The interplay of intelligence, law during war

Analysis: Why having "blood on their hands" matters in the legality (not just morality) of targeted killings.

By YONAH JEREMY BOB
Former ICC chief Luis Moreno-Ocampo (R) 311 (photo credit: Jerry Lampen / Reuters)
Former ICC chief Luis Moreno-Ocampo (R) 311
(photo credit: Jerry Lampen / Reuters)
How relevant are a terrorist’s past terror acts to the legality of a targeted killing? When Israel announced the targeted killing of Hamas military commander Ahmed Jabari on Wednesday, most of the focus was on him having a long history of “blood on his hands.”
Obviously, the debate surrounding killing terrorists has enormous moral and public relations components that make how much blood someone has on his hands directly relevant, regardless of the legal question.
But inevitably, after the killing of Jabari, the critiques of the legality of targeting killings specifically have returned to the headlines.
One criticism of targeted killings which is currently being voiced prominently in the media is that the real goal is often “payback” killings, or killings for crimes of the past.
As a matter of creating an effective policy of deterrence, many governments have undertaken covert operations to kill persons who at earlier points in life were involved in terror operations and later ceased involvement in such operations.
But with such persons, it is exceedingly difficult to argue that the law of armed conflict would permit killing them, as opposed to arresting such persons.
A famous covert arrest example was the covert arrest of Nazi commander Adolf Eichmann from Argentina in 1960.
The legal status of Eichmann’s arrest was also controversial, but still not in the same category as a targeted killing.
So even though a moral case might seem clearer for targeting terrorists who had blood on their hands in the past, some of the current criticism in the media could present a serious issue when looking at things legally.
What many of these critics ignore is that past actions can be relevant legally (not just morally) regarding someone who is still a terrorist.
For example, what about with a terrorist who is still involved in terror like Jabari? Are his past actions still irrelevant in a legal analysis? One could take a narrow view of military necessity and argue that anything other than his immediate past actions are irrelevant legally, as they have no impact on the current conflict, which is all that should be legally relevant.
On the other hand, that approach ignores the fact that the legal analysis of any military action needs to take into account an intelligence analysis.
The starting point for deciding whether a targeted killing is legal are the principles of military necessity and proportionality.
Almost all of the information that will inform the decision regarding what constitutes militarily necessary is based on intelligence sources.
An important factor, how important is the target in achieving the overall military objectives in the conflict, is a mixed legal-intelligence question.
How can one answer the legal part of that question without knowing the history of the terrorist and without knowing the historical value of the terrorist to the opposing side? The terrorist’s past deeds may also indicate his value in terms of what function he provides the opposing side, whether it be having a specialty in engineering, combat-training or strategy.
If the overall military goal is to restore calm and deterrence, then the terrorist’s history could say a lot about his ability to positively or negatively affect the opposing side’s decisions to stop firing rockets at civilians sooner or to continue doing so.
None of the above details sound all that legal, but the fact that military intelligence estimates are so central to the basis of decisions under the law of armed conflict is one way that body of law is unique and somewhat separate from the rest of human rights law.
In that sense, while the phrase having “blood on his hands” may not have a legal status, the past deeds of a terrorist are likely critical to evaluating the legality of the targeted killing of him, presuming he is still active.
Critics who say otherwise may not fully understand the interplay between intelligence and law during wartime.