Is targeting Hamas leaders off battlefield legal?
Analysis: Mofaz and MKs want a return to controversial policy for purposes of deterrence.
Hamas terrorists mark anniversary of Schalit swap Photo: REUTERS/Mohammed Salem
Opposition leader Shaul Mofaz and Knesset members from at least two other
parties are explicitly or implicitly calling for returning to targeting Hamas
leaders as a way of returning deterrence and quiet to the South. But is such a
move legal? Is it legal to target the heads of Hamas, even if they are not on
the battlefield or on their way to the battlefield, according to the law of
armed conflict? In a declared war, the law of armed conflict clearly allows
targeting war-planners and decision-makers, assuming the applicable rules of
proportionality and necessity are followed.
Thus, in both US-Iraq wars in
1991 and 2003, the US actively employed a “decapitation” strategy, trying to
kill Iraqi leader Saddam Hussein at the outset of the wars in order to create
confusion in Iraq’s command and control structure and its armed forces’ ability
to respond in a unified and strategic fashion.
Also, very few argue that
Israel cannot order an air strike on a terror cell on its way to launch a rocket
attack, merely because they have not yet reached their launching
However, there is some greater debate about striking a terrorist
who participated directly in an attack, but who is now completely off the
But real confusion arises regarding Hamas leaders who are
sitting in an office nowhere near the battlefield, who do not participate at all
in an attack, but may have ordered the attack or could only be vaguely connected
because they are leaders of Hamas and know of Hamas’s policies against Israeli
While there is no declared war between Israel and Gaza (Gaza,
not being a state), and there are large periods of relative calm, how many Hamas
rocket attacks justify a targeting killing against a Hamas leader? What if only
a few rockets are fired and the rockets only land in an open field? How many
Israeli civilians need to die before such a response is justified? Some might
say that the response is always justified, but the timing of when Israel
actually makes the decision to do so is a political matter of how angry the
general public and the politicians have gotten.
Does it make a difference
whether a Hamas spokesman takes responsibility for involvement in some attacks –
as has occurred recently – or not? Part of the answer is whether or not the
question being asked prior to or after the US’s declared war on terror in late
2001? Prior to the war on terror – including ironically as late as October 2001
when then-US President Bush criticized an Israeli targeting killing in response
to a suicide bombing – few democratic countries publicly endorsed targeting
killings (not that they were above covert killings that they could ostensibly
deny involvement in) that did not take place on the battlefield.
changed with the war on terror.
According to a report by the Bureau of
Investigative Journalism, the US has killed as many as 4,600 militants in
Pakistan, Yemen and Somalia alone in the last 10 years, of which as many as
1,105 were civilians, or “collateral damage” as they are referred to in times of
US President Barack Obama – the leader of the Democratic Party,
which tends to worry more about international law and the public’s view of the
US’s anti-terror activities than the Republican Party – has escalated targeting
killings of terrorists far more than during former president Bush’s term
(despite ceasing using the term “war on terror”).
A recognition by
international law departments in various armed forces, among many experts and by
many academics that the war on terror and the terrorists whom it has been waged
against created a new paradigm.
Asymmetric warfare in which terrorists,
many just part of a stateless organization, would plan attacks against civilians
on a much greater and more constant scale than ever before, while systematically
hiding themselves among their own civilian populations in faraway countries,
convinced many to apply the law of armed conflict to targeting killings, even if
there was no open war with a particular state.
For example, there is no
war between the US and Pakistan, Yemen or Somalia.
Prior to this paradigm
shift, few countries besides Israel publicly endorsed such targeting
For many of the early years during the war on terror, this gave
Israel a new freedom in targeted killings, the policy being formally endorsed,
although given defined limits, by Israel’s High Court of Justice in
There is even a committee, ordered by the court, that performs an
after-the-fact independent review of such killings.
Since Operation Cast
Lead in late 2008 and early 2009, however, Israel has refrained from targeting
Hamas leaders, while continuing to target those on their way to performing
Israel’s standard position has been that regardless of
even extended periods of calm, there is an uninterrupted period of armed
conflict between Israel and Hamas that is analogous to war, giving Israel the
right to target Hamas leaders.
Similarly, Harold Koh, the legal advisor
to the US State Department, justified the targeting killing of Osama Bin Laden
(how he died is disputed, but presuming he was targeted) in terms of there being
a general state of armed conflict between the US and al-Qaida, of which Bin
Laden was the leader.
Neither the American nor the Israeli positions are
uncontroversial (there are other nations who use the tactic, but the US and
Israel have been the most widely discussed), and there are nations, human rights
groups and academics who still dispute the position.
Today, debates about
whether violence has escalated to the level of being an “armed conflict”
generally revolve around questions of the conflict’s intensity, duration and
frequency of exchanges between the sides.
Overall, the fact is that until
and if the war on terror dies down globally, ten years after the war’s start,
targeting killings of terror leaders even off the battlefield are still more
accepted and find far greater justification in debates on the issue than they
did in any prior era.
If Israel reinstitutes targeting Hamas leaders
tomorrow, there will certainly be groups that criticize, but hard pressure from
the US and other nations with greater influence on Israel is likely to be muted
as long as civilian “collateral damage” remains “low” (and with their quiet hope
that such tactics might be instead of a full Israeli ground assault).