Legitimate target?

Legitimate TargetAmos Guoria
Legitimate Target
Amos Guoria

 

UPDATE: Legitimate Target has now been released and is available online.

 

News recently that legal scholar Amos Guoria has a new book – highly relevant to this blog – coming out in the Oxford University Press Terrorism & Global Justice Series. Its available for pre-order, but won’t be released until April. I’m eager to read it because from what I am able to tell Guoria has been busy tracing a fairly novel approach to targeted killing, something he calls the ‘criteria based approach’. I have been following his work for a while now so although amazon have not yet released a preview, I think we can expect a few things from this book. Most of all we can expect a full explication of the ‘criteria’ that make targeted killing legitimate in Guoria’s eyes. Guoria was a former lawyer for the Israeli military and he served as Legal Advisor to the Gaza Strip from 1994-1997 and so his approach is both operational and legal. He gave a talk about the book at Duke Unviersity last year and the video, if you have the time, is well worth watching:

Guoria gives us a taster of what is to come when he talks us through an actual operational situation. What makes Guoria such an interesting figure is that he had a seat at the head of ‘operational counterterrorism’ in Gaza, but has since left for a very different life in the academy where he is able to reflect on those operations from a distance. His experience as legal advisor to the IDF invariably informs his approach, and after reading the following sentence it is not difficult to see why:  “when a commander was faced with the decision – yes or no to conduct a targeted killing – the guy who would receive those God-awful phone calls at 3am in the morning was me”. I did have the opportunity to meet and interview Guoria – who is remarkably intelligent, very reflexive and wonderfully generous – but this quote and those below are taken from the video above. Receiving a call of this nature, whether in the dead of night or the middle of the workday would, for most of us, I suspect, pose multiple dilemmas. No doubt it did for Guoria too:

“in order to asses these things [Targeted Killings] one had to have a criteria-based approach because if you don’t have [one] what you are really doing is putting your finger in the air, you know, which way is the wind blowing, its catch can if you can. Because we’re not talking about, you know, really important things like Duke Carolina basketball, we’re talking here about the possibility of actually killing somebody.”

So this is what he did: he devised a checklist against which operational questions could be measured. When a commander called him up Guoria would ask him the following questions (and I am paraphrasing here):

1.Where are you?

2.Has your unit had disciplinary issues?

3.When was the last time the unit had engaged in a night-time ambush

4.I wanted his feel, in terms of what he was seeing

5.Tell me about the impending collateral damage

6.I asked him about alternatives – why not go arrest the guy?

7.How much time do we have for this conversation. [The answer was somewhere between 2-3 minutes]

8.Did this individual, in the way he was carrying himself (whatever that means),  the way he was walking through that night, what did it tell the commander about whether he [the suspect] posed a threat

I realise that hearing these questions for the first time might well be a direct affront to those with pacific tendencies. But the language of operations is typically direct, and cold even; those most intimately involved would say necessarily so. In the above instance the man in blue jeans is not targeted and continues down the street into the night; the threat was deemed real, but Guoria was not convinced that they had the right guy.

Amos Guoria            Source: theworld.org
Amos Guoria Source: theworld.org
Make of all this what you will: I, for one, am still trying to wrap my head around the complex moral, practical and consequential questions that legal advice in lethal operations inevitably raise. The two obvious countervailing views hardly capture the complexity, unfortunately. Either the lawyers advice is a good thing because it tempers military tendencies to kill, it brings law to war, reason to madness so to speak –  or –  it is a bad thing because it legitimates and legalises killing and represents a fatal instrumentalisation of the law par excellence. Guoria’s intervention is an attempt to try to bring some form of objectivity to difficult decisions, and as such he comes from the relatively uncontroversial position that killing should not be arbitrary. It is a realist framework because operations are very real and within this tradition I would venture that a criteria-based approach is better than a non-criteria based approach. This may, of course, be the wrong question for many of us, not least because at the very heart of all operational decision making is a judgement call which is ultimately subjective.

The crucial question is whether, how and under what circumstances such criteria actually ever make targeting a fully legitimate enterprise. It should be remembered that no criteria are ever perfect (I’m sure Guoria knows this), and that they are likely to be less perfect if they are not subject to independent judicial (or public) review. There are lessons here for the ad hoc U.S. approach to targeted killing, and Guoria has written as much in an article with Laurie Blank published last year in the GuardianIt is also worth remembering that whatever name and justification we come up with, targeting is first and formost about killing, even if Israeli and U.S. military leaders tell us that it is necessary killing, or that it is killing in the name of the living (a classicly biopolitical refrain), or that the numbers make sense, or that its ‘them’ or ‘us’. All of these things may or may not be true in particular circumstances, but when targeting to kill is called, as it is in Hebrew and in Israel “focused prevention”, it seems to have been forgotten that to target is indeed to kill, whatever legitimate reason there may or may not be for it.

One thing for sure is that the question of a legitimate target is infinitely more interesting, and potentially more ethical than the idea of a lawful target.  Too often in late-modern war, killing is reduced to a narrow technical legal question, but even legal strikes can be immoral and illegitimate. The concept of legitimacy takes the law into consideration while also leaving space for other considerations: the law, alas, does not exhaust the question.

4 Comments

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  1. Hi,
    like you I’m waiting for this book.I’m an italian law student and I’m writing on targeted killings for my five years degree’s thesis.I’d like to exchange opinions with you.How can I contact you? I apologize for my english.

  2. Hi,
    like you I’m waiting for this book.I’m an italian law student and I’m writing on targeted killings for my five years degree’s thesis.How can I contact you? I’d like to exchange opinions.

  3. May I suggest Eyal Weisman’s book, The Least of All Possible Evils? I’ve found it incredibly helpful for thinking through these questions in a much larger context, not just the Hear and Now, but in the historical trajectory of how we think about lives worth saving and lives worth ending, and for whom…

  4. Well done Amos, Avner

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