Is targeting Hamas leaders off battlefield legal?

Analysis: Mofaz and MKs want a return to controversial policy for purposes of deterrence.

By YONAH JEREMY BOB
Hamas terrorists mark anniversary of Schalit swap 370 (photo credit: REUTERS/Mohammed Salem)
Hamas terrorists mark anniversary of Schalit swap 370
(photo credit: 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 point.
However, there is some greater debate about striking a terrorist who participated directly in an attack, but who is now completely off the battlefield.
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 civilians.
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.
That all 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 war.
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 killings.
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 2006.
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 terror attacks.
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).