies will be counterproductive, the point is that such proposals directly

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Targeting Terrorists undermine the essential foundations of human rights law. Empowering Governments to identify and kill “known terrorists” places no verifiable obligation upon them to demonstrate in any way that those against whom lethal force is used are indeed terrorists, or that every other alternative had been exhausted. While it is portrayed as a limited ‘exception’ to international norms, it actually creates the potential for an endless expansion of the relevant category to include any enemies of the state, social misfits, political opponents, or others. (UNCHR 2004: para. 41)

The Rapporteur concluded that all such proposals “should be condemned without reservation” (UNCHR 2004: para. 84). The clear implication of these strong words is that the targeting of terrorists should under no circumstances be considered a viable option worthy of discussion. Merely entertaining the possibility that some targeting actions may be defensible is likely to be harmful to the essential foundations of human rights law. The Rapporteur’s concern is a serious one. As argued in Chapter 7, there is genuine reason to worry about the misuse of terrorist targeting policies. It is not unreasonable to reject the practice of terrorist targeting on the basis of such concerns (even if one acknowledges that there might be a case for it on the principle of defending citizens’ lives). Yet defenders of targeting can forcefully retort that the Rapporteur’s key claim that proposals permitting terrorist targeting put “no verifiable obligation” on states to demonstrate the legitimacy of their operations is exaggerated. Most proposals that permit terrorist targeting, ranging from the judgment of the Supreme Court of Israel (SCI) discussed in Chapter 5 to Michael Ignatieff’s “lesser evil” justification discussed in Chapter 7, call for rigorous oversight (see also, for example, Kretzmer 2005: 2014, 212; Byman 2006: 110-1). Such requirements for oversight, both judicial and legislative, are intended precisely to impose a verifiable obligation on states to justify the legality and appropriateness of targeting operations. Specifically, they require states to demonstrate on record to an independent authority that their operations solely target genuine terrorists who pose a real and urgent threat to society. Of course, critics may still argue that the oversights proposed in the foregoing cases are insufficient. Yet defenders can retort that it is difficult to see how such arguments can be advanced compellingly without discussing the actual proposals for legislative and judicial oversight of targeting. In other words, while the Rapporteur’s concern with assuring appropriate restraint is justified, his call for all proposals to be dismissed out of hand seems unwarranted. There is indeed reason to be suspicious of both defenders’ and critics’ attempts to avoid substantive discussion of terrorist targeting and how and when it may or may not be justified. There are, in fact, a number of important reasons to think that engaging in sustained and detailed discussion of targeting, both internationally and domestically, is urgent today, in particular concerning whether there is any possibility of bringing terrorist targeting states, their defenders, and their critics together around a reasonable compromise. For present purposes, I would like to note three such reasons. First, the matter of whether and how terrorist targetings are carried out will likely continue to be a matter of life or death to some people – including some civilians. In the absence of some kind of effort at compromise, there seems little reason to doubt

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that terrorist targetings by the United States and Israel will continue. This seems all the more likely since the SCI has now explicitly confirmed the legitimacy of terrorist targeting under international law in some circumstances. Second, there are good reasons to think that the circumstances surrounding terrorist targeting to date have been detrimental to both the struggles against international terrorism and the authority of international law and institutions. Widespread international condemnation has undermined the effectiveness of targeting policy, reducing its deterrent potency. This has given a greater sense of legitimacy to those against whom it is employed (see, for example, David 2002: 10-2; Byman 2006: 96). On the other hand, the continued pursuit of targeting policies by the Israel and the United States in the face of widespread (although not uniform) condemnation undermines the credibility of the international legal and political systems (see, for example, Vorkink and Scheik 2006: 2-6). It suggests the obsolescence of existing law and institutions to those who want to take the offensive against terrorists, and confirms their irrelevance to terrorists who operate in flagrant defiance of them. In short, the ongoing divide over terrorist targeting undermines both the effectiveness of the policy and the credibility of international legal and political institutions. These substantial harms provide powerful reasons to seek for a way to bridge the divide over terrorist targeting policies. Third, it may be argued that the dearth of substantial discussion of this issue is detrimental to the political health of the states pursuing it – particularly the United States. As liberal democracies, both the United States and Israel have a responsibility to educate their publics about the controversial practices they are employing and to permit them to become the subjects of political discussion and debate. Terrorist targeting should be a matter of public policy. The issue of whether to target terrorists (presuming that it is permissible under domestic and international law) is therefore one that should be resolved politically, following a substantial and informed public deliberation on the matter – ideally including some proposals that recognize and seek to balance the compelling concerns on both sides of the contested issue. In recent years, the Israeli government has begun to make an effort to inform the public about its policy. As Byman notes, “Shin Bet has worked with the Israeli media to ensure public awareness of what the operations involve. Several nongovernmental organizations track the number of targeted killings and the policy is challenged in the media and the courts” (Byman 2006: 110). Byman argues forcefully that the US government needs to follow suit: to help initiate a public debate in the United States over targeted killings, the Bush administration should make clear whether and when it plans to pursue the policy. No specific intelligence should be revealed, but the administration should provide clear criteria for action. As appropriate, these criteria should be challenged by human rights organizations, the media, and members of Congress. (Byman 2006: 110)

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A Possible Compromise? Yet skeptics on both sides can still dismiss this call for a public discussion as futile. They may argue that there is simply no room for genuine compromise on this issue. Moreover, in advancing this argument they may point to the depth of the contemporary rhetorical divide over terrorist targeting – for example, between those who hold that such practices are illegal, immoral and counter-productive, and those who see them as legal, moral and effective. There is some truth in the doubts raised by skeptics. Unanimity on current practices seems unlikely. But that does not mean that there is no room for agreement, even among those divided over current policies, on what a defensible policy could look like. The best way to show that some possibility of agreement exists, and to get discussion started, is to sketch in the contours of at least one point of potential accommodation. I will outline a possible compromise on targeting below which seems compatible with many of the points examined in this book. I begin with the most important arguments that I think need to be reconciled, and then describe 13 rules that could be applied to targeting policies like those of Israel and the United States. An assumption underlying this set of rules is that in order to be legitimate, targeting operations need not only to be legal, but also morally and politically justifiable. Before turning to the specifics of the proposed compromise, it will be helpful to briefly revisit some of the key issues that will need to be addressed in framing any plausible accommodation. At the level of legality, defenders of terrorist targeting have a strong argument that customary international law today permits at least some targeting operations against terrorist groups who have carried out cross-border “armed attacks” against states. The United States and Israel argue that the framework that applies to their struggles with the terrorist organizations that have attacked them is one of general armed conflict or war. Under this framework, they claim the right to target terrorists just as belligerent states may attack one another’s armed forces. They are supported in this view by some important precedents and influential scholars. Other legal interpreters reject the armed conflict framework, arguing that terrorist organizations are too elusive to constitute parties to a conflict (although some of these critics still approve the use of armed force against terrorists on the basis of selfdefense where there is evidence of preparation for future attacks). Moreover, critics point out that where targeting operations go awry, they will sometimes amount to war crimes. In sum then, the balance of the legal literature suggests at least some limited right to use targeting against terrorists, but the framework regulating such uses of force needs to be carefully clarified to prevent serious and even criminal misuses. At the level of politics, defenders of targeting advance powerful arguments that the state has a responsibility to protect its own citizens. Critics respond that it is neither clear that targeting as an offensive strategy reduces short-term levels of violence or that it is strategically beneficial in the long-run. Moreover, the government’s obligations to its citizens need to be balanced with states’ responsibilities as members of an international community. In particular, states must be sensitive to concerns that terrorist targeting could eventually contribute to undermining the international norm

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against assassination. In certain circumstances, targeting could also be perceived as a violation of sovereignty, and produce or exacerbate disputes among states. At the moral level, defenders of terrorist targeting argue that terrorists must not be permitted to carry out planned mass attacks against civilians, one of the most flagrant and atrocious crimes under recognized international law. None the less, the legitimate purpose of preventing such attacks must be reconciled with critics’ concern that the power to target must not be misused by the state (either against some who are not appropriate targets, or without due regard to the safety of civilians, or to produce political effects not directly connected with the safety of civilians). A viable point of compromise would be one that recognized and respected these legitimate but contrasting considerations. In the following paragraphs I outline a possible framework, building on the point of compromise identified at the end of Chapter 7. That point of compromise is based on the elaboration of Michael Ignatieff’s “lesser evil” standard developed in that chapter. This standard permits terrorist targeting only in cases where terrorists are planning imminent attacks that is, where there is convincing evidence of a terrorist organization’s intention to attack, and of preparations underway. Moreover, only states that have experienced armed terrorist attack may exercise this right. Finally, the use of terrorist targeting must be subject to independent judicial supervision. I integrate this lesser evil standard with the legal requirements outlined by the SCI, and add further moral and political safeguards in response to the strongest political and moral concerns raised above. The proposed compromise takes the form of a set of 13 rules for the conduct of terrorist targetings, organized into three categories – legal, moral and political. The suggestion is that states and international institutions should agree to tolerate terrorist targeting operations under the strict criteria proposed here. The following rules apply to the use of targeting in un-conventional extra-territorial struggles with terrorism. In the context of more conventional, localized armed conflicts like the war in Afghanistan or the war in Iraq, the pertinent conventional and customary laws of armed conflict apply. Eight Legal Conditions for Terrorist Targetings The discussion of the legal rules that should regulate targeted killing begins with the SCI’s decision in Public Committee against Torture in Israel et al. v. Government of Israel et al. (PCATI), because it is, to date, the world’s first and only judicial decision on the permissibility of terrorist targeting under international law. The decision establishes an important precedent, and is likely, as Kristen Eichensehr observes, to have an important influence internationally (Eichensehr 2007: 1874). The SCI wrangled with the issue for four years, and its judgment reflects especially careful documentation and vigorous argumentation. None of this is to suggest, however, that the decision is not open to criticism. Indeed, Eichensehr raises some telling concerns about the manner in which the decision weakens the evidentiary requirements for establishing that civilians are participating in combat. These concerns will need to be addressed in formulating viable rules to regulate targeting. But the SCI’s decision

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remains the most important interpretation to date of international law relating to targeting, and therefore provides a logical starting place. In PCATI, the SCI accepted the government’s position that in dealing with terrorist groups in the territories, the government was no longer limited to “the means of law enforcement.” The Israeli government argued that: A state is permitted to respond with military force to a terrorist attack against it. That is pursuant to the right of self defense determined in article 51 of the Charter of the United Nations, which permits a state to defend itself against an “armed attack”… [T]here can be no doubt that the assault of terrorism against Israel fits the definition of an armed attack. Thus, Israel is permitted to use military force against the terrorist organizations. (SCI 2006: para. 10)

In its judgment, the SCI itself laid great stress on the severity of these terrorist attacks against Israelis. In particular, it pointed out that “the number of Israeli casualties in proportion to the population of the state of Israel, is a number of times greater than the percentage of casualties in the US in the events of September 11th” (SCI 2006: para. 16). Experiencing such an “armed attack” therefore forms the most plausible baseline requirement for a policy of terrorist targeting. This constitutes the first rule: 1. A state must experience an armed attack by a transnational terrorist organization before it can legally target members of that organization.

This first criterion suggests two possibilities. First, if a state has already undergone an armed attack by a terrorist group, and has credible intelligence that further attacks are planned, it may employ military force to pre-empt further attacks. Second, a state which is confronted with an initial armed terrorist attack may act only to intercept that attack. Here, Dinstein’s criterion referred to in Chapter 5 provides helpful guidance. Dinstein holds that interceptive force is legal once the attacking party has “committed itself to armed attack in an ostensibly irreversible way” (Dinstein 2005: 191). There remains some gray area around exactly when an attack may be said to be ostensibly irreversible. But Dinstein’s example – Japan launching its fleet with the aim of attacking Pearl Harbor – suggests that once armed terrorists take the first steps in actually realizing a plan of attack, they become legitimate targets for military counter-measures. This is not, however, the only condition on the legal legitimacy of terrorist targetings. The SCI also held, for example, that: 2. Individual alleged terrorists cannot be legally targeted unless there is “convincing and well-founded” evidence that they are “direct participants” in terrorist activities. (Yoaz 2006)

Moreover, as President Barak stressed, “the burden of proof on the attacking army is heavy” (SCI 2006: para. 40). The SCI decision outlined a series of useful example cases to illustrate the meaning of “taking a direct part in hostilities” (SCI 2006: para. 34-5). Selling food to a terrorist organization would not, for example, qualify one as a direct participant, but supplying weapons to terrorists would. The SCI stressed in particular that taking

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“a direct part” would include leaders who order and plan terrorist attacks. Moreover, taking “a direct part” would be considered ongoing even during the interval between attacks, for in such a case, “the rest between hostilities is nothing other than preparation for the next hostility” (SCI 2006: para. 39). Concurrently, in response to the types of concerns raised by Helen Duffy and Kenneth Roth (discussed in Chapter 5), the SCI also held that a terrorist “who later detaches himself from that activity [that is, terrorism], is entitled to protection from attack” (SCI 2006: para. 39). Thus, the SCI framed a third requirement: 3. Only terrorists who present a direct threat now may be subject to targeting. They “are not to be attacked for the hostilities … committed in the past.” (SCI 2006: para. 39)

If potential targets have clearly detached and distanced themselves from terrorist organizations, then they cease to be combatants, regain their civilian protections, and are no longer to be considered legitimate targets (here, Schmitt’s model of extended non-participation or affirmative withdrawal discussed in Chapter 5 provides some guidance). The SCI also held that terrorist targeting could only be used as a last resort, when other means of neutralizing terrorist combatants are unavailable: 4. “a civilian taking a direct part in hostilities cannot be attacked … if a less harmful means can be employed … Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are means which should be employed.” (SCI 2006: para. 40)

This requirement that targeting be employed as a last resort in the absence of “less harmful” means of neutralizing combatants is, as noted in Chapters 6 and 7, an effective point of consensus in the literature on targeting. It also coheres closely with one of the central principles of humanitarian law – the principle of necessity – requiring that lethal force only be employed where it is required to achieve a legitimate military objective. The SCI further held that terrorist targeting operations are only legal if they can be conducted without posing a disproportionate threat to civilians: 5. “combatants and terrorists are not to be harmed if the damage expected to be caused to nearby innocent civilians is not proportional to the military advantage in harming the combatants and terrorists.” (SCI 2006: para. 46; Henckaerts and Doswald-Beck 2005: 49)

Meeting this requirement actually involves two components. In Yoaz’s summary of the SCI’s decisions: 5a. “Every precaution must be taken to avoid harming innocent civilians in the vicinity”; 5b. “even then, a targeted killing will be illegal if the harm done to innocent civilians outweighs the security benefits of killing the terrorist.” (Yoaz 2006)

Thus, fulfilling the first condition (taking every precaution) will not be a sufficient justification in cases where harm is done to civilians. Moreover, in cases where “collateral damage” does occur, whether through negligence or a miscalculation, the

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SCI held that “it is appropriate to pay compensation as a result of the harm caused to an innocent civilian” (SCI 2006: para. 40). It is worth stressing that the SCI’s use of the expression “innocent civilian” suggests that this stipulation does not require the compensation of all non-targets harmed or killed in the course of an attack (for example, bodyguards of terrorist leaders, or other terrorist participants), but is concerned particularly with “innocents” not directly involved in terrorism. Even with the clarification, however, this final provision provides a powerful incentive to comply carefully with all the legal requirements for targeting, and to err towards avoiding harm to civilians. The SCI also required that: 6. Every case of terrorist targeting should be followed by “a thorough investigation regarding the precision of the identification of the target and of the attack upon him … to be performed (retroactively). The investigation must be independent.” (SCI 2006: para. 40)

Here, “independent investigation” means an investigation by a person or persons sufficiently credible and insulated from the state and its military as to be able to pronounce authoritatively on the compliance of the operation with all the requirements outlined above and below. By limiting its judgment to setting a minimum threshold of independent investigation, the SCI permitted the state some flexibility in setting up an oversight authority to perform and report on such investigations. The requirement might be met, for example, by an independent panel of experts or a panel of judges, provided that they were sufficiently capable and distanced from the government. This provision for the independent review of all operations is evidently intended to set up an additional safeguard. This safeguard will assure that all the required standards have been met and that the actual operations have been carried out with due legality. Moreover, the SCI specified even higher safeguards in cases where targeting operations produce collateral damage: 6a. “Preventative acts on the part of the army which cause the deaths of terrorists and of innocent bystanders requires ex post examination of the conduct of the army. That examination must – thus determines customary international law – be of an objective character. In order to intensify that character, and ensure a maximum of that required objectivity, it is best to expose that examination to judicial review … That will ensure its proper functioning.” (SCI 2006: para. 54)

In this latter case, where collateral damage has occurred, the SCI required special safeguards – post-facto examinations that must be “objective” and subject to “judicial review.” This requirement has several advantages. For example, in addition to assuring the probity of the inquiry, a court would be in a position to ensure that any compensation that might be required would be appropriate. This provision presents an even firmer safeguard than the general requirement for “independence.” Two final legal requirements deserve mention. The SCI did not include them specifically in its judgment, but they are implied by its general appeal to international conventional and customary law, and to humanitarian law in particular. The first requirement reflects well-established international law discussed in Chapters 1 and 5:

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7. Terrorist targetings must not violate international law including those prohibiting assassination, either by employing perfidious or treacherous means or by targeting officials of international organizations or of states (except for members of the military hierarchy when a condition of war exists between states).

As noted in Chapter 1, the Convention on the Protection and Punishment of Crimes Against Internationally Protected Persons generally forbids attacks against officials of states and international organizations. Moreover, as noted in Chapter 5, the Hague Convention II and the First Additional Protocol to the Geneva Conventions specifically prohibit treacherous and perfidious actions in military operations. A further requirement discussed in Chapter 5 also seems implicit in the SCI’s judgment: 8. If a state pursues a terrorist targeting policy, it must do so openly and explicitly. It must acknowledge and take public responsibility for the operations it undertakes (ex post facto).1

This requirement is suggested, for example, in the SCI’s call for an independent investigatory body to examine and assess targeting operations, and in some cases for judicial review of operations. This requirement also follows international law. As suggested in Chapter 5, the refusal of states to officially acknowledge their own policies tends to cast the legality of such policies into doubt. This is especially the case when the legal grounds for such policies are recent developments in customary international law. It may be added that an open, official policy also permits a degree of popular scrutiny to form an additional safeguard on the appropriateness of targeting operations, and one that is especially appropriate to a democratic society. Moral Safeguards Such Israeli precedents and rules for carrying out terrorist targetings would go a long way towards creating a baseline legal standard. Yet for all their utility, there also remains a range of very powerful moral and political concerns as yet unresolved. In particular, there remain very important moral concerns about states fully complying both with the letter and the spirit of rules applying to terrorist targeting. For example, as Eichensehr’s argument in Chapter 5 indicated, a targeting policy like that envisioned by the SCI broadens the range of potential targets from those carrying out operations to include those involved in preparing them. Yet it is not clear that the SCI’s evidentiary requirements are sufficiently rigorous to ensure that this greater latitude of defensive action is not subject to abuse by the state. Moreover, even if a post facto independent investigation (as required by the SCI) revealed that a targeting state had insufficient evidence to have targeted a particular individual, the criticism and punishment of officials responsible for any errors would be of little consolation to the victims. The harm done would be irreparable. Targeting states should therefore

1 A delay in acknowledgement of specific operation may be acceptable if requested by the state on whose territory the operation took place.

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demonstrate a willingness to adopt stringent and credible procedures to determine the combat status of proposed targets in advance of operations; specifically: 9. Targeting states should seek prior recognition from a credible independent oversight authority that targets can be properly treated as enemy combatants. 9a. The independent authority should be a judicial one, for, as the Supreme Court of Israel pointed out, this will help to ensure independence, objectivity and probity.

Rule 9 extends the SCI’s highest level of oversight, which it reserved for cases involving collateral damage, to all cases of terrorist targeting. It also requires that authorization be sought in advance of operations, rather than confirmed post facto. This is, for obvious reasons, a far more powerful safeguard against error or abuse, since it has the potential to prevent killings in error rather than prosecuting them after the fact. The approval of individual targets must be based, as required by Rule 2, on evidence of direct participation in terrorist activities. A plausible evidentiary threshold for identifying enemy combatants was suggested in Guiora’s model of targeting as active self-defense discussed in Chapter 6. Guiora argued that the state must be prepared to present criminal evidence or, at minimum, multiple independent and credible sources of intelligence corroborating the proposed targets’ direct participation in terrorist activities. It may be argued that Guiora’s is a relatively demanding criterion for target selection, but it need not be concluded that the burden on states will be excessively onerous. For example, the state should already have the evidence of the target’s combat status in hand before planning operations. It may also be noted that the number of candidates for targeting appear to be relatively small in the Israeli, and especially the US, case. As noted in Chapter 4, for example, reports suggest that in 2002, the US list of “high value” targets included only seven names. Even the Israelis have averaged only just over one and a half targeting operations (resulting in casualties) per month over the second Intifada. Moreover, in most cases, locating these “high value” targets and finding an appropriate moment to take action requires time. The additional burden imposed by Rule 9 is only to present the evidence of direct involvement to an independent oversight authority in camera to ensure that the grounds for taking such drastic action are sufficiently compelling. Evidently, examination and judgment would have to begin immediately and proceed rapidly (and in case of emergency, might require an expedited form). But what is essential is that the state be prepared to meet some reasonable threshold of evidence that establishes a proposed target as a bona fide terrorist, and to do so before a competent, independent body and on record.2 It is worth stressing here that, as Byman points out, the Israeli targeting procedure already involves a four- or five-step process for vetting potential targets, including a judicial-style review by the political leadership, sometimes repeatedly (briefly described in Chapter 2). What Rule 9 requires is only 2 If, following a confirmation of combat status, no opportunity to take action occurred for an extended period, the case would need to be reviewed to assess whether any change in circumstance had occurred.

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that one stage involve approval by a credible judicial body. One final passing note is that incorporating a judicial element into target selection would help to remove any lingering concerns about whether targeting constitutes extra-judicial killing. Rule 9 provides enhanced assurance of legitimate target selection, but important concerns have also been raised about the significant danger terrorist targeting poses to civilians (particularly in Chapters 6 and 7). Acknowledging this danger, the SCI observed that the balancing of potential collateral harms against the prospective benefits of operations is an especially difficult area: The state’s duty to protect the lives of its soldiers and civilians must be balanced against its duty to protect the lives of innocent civilians harmed during attacks on terrorists. That balancing is difficult when it regards human life. It raises moral and ethical problems. Despite the difficulty of that balancing, there’s no choice but to perform it. (SCI 2006: para. 46)

Given the gray area of uncertainty at the core of this “proportionality” calculus, it is morally desirable to assure that targeting states err on the side of caution, and indeed are seen to err on the side of caution. With these considerations in mind, targeting states should be prepared to make a further commitment beyond the baseline legal requirements; specifically: 10. In cases where a ground operation would involve a lower danger to civilians than air strikes, the targeting state should employ these operation even if it entails “considerable risk” to the state’s own soldiers.

This principle contravenes the guidelines suggested by Kasher and Yadlin, for example, but is strongly supported by reasons outlined in Chapter 7. In essence, if states want to invoke the morality of war, then they should protect civilians over combatants, even when the combatants are their own and the civilians are foreign citizens. Moreover, it is important to clearly distinguish counter-terror from terrorist operations. A demonstrated willingness to tolerate a heightened risk to its own soldiers in order to safeguard foreign civilians makes the statement very clearly. It also demonstrates the will to comply fully with the humanitarian principles of distinction and necessity. Political Safeguards A number of very powerful political considerations were also raised against targeting. For example, both the short-term effects of terrorist targeting on levels of violence and its longer term strategic desirability seemed open to question. Targeting was most strongly justified in cases where it was employed to prevent specific, foreseeable attacks. At the same time, concerns were raised that over-reliance on targeting could diminish international willingness to cooperate in wars on terror, and harm targeting states diplomatically. The use of terrorist targeting might also, in certain circumstances, be seen as a violation of the sovereignty of states that host terrorists, and could generate international disputes. More worryingly, it might undermine the international norm against assassination.

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This latter concern about the norm against assassination, however, is already answered in part by the requirement that targeting avoid all the legal elements connected with assassination – that is, targeting cannot be perfidious, treacherous, or directed against officials of states. The distinction between targeting and assassination is further reinforced by the requirement that terrorist targeting be a matter of open and explicit policy and that operations be acknowledged after the fact. A third distinction from assassination, according to the moral requirements listed above, is that targets must be approved by a credible, independent judicial authority as legitimate enemy combatants (and there must be no practical alternate means to neutralize them) before they can be attacked. None the less, even if terrorist targeting is not itself a form of assassination, it does share features of assassination. Most importantly, it involves the deliberate killing of a named individual. As a consequence, it may reasonably still be feared that too frequent and too prolonged a use of terrorist targeting by leading states might at least erode the international norm against assassination. Moreover, as targeting operations can be controversial, especially when pursued aggressively, and can therefore lead to declining cooperation in fighting terrorism, or even to inter-state disputes over sovereignty, it may be politically prudent for targeting states to agree to limit their use to the most urgent and strongly justified scenarios. These comprise cases of active self-defense against planned imminent attacks, preferably when conducted with the permission of the local state. The first political rules of targeting should therefore be as follows: 11. Terrorist targeting should be used only as a form of active self-defense where there is convincing evidence of “planned imminent attacks.” 11a. When targeting operations are undertaken on the territory of another sovereign state, the targeting state should usually obtain the consent of that state.

Criteria for identifying a planned imminent attack were introduced in Chapter 7: (1) there must be a clear intention to carry out attacks against citizens of the targeting state; and (2) there must be actual and tangible preparations for an attack being made – participants are being trained, equipped, and/or instructed, weapons are being gathered or prepared, and the like. As Michael Schmitt argues, the “imminence” criterion allows states some limited flexibility in terms of when they may use force in self-defense. In his helpful formulation, a targeting state should take action in what appears to be “a final window of opportunity” to effectively reach terrorists, although this may occur “well before the planned [terrorist] attack” (Schmitt 2003: 67). Given the difficulty of anticipating the timing of attacks and future windows of opportunity, some latitude must be permitted to states in choosing the moment to undertake targeting operations once the criteria of imminence are met. An additional consideration in determining the appropriate timing of a targeting operation is that the state taking action should usually obtain consent from the (host) state on whose territory an operation will take place. Ideally, this may be obtained in advance. In some cases, however, the host state may require consultation on specific operations, and this may necessarily delay action. Only in exceptional circumstances should a targeting state consider operations without the consent of a host state. Most

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notably, such action may be considered where there is strong evidence that a host state has persistently neglected its responsibility to prevent terrorist attacks being launched or directed from its territory, and therefore bears some responsibility for such activities.3 Determining when to act against an imminent threat evidently involves difficult and contestable issues. But the basic principle is this: given the levels of harm that can be rapidly inflicted by terrorist attacks, states that have been attacked and are again threatened should not be limited to taking military action in the moments that an attack is actually being carried out. At the same time, targeting states should be able to point to an urgent danger that cannot be averted by other means. As noted in Chapter 3, Israel has often claimed to possess such information, and has used it to justify some targeting operations. The United States, too, has justified counter-terror operations against al-Qaeda by reference to what President Clinton once described as “compelling evidence that the bin Laden network was planning to mount further attacks.” Rule 11 requires that targeting states be prepared to present and defend their evidence for such claims before independent judicial bodies (in camera but on record). Evidently, the state’s case will have to be reviewed regularly, but the process need not be excessively cumbersome provided it follows an established routine and provides clear direction to decision-makers. It is worth bearing in mind here that the number of terrorist groups subject to targeting is very small – indeed, in the US case, it really amounts to a single group. Moreover, in rare emergency situations, evaluation could be expedited and the full presentation of evidence/intelligence supplied in a post-facto review. Nevertheless, it must be allowed that Rules 11 and 11a may constrain states’ flexibility in responding to terror. For example, officially accepting that targetings should be limited to the pre-emption of imminent planned attack would likely have disrupted some terrorist targetings that have been undertaken in recent years. Still, it seems likely that these criteria would permit those for which there is the strongest support. For example, in so far as it can be established that groups like al-Qaeda and Hamas are (as they claim) planning imminent attacks today, they would be legitimate potential targets. The restraints imposed by rules 11 and 11a would not entirely avoid the political dangers cited by critics, but they might diminish them, especially in combination with some of the foregoing rules. In particular, the requirement for evidence of 3 As noted in chapter 6, there is significant dispute today about the legality counter-terror operations like targeting in certain specific types of cases – for example, in a scenario where the host state is unable to control terrorist actions on its own territory, but also does not give consent to another state that has been previously attacked to undertake a targeting operation. In this scenario, the host state would not be responsible for the prior attacks, and there could therefore be a case that its sovereignty should not be violated. For reasons touched in Chapter 5, I think that there is a strong case that a state that has been attacked and has convincing evidence that further attacks are planned must be allowed some latitude to defend itself (see, for example, Dinstein 2004: 245). However, it may be argued that there should also be limitations on its freedom of action in the foregoing circumstances, such as time constraints. This and similar matters should be worked out in international deliberation over the legitimate scope counter-terror operations.

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planned imminent attacks should help to ensure that only the actions with strong moral and legal justification are undertaken. The justification for such actions need not rely on the contestable effects of targeting on levels of violence or capabilities of terrorist organizations or on the effect of targetings on popular morale at home. Their primary justification is that they prevent a greater harm already in preparation. They are therefore not illegal acts of reprisal, but legitimate acts of self-defense. Correspondingly, targeting states should also make clear that they undertake such operations reluctantly to prevent a greater evil; specifically: 12. As part of their official recognition of their policy, targeting states should acknowledge that targeting is a temporary expedient and commit to forgoing this policy as soon as alternate means become available to neutralize terrorists planning imminent attacks.

Rule 12 publicly commits targeting states to a potential political horizon for the use of such operations, and gives the international community a corresponding incentive to develop effective alternatives (such as stronger mechanisms for impelling the arrest and extradition of terrorist suspects). The final political rule is intended to assure that targeting remains a subject of public decision by the highest elected officials, and thus an expression in some form of the people’s sovereign will: 13. Terrorist targets should each be approved personally by the head of government.

This is already the case in Israel, where the Prime Minister must sign off on all targets. In the United States the vetting process is not as well-known, although it appears that presidents including George W. Bush have approved some targets by name. Requiring the President to “personally approve the target list” ensures that someone takes responsibility personally for the decisions made, and can be called upon to explain decisions to the public. At the same time, the public is afforded a means to express support or disapproval of the decisions made. In essence, making the highest political official responsible for targeting approval ensures a degree of public accountability. Most importantly, the question of whether to continue targeting operations remains a political one, subject to ongoing assessment, deliberation, and potential re-evaluation. The Adequacy of the Proposed Compromise Of course, this suggested framework represents only one possible point of compromise. But it is in several respects a plausible one. For example, it is defensible in relation to the three basic questions that should be raised in response to any such proposal: (1) Is it legal? (2) Is it moral? (3) Is it practical? A strong case can be made that terrorist targeting under the foregoing conditions would be compliant with contemporary international law. First, the requirements fully incorporate the criteria for terrorist targeting outlined by the SCI in what has been the only case to date to directly confront this issue (Rules 1–6). Second, the additional moral and political requirements that supplement the legal rules render the framework considerably more restrictive than that outlined by the

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SCI. In particular, the criterion of prior determination of targets’ combatant status raises the bar set by the SCI. Indeed, in so far as terrorist targeting operations are limited to states that are experiencing or have experienced armed terrorist attacks (Rule 1), and are permitted only to pre-empt planned imminent attacks, they may be strongly argued to qualify as acts of self-defense permitted under Article 51 of the UN Charter. As noted in Chapter 5, this anchors the practice in an especially strong legal position today (that is, in self-defense theory as well as in armed conflict theory). It is worth stressing here that terrorist targeting as permitted by the 13 rules comports well with the basic customary requirements for the use of armed force in self-defense – necessity and proportionality. It is to be used exclusively against threatening terrorist attacks in preparation (necessity), and carried out surgically against terrorist groups with rigorous precautions to protect civilians (proportionality). Beyond those customary requirements, the rules stress a condition of “imminence” (rather than “immediacy”). This emphasis reflects the fact that terrorist campaigns often present ongoing threats from elusive international networks. States that have suffered attacks from such terrorist organizations may continue to be threatened for some time. The sources of ongoing threats may take some time to identify, track down, and confront with due attention to proportionality and necessity. The 13 rules permit states the requisite flexibility to forestall subsequent attacks where there is evidence that they are being prepared. Third, some of the additional requirements are designed precisely to allay the legitimate legal concerns raised by Helen Duffy, Kenneth Roth, Kristen Eichensehr and others that there may be ambiguity surrounding the legitimate combat status of some individuals associated with terrorist groups. Specifically, the requirement that their selection as targets be subject to prior judicial identification as bona fide direct participants in terror activities (Rule 12) helps to answer these concerns. Rule 7, moreover, requires that terrorist targetings comply with all prohibitions of humanitarian law, and in particular with the law relating to assassinations. Terrorist targetings that meet the foregoing criteria can be forcefully defended under the law. Moreover, a strong case can also be offered that targetings carried out in compliance with the 13 rules would be morally justifiable. In essence, terrorist targetings would be permitted only when necessary to prevent imminent attacks against civilians – in other words, to avert a greater harm. Furthermore, the targeting state would not only be obligated to take every precaution to protect civilians in the course of such operations, but also would be expected to place its own soldiers at considerable risk if it were likely to reduce the danger to civilians (Rule 10). Finally, as noted above, the combat status of the targets themselves would be judicially established before the operation (Rule 9). There can be little doubt in these circumstances that terrorist and counter-terrorist operations are of sharply different and even radically opposed character – one is designed exclusively to destroy as many civilians as possible, while the other is designed to save as many as possible. Furthermore, a strong political case can be made for targetings that are compliant with the 13 rules. The rules require that states must already have suffered attacks from the terrorist organization, that terrorist organizations must be planning an imminent attack, and there must be no alternative means to neutralize the threat.

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Under these circumstances, states may strongly argue that they should be permitted to act in defense of their citizens. The 13 rules also require a firm commitment to the protection of civilians, and so at least reduce a major source of potential resentment. They specify that the targeting operation must not pose a disproportionate threat to civilians, and that every precaution be taken to protect civilians, including putting soldiers at considerable risk. The rules also reinforce the distinction between targeting and assassination, and consequently help to protect the international norm against assassination from erosion. Under the rules, terrorist targeting operations must fully comply with humanitarian law and especially the prohibitions on assassination – that is, they cannot be treacherous, perfidious or directed against public officials. Moreover, the rules require clear evidence in advance that targets are direct and active participants in terrorism. They also require that the consent of host states generally be obtained and that there be opportunities to address possible political disputes over sovereignty arising from terrorist targeting. Rule 8 calls upon targeting states to officially recognize their policies and to acknowledge specific operations (post facto). It also requires that states be prepared to take responsibility for their actions and be prepared to defend them in international forums. The rules also place at least a potential political horizon on its use (Rule 12). In these ways, the proposed rules circumscribe some of the moral and political harms that could flow from targeting operations, while permitting targeting states to discharge their responsibility to protect their citizens. In summary, the 13 rules do permit the deliberate use of lethal force against specific, named “terrorists” in certain circumstances. In this respect, they recognize the force of the case advanced by defenders that in some scenarios, such actions are warranted to protect civilians from terrorist attacks. At the same time, however, the rules respect critics’ insistence that states’ right to use military force abroad should be limited to cases of necessity, and specifically to active self-defense against imminent attacks. The rules interpret “imminent attack” somewhat more broadly than some critics do (specifically, as permitting not only real-time interceptions, but also preemption of planned attacks in actual preparation), but they do not deviate from this basic principle. They also recognize, as Eichensehr argues, that widening the scope of “imminent attack” increases the need for strong and convincing evidence of direct involvement, and a credible independent body to assess it on a case-by-case basis (in advance). It is important to note here that although the rules do place certain special restrictions on targeting states, nothing about the rules denies that a war on terror is a real armed conflict subject to humanitarian law. The additional requirements only reflect the recognition, shared by critics and defenders alike, that a war on terror is of a special kind, in the sense that the identity of the enemy is especially elusive. In such a war, special precautions need to be taken to ensure that civilians are not targeted or unnecessarily caught in the line of fire. Indeed, these special precautions may be argued ultimately to amount to nothing more than the rigorous application of the core humanitarian principles of distinction, necessity and proportionality to this special type of war. These principles are at the base of the very humanitarian law that defenders insist should apply to a war on terror. Although there may be disputes over

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how adherence to these principles should be ensured, there is little dispute over the principles themselves and that they should constrain targeting operations. Therefore, both in terms of what they permit and what they require, the 13 rules offer a possible point of reasonable compromise between critics and defenders of targeting. Even accepting the idea of compromise, however, important doubts may be raised in another quarter: Is there any likelihood that an actual political compromise could emerge along the proposed lines? Would targeting states and their populations be willing to accept – and indeed actively implement – such restraints on their defense policy? And would the international community, including the UN and international human rights NGOs, really tolerate even restrained and judicially approved targetings? Given the intensity of the dispute over terrorist targeting to date, there is room for a healthy dose of skepticism over these questions. But the 13 rules of terrorist targeting are not intended as a literal prediction of what the result of a serious international discussion, and even negotiation, on the question would produce. They are only intended to show that discussion, and even negotiation, is not necessarily futile, because there are rules of restraint and mechanisms of oversight that can contribute to a reasonable compromise. To show that possibility, it is not necessary to claim that the contending parties would necessarily converge on exactly this point. David Kretzmer, for example, suggests a different, but in many respects attractive, point of compromise on terrorist targeting, integrating rules of law enforcement and armed conflict (Kretzmer 2005: 201-12). Kristen Eichensehr suggests a particularly plausible condition for allowing pre-emptive targeting: the less urgent the threat, the more demanding should be the proportionality requirement for targeting terrorist leaders (Eichensehr 2007: 1881). What is crucial is that some sort of reasonable compromise is at least possible. I think that there are some reasons to think that it is. Is there any Likelihood of a Compromise Being Accepted? In relation to the possibility of compromise, it is worth noting that both targeting states and their critics have something important to gain. In very general terms, critics stand to gain substantial restraints on these terrifying exercises of lethal force by targeting states. Targeting states stand to gain legitimacy and support in their conduct of wars on terror. As Ward Thomas forcefully argues, pursuing targeting within international guidelines would allow targeting states to: cast action against terrorists not as necessary regardless of international law but as necessary to enforce and strengthen international law…. Conceptualizing anti-terror operations as international enforcement not only invests such actions with legitimacy while further delegitimizing those against whom they are directed but also places the “war on terror” in its proper context: a policy aimed at strengthening, rather than undermining, the rule of international law. (Thomas 2005: 37)

Indeed, aligning their policies more completely with internationally accepted rules would likely not only decrease domestic and international criticism, but might well

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promote greater international cooperation, which, as noted in Chapter 6, is crucial to the success of targeting states’ broader counter-terrorist goals. Further Reasons for Flexibility There are also additional reasons why the United States and Israel in particular might be persuaded to accept a compromise along the lines outlined. For example, it may be strongly argued that terrorist targeting as currently practiced coheres badly with the historical spirit of the US’s own foreign policy and ignores the important lessons learned in the twentieth century about deviations into unsupervised covert operations. As touched on in Chapter 4, it may be argued that the US diplomatic tradition historically appealed to a spirit of openness and adherence to international law that could stand as a moral example to other nations. For example, the US did not even create a central foreign intelligence service until the middle of the twentieth century. Moreover, the adoption of clandestine covert operations programs, particularly after the Second World War, resulted in a number of very public and embarrassing failures for the United States, from the revelations of the Church and Pike Commissions to the Iran-Contra scandal. Revelations connected with these events led to broad recognition of the importance of robust oversight and regulation of intelligence agencies, particularly where covert operations are concerned. Although terrorist targeting is importantly different from CIA efforts to assassinate foreign leaders, for example, the US’s own experience suggests that intelligence agencies’ use of lethal force requires official acknowledgement, oversight, and regulation to ensure that it is used legally, morally, and wisely. Moreover, the proposed compromise actually lines up well with recent US leaders’ attempts to conduct a war on terrorism. President Reagan first declared a war on terrorism in the 1980s. His Security Directive 138 called for a “shift… from passive to active defense measures” in response to the threat of terrorism against Americans. In that pursuit, the Directive called upon the CIA to “develop plans and capability to preempt groups and individuals planning strikes against U.S. interests” (NCTAUS 2004: 98, 113). Active self-defense through the pre-emption of planned attacks is the essence of the compromise position embodied in the 13 rules. President Clinton also effectively declared war on terror following the 1998 attacks on US embassies in Africa. In authorizing Operation Infinite Reach, intended “to kill bin Laden and his Chief Lieutenants,” Clinton emphasized that he acted on the basis of “compelling evidence that the bin Laden network of terrorist groups was planning to mount further attacks against Americans and other freedom-loving people” (NCTAUS 2004: 116; White House, Office of the Press Secretary 1998). Again, the pattern of US action is one of active self-defense, targeting terrorists only in light of an armed attack and compelling evidence of further planned attacks. Even the Bush White House appears to have embraced the spirit of the restraint embodied in the 13 rules, at least in relation to the policy of its Israeli ally. Specifically, the Bush administration “reportedly has pushed Israeli officials to limit their targets to ‘ticking bombs’ – individuals who can be tied to impending attacks” (Moore 2003). Of course, the US would considerably strengthen its case regarding Israeli policy if it would officially adopt such a policy itself.

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Moreover, if the US is to continue to employ terrorist targeting operations, it would be more consistent both with its own diplomatic tradition and experience, as well as its aspirations to international moral leadership, to officially recognize what it does and to defend the legality of such policy openly. Anything less casts doubt on both the legality and morality of such operations, as well as on the integrity and intentions of the US government. The Israeli government too has reasons of its own to consider a compromise over targeting like the one provided by the 13 rules. To begin with, it should be kept in mind that Israel already has made, or is bound to make, many of the adjustments to its policy called for in the 13 rules. For example, by the early 1970s, the Israeli government had already evolved a vetting process for terrorist targetings that involved Prime Ministerial approval (as called for by Rule 13). In 2000, the Israeli government moved to an open and official targeting policy (as required by Rule 8), although it did not commit to acknowledging every targeting operation. Moreover, the December 2006 SCI judgment on targeting imposed the legal restraints outlined in Rules 1-6 on Israeli operations (and implied the application of Rules 7 and 8). To accept the additional moral and political restraints suggested here is a smaller step for Israel than for the US, and indeed the additional requirements are already suggested in large part in the logic of the SCI’s decision. Indeed, one key rule involving limiting attacks to cases of pre-emption was already called for in Judge Advocate General Finkelstein’s conditions for targeting (although the SCI shifted to the less demanding language of posing an ongoing threat). The JAG held that terrorist targeting should only be used to “preempt terror attacks.” There must therefore be credible evidence that an alleged terrorist “will plan or carry out a terror attack in the near future” (Harel and Alon 2002). But Israel also has both practical and moral reasons to consider accepting the additional restraints. For one thing, Israel already suffers from a degree of diplomatic isolation and is already frequently singled out by human rights organizations as a special case. While such treatment is unlikely to force Israel to change its policies, it is also true that it has no interest in aggravating these conditions further. Voluntarily accepting a greater degree of restraint on its targeting policy in exchange for international acceptance, or at least tolerance, of the policy might be a small price to avoid further antagonism. The prudence of showing flexibility on terrorist targeting is particularly clear if reports of US pressure for limiting terrorist targetings to “ticking time bomb” cases is accurate. Also, Israel has also already suffered moral and political calamities over the type of ill-advised operations that result from a lack of rigorous oversight and restraint. For example, following its failed 1997 attempt on the life of Khaled Mashal, Israel was forced to apologize and to make a series of dangerous and humiliating concessions, such as the release of Hamas prisoners including Sheikh Yassin, to win the return of its agents (as described in Chapter 2). For reasons described in Chapter 5, Israel’s use of operatives in plain clothes constituted perfidy, and therefore qualified as an attempt at assassination under humanitarian law. Rule 7 prohibits any violation of humanitarian law, and specifically emphasizes the rules concerning assassination. There is also a strong moral and pragmatic argument to be made that Israel should restrain its use of coercive force as much as practically possible in relation

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to the Palestinians (consistent with its own citizens’ security). After all, Israel is a Jewish state, and the Jews have known as well as any people the agony of exile from a national homeland. They have known what it is to be stateless and subject to the power of strangers who neither understand them nor care, and who may even despise them. They have known what it means to fight for a national homeland. Some were even willing to use terrorism in pursuit of that goal (as discussed in Chapter 2), and were later embraced by the Israeli national community in spite of such crimes. The Israelis therefore have a basis for understanding something of the Palestinian condition, and thus, while continuing to defend themselves, seeking not to return terror for terror. The additional restraints on terrorist targeting, and particularly the limitation to cases of imminent attack and the high standards for the protection of civilians, are designed to reinforce the distinction between acts of self-defense and acts of terrorism. Finally, it may also be argued that there are good reasons for the international community to show increased openness to compromise over terrorist targeting. First, it seems increasingly unlikely that Israel or the United States can be pressured into desisting from their targeting policies, particularly following the SCI decision of December 2006. Second, as the wars in Iraq and Afghanistan grind on, it is increasingly apparent how bloody, divisive, destabilizing, and costly the elimination of havens for international terrorism and/or regimes supportive of it through major military operations are likely to be. Even the Israeli war against Hizbullah in Lebanon in 2006, albeit much shorter, took a terrible cost in civilian lives. In comparison with these major military operations, it is increasingly evident that where possible, terrorist targeting is a preferable expedient both in terms of the scale of human harm it does and in terms of its implications for international peace and security – particularly if it is restrained by the kinds of rules outlined above. Third, there are now important legal precedents that terrorist attacks can sometimes warrant the use of military force in “self-defense,” and perhaps the conduct of armed conflict with terrorist groups. But there is an urgent need to work out how international humanitarian law (designed primarily to address conflicts between states) will apply to ongoing asymmetric struggles with elusive transnational networks of terror. A compromise like that outlined above could establish important precedents for how and when military force can and cannot be used against terrorist organizations more generally. Further, working out the details of a compromise on terrorist targeting would provide an opportunity to resolve the divergent interpretations of “unlawful combatants,” preferably in favor of the Israeli understanding of “civilians illegally engaged in combat” (which is far better grounded in existing conventional international law). Indeed, Rule 4 as outlined above makes specific reference to the Israeli standard. Finally, it is worth stressing that international institutions like the UN would not be compelled to remain passive once a compromise on terrorist targeting was established. They would be free to perform their own independent investigations into targeting operations to ensure that targeting states fully complied with all of their obligations under the rules. If the results of their investigations warranted, they could criticize specific operations and make recommendations towards guaranteeing

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full compliance with the rules. It is, of course, possible that disagreements could arise between the independent domestic oversight bodies and international organizations. But in the context of an agreed set of rules such disagreements, should they arise, need not be unhealthy. Disputes might well promote greater public attention to, and scrutiny of, targeting operations, and their compliance with agreed rules. Evidence of Increasing Flexibility on the Issue of Targeting These foregoing considerations help to reinforce the idea that the United States, Israel, and the international community all have important interests in a reasonable compromise on rules regulating terrorist targetings such as those outlined above. But evidence of actual willingness to reconsider past policies would speak even louder than the suggestion of such general interests. Some evidence of flexibility, albeit rather preliminary, can be identified in each case. The US government, for example, recently broke with its policy of refusing to comment on its targetings and officially acknowledged an operation in Somalia (Cloud 2007). Whether this represents a permanent change of policy or only an exception remains to be seen, but it is certainly encouraging, particularly as it would seem to compel the US Government to explain and defend its policy. The US government also reversed its policy on “unlawful combatants” in 2006 following the Supreme Court decision in Hamdan v. Rumsfeld. It now recognizes that under international law, all combatants must be provided at least minimum (Common Article 3) protections under the Geneva Conventions (Mazzetti and Zernike 2006). Correspondingly, the Military Commissions Act of 2006 sets out a more rigorous judicial process for determining the combat status of detainees. The Supreme Court has yet to review the adequacy of the new law. Still, the US government’s revised position does seem to recognize the importance of a credible judicial procedure for determining the combat status of alleged terrorists. It may further be argued that accepting the need for a fair judicial process to determine the combat status of detainees makes it difficult to deny the importance of such a procedure to determine the combat status of suspected terrorists being considered as potential targets. While these developments have been late in coming, they are moves in the right direction. On the Israeli side, as noted above, the SCI judgment at the end of 2006 already requires many of the compromise rules suggested here. As noted in Chapter 7, press reports indicate that government ministries are currently at work formulating guidelines for the objective review panels called for by the SCI (Yoaz 2008). Indications are that, once established, these objective review panels will investigate all cases of targeting that resulted in civilian casualties over the last year. Beyond complying with the SCI’s ruling, however, the Israeli government has also showed signs of willingness to re-examine its terrorist targeting policy. For example, the State Prosecution agreed in September 2007 to establish an independent commission to investigate the circumstances surrounding the flawed targeting of Salah Shehadeh in 2002, and to determine whether criminal charges should be laid (Yoaz 2007). Together, these developments suggest a new and more flexible attitude to terrorist targetings.

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Not coincidentally, in recent years there have been some indications of flexibility among international organizations and some NGOs on the issue of terrorist targeting. For one thing, as Byman notes, in comparison with its major military operations, the level of international criticism of US targetings has been comparatively muted (Byman 2006: 96). Moreover, as noted in Chapter 4, some leading spokesmen for international human rights organizations (such as Human Rights Watch) seem prepared to accept guidelines for targeting compatible with those suggested by Ignatieff’s “lesser evil” standard (Roth 2003: 398–9; 2004: 3–7). Inevitable Criticisms of Compromise Of course, a compromise like the one proposed here would still involve some movement from both targeting states and their allies, and from international institutions, organizations, and other states opposed to terrorist targeting. And even if this happens, there will still surely be some observers who would remain dissatisfied. Some defenders will argue that the compromise measures constrain states’ freedom of action too much. To such defenders, it must be stressed that states are never completely free to choose when and how to use military force. The UN Charter strictly limits the occasions on which military force can legitimately be used (primarily to cases of individual or collective self-defense). Moreover, the law of war restrains the manner in which military force can be used, both so as to protect civilians and combatants hors de combat, and to limit the damage caused. The compromise on terrorist targeting suggested here limits the use of military force in similar ways and with similar objectives, but it does permit action where it is necessary to protect the safety of states’ civilian populations (that is, when they are threatened by planned imminent attacks). On the other hand, there will be some who will argue that the compromise proposed here is too permissive. They will say that the power to target and kill specific named individuals is too terrible and dangerous to grant to states, and that it is bound to be abused. To those who say this, it must be answered that while there is danger in permitting states to take such actions, there is also danger in failing to prevent international terrorist organizations from carrying out mass attacks against civilians. The potential human toll of such new terrorism has been all too graphically demonstrated in recent years. The compromise rules limit states to actions against judicially approved targets, and then only in the context of an initial armed attack, when necessary in order to pre-empt further planned attacks, and when carried out with all reasonable precaution to protect civilians. While these regulations do not eliminate the danger involved in such actions, they do reduce it, arguably to a manageable level. Of course, some defenders and critics of terrorist targeting may not be convinced by such arguments. Targeting states on one side and international institutions and NGOs on the other may prefer different solutions. It may then be that a different compromise will emerge out of deliberation and negotiation over terrorist targeting, or it may turn out that the various sides cannot finally reach any agreement. But this cannot be known unless the attempt is made. The weight of this final chapter has

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been to argue that the attempt should be made because a compromise is desirable, and there are good reasons to think that it is possible. Contrary, then, to those who seek to avoid deliberation – either by keeping terrorist targeting policy unofficial or by dismissing any such policy out of hand – this chapter supports Michael Walzer’s declaration that “we should be proud to carry on these debates” (Walzer 2007: 48). Indeed, this book is intended as an invitation to begin these debates in earnest.

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Index 9/11 6, 114, 139 A-Tzaika 54 Abayat, Hussein 1, 66 Abbas, Mahmoud 75, 80 ‘Abdel-‘Al, Muhammad ‘Atwa 69 Abu Ali Mustafa 70 Abu Jihad 57, 213 Abu-Khair, Hussain 48 Abu Mazen 75, 80 Abu Shanab, Ismail 75 active defense strategy 189–91, 219 Aden-Abyan Islamic Army 116 Adwan, Kamal 49 Afghanistan 106, 116 invasion of 180 Operation Infinite Reach 111 Soviet Union 106 Taliban 179 aircraft hijackings 22, 44–5 al-Aqsa Intifada see Intifada, second al-Fatah 42 al-Naqba 37 al-Qaeda 26, 27, 108–9 Afghanistan 106 armed conflict 138, 140 embassy bombings 111 as enemy belligerent 96–7 international terrorism 23 Operation Infinite Reach 111–13 terrorism 9 training camps 201 USS Cole 113–14 al-Shifa pharmaceutical plant (Sudan) 112 Alec Station 110 al-Aqsa Intifada see Intifada, second Arafat, Yasir 79 armed attack 126, 132–3 interceptive force 135 preventive force 135 armed conflict 130–3, 138 al-Qaeda 138, 140

International Criminal Tribunal for the former Yugoslavia (ICTY) 137–8 law of 124 second Intifada 138 Supreme Court of Israel 139 terrorism 127 US Supreme Court 139–40 war on terror 140–1 armed conflict theory 132, 137–41 armed force, self-defense 134 armed resistance and terrorism 12 assassination humanitarian law 126 political 125 prohibition of 125–7 United States 27, 105, 108, 114–15 self-defense 223–4 state officials 125, 193–4 Assyria 31 Atef, Mohammed 116 Athens Airport attack 52 Authorization of the Use of Military Force by the President (AUMF) 139–40 Ayyash, Maso’oud 68 Ayyash, Yahya 58, 167 Azzam, Abdullah 9 Babylon 31 Balfour Declaration 34 Berlin night club bombing 107 bin Laden, Osama 108–9 Afghanistan 106 embassy bombings 111 indictment of 110–11 military strike to kill 112–13 targeting of 183, 220–1 targeting operation 116 terrorism 9 United States 106 Black September 44–5 Athens Airport attack 52 Israeli Embassy in Bangkok 48

288

Targeting Terrorists

Khartoum attack 49 Bouchiki, Ahmed 51–2 B’Tselem 61 Bush, George W. 75, 183 Caesarea team 47–9, 51–2 Canaan 30 Castro, Fidel 8, 99–100 CCB (Civil Cooperation Bureau) 5 Central Intelligence Agency (CIA) Alec Station 110 assassination attempts on state officials 97–104 Castro, Fidel 99–100 Church Committee 98 recommendations 104 Congo 98–9 creation of 96–7 Diem, Ngô Dinh 101 failures 97 Iran 97 Lumumba, Patrice 98–9 Nicaragua 97 Philippines 97 Phoenix Program 103–4 Pike Committee 98, 104 Schneider, René 101–2 Trujillo, Rafael 100–1 Chile 101–2 Chomsky, Noam 12, 112 Church Committee 92–3, 98 recommendations 104 CIA (Central Intelligence Agency) see Central Intelligence Agency (CIA) Civil Cooperation Bureau (CCB) 5 civil rights 176–7 civilians armed conflicts 11 casualties 2 morality 206–12 combatants 143, 149–51 terrorists as 141–4 weapons, concealment of 150 Clinton, Bill bridging proposals 67–8 counter-terror policy 110–11 Operation Infinite Reach 111–13 Clinton, Hillary 183 collateral damage doctrine of double effect 210–11 morality 206–12, 218

combatants civilians 143, 149–51 definition 142–3 direct participation 144, 148–50 quasi-combatants 143 terrorists as 141–4 unlawful 144–53 Committee X 47 Congo 98–9 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons 125 counter-terrorism 210–11 strategies 178–80 terrorism 209 criminal justice and terrorists 204–6 Crusades 32 Cuba 99–100 cycles of violence see violence, cycles of Damascus 79 democracy, terrorism 208 demolitions 73 Diem, Ngô Dinh 101 direct participation 144, 148–50 doctrine of double effect 210–11 Dome of the Rock 32 domestic law and murder 122–3 Dominican Republic 100–1 Dulles, Allen 98, 100 East Florida 94 eavesdropping 176–7 Egypt fedayeen raids 39 missile development 41–2 Eichmann, Adolf 40 El Al 44 enemy combatants, identification of 132 Entebbe incident 53 ETA (Euskadi Ta Askatasuna) 5 ethical decline 228–31 European Union 123 Euskadi Ta Askatasuna (ETA) 5 extra-territorial law enforcement 135 extrajudicial killing 127–8 al-Fatah 42 FBI (Federal Bureau of Investigation) 108 fedayeen 38–40 Federal Bureau of Investigation (FBI) 108

Index First Protocol see Geneva Convention, First Additional Protocol Florida 94 foreign occupation, resistance to 10–12 freedom fighters 8 GAL (Grupos Antiterrorista de Liberación) 5–6 Gaza Strip Hamas coup 85 Jabaliya refugee camp 79 Rafah Refugee Camp 78 Geneva Convention First Additional Protocol 11, 126, 131 Second Additional Protocol 11, 131 settlements 43 Ghanem, Jamal Rashid 57 Giuliani, Rudy 183 Golan Heights 43 Great Arab Rebellion 35 Grupos Antiterrorista de Liberación (GAL) 5–6 Guevara, Che 8 Haddad, Wadi 30, 53–4 Hafez, Mustafa 39 Hague II Convention 1899 126 Hamas 81–2 Gaza coup 85 leadership 78 Hamdan, Salim Ahmed 139 Hamshari, Mahmoud 47–8 Harb, Ragheb 56 Hardan, Iyyad 69 al-Harethi, Qaed Salim Sinan 1–2, 116–17, 132, 166 Hizbullah 22, 55–6, 83, 179 Holy Land 31 human rights 124, 127–30 humanitarian law 124–5, 126, 141–53 assassination 126 combatants, definition 142–3 human rights law 128–30 killing 129 war 131 ICJ (International Court of Justice) 128–9 ICTY (International Criminal Tribunal for the former Yugoslavia), armed conflict 137–8 IDF (Israeli Defence Force) 39

289

immediacy, self-defense 135–6 imminence, self-defense 136 intelligence gathering 214–16 inter armes silent leges 226 interceptive force 135 International Court of Justice 191 West Bank fence 78–9 International Court of Justice (ICJ) 128–9 International Covenant of Civil and Political Rights 128 International Criminal Court 191 International Criminal Tribunal for the former Yugoslavia (ICTY) 137–8 international law 124–5, 193, 194 interrogation 214–16 Intifada first 56–7 second 6, 23–4 armed conflict 138 bridging proposals 67–8 casualties 63, 85–6 character of 63–4 cycles of violence 87–8 Israeli targeting activities 85–9 Mitchell Commission 69 non-targeted fatalities 87 origins 61–2 statistical correlations 88 suicide bombings 63 tenet ceasefire 69 terrorism 65–6 Iran 22, 97 Iran-Contra Committees 92 Iraq 119 funding of terrorism 22 invasion of 180 invasion of Kuwait 108 Irgun Z’vai Leumi 36, 38 Israel 30–8 see also Palestine; West Bank aircraft hijackings 22 Basic Law: Human Dignity and Liberty 161–2 civilian casualties 211, 217 combatants, unlawful 144–5, 147–53 Committee X 47 demolitions 73 High Court of Justice, assassination policy 71 Hizbullah 179 Institute for Intelligence and Special Operations see Mossad

290

Targeting Terrorists

intelligence gathering 215 international cooperation 192 Knesset alliance 73 Lebanon, invasion of 55 Lod Airport attack 22 morale 182–5 occupied territory 156–8 Operation Defensive Shield 72–3, 179 Operation Turmoil 4 45 Palestinian refugees 37–8 political objectives in targeting terrorists 213–14 popular support for terrorist targeting 182–3 reputation 192 settlements 43 Spring of Youth 49–50 state terrorism 42 Supreme Court armed conflict 139 legality of targeted killing 84 unlawful combatants 147–8, 150, 151–3 targeted killing, legality of 71 targeting policy 25–7 judicial review 217 law of occupation 156–8 targeting procedure 46–7 terrorism defensive strategy 177, 181 definition 15–16 extraterritorial 22–3 legitimization of 192–3 offensive measures 177–81 terrorists arrest of 166–7 definition 144 negotiations 185–8 Thai Embassy 48 torture 215–16 War of Independence 37 Wrath of God 47–8, 227–31 Israeli Defence Force (IDF) 39 Israeli-Palestinian conflict 30–8 Jabaliya refugee camp 79 Japanese Red Army 22 Jefferson, Thomas 93–4 Jenin, battle of 72, 179 Jerusalem 31 just war theory 202

Karine-A 70 al-Karmi, Raed 70–1 Kasher, Asa 12 Kellogg-Briand Pact 134 Kenya, US embassy bombing 111 Kerry, John 183 Khalid Shaikh Mohammed 109–10, 192 Khalil, Izz el-Deen al-Sheik 79 Khartoum 49 Khartoum Resolution 43 killing anonymity 223–6 morality of 201–2 psychology of 230–1 self-defense 222–7 al-Kubaisi, Basil 48–9 Kuwait 108 law of armed conflict 124 domestic 122–3 human rights 124 humanitarian 124–5 international 124–5 of occupation 156–8 of war 124 law enforcement, extra-territorial 135 law of war 129–41 Lebanon Black September 44–5 civilian casualties 211 Hizbullah 22, 179 Israeli invasion 55, 83 Sabra camp 55 Shatilla camp 55 suicide bombing 107 Lehi (Lohamei Herut Israel) 36, 38 lethal force 3–4 lex specialis 124 Libya 107–8 Lillehammer, Mossad agents 51–2 Lindh, Anna 123 Lockerbie bombing 108 Lohamei Herut Israel (Lehi) 36, 38 Lumumba, Patrice 98–9 Madison, James 94 Makadme, Ibrahim Ahmed Haled 74 Mamelukes 32 Mashal, Khaled 58–9, 126 McMahon–Hussein correspondence 34

Index McVeigh, Timothy 110 Meir, Golda 45–6 Mengele, Josef 40–1 Mexico 94–5 military operations and terrorism 178–80 Mitchell Commission 69 Mogadishu, Battle of 22 Mohammed, Fazul Abdullah 119 Mohammed, Khalid Shaikh 109–10, 192 Mokhsan, Zuhir 54 morale and terrorism 181–5 morality civilian casualties 206–12 collateral damage 206–12, 218 intelligence gathering 214–16 interrogation 214–16 of killing 201–2 terrorist targeting 243 war on terror 202–6 Mossad Caesarea team 47–9, 51–2 Egyptian missile development 41–2 Eichmann, Adolf 40 Mengele, Josef 40–1 Project Damocles 41–2 targeting procedure 46–7 Mujahideen 106 Munich (film) 227–31 Munich Olympic Games killings 22, 45–6 murder 122–3 Mussawi, Hussein 55 Mustafa, Abu Ali 70, 167–8 Mustafa, Salah 39 Mustafa Zibri 70 Nabhan, Saleh Ali Saleh 119 Najar, Muhammad Yussef 49 named killings 222–7 al-Naqba 37 Nasser, Kamal 49 Netanyahu, Benjamin 58–9 new terrorism 19–29, 42, 43–4 features of 20 networked structure 23–4 Nicaragua 17, 97 Nicholls, Terry 110 Nokmim 36 noncombatants and terrorism 13–14, 18–19 Norway, prosecution of Mossad agents 51–2, 122–3

291

Obama, Barak 183 occupation, law of 156–8 Office of Strategic Services (OSS) 95 Oklahoma bombing 110 Olmert, Ehud 82 Operation Defensive Shield 72–3 Operation El Dorado Canyon 107–8 Operation Infinite Reach 111–13 Oslo peace process 57–8 Ottomans 32 Pakistan 118, 122 Palestine 30–8, 31 see also Israel; West Bank al-Naqba 37 British mandate 32, 34–6 civil unrest 34–5 Jewish immigration 32–3, 34–5 Moslem conquest 32 partition 37 population of 32–3, 34–5 refugees 37–8 resistance to occupation 25–6 terrorism funding 21–2 Palestine Liberation Organization (PLO) 42, 55 Palestine Question 32–4 Palestinian Authority 26–7, 72–3, 75 Palestinian Intifada see Intifada Palestinian Islamic Jihad (PIJ) 23–4, 58 Pasha of Tripoli 93–4 PDFLP (Popular Democratic Front for the Liberation of Palestine) 42 perfidy 126 Pershing, John Joseph 94–5 Persia 31 Central Intelligence Agency (CIA) 97 funding of terrorism 22 PFLP - GC (Popular Front for the Liberation of Palestine - General Command) 22 PFLP - EO (Popular Front for the Liberation of Palestine - External Operations) see Popular Front for the Liberation of Palestine - External Operations (PFLP - EO) Philippines 97 Phoenix Program 103–4, 216 Pike Committee 98, 104 PLO (Palestinian Liberation Organization) 42, 55 political assassination 125

292

Targeting Terrorists

political violence 12–13 Polk, James 94 Popular Democratic Front for the Liberation of Palestine (PDFLP) 42 Popular Front for the Liberation of Palestine (PFLP) 22, 42, 44 Popular Front for the Liberation of Palestine External Operations (PFLP - EO) 53–4 Popular Front for the Liberation of Palestine - General Command (PFLP - GC) 22 preventive force 135 principle of distinction 8 prisoner of war status 142–3 Project Damocles 41–2 psychology of killing 230–1 public officials see state officials al-Qaddafi, Mohammar 107–8 quasi-combatants 143 Rabia, Hamza 118 Rafah Refugee Camp 78 Rantisi, Abdul Aziz 77–8 Reagan, Ronald 107 right to life 127–9, 132 roadmap to peace 75 Roman Empire 31 Roosevelt, Theodore 94 Sabra camp 55 Salameh, Ali Hassan 50, 52, 54 Schneider, René 101–2 SCI see Supreme Court of Israel secret services 93 Seleucids 31 self-defense 126, 132–3 armed force 134 assassination 223–4 conditions for 135 immediacy 135–6 imminence 136 killing 222–7 war 137 self-defense theory 132, 133–6 settlements in Israel 43 Shalit, Gilad 82 Sharon, Ariel 81 Shatilla camp 55 Shehadeh, Salah 73, 153–4 Shikaki, Fathi 58 Sinai 43

Six Day War 42–3 Somalia 119, 167 South Africa 4–5 sovereignty 194–6 Soviet Union 21, 106 Spain 5–6 Spring of Youth 49–50 state officials 17–18, 25 assassination 125, 193–4 Central Intelligence Agency (CIA), assassination attempts 97–104 state terrorism 12, 15, 16–18 funding 21–2 Israel 42 Soviet Union 21 United States 17, 21 states self-defense 126, 132–3 armed force 134 conditions for 135 immediacy 135–6 imminence 136 war 137 strategic interests 176–91 Sudan 111, 112 al-Sudani, Abu Talha 119 suicide bombing 24, 55–6, 63, 74, 150 empirical studies 168–71 Lebanon 107 morale 182 Supreme Court of Israel (SCI) armed conflict 139 legality of targeted killing 84 unlawful combatants 147–8, 150, 151–3 Switzerland 44 Syria 22 al-Talalka, Muhammad 39 Taliban 179 Tanzania 111 targeting, definition 3 terminology 1 terrorism 6–7 see also new terrorism; terrorists active defense strategy 189–91 armed conflict 127 armed resistance 12 cooperative 22 counter-terrorism 209 defensive strategy 176–8, 181, 189–91 definition 7–19

Index Israel 15–16 United States 14–15 democracy 208 empirical studies 168–73 internationalization 21–3 legitimization of 192–3 military operations 178–80 morale 181–5 networked structure 23–4 new 19–29, 42, 43–4 noncombatants 13–14, 18–19 offensive measures 177–81, 188 Palestinian Authority 72–3 second intifada 65–6 states 12, 15, 16–18 training camps 201 terrorists see also terrorism arrest of 166–7 civilian casualties 206–12 as civilians 141–4 criminal justice 204–6 definition 144–5 morality of killing 201–2 negotiations 185–8 targeting broad defense of 218 defensibility 237–8 definition 24–5 discussion of 239–41 ethical decline 228–31 judicial review 219, 240 legality of 242 morality 243 narrow defense of 218–22, 232–4 politics of 242–3 rules 243–55 acceptance 255–60 criticism 260–1 legal 243–7 moral 247–9 political 249–52 strategies 238–9 Thabet, Thabet 67 Thailand 48 Titu, Ma’sud Mahmoud Mustafa 74 torture 215–16 Tripoli, Pasha of 93–4 truck bombing 55–6, 107 Trujillo, Rafael 100–1

293

UN Panel 10 United Nations Security Council 191 terrorism, definition 8, 10, 13 United Nations Secretary-General’s HighLevel Panel on Threats, Challenges and Change 10 United Nations Special Commission on Palestine (UNSCOP) 37 United States 9/11 6, 114 Afghanistan 106 al-Qaeda targeting of 114 threat advisories 113 assassination, prohibition of 27, 105, 108, 114–15, 158–61 bin Laden, Osama 106 Black September attack in Khartoum 49 Central Intelligence Agency (CIA) see Central Intelligence Agency (CIA) Church Committee 92–3, 98 recommendations 104 civilian casualties 211 combatants, unlawful 144–7 Congress, Authorization of the Use of Military Force by the President (AUMF) 139–40 covert operations 91–5 detainee casualties 217 East Florida 94 eavesdropping 176–7 Executive Order 12333 27, 105, 108, 114–15, 158–61 Federal Bureau of Investigation (FBI) 108 international law 193, 194 Iran-Contra Committees 92 Lebanon 107 morale 182–5 Mujahideen 106 National Strategy for Combating Terrorism 2003 115 Office of Strategic Services (OSS) 95 Oklahoma bombing 110 Operation El Dorado Canyon 107–8 Phoenix Program 216 Pike Committee 98, 104 popular support for terrorist targeting 183 Presidential Contingency Fund 93 reputation 192

294

Targeting Terrorists

state terrorism 17, 21 Supreme Court 139–40 Taliban 179 targeting operations 115–19 targeting policy 25–7, 117, 217 secrecy 155–6 targeting strategy 114–15 terrorism defensive strategy 177, 181 definition 14–15 legitimization of 192–3 offensive measures 177–81 terrorists arrest of 166–7 definition 144 negotiations 185 torture 215–16 USS Cole 113–14 war on terror 107, 124, 129–30, 131 armed conflict 140–1 cooperation 191–2 World Trade Center Bombing in 1993 109–10 World Trade Center Bombing in 2001 114 UNSCOP (United Nations Special Commission on Palestine) 37 USS Cole 113–14 VCI (Vietcong civilian infrastructure) 103–4 victims of mistaken identity 212–13 Vietcong civilian infrastructure (VCI) 103–4 Vietnam 101, 103–4, 216 Villa, Francisco “Pancho” 94–5 violence cycles of 87–8, 167–76 empirical studies 168–73 prevention 173–6

war definition of 131 humanitarian law 131 law of 124, 129–41 self-defense 137 war crimes 11, 153–8 war on terror 107, 124, 129–30, 131 armed conflict 140–1 cooperation 191–2 morality 202–6 Washington, George 93 al-Wazir, Khalil 57 weapons, concealment of 150 Webster, David 5 West Bank 1, 43 demolitions 73 fence 72–3, 78–9 Wilson, Woodrow 93 World Trade Center Bombing in 1993 109–10 in 2001 114, 139 Wrath of God 47–8, 227–31 Yadlin, Amos 12 Yamamoto, Isoruku 95–6, 226 Yassin, Ahmed 76–7, 182–3 Yemen 1–2, 116–17 al-Yemeni, Haitham 117–18 Yom Kippur War 52–3 Yousef, Ramzi 109–10 al-Zarqawi, Abu Musab 119 al-Zawahiri, Ayman 118 Zeevi, Rehavam 70, 168 Zibri, Mustafa 70 Zionism 33 Zu’aytir, Wa’el 47 Zurich aircraft bombing 44