Targeting the Targeted Killings Case – International Lawmaking in Domestic Contexts

Abstract

Can members of a non-state armed group be targeted based on their formal membership in the armed group, or should their targeting be based on their function within such group? This question has occupied the international law community for more than a decade. The 2006 Israeli Supreme Court (ISC) Targeted Killings case is a key reference point in this debate. Without scholarly or public attention, the Israeli report on the 2014 conflict in Gaza dramatically diverges from the definition adopted in the Targeted Killings case regarding the legitimate targets in conflicts between state and non-state actors. While the Targeted Killings case adopts a conduct-based, or functional membership approach to the targeting of armed groups members, the report adopts a formal membership, or status based, approach. This latter approach, which has thus far been explicitly endorsed only by the U.S. administration, significantly widens the scope of the legitimate targets in asymmetric conflicts.

This Article offers three complementary explanations for the decision of the Israeli administration to deviate from the Targeted Killings case: (1) the decrease in the ISC’s activism with respect to conduct of hostilities cases; (2) the open endorsement in recent years of the formal membership approach by the interpretive community of Military lawyers and the U.S. administration, resulting in the “Americanization” of the Israeli targeting position; and (3) the significant rise in the conflict death toll which may have incentivized a broader definition of legitimate targets.

The development of the targeting approach in the Israeli context provides an opportunity to look closely at international law-making processes in the domestic context. It offers new theoretical insight into the relationship between international law and domestic institutions and sheds light on the unique role of competing domestic and international interpretive communities in the internalization of international law norms.

This Article then criticizes the new approach to targeting, arguing that states try to have their cake—insisting on normative symmetry as the main reason for the adoption of the formal membership approach—and eat it too—maintaining the practical inequality of other norms in the law of asymmetric armed conflicts.

Keywords: Targeted Killings, International Humanitarian Law, International Lawmaking, International Law in Domestic Courts