Institutional Choice and Targeted Killing: A Comparative Perspective

48 Pages Posted: 11 Nov 2019 Last revised: 13 Nov 2019

See all articles by Elad Gil

Elad Gil

Hebrew University of Jerusalem - Faculty of Law

Date Written: October 31, 2019

Abstract

For over a decade, the use of targeted killing has been one of the most controversial issues in counterterrorism policy and law. One longstanding debate over this tactic concerns the allocation of decision-making and oversight authority among the branches of government. As attempts to settle this debate through textual and historical sources yield indeterminant answers, scholars tend to examine them through a functionalist prism, asking what institutional structures best serve the interests of national security while ensuring adequate accountability and preventing unnecessary force.

This article, retaining that functionalist framing of that issue, will approach the question through a comparative law analysis. Three of the countries most heavily engaged in global counterterrorism—the U.S., the U.K., and Israel—have adopted substantially different approaches for regulating counterterrorism targeting, each according a primary supervisory role to a different governmental actor: the Executive in the U.S., Parliament in the U.K., and the Judiciary in Israel. This article describes, compares, and critically analyzes these approaches. Drawing on comparative institutional analysis theory, it then examines the findings and reaches three main conclusions. First, that in light of the judiciary’s unique structural perspective and expertise, some judicial involvement in developing the legal standard that guides and constrains government action is desirable. Second, that suboptimal decision-making and illegality due to executive bias are more likely to occur where the executive is accountable only to its own internal oversight mechanisms. And third, that in both presidential and parliamentarian systems, legislators do not have and are unlikely to have any sort of meaningful influence on executive behavior in this domain. The article concludes by suggesting a few possible institutional reforms.

Keywords: national security law, separation of powers, presidential power, executive power, judicial review, judicial power, law and politics, international humanitarian law, foreign relations law, foreign affairs, comparative law, targeted killing, drones

Suggested Citation

Gil, Elad, Institutional Choice and Targeted Killing: A Comparative Perspective (October 31, 2019). Tulane Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3478525 or http://dx.doi.org/10.2139/ssrn.3478525

Elad Gil (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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