Targeted Assassination – Is It Legal?

Israel’s assassination of Palestinian Islamic Jihad commander Baha Abu al-Ata on 12 November 2019 once again highlights the importance of considering the legality of targeted killing in international law.

Article 51 of the Charter of the United Nations (“UN Charter”), as enacted in 1945, provides that use of force in a state of armed conflict is only justifiable in self-defence or when authorised by the UN. Academics note that in the absence of an authoritative decision, there remain two main schools of thought as to whether the UN Charter means to include the right for anticipatory “self-defence”. The restrictive school believes that Article 51 only grants the option of acting in self-defence in the case of an armed attack; the expansionist school, citing the authority of the famous Caroline case (1840-1), argues that Article 51 means to entitle a country to defend itself pre-emptively so long as there is evidence of an identifiable and “imminent” threat. State practice, in recent years, suggests that anticipatory self-defense may be permitted even where there is a less-than-imminent threat of an armed attack (see, e.g., the Bush Doctrine cf Moore’s Digest of International Law II). For example, the United States’ assassinations of Osama bin Laden in 2011 during the Obama administration, and Abu Bakr al-Baghdadi under the Trump administration earlier this year, have been defended as falling within this right of anticipatory self-defence.

This accords with the United Nations General Assembly Study on targeted killings (Philip Alston: 28 May 2010), which states that, under the rules of international humanitarian law (“IHL”), also known as the law of armed conflict:

Targeted killing is only lawful when the target is a “combatant” or “fighter”… In addition, the killing must be militarily necessary, the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity, and everything feasible must be done to prevent mistakes and minimize harm to civilians.

Accordingly, a targeted killing may be deemed legal where it is:

1. militarily necessary; and
2. proportionate to the circumstances; and
3. distinguishes sufficiently between civilian objects and military objectives, so as to minimize or avoid civilian casualties.

Whether these IHL principles apply to the assassination of Baha Abu al-Ata on 12 November 2019 may well be debated by academics in the coming months. It is, however, interesting to note that in its announcement of the assassination, the Israeli government addressed these principles, saying that Israeli military intelligence believed Baha Abu al-Ata “initiated, planned and carried out many terrorist attacks” from the Gaza strip and “was in the midst of planning additional attacks in the immediate short term.” Prime Minister Netanyahu specifically referred to him as “a ticking bomb”. Also notable is that the IDF air strike was precise, killing only Baha Abu al-Ata and his wife, rather than the many civilian casualties which may have eventuated, had he been targeted outside of his home.

If the facts claimed by the Israeli Government were to be proved, then Israel would have gone a long way to being able to demonstrate the legality of this particular assassination. However, it is beyond the scope of these authors to conduct such a factual enquiry.

Article written by Trevor Asserson, Chavah Apfelbaum and Lyora Seiffe

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