Amos Guiora on the Law of Targetted Killings

Related to Ken’s earlier post, Amos Guiora has a piece up at Foreign Policy describing the legal analysis he applied when advising the Israeli Defense Forces on targeted killings of terrorists. He argues that international law permits targeted killing when certain conditions are met:

The decision to use targeted killing of terrorists is based on an expansive articulation of the concept of pre-emptive self defense, intelligence information, and an analysis regarding policy effectiveness. According to Article 51 of the U.N. Charter, a nation state can respond to an armed attack. Targeted killing, however, is somewhat different because the state acts before the attack occurs. In addition to self-defense principles, the four critical principles of international law — alternatives, military necessity, proportionality, and collateral damage — are critical to the decision-maker’s analysis.

The basis for the attack is intelligence information that meets a four part test: Is it reliable, credible, valid, and viable? Given the stakes, corroborated information is significantly preferable to information that comes from a single source.

His use of a specific case (one in which he ultimately did not give legal approval for the killing) is helpful to understanding the real life and real-time constraints on both the commander and legal adviser. The bottom line: lawyers need to be skeptical and ask the right questions of their intelligence counterparts before giving the green light to these operations and at the same time weigh the effectiveness of the operation — no easy task. Casual deference is not an option where one is relying on principles of self-defense.  It’s worth reading the whole essay.