I agree with much of what Professor Amos Guiora says, but I disagree with the method he uses to get there. And I believe the method matters. Guiora assesses targeting operations under an "active self-defense" paradigm, with elements from both the jus ad bellum (the law governing the use of force) and the jus in bello (the law governing the conduct of hostilities). Under Guiora's paradigm. a state may target terrorism suspects in anticipatory self-defense if: (I) targeting is proportional to their threat; (2) collateral damage is minimized; (3) alternatives to targeting are infeasible; and (4) military necessity justifies the action. Guiora does not explain why that paradigm is the correct one.
In fact. the ad bellum rules on defensive force probably do not govern Guiora's poster-child case-the U.S. operation targeting Anwar al-Awlaki in Yemen. The jus ad bellum does not constrain the use of force by one state in another state where that second state consents. Yemen appears to have consented to the operation against Al-Awlaki. Moreover. neither the jus ad bellum nor the traditional jus in bello requires a state to consider alternatives to lethal force Guiora's third criterion-if someone is a legitimate target. Finally. though Guiora argues that someone's membership in al Qaeda is an insufficient basis for targeting him, many in bello experts treat membership in an organized armed group as dispositive. Rather than reflect existing law, then. Guiora's model is some kind of ''hybrid.'' He has presented his own normative vision on when targeting should be lawful.
I assume that Guiora developed that hybrid because he believes that the traditional wartime paradigm--designed for interstate wars is poorly suited for the fight against al Qaeda. Similarly. I assume that Guiora rejects international law's presumptive alternative-applying human rights law-because he believes that it. too, is inapposite. The human rights norms on targeting were developed for law enforcement settings. They would prohibit operations that Guiora would permit. For example, human rights law generally prohibits a state from targeting someone who is not on the verge of killing. Guiora does not require that kind of imminent threat. But Guiora does not explain why his model is preferable to the alternatives. Why should decision makers assess targeting operations using his four criteria, instead of applying the conventional wartime paradigm, the law enforcement paradigm of human rights law, or a hybrid advanced by someone else?
In other work, I argue that the current method for assessing targeting operations-which requires first identifying the correct legal paradigm and then applying the norms as specified for that paradigm- is misguided. The method presumes that international law's different paradigms operate independently and sometimes incompatibly. But as I demonstrate, three core principles animate all the international law on targeting: the jus in bello for combatants, the jus in bello for civilians, and human rights law.
Publication Information & Recommended Citation
Hakimi, Monica. "A Legal Framework for Targeted Killing." A. Guiora, co-author. In Patriots Debate: Contemporary Issues in National Security Law, edited by H. Rishikof, S. Baker, and B. Horowitz, 161-77. Chicago: American Bar Association, 2012.