CYIL vol. 11 (2020)

CYIL 11 (2020) LEGALITY OF TARGETED KILLINGS UNDER INTERNATIONAL LAW a key element in the fight against terrorism. ” 29 However, many EU countries were acquiring armed drones for their military forces. Armed drones or unmanned aerial vehicles are already present in NATO weaponry. Undoubtedly, Russia also has an active drone program. The proliferation of combat drones is not limited to Europe. Drone weaponry is present in other non-European countries too, particularly China, India, and Pakistan. In the 1990s, Israel “categorically” refused to admit the use of targeted killings, stating that: “ The Israeli Defense Force wholeheartedly rejects this accusation. There is no policy and there never will be a policy or a reality of willful killing of suspects… ” 30 Nevertheless, Israel later confirmed the existence of a targeted killing policy in self-defense and under international humanitarian law because “the Palestinian Authority was failing to prevent, investigate and prosecute terrorism and especially suicide attacks at Israel.” 31 Palestinians have criticized the Israeli targeted killing policy, stating that Israel is using similarly expansive legal reasoning as the United States. The expansion of legal rules around targeted killings by the U.S. was characterized “as one of the most consequential legacies of the post 9/11 era.” N. Erakat, author of the book “Justice for Some: Law and the Question of Palestine” wrote that Israel developed, in relation to the Palestinians, the concept of “armed conflict, short of war.” 32 In connection with targeted killing, it is worth mentioning a decision of the Israeli High Court of Justice on the Israeli military practice under the presidency of A. Barak, whom I met for the first time in New York at the Armand Hammer conference on “Peace and Human Rights” in 1986. This internationally respectable and erudite lawyer delivered this ruling in December 2006. This case started in March 2002. By that time, 339 Palestinians had been killed by targeted operations (201 intended targets and 129 innocent bystanders). The ruling came to the conclusion that, unlike first intifada, there was now an “international armed conflict” with Palestinian militaries. The choice of “international armed conflict paradigm” as a basis for justification of targeted operations meant a significant departure from the U.S. official position (including the U.S. Supreme Court opinion) that targeted killings were applied in the framework of a “non-international armed conflict”. The justification of targeted operations in the paradigm of any military conflict went of course far beyond any “law enforcement paradigm”, particularly during peacetime. The Court rejected the government’s contention that terrorists were “unlawful combatants” (this was also the position of Bush administration) subject to attacks at all times. The Court held that the targeted killing of civilians is permitted “for such time as they directly participated in hostilities”. This was on top of the four conditions for legal targeted killings that are required to be fulfilled. 33 It has been reported that Israeli forces have conducted 29 European Council, Conclusion on Assassination of Sheikh Amed Yassin , 22 March 2004, available at: https:// ec.europa.eu/commission/presscorner/detail/en/PRES_04_80. 30 Na’ama Yashuvi, Activity of the Undercover Units in the Occupied Territories , B’Tselem, 1992, quoted in Report, supra note 1, p. 6. 31 Ibid, p. 6. 32 HUSSAIN M., Why Israel’s- and America’s- Legal Justifications for Assassinations don’t Add up, the Intercept see at: https://theintercept.com/2018/10/17/israel-targeted-killings-noura-erakat-palestine-gabriella-blum/. 33 1. Targeted forces carried the burden of verifying the identity of the target as well as the factual basis for meeting the “direct participation” standard; 2. Even if the target was legally and actually identified by the government as legitimate, state forces could not kill the person if less harmful means were available; 3. There must be a retroactive and independent investigation of the “identification of the target and circumstances of the attack” after each targeted killing; 4. Any collateral harm to civilian must meet the IHL requirement of proportionality. See Israel High Court of Justice, Judgement of 14 December 2006 (DUCATI), paras 39, 40, and 60, quoted in Report, supra note 1.

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