Targeting Terrorists

A License to Kill?

Avery Plaw

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317046714
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Targeting Terrorists: A License to Kill? examines the political history and ethics of targeted killing. Avery Plaw's analysis addresses the questions of moral, political and legal justification in the context of the current 'war on terror' and of legitimate/illegitimate forms of counter-terrorism more generally. Given the increasing number of terrorist targetings conducted around the world today and the virtual absence of a sustained public and scholarly debate over the practice, this study makes a crucial contribution to the examination of an increasingly important and troubling subject. Incorporating insights and arguments from a range of disciplines and approaches, and offering an excellent balance between theory and case studies, this book is highly relevant for courses on ethics, politics, international relations and international law.

Chapter 1

The Issue of Targeting Terrorists

In their ongoing wars on terror, both the US and Israeli governments have resorted to a policy of “targeting terrorists.” In essence, both governments authorize their military or intelligence services to kill specific suspected “terrorists” who they believe mortally threaten citizens and cannot otherwise be neutralized (for example, by preventive arrest) (David 2002: 1). In some cases, alleged terrorists have been shot from a distance while at home, or in their cars, or at work, or in the course of carrying out acts of terrorism. Most frequently, alleged terrorists have been blown up with missiles fired from aircraft – in the US cases, from unmanned Predator aerial vehicles, and in the Israeli cases from Apache Attack helicopters. President Bush calls this “sudden justice,” and the Israeli government calls it “targeted killing,” or more recently and euphemistically, “targeted thwarting,” “preventive liquidation,” or “interception” (Bush 2003; Nolte 2004: 114; David 2002: 2; Reuter 2004: 14). Their critics, however, speak in more morally charged terms of “assassination” or “extra-judicial killing” (Amnesty International 2003; Human Rights Watch 2002; Stein 2003: 127–8; Patten 2002). All of this diverse terminology, however, refers to the same basic policy. For the purposes of this book, the policy will be referred to as “targeting terrorists.”

The policy is best illustrated by an example. At around noon on 9 November 2000, four Israeli helicopters appeared over the Palestinian-controlled West Bank town of Beit Sahour in pursuit of a car being driven by a senior Fatah activist, Hussein Abayat, and carrying three of his comrades as passengers. One of the helicopters fired two missiles at the car, at least one of which struck the target. Abayat was killed instantly and the other occupants of the car seriously injured in the resulting explosion. Two Palestinian women in the vicinity were also killed. Israeli officials confirmed that Abayat was the target of a combined Israeli Defense Force (IDF) and Israeli Intelligence (Shin Bet) air raid, charging that he was “personally responsible for a long list of attacks against military and civilian targets including shootings at Giloh” (Korn 2004: 217–19; Capella and Sfard 2002).

A similar US-led targeting took place on 3 November 2002, above the desert about 100 miles east of Sanaa, the capital of Yemen. On that date a CIA-controlled Predator unmanned aerial vehicle appeared over a lone car speeding along an isolated highway and launched a laser-guided Hellfire missile. The missile struck the target and exploded, leaving only charred remains. US and Yemeni officials claimed that the cars’ occupants had been six members of al-Qaeda, including a senior operative, Qaed Salim Sinan al-Harethi, one of the terrorists the CIA believed to be responsible for the bombing of the US destroyer Cole in 2000. Based only on the carbonized remains, forensics specialists were unable to confirm the identity of the victims (Calhoun 2003: 209–11)

These two operations marked the renewal by Israel, and the inception by the United States, of terrorist targeting campaigns that continue today. Since 11 September 2001, US officials have acknowledged (usually unofficially) at least 19 occasions since on which Predators have successfully fired Hellfire missiles on terrorist suspects overseas (Meyer 2006; Machon 2006). By the end of 2006, US targeting operations were widely reported to have killed at least five al-Qaeda leaders and ten alleged terrorist operatives, but are also reported to have killed at least 20 civilians.1 According to the human rights group B’Tselem, the Israelis had killed 218 terrorist targets in the course of the second Intifada, as well as 149 people who were not intended targets, as of September 2007 (B’Tselem 2007). Defenders of targeting suggest that such campaigns can disrupt the operations of terrorist organizations (for example, Byman 2006, Luft 2003).

Whatever their successes, the two terrorist targeting campaigns have proven to be highly controversial. The United Nations (UN), leading human rights organizations like Amnesty International (Amnesty), and many Regional Intergovernmental Organizations like the European Union (EU), as well as many individual states and scholars have denounced this policy as immoral, illegal and counter-productive (United Nations Press Release (UNPR) 2004; United Nations Commission on Human Rights (UNCHR) 2002, 2004; United Nations General Assembly (UNGA) 2001, Amnesty International 2001, 2003; Patten 2002; Gross 2004; see also Kretzmer 2005: 173). On the other hand, Israel has defiantly insisted that the policy is legal, moral, and necessary (Israeli Ministry of Foreign Affairs (IMFA) 2003c). Several states have voiced support for Israel’s “right to defend itself against terrorism” in this manner (UNPR 2004).

The United States, however, has exhibited a somewhat inconsistent public stance on terrorist targeting since September 11th. It has often voted against resolutions condemning the Israeli practice, and then criticized Israel, while engaging surreptitiously in terrorist targeting itself (United States Department of State (DoS) 2002; BBC News 2002). Meanwhile, in both the academic and popular press, an increasing number of arguments have been published seeking to justify and defend the targeting of terrorists as legal, moral, and effective (for example, Byman 2006; Kasher and Yadlin 2005a, 2005b; Meisels 2004).

The targeting of terrorists is thus a contentious issue. It also has important implications. If the policy is legitimate and successful, then it warrants wider acceptance and perhaps even application in analogous cases, particularly as many countries around the world continue to confront transnational terrorist attacks. If it is illegitimate and counter-productive, then it should not merely be condemned, but aggressively confronted and halted before it can do irreparable harm to the credibility of international law and institutions, and to the prospect of effectively bringing contemporary terrorism to an end.

The policy of targeting terrorists and the issues it raises, however, have not been subjected to careful scrutiny, and in many ways this effort to offer an in-depth assessment of the ramifications of this policy is entering new territory. This book aims to explore the moral and legal debates, effectiveness, history, and implications of the policy for contemporary and future struggles with terrorist groups. It begins by briefly reviewing the historical development of terrorist targeting policies in Israel (Chapters 2 and 3) and the United States (Chapter 4), and then examines key arguments advanced both in favor of and against the practice’s legality (Chapter 5), political practicality (Chapter 6), and morality (Chapter 7). The final chapter provides a brief summary of some of the key issues raised in the main text, and outlines a possible point of compromise between critics and defenders of terrorist targeting.

Some Necessary Preliminaries

Two important issues need to be addressed before turning to cases of terrorist targeting. The first is the need for clear definitions, and in particular to establish exactly what is meant by “targeting terrorists.” The second preliminary need is to show that US and Israeli targeting policies are in a basic sense similar, and can effectively be treated together.

The expression “targeting terrorists” incorporates two distinct ideas. The first, “targeting,” refers to a type of government policy in which the state authorizes branches of its military or intelligence apparatus to deliberately employ lethal force against individuals it identifies as threats to its security. The second, “terrorists,” refers to the group of persons towards whom the policy is intended to be exclusively directed. Distinguishing these two terms, at least initially, will be helpful both in clarifying the meaning of the expression and in drawing out some of the natural concerns that such a policy must raise.

In a recent article, Steven David, a Professor of International Relations at Johns Hopkins University, provides a useful starting point in defining the broad category of targeting policies. In his definition, “targeted killing is the intentional slaying of a specific individual or group of individuals undertaken with explicit governmental approval” (David 2003b: 112). David offers this definition with the recent US, and particularly Israeli, campaigns against terrorists in mind, but seeks to locate such efforts within a general type or category of policy. So at this level of abstraction, no particular targets are placed in the cross-hairs. The policy could be directed at any group.

Perhaps the most immediately striking feature of David’s definition is that killing is authorized simply by the expedient of governmental approval. Since a court is an institution of government, this provision would encompass the order of a court following a criminal trial (that is, capital punishment). But the provision could equally be fulfilled by executive authorization without specific judicial approval. A policy of targeted killing thus permits (but does not require) the state to employ lethal force without the restraint of due process and judicial deliberation.

Of course, the use of lethal force without specific judicial authorization will not be entirely unfamiliar even to citizens of well-functioning constitutional liberal democracies. Police, for example, are permitted to employ lethal force in some situations. Soldiers are also permitted to use lethal force in combat. In both of these contexts, however, the use of lethal force is constrained in some important ways that do not apply to a policy of targeted killing. For example, police are only permitted to employ lethal force deliberately against persons who pose an immediate and significant danger to others and when no other means of protecting these others is available. Soldiers, on the other hand, are only permitted to employ lethal force against enemy combatants (provided that they are not hors de combat). Targeted killing, as David defines it, is different. It separates the use of lethal force from the exigencies of emergency and combat situations, and permits those authorized by the state to kill designated targets wherever doing so would not pose an undue danger to others.

Targeted killing is also different from these other, more familiar, uses of lethal force in a second way: the target is designated in advance. During armed conflict, soldiers may kill any enemy soldier whenever opportunity arises (consistent with the laws of war). Police are permitted to use lethal force against any person threatening the lives of others, when no plausible alternative is available. By contrast, targeted killings are, in Michael Gross’s words, “named killings” (Gross 2003: 362–3). Here the government authorizes only the killing of specific, named persons. These targets are fair game wherever they can be safely attacked. But only the target is fair game.

Any targeted killing policy would obviously be troubling. Governments wield enormous power, including a virtual monopoly of legitimate coercive power. One of the oft-sighted reasons for having constitutions and human rights is to curtail the potentially tyrannical power of governments. And one of the very first things constitutions and human rights conventions seek to protect from arbitrary government power is the sanctity of life.

Moreover, it may be argued that a policy of targeting directed specifically against terrorists is especially conducive to the abuse of state power. Such a policy must operate on the basis of highly sensitive intelligence, and must therefore be pursued, in part at least, outside the domain of public scrutiny. Further, the demands of national security can potentially be used to evade effective legislative and judicial oversight. In this way, the investigation and elimination of alleged terrorists seems to invite the circumvention of critical checks, balances, and safeguards against the abuse of the terrible power of the state, and thus to potentially permit the most horrifyingly intimate and irremediable abuse of that enormous power. The danger is best illustrated by actual cases.

Two Historical Cases

Recent history provides a number of chilling cautionary tales involving the use and abuse of terrorist targeting policies. South Africa from the mid-1970s through the 1980s, for example, provides a potent illustration of the potential abuse of targeting policies, in this case in the service a deeply disreputable state. In February 1974, in response to African National Congress (ANC) terrorist actions, the National Government of Balthazar Vorster initiated a policy of hunting and killing opponents abroad who employed terrorism against the apartheid regime (while terrorists within the country remained subject to normal law enforcement). As resistance continued and even escalated into the early 1980s, the government of P.W. Botha covertly extended the targeting program to opponents of the regime at home, and allowed it to become the basis of a “total counter-revolutionary strategy” against all opponents of the regime, including peaceful protesters. Probably the most infamous case was the gunning down of University of Witwatersrand lecturer David Webster outside his Johannesburg home by agents of the euphemistically entitled Civil Cooperation Bureau (CCB) on 1 May 1989. The scope of covert killings by South Africa also gradually broadened in foreign operations, so that by the end of the 1980s attacks were being undertaken not only to neutralize terrorists, but also, for example, to sabotage Namibian independence. Killings at home and abroad continued under the early administration of F.W. de Clerk, although there is no evidence that the reform-minded Prime Minister was aware of the targeting program at the time. The program was only brought to a halt in 1990 following exposure in the press and a crackdown by the new government that included the arrest of the head of the CCB, Colonel Pieter Verster, in March 1990 (O’Brien 2001: 128–37).

In a two-part article on South Africa’s “Use of State Assassination as a Tool of State Policy,” Kevin O’Brien, the Chair of Political Studies at UC Berkeley, provides a chilling account of how South Africa’s “securocracy” evolved, insulated from public scrutiny. He stresses, in particular, the increasing brutality it demonstrated in the face of growing anti-apartheid protests (O’Brien 2001: 109–38). Estimates of the total number of “those directly targeted by the state for elimination” range from above 50 to above 75, although O’Brien concludes that the final number was probably fewer than 100 (O’Brien 2001: 134–8, 142). A full assessment of the policy, however, must include not only the body count, but also the additional measure of terror it infused into associated policies of intimidation, beating, administrative detention, and torture.

But for all its success in terrorizing enemies of the South African state, ultimately the strategy must be accounted a costly failure. Not only did it fail to protect the apartheid regime from revolutionary change, but it did great damage to the image of South Africa and contributed significantly to its international isolation.

Spain and the GAL

More troublingly still, even in cases where the objectives of the targeting policies have appeared less unsavory, a similar pattern has ensued. For instance, in the mid-1980s, the Spanish government organized a secret elite security force – the Grupos Antiterroristas de Liberación (GAL). The GAL was intended to combat Basque separatist terrorism, and particularly the Euskadi Ta Askatasuna (ETA), by pursuing perpetrators back to their home bases in Basque areas of France and disrupting their activities.

The GAL operations rapidly degenerated into a “dirty war” against Basque terrorists. Between 1983 and 1987, the GAL employed the kidnapping and torture of ETA terrorists and Basques who were believed to have information about the terrorists. The GAL are accused of 28 killings over this period. However, later investigations have revealed that at least a third of the victims had no connection at all with ETA (BBC News 1998). The activities of the GAL were subsequently brought to light, and some members of the GAL were convicted at trial (Woodworth 2001). Again, the targeting policy turned into a political, moral, and legal disaster.

There is therefore good reason to approach any examination of the legitimacy or suitability of a policy of targeted killing, and specifically of terrorist targeting, with healthy scepticism. On the other hand, David’s formulation of targeted killing frames it only in the most general and permissive terms, and it is certainly possible to argue that, at least in certain situations, a specific, focused, and restrained policy of targeted killing might be legitimate, and even desirable. For example, the magnitude of the threat posed by transnational terrorists to innocent civilians has been all too graphically illustrated in the last decade. In this context, Tamar Meisels, a Professor of Government and Policy at Tel Aviv University, recently posed the following pregnant question. Assuming that they can be clearly identified, she asks, “what’s wrong with killing bad guys?” To most people, she suggests, especially to “those who grew up on Hollywood movies … the idea of ‘killing the bad guys,’ so to speak, seems intuitively rather a good thing” (Meisels 2004: 298).

The focus of this book is upon whether any sort of targeted killing policy can be legally, morally, and politically justified in the cases of the only two countries which are known at the moment to be pursuing sustained terrorist targeting policies – Israel and the United States. The book is therefore concerned not with a policy of targeted killing in the broad sense defined by David, but specifically with the targeting of terrorists by countries that have recently suffered devastating terrorist attacks and continue to be menaced by the terrorist groups that have attacked them. The September 11th attack in the United States in 2001 alone directly resulted in at least 2964 deaths (excluding the 19 terrorists). On the Israeli side, the IDF reports that in the five years following the start of the second Palestinian Intifada at the end of September 2000, Palestinians killed 1074 Israelis and wounded 7520 – devastating numbers for such a comparatively small population. Daniel Byman, the Director of Georgetown’s Security Studies Program, points out that this toll represents the proportional equivalent of 50,000 American dead and 300,000 wounded (Byman 2006: 102).2

Such terrorist attacks are distinctively troubling in that they are premeditated acts of mass murder. Premeditated murder is distinguished in virtually all criminal justice systems as the single most serious crime, and to commit such a crime on the scale illustrated above certainly warrants a strong response on the part of the state. Indeed, as a US court observed in 1998, in view of their deliberate intention to maximize random casualties, “the malice associated with terrorist attacks transcends even that of premeditated murder” (United States District Court for the District of Columbia 1998).

Moreover, the threat posed by terrorists should be assessed not only in terms of the atrocities that they already have committed, but also in relation to the potential scope of future atrocities. With the growing sophistication, portability, and power of modern weaponry, great new vistas of destructive power are open to terrorists, including, conceivably, weapons of mass destruction. In the hands of a terrorist, a briefcasesized nuclear weapon could be used to flatten a major city, wiping out millions of lives in an instant. It also seems doubtful whether any state could refuse to negotiate for long in the face of such a threat (Laqueur 2004: 24–5, 142–3, 226–31).

Finally, it should be emphasized that the damage that terrorist attacks do to a country is not limited only to the lives directly lost or people maimed in attacks. Such attacks produce climates of fear which erode the essential prerequisites of trust and security that underpin liberal democracy, and ultimately social life in general (see, for example, Scheffler 2006: 5; Walzer 2004: 51). Terrorism may not yet have exhibited the power to bring down democratic governments, but a sustained campaign of terror certainly has the power to injure and even maim democratic life (as tragically illustrated in Algeria), and through such damage, to harm all citizens (Ignatieff 2004: 70, 73, 80).

Israel and the United States have correctly argued that they have been and continue to be major targets for international terrorist organizations. They maintain that they have little choice but to act in self-defense to protect their citizens. Therefore, they have both declared war on terrorism. Both countries have also begun to target suspected terrorists.

The US and Israel may therefore make a strong case that they confront special terrorist menaces. But their choice to adopt a policy of terrorist targeting as a key battle tactic is more problematic. In light of the Spanish and South African cases, there can be little doubt that targeting is itself a dangerous policy, fraught with troubling human rights ramifications as well as temptations to abuse. To make a case for targeting as an appropriate response to terrorism, it needs to be shown, to begin with, that the term “terrorist” can be specified in a way that restrains the polic...