If Not Combatants, Certainly Not Civilians
David, Steven R., Ethics & International Affairs
Yael Stein presents an impassioned argument against Israel's policy of targeted killing. For Stein, targeted killing is nothing less than assassination and is illegal, immoral, ineffective, and indefensible. She calls for its immediate cessation. Before addressing Stein's specific points, it is worth examining the very different approach Stein and I take to the question of Israel's policy of targeted killing. For Stein, this is a black-and-white issue. Palestinian terrorists are civilian noncombatants, Israel is not engaged in war or armed conflict with Palestinian groups pledged to destroy it, and Israel has no right to take the law into its own hands whatever the situation. I see the situation very differently. While I acknowledge misgivings about Israel's resort to targeted killing, I see the policy in the context of a state legitimately seeking to protect its people from terrorist attacks. Legal issues, especially those relating to international law, are far more ambiguous and contentious than Stein's blanket assertions would have one believe. And while I agree with Stein that targeted killing raises troubling moral issues, I am far less eager to condemn the Israelis given the intolerable threats they face and the far more egregious practices they could employ to respond.
STEIN BEGINS BY ARGUING that targeted killing is more properly called assassination. I disagree. Assassination typically refers to the killing of politically prominent officials because of their political prominence, usually takes place in times of peace, and employs deception. Most of the targeted killings undertaken by Israel do not fit these criteria. If Stein nevertheless wishes to adopt a much looser definition of assassination, I suppose she can do so, though it is in marked contrast to the legalistic tone she takes in the rest of her essay.
Stein's view that targeted killing is a clear violation of international law is mistaken. International law applies best to situations of war and peace between recognized states. Targeted killing, however, takes place in a context that is neither war nor peace, between belligerents, one of which is not a state. At the very least, this should elicit some humility in declaring whether targeted killing is consistent with international law. Stein, however, has no compunction in declaring that targeted killing violates international law. The illogic of this is clearly illustrated in her own discussion of combatants and civilians. According to Stein, international law "establishes only two categories of persons involved in a conflict, combatants and civilians, and makes no room for any middle definitions" (p. 128). Although there is much disagreement on this issue, even assuming Stein is correct, this observation illustrates the limitations of applying a strict reading of international law to a situation for which it is ill equipped. Clearly, Palestinians armed with automatic weapons and bombs intent on killing Israeli citizens are not civilians. And yet, Stein would have us consider them as such. This is not only legally dubious, it contradicts common sense.
None of this means that international law is irrelevant, only that work has to be done to apply international legal principles to situations, such as terrorist acts by nonstate actors, for which existing international law is either silent or confusing. All the while, we should not lose sight of Article 51 of the UN Charter, on which Stein is silent, affording states the right of self-defense. Nor should we forget that the United States, despite an executive order banning assassinations, has embarked on its own policy of targeted killing, which it maintains fully in accordance with international law.
STEIN'S INSUFFICIENTLY nuanced reading of the international law also applies to Israeli law. I argued that Israel's policy of targeted killing is consistent with Israeli law. I did so because the Israeli High Court rejected petitions calling for a halt to this policy with a strongly worded opinion that left little doubt that the court supported the legal arguments put forth by the judge advocate general in support of targeted killing. …