Daniel Reyzner – an attorney who specializes in international law and who is the former head of the Israel Defense Forces International Law Department – explains (at least in part) the legality of targeted killings of terrorists and how the doctrine of proportionality applies to them.
Disproportionality In War And Israel’s Targeted Killings Of Terrorists
Shmarya Rosenberg • FailedMessiah.com
TLV1’s podcast of its So Much to Say program contains an interview by host Hillel L. Cohen with Daniel Reyzner – an attorney who specializes in international law and who is the former head of the Israel Defense Forces International Law Department.
Reyzner explains Israel’s position on targeted killings and what Israel and west sees as the differences between them and assassinations.
Reyzner defines “assassination” as an unlawful killing by a private individual and “targeted killing” as the targeted killing of combatants in war between a state and a terrorist group.
Until 9-11, Reyzner says that international law and western nations did not view a war between a state and a terrorist group to be possible and actions taken to stop terrorists were viewed as law enforcement actions, not military actions.
Therefore, the role of the state’s representatives (a cop, a soldier, etc.) was to arrest the terrorists.
This traditional understanding breaks down, Reyzner said, when the terrorists are shooting rockets and missiles and planning suicide attacks from a neighboring country or entity like Gaza because Israel has no reasonable meansof arresting those terrorists, hence the need for and justification of targeted killings.
But even those targeted killings have to be done under the confines of international law with regard to proportionality, Reyzner said, and civilians cannot be targeted.
Reyzner listed the five rules Israel has used since the Second Intifada in 2000 to implement targeted killings. These five rules were later ratified in Supreme Court case in 2005 and are known as the Barak Rules after the Supreme Court’s then-president, Chief Justice Aharon Barak.
Those five rules are as follows (thank you to Rabbi John Rosove who summarized them on his Jewish Journal blog; I’ve edited his summary for clarity):
1. That credible evidence must be shown that targeted individuals are central figures involved in terror attacks on Israel;
2. That legitimate areas for such attacks are Gaza and parts of the West Bank (primarily parts Israel does not control);
3. No approval for such targeted killings will be given to any IDF commander operating in an area controlled by Israel where it is possible to seek out, arrest and bring terror suspects to justice;
4. Israel must comply with the international law principle of proportionality in times of war when staging these targeted killings. An IDF commander must balance between the anticipated gain from successfully carrying out the killing with the danger and possible maiming and killing of innocent civilians and damage to civilian property that can reasonably be believed to occur if the attack is carried out as planned.
5. A strictly procedural item that was not named or discussed but which must take place for the attack to legally happen according to the IDF’s own rules.
Israel gives IDF commanders who order targeted killings great leeway in deciding whether these five rules have been satisfied or not, although there is a review process that can take place afterward.
Reyzner notes that if an Israeli commander violates any of these rules, he may be judged guilty of a war crime in an international court.
But he says those charges are usually brought months or years after the event and judged and prosecuted by people who have never been in battle and do not understand the pressures of war.
Reyzner sees this civilian involvement as a bad thing and a problem for Israel, and brings up cases from the Balkans genocide as support for that claim. He chides and attacks these prosecutors and judges as being people who sit in the safety of The Hague and judge others who have to fight. And, Reyzner insists, Israel takes the most extreme precautionary measures in the world to avoid civilian casualties.
In other words, Reyzner denigrates international jurists and judges because they are likely to find against Israel just like they found against war criminals in Bosnia's genocide, and using his logic, no court could judge a shooting of an unarmed man by a police officer unless the judge, prosecutors and jury members were all former police officers.
It is exactly this type of facile argument, used often by government spokespeople (and, oddly, less so by the IDF) that gets Israel into tremendous trouble internationally.
Reyzner’s key point – which he also distorts – is that proportionality is not rigidly defined in international law. Instead, there are general guidelines that must be applied to each individual event.
Reyzner sees this as an opening for these judgmental international civilian prosecutors and judges to beat up on Israel.
But that fact is that it is impossible to have a completely rigid equation for proportionality because of the shifting nature of war. A 1:1 target to civilian death toll (which is what Israel claims for its but which international bodies, aid organizations and western countries dismiss as propaganda) may be a war crime if the killing could have been carried out with fewer civilian casualties, while a 1:4 target to civilian death toll may be legal if it can be shown that the the target(s) were about to strike Israel’s civilian population. This is ambiguous only in the sense that the acceptable ratio changes based on the specific circumstances of the case.
So when Israel shot a missile and killed three terrorists riding on a motorcycle in front of an UNWRA school it knew was being used to shelter refugees and killed civilians in the process, it is very hard (but not necessarily impossible) to claim that attack was proportional if there was any reasonable chance of carrying it out a minute before or a minute after, when the terrorists would have been out of that school’s immediate vicinity.
Yet this is exactly the claim Israel makes, although it has so far, weeks after the attack, not provided any evidence that the attack had to be carried out at the precise second it was, and that it had to be carried out in front of that school.
Was that attack a violation of international law?
It arguably was. But none of us, including me, knows that for sure.
These are the issues Israel is now facing internationally. And because Israel’s prime minister has long been viewed by many world leaders (and for that matter, by many other Israeli politicians) as a deceptive and manipulative person, if it should turn out that Israel in any way lied about these attacks, Israel will likely pay a significant price for doing so.
Please understand that this has nothing whatsoever to do with Israel’s absolute right to defend itself and its right to kill terrorists who want to kill Israelis, and in some ways, it even has little to do with legitimate mistakes made in the heat of battle.
What this is about is the belief, apparently backed up by some evidence several western countries have, that Israel has chosen to use disproportionate force in some circumstances for reasons that suit it or suit an individual commander but that do not comport with international law, with the agreements Israel has with its arms suppliers like the US which condition those arms gifts and sales on a specific use requirements, and with Barak’s 5 rules listed above.
Like it or not, understand it or not, it is this issue that Israel will likely be forced to deal with for the next several years, if not longer.
You can listen to the entire Reyzner interview (it's about 15 minutes long) here.
Update 6:56 pm CDT – What follows is an excerpt from a post I wrote on August 6 about this issue.
Note that the rules of proportionality are more defined than Reyzner may have led listeners to believe:
The Chief Prosecutor at the International Criminal Court who investigated allegations of war crimes during the 2003 invasion of Iraq, Luis Moreno-Ocampo, published an open letter containing his findings in which he discusses the Doctrine of Proportionality:
Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv)).
Article 8(2)(b)(iv) criminalizes:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are "clearly" excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was "clearly excessive" in relation to (b).