Rethinking Targeted Killing Policy: Reducing Uncertainty, Protecting Civilians from the Ravages of Both Terrorism and Counterterrorism

53 Pages Posted: 22 Aug 2017

See all articles by Shiri Krebs

Shiri Krebs

Deakin Law School; Stanford Center on International Security and Cooperation (CISAC)

Date Written: August 17, 2017

Abstract

Targeted killing is a lethal and irreversible counter-terrorism measure. Its use is governed by ambiguous legal norms and controlled by security-oriented decision-making processes. Oversight is inherently limited, as most of the relevant information is top secret. Under these circumstances, attempts to assess the legality of targeted killing operations raise challenging, yet often undecided, questions, including: how should the relevant legal norms be interpreted? How unequivocal and updated must the evidence be? And, given the inherent limitations of intelligence information, how should doubt and uncertainty be treated?

Based on risk analysis, organizational culture and biased cognition theories, as well as on recently released primary documents (including the U.S. Department of Justice Drone Memos and the Report of the Israeli Special Investigatory Commission on the targeted killing of Salah Shehadeh) and a comprehensive analysis of hundreds of conflicting legal sources (including judicial decisions, law review articles and books), this article offers new answers to some of these old and taunting questions.

It clearly defines legal terms such as ‘military necessity’ and ‘feasible precaution;’ it develops a clear-cut activity-based test for determinations on direct participation in hostilities; it designs an independent ex post review mechanism for targeting decisions; and it calls for governmental transparency concerning kill-lists and targeting decision-making processes. Most importantly, it identifies uncertainty, in law and in practice, as an important challenge to any targeted killing regime. Based on analysis of interdisciplinary studies and lessons from the experience of both the U.S. and Israel, it advocates a transparent, straightforward and unambiguous interpretation of targeted-killing law; interpretation that can reduce uncertainty and, if adopted, protect civilians from the ravages of both terrorism and counter-terrorism.

Keywords: targeted killings, intelligence, decapitation, extrajudicial killings, armed conflict, international humanitarian law, kill-lists, national security, decision-making, secrecy, state secrets, transparency, accountability, Israel, Palestine

JEL Classification: K30, K33, K40, K42, Z18

Suggested Citation

Krebs, Shiri, Rethinking Targeted Killing Policy: Reducing Uncertainty, Protecting Civilians from the Ravages of Both Terrorism and Counterterrorism (August 17, 2017). Florida State University Law Review, Vol. 44, 2017, Available at SSRN: https://ssrn.com/abstract=3021458

Shiri Krebs (Contact Author)

Deakin Law School ( email )

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia
+61 3 924 68921 (Phone)

HOME PAGE: http://www.deakin.edu.au/about-deakin/people/shiri-krebs

Stanford Center on International Security and Cooperation (CISAC) ( email )

616 Serra St., Encina Hall, C237
Stanford, CA 94305
United States
650-725-2702 (Phone)

HOME PAGE: http://cisac.fsi.stanford.edu/people/shiri_krebs

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