A gradual, yet far-reaching change is occurring, regarding the shroud drawn over the world of targeted killings.
Over the past several months, US courts have ruled multiple times against US agencies such as the CIA and the Defense Department, forcing them to release classified legal documents related to drone-based targeted killings – including an earth-shattering July 2010 memorandum by David Barron of the Justice Department.
Could Israel be next?
Israel (or at least IDF personnel) is under preliminary examination by the International Criminal Court relating to the 1,000-1,700 Palestinian civilian deaths from the 2014 Gaza war.
The United Nations Human Rights Council report on the issue slammed the IDF’s investigations and explanations of its targeting decisions as being insufficiently transparent and informative, rendering the UNHRC Commission unable to evaluate whether IDF intelligence and legal analyses were sufficiently robust in trying to avoid civilian casualties.
When much of the UNHRC report was being drafted – at latest in early June – many of the US national security documents now released were not yet out.
The report had to make the highly questionable claim that the IDF needed to disclose classified intelligence sources to ward off a criminal proceeding based on a 2010 UN report.
Rapporteur Philip Alston wrote that states must sometimes disclose intelligence to show they did not commit war crimes, but noted: “To date, no state has disclosed the full legal basis for targeted killings, including its interpretation of the legal issues.”
In other words, the UNHRC report was trying to obligate Israel, under threat of declaring its investigations insufficient, to comply with a standard that no country has ever met.
But now US courts are pushing the CIA and the US military into new territory of disclosing classified targeting information.
According to the courts, the documents, some released as recently as mid-July, relate to the general “legal basis for use of lethal force against a US citizen abroad,” the basis for the 2011 assassination of American-Yemeni terrorist Anwar al-Awlaki (and incidentally his family), and the nuts and bolts of how the government assesses legality before and after an attack.
Put differently, the American Civil Liberties Union says that its lawsuits forcing the disclosures aim to get to the heart of “who the government has killed and why,” particularly regarding thousands of unnamed civilians whom it alleges the US has not sufficiently protected.
The disclosures have included unprecedented revelations of factors that US drone target decision-makers use to make collateral damage assessments.
According to the now-declassified material, factors include a scorecard for evaluating risks, such as expected blast radii, the likely number of nearby civilians; potential misfires; weapon choices for various circumstances; and many other issues.
In the US, transparency advocates want this information and more to assess the issue of how free the military is to target anyone off the battlefield once they are deemed “associated forces” of al-Qaida or ISIS.
In the same vein, these advocates want to know how a targeted person “constitutes an imminent threat” and how the US decides that it is “not feasible to capture” that person.
These are both definitions that heavily impact whether US drone and other strikes are legal, since an off-battlefield terrorist who is not an imminent threat or who could be feasibly captured without being killed might not be targetable.
Some are already demanding more details of the US’s targeted killing last week of Briton Junaid Hussain, known as one of ISIS’s leading computer experts.
A recent ground-breaking manual by the US Defense Department, its first updated manual in decades, has done little to clarify the debate.
While the manual commits to the idea of taking all necessary precautions when ordering an attack on a military target that could also endanger civilians, some say that other statements in the manual bring that commitment into question.
One scholar of international humanitarian law wrote: “The Defense Department seems to think that it may kill civilians if there is any risk that the precautions necessary to avoid killing them might prove militarily disadvantageous,” and that “feasible means risk free.”
Scholars on this side of the debate would admit that the manual recognizes the concept of feasible precautions, including giving warnings, changing an attack’s timing, or selecting less powerful weapons that lower risk to civilians.
But then they would argue that the manual goes too far in essentially disregarding those precautions as “not feasible” if they could hurt the mission’s success or risk harm to forces.
The same accusations have been lodged against the IDF.
While there is a long list of distinctions between what is being disclosed in the US (and many of the US disclosure issues are themselves distinguishable) and what the ICC may ask of the IDF, the fact is that the goalposts of what constitutes “enough disclosure” are moving.
In light of the new trend in the US, even IDF disclosures that were unprecedented six months ago may not be viewed by the ICC as enough tomorrow.