Targeted Killing: When Proportionality Gets All out of Proportion

By Guiora, Amos N. | Case Western Reserve Journal of International Law, Fall 2012 | Go to article overview

Targeted Killing: When Proportionality Gets All out of Proportion


Guiora, Amos N., Case Western Reserve Journal of International Law


Abstract

Targeted killing sits at the intersection of law, morality, strategy, and policy. For the very reasons that lawful and effective targeted killing enables the state to engage in its care function of self-defense and defense of its nationals, I am a proponent of targeted killing. However, my support for targeted killing is conditioned upon it being subject to rigorous standards, criteria, and guidelines. At present, new conceptions of threat and new technological capabilities are drastically affecting the implementation of targeted killing and the application of core legal and moral principles. High-level decision makers have begun to seemingly place a disproportionate level of importance on tactical and strategic gain over respect for a narrow definition of criteria-based legal and moral framework. Nonetheless, an effective targeted killing provides the state with significant advantages in the context of counterterrorism. Rather than relying on the executive branch making decisions in a "closed world" devoid of oversight and review, the intelligence information justifying the proposed action must be submitted to a court that would ascertain the information's admissibility. The process of preparing and submitting available intelligence information to a court would significantly contribute to minimizing operational error that otherwise would occur.

CONTENTS

I. INTRODUCTION

II. FUNDAMENTAL CONCEPTS

     A. Morality in Armed Conflict
     B. Nature of Conflict
     C. Role of Modern Technology

III. THE DECISION-MAKING PROCESS

     A. The Importance of Process
     B. Who Are Legitimate Targets?
     C. Is the Intelligence Actionable?
     D. Is the Response Proportional?

IV. THE DRONE POLICY

V. CONCLUSION

I. INTRODUCTION

Targeted killing sits at the intersection of law, morality, strategy, and policy. For the very reasons that lawful and effective targeted killing enables the state to engage in its core function of self-defense and defense of its nationals, I am a proponent of targeted killing. However, my support for targeted killing is conditioned upon it being subject to rigorous standards, criteria, and guidelines. My advocacy of both targeted killing and criteria-based decision-making rests largely on my twenty years of experience with a "seat at the table" of operational counterterrorism. The dangers inherent in the use of state power are enormous. On the opposite side of the equation, however, is the terrible cost of terrorism because terrorists, in deliberately targeting innocent civilians, disregard both legality and morality.

At present, new conceptions of threat and new technological capabilities are drastically affecting the implementation of targeted killing and the application of core legal and moral principles. High-level decision makers have begun to seemingly place a disproportionate level of importance on tactical and strategic gain over respect for a narrow definition of criteria-based legal and moral framework. (1) Given the realities of collateral damage and other inevitable consequences, such an emphasis on tactical and strategic gain is troublesome. Nonetheless, an effective targeted killing provides the nation state with significant advantages in the context of counterterrorism.

The fine line that separates the competing needs for both an effective counterterrorism strategy and a governing legal and moral framework is paper thin. While success is undoubtedly seductive, decision makers must consider the ramifications of a targeted killing gone awry. The seemingly surgical precision of a drone attack is so powerful and alluring that it has the potential to blind us from its powerful and compelling downsides--and from the legal and moral failures that it may well spawn.

In the current environment, the international principle of proportionality is out of proportion. Expanded notions of imminence, flexibly and broadly defined, married with increasing reliance on sleek new technology, lie at the heart of re-conceptions of proportionality capacious enough to encompass nearly all targeting decisions.

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