regulating antiterror warfare.pdf

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Regulating Anti-Terror Warfare: New Policy

Barak Medina*

Is it permissible to extra-judicially detain a person or even intentionally kill him, based

on information that he is a member of a terror organization? The prevailing approach

calls for applying the international laws of war, where the answer is based on

determining the status of the targeted-person. Once it is established that a persons

involvement in the hostilities meets some threshold, he loses the protection afforded to

civilians and may thus be targeted or detained.

This Article questions this approach. It suggests that the unique characteristics of

the fight on terror require imposing a duty to justify, on an individualized basis,

targeting and detaining persons. Anti-terror warfare is an armed conflict of a special

type in two main aspects: the terrorists often disguise themselves among civilians, thus

creating an enhanced risk that anti-terror warfare will result in mistakenly targeting

innocent people; and the terrorists are not acting as part of a political entity, which maybe reasonably held responsible for the terrorists choice to employ this practice of

blurring the distinction between combatants and civilians. Consequently, a state that

fights terror is required to further mitigate the risk of targeting or detaining innocent

people. For this purpose, the power to target or detain suspected terrorists should be

subject to the constraints that result from human rights law.

The Article presents the conditions of the permissibility of employing anti-terror

measures: The purpose of the action must be preemption rather than retribution or

deterrence, the risk posed by the targeted person should be sufficiently high, in terms of

the probability that he will be involved in a terror attack if not thwarted, and the

measure taken should be the least harmful alternative to achieve its aim. The Articlediscusses this doctrine of individual dangerousness, and presents the plausibility of its

implementation through a discussion of the Israeli Supreme Court anti-terrorjurisprudence, which already applies, to some extent, this doctrine.

* Lawrence D. Biele Professor of Law, Law Faculty, the Hebrew University of Jerusalem; Visiting

Professor, University of California at Berkeley School of Law (2012/13). I thank David Enoch, David

Kretzmer, Russell Korobkin, Liav Orgad, Ilan Saban, Eyal Zamir, and participants at workshops held at the

Hebrew University, UCLA, and UC Berkeley for helpful comments and suggestions.


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[2013] Medina, Anti-Terror Warfare 2

Regulating Anti-Terror Warfare: New Policy

INTRODUCTION 2

I.REGULATING ANTI-TERROR WARFARE 8

II.THE INDIVIDUAL DANGEROUSNESS DOCTRINE .. 15A.PERMISSIBLE AIMS OF EXTRA-JUDICIAL ANTI-TERROR WARFARE 15

B.DANGEROUSNESS,MORAL CERTAINTY,AND PROBABILITY-THRESHOLD

1.GENERAL 182.THE MAGNITUDE OF THE PROBABILITY-THRESHOLD . 21

3.IMMINENCE 22

4.ACTING AGAINST MEMBERS OF A TERROR ORGANIZATION .. 245.ACTING AGAINST A GROUP WHEN AT LEAST SOME OF ITS MEMBERS ARE

INNOCENT 27

C.MINIMAL IMPAIRMENT . 28III.THE ISRAELI SUPREME COURT JURISPRUDENCE ON PREEMPTIVE MEASURES .. 30

A.TARGETING MEMBERS OF A TERROR ORGANIZATION .. 311.THE TARGETED KILLINGS CASE (2006) 322.THE INTERNMENT OF UNLAWFUL COMBATANTS CASE (2008). 34

B.MEASURES THAT ARE DIRECTED AGAINST A GROUP OF PERSONS . 37

1.MASS CURTAILMENT OF FREEDOM OF MOVEMENT CASE (2009). 38

2.THE BAN ON PALESTINIAN FAMILY UNIFICATION CASES (2006,2012) 40CONCLUDING REMARKS 43

INTRODUCTION

Targeting suspected terrorists through pre-planned drone operations, as well as employing

other preemptive measures such as extra-judicial detentions and information gatheringactivities, are extensively debated in recent years. It is hardly disputed that in the face of

threats of terror, governments are permitted to employ not only traditional law enforcementmeasures, using the criminal justice system to try suspected terrorists, but also take extra-

judicial preemptive measures. But the over-arching difficulty is how to address the

unavoidable uncertainties associated with this policy, which are translated intounintentionally harming innocent people. One concern is that of harming innocent persons

that happen to be in physical proximity to the targeted person (collateral damage). Another

concern, which is at the heart of the current discussion, is of mistakes in selecting whom to

target.1Importantly, the latter type of risk exists not only regarding targeted killings but also

when non lethal means are used, including detentions and other curtailments of freedom of

movement and privacy. The debate is how to resolve this uncertainty: Is information that aperson is a member of a terror organization sufficient to make it permissible to target thisperson or should it be subject to additional information, for instance about the risk posed by

1 Hundreds of civilians were killed by the U.S. in air strikes in recent years, but there is no clear

breakdown of the number of those that were killed as a result of collateral damage and those that were killed

due to mistaken identification or other wrong information. See, e.g.HUMAN RIGHTS CLINIC,COLUMBIA LAW

SCHOOL,THE CIVILIAN IMPACT OF DRONES:UNEXAMINED COSTS,UNANSWERED QUESTIONS(2012).


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the targeted person if not neutralized? Additionally, under what conditions is it permissible

to act against a group of persons, for instance curtailing their freedom of movement orbreach their privacy, based on information that some (or even just one) of them might be

involved in terror?

The answers to these and related questions are shaped, to a large extent, by the choicebetween two competing approaches regarding the legal status of anti-terror warfare. Oneposition classifies it as an (international) armed conflict, which is regulated (if at all) by the

laws of war.2According to these laws, the permissibility of targeting or detaining a person is

essentially a matter of classifying him as civilian or non-civilian (which may includecombatants, and illegal combatants or unprotected civilians). Whenever a person takes

part in hostilities, for instance by providing an immediate support to military operations, or

being otherwise involved in the activities of a terror group, he loses the legal status of

civilian, and it is thus permissible to kill him or hold him in detention.3 It is essential to

establish a persons classification as a non-civilian on information which substantiates this

conclusion with high probability. However, once ones such status was established, it is

irrelevant what the scope of the risk that this person poses is, or whether there is a lessharmful way to achieve the aim of neutralizing him (minimal impairment). Other anti-terror

actions, which harm interests such as privacy or freedom of movement, are either not

regulated or subject to very lenient requirements of rationality or proportionality.Importantly, at least as long as the targeted persons are non-citizens, the anti-terror warfare

is mostly beyond the scope of (domestic) judicial scrutiny and does not require legislative

authorization.

However, this approach is contested. According to an alternative position, in addition tointernational laws of war anti-terror warfare is also regulated through human rights law.

Most importantly, it entails that the governments power to target or detain suspected

terrorists is subject to an individual-based justification. It is permissible to target a person or

detain him only when this person is an aggressor, that is, one which poses a sufficientlyhigh risk of inflicting harm on others by launching a terror attack, and the preemptive

measure taken meets the requirement of minimal impairment. Specifically, while a persons

affiliation with a terror organization, including information about his activities in the pastand about his current connections with a terrorist organization, is relevant in establishing the

magnitude of risk that this person poses, this type of information is often insufficient to

justify targeting him. In order to establish a persons responsibility for the purposes of extra-judicial measures it is essential to connect him, with very high probability, to some specific

terror and insurgency activity. Targeting a person who takes a direct part in hostilities can be

justified only if he is involved in a concrete, on-going or planed, act of terror.

Sam Issacharoff and Rick Pildes have recently identified a transformation of paradigm,

from a position that the justification of targeting persons in armed conflicts turns on their

2Some scholars dispute whether the international laws of war apply outside of the battlefield. See, e.g.,

Jennifer C. Daskal, The Geography of the Battlefield: A Framework for Detention and Targeting Outside the

'Hot' Conflict Zone, 161 U.PENN.L.REV. 1165 (2013).3YORAM DINSTEIN,THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT

149-52 (3rd ed., 2010).


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status, namely the persons affiliation with an opposing army and his classification as

combatant, to a world which requires the individuation of personal responsibility.4 The

latter position is in line with the new approach presented by President Obama in his May

2013 remarks on national security,5 and codified in a Presidential Policy Guidance.

6 This

new policy sets four main limits to the use of lethal force against suspected terrorists: (1) itspurpose should be preventive rather than punitive, (2) it can be used only when capture is

not feasible and no other reasonable alternatives exist to address the threat effectively, (3)

this measure may be used only against a target that poses a continuing, imminent threat to

U.S. persons, and (4) a lethal action can be taken only when there is near certainty thatnon-combatants will not be injured or killed.7This new policy marks a substantial shift of

the U.S. anti-terror policy, from the first approach mentioned above to the second one. At the

same time, it does not make the debate moot, for several reasons. Primarily, the decision toadopt the new approach was justified on merely pragmatic, operational considerations, while

insisting that it is legally permitted to apply the previous policy, in force since 2001, just as

well.8It is thus important to evaluate this premise. In addition, the scope of the new policy is

rather limited. For instance, it does not apply to anti-terror warfare conducted in areas of

active hostilities.9 President Obama explicitly excluded the Afghan theater, noting thatthere the U.S. will continue to take strikes against high value al Qaeda targets, [and] also

against forces that are massing to support attacks on coalition forces,10

effectively applyingthe status-based approach described above. Moreover, the new policy applies exclusively to

4 Sam Issacharoff and Richard H. Pildes, Targeted Warfare: Individuating Enemy Responsibility __

N.Y.U.L.REV. _ (forthcoming, 2013).5President Obama speech on national security, delivered on May 23, 2013, at National Defense University

in Washington, D.C. The full text is available athttp://www.nytimes.com/2013/05/24/us/politics/transcript-of-

obamas-speech-on-drone-policy.html?partner=rss&emc=rss&_r=0.6The written policy standards and procedures were not published, but the White House published certain

key elements of these standards and procedures: U.S.POLICY STANDARDS AND PROCEDURES FOR THE USE OF

FORCE IN COUNTERTERRORISM OPERATIONS OUTSIDE THE UNITED STATES AND AREAS OF ACTIVE HOSTILITIES

(May 22, 2013). http://www.whitehouse.gov/sites/default/files/uploads/2013.05.23_fact_sheet_on_ppg.pdf.

This publication notes that it provides information regarding counterterrorism policy standards and procedures

that are either already in place or will be transitioned into place over time, without indicating what parts are

already in place.7Id. An earlier document, leaked to the press, imposed these requirement only to instances of targeting

U.S. citizens. See Department of Justice White Paper on Lawfulness of a Lethal Operation Directed against a

U.S. citizen who is a Senior Operational Leader of Al-Qaida or an Associated Force. (unsigned and undated,

made public on February 4, 2012). Available at

http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf. The new policy does not

distinguish between citizens and non-citizens.8President Obama noted, in referring to the previous policy, that Americas actions [since 9/11] are legal.

And yet, as our fight enters a new phase, Americas legitimate claim of self-defense cannot be the end of the

discussion. To say a military tactic is legal, or even effective, is not to say it is wise or moral in every

instance.Id.9U.S.POLICY STANDARDS AND PROCEDURES FOR THE USE OF FORCE IN COUNTERTERRORISM, supra note

6.10

President Obama speech, supranote 5.


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the use of lethal force, while it leaves open the question what doctrine applies to the use of

non-lethal measures, most notably detentions.11

This Article offers principled justifications of the new policy and argues for its broaderimplementation. It provides a detailed account of the content of the doctrine of individual

responsibility in anti-terror warfare. It also presents and critically evaluates the (extensive)body judicial decisions of the Israeli Supreme Court scrutinizing anti-terror warfare, which isat the edge of this transformation, to demonstrate the new doctrines applicability and

limitations.

Two main arguments support the individual dangerousness requirement and the position

that anti-terror warfare should be subject to human rights law. One argument refers to theprohibition against targeting innocent people. International laws of war sufficiently protect

against one type of risk of inflicting harm on innocent persons, namely the risk of collateral

damage. The prohibition on indiscriminate attack and the legal doctrine of proportionality,that prohibits exposing civilians to the risk of collateral damage when this risk is not

proportional to the expected military benefit of the attack, along with related doctrines,

reflect the awareness of the international community to the importance of minimizing theharm to civilians.12However, the laws of war are deficient regarding the other risk of harm

to innocent persons, the risk of being mistakenly identified as combatants. As indicated, thisrisk is especially high in the current context due to the terrorists practice of disguising

themselves as civilians. At the same time, terrorists often act independent of the relevantpolitical entity, and it is thus unjustified, at least in these instances, to impose the costs of the

risk of these mistakes on the innocent population of the enemy. Governments fighting

against terror are required to take further precautions to mitigate the risk of mistakenlytargeting or detaining innocent persons. This aim is achieved by insisting on the individual-

based justification for taking measures against suspected terrorists.

A second argument in support of the view that targeted killings and extra-judicial

detentions amount to an infringement of constitutional human rights is an institutional one. Itrefers to the role of the legislature in determining what measures can be employed. In

Hamdan (2006),in which the Supreme Court ruled that a suspected terrorist cannot be tried

by military commission, Justice Breyer pointed-out that the Courts holding rests upon asingle ground: Congress has not issued the Executive a blank check.13According to this

position, [w]here no emergency prevents consultation with Congress, the Court would

insist requiring the President [to return] to Congress to seek the authority he believes

11In his speech, the President noted that we bring law of war detention to an end, and we are committed

to prosecuting terrorists wherever we can, but admitted that his administration has not resolved yet how to

deal with the detainees held at Guantanamo Bay: [O]ne issue will remainjust how to deal with those GTMO

detainees who we know have participated in dangerous plots or attacks but who cannot be prosecuted, forexample, because the evidence against them has been compromised or is inadmissible in a court of law. I am

confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.Id.The

policy document is similarly cryptic in this respect, noting that [c]apture operations are conducted only against

suspects who may lawfully be captured. U.S.POLICY STANDARDS AND PROCEDURES FOR THE USE OF FORCE IN

COUNTERTERRORISM, supra note 6.12

See, e.g.DINSTEIN, supranote 3, at 113-28.13

Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006) (joined by Justices Kennedy, Souter, and Ginsburg).


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necessary.14

However, the scope of this doctrine is very limited. In the absence of explicit

legislation (or applicable norm of international law) prohibiting the use of a certain anti-terror measure, the government may probably employ the relevant measure to target non-

citizens even without explicit legislative authorization.15

It is desirable that anti-terror

warfare will be regulated through explicit legislation,16

based, among other reasons, the roleof the legislative process in inducing the representatives to deliberate what aims and means

of anti-terror warfare are permissible, and in ensuring that the government acts on the basis

of general, predefined norms. At the same time, legislators are often reluctant to initiate

legislation which restricts or otherwise delineates the powers of the Executive Branch in itsfight against terrorism. The stakes are high, and imposing restraints on the use of certain

types of military force is typically perceived as a politically unrewarding activity, especially

when the measures are directed against foreigners. The solution is to classify anti-terrorwarfare as human rights infringements. It would require obtaining explicit legislative

authorization to employ the relevant measures. In addition, it will also serve to remove the

considerable legal ambiguity about the permissibility of targeting or detaining suspectedterrorists. The deficiency in authoritative legal answers is the result of the fact that the laws

of war were not originally designed to regulate armed conflicts in which combatantspurposely disguise themselves among a not necessarily supportive civilian population.

17

Applying human rights law would substantially contribute to remove some of this legalambiguity. This aim can also be achieved through greater judicial scrutiny of anti-terror

warfare, as would be more probable once actions such as targeted killings and detentions are

classified as human rights infringements.

Classifying targeted killings and detentions, and possibly other anti-terror preemptive

measures as human rights infringements does not entail that such measures are necessarily

impermissible. This legal regime leaves room for quite an effective anti-terror warfare, as the

Israeli case demonstrates.18

However, it does require a state to justify its choice of measurein fighting terror. Indeed, at the heart of this approach lays the duty to provide justification

14Id.

15See Barak Medina,Legislating Responses to Security Threats: The Requirement of Legislative Authority

to Take Anti-Terrorist Measures, inTHEORY AND PRACTICE OF CONSTITUTIONAL INTERPRETATION1, 6-27 (Liu

Ford ed., 2013).16

As suggested by Justice Scalia inHamdi, [i]f civil rights are to be curtailed during wartime, it must be

done openly and democratically, as the Constitution requires . Hamdi v. Rumsfeld, 542 U.S. 507, 578

(2004).17See, e.g.,Christopher A. Ford, Introduction, inRETHINKING THE LAW OF ARMED CONFLICT IN AN AGE

OF TERRORISM xi, xii (CHRISTOPHER A. FORD AND AMICHAI COHEN EDS., 2012) (describing the

indeterminacy of international law in the wake of the First Additional Protocol to the Geneva Conventions

when it comes to irregular combatants.)18

For a similar view see, e.g., Report of the Special Rapporteur on extrajudicial, summary or arbitrary

executions,Addendum: Study on Targeted Killings11 (2010) ([It is wrong] to imply, as some erroneously do,

that law enforcement is incapable of meeting the threats posed by terrorists and, in particular, suicide bombers.

Such an argument is predicated on a misconception of human rights law, which does not require States to

choose between letting people be killed and letting their law enforcement officials use lethal force to prevent

such killings.).


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of the form of public reason, one which is not based exclusively on the states (that is, its

citizens) interests but also those of would-be innocent victims of its anti-terror warfare.19

The remainder of the Article is organized as follows: Part I presents the principledposition, that anti-terror warfare should be subject to the individual responsibility paradigm,

rather than the status-based approach of international laws of war. It addresses one mainargument in support of this position, namely the prohibition against targeting innocent

people.

Part II presents the content of this paradigm. It addresses three main aspects. First, it is

permissible to take extra-judicial anti-terror measures only for the purpose of preemption,

but not retribution or deterrence. There is a growing consensus on this position as far astargeted killings are concerned.20 However, it is not applied yet to taking non-lethal

measures, most notably holding persons in detention.21

I question this latter position, and

suggest that retribution, even in response to war crimes, is an impermissible aim ofintentionally inflicting harm by the state outside the criminal justice system (Section II.A).

Employing preemptive measures is subject to an even more stringent limitation. It is

permissible to intentionally harm a person if inflicting the harm is necessary to preempt athreat of a terrorist attack imposed by the targeted individual. The state may target a person

only if the likelihood that the relevant person would have taken part in a terror attack if notneutralized is sufficiently high. This probability-threshold is set according to the severity of

the harm the state aims to inflict on the suspected terrorist. The implementation of thiscondition requires addressing several difficult issues. I address four of them: setting the

magnitude of the probability-threshold, the temporal element of this requirement (including

the concept of imminence), implementing the probability-threshold doctrine when thetargeted person is a member of terror organization, and its application to the case of targeting

a group when it is certain that at least some of its members are innocent (Section II.B).

Finally, inflicting harm as a preemptive measure must be narrowly tailored. Based on the

concern of inflicting harm on innocents, the state must employ a measure which is the least-harmful one among all possible means. The evaluation of an infringement must include a

comparison to a less harmful alternative even if it is less effective in tackling the risk, in

19 For a more general discussion on the morality of anti-terror warfare see, e.g., MICHAEL WALZER,

ARGUING ABOUT WAR(2004); MICHAEL IGANTIEFF,THE LESSER EVIL:POLITICAL ETHIC IN AN AGE OF TERROR

(2004); EYAL ZAMIR &BARAK MEDINA,LAW,ECONOMICS,AND MORALITY127-76 (2010); Haque, supra note

36.20SeeIssacharoff and Pildes, supranote 4, at 8 (manuscript).

21 Harold Koh, Legal Adviser of the U.S. Department of State, Remarks at the Annual Meeting of the

American Society of International Law in Washington D.C. on March 25, 2010 available at

http://www.cfr.org/international-law/legal-adviser-kohs-speech-obama-administration-international-law-march-2010/p22300 (noting that the U.S. policy is based on the position, which was approved by courts

decisions, that individuals who are part of an organized armed group like al-Qaeda can be subject to law of

war detention for the duration of the current conflict.); Jeh Johnsons Speech on National Security Law,

Lawyers and Lawyering in the Obama Administration (2012), available at http://www.cfr.org/national-

security-and-defense/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obama-

administration/p27448 (In the detention context, we in the Obama Administration have interpreted this

authority to include: those persons who were part of, or substantially supported, Taliban or al-Qaeda forces or

associated forces that are engaged in hostilities against the United States or its coalition partners.).


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order to determine whether the actions marginal benefit is large enough to justify the

harsher measure (Section II.C).

Part III presents and critically evaluates the implementation of the doctrine presentedhere by the Israeli Supreme Court. Israel fights against terrorism for several decades. A

unique characteristic of this warfare is the relatively extensive judicial review of the variousactivities. The Israeli Supreme Court ruled that all anti-terror activities are justiciable andrecognized the right of all persons, including non-citizens, who are subject to Israels

military power to petition the Court to challenge the legitimacy of both general practices and

specific military actions. Most importantly for the current purpose, the Court reviews Israelsanti-terror warfare according to Israeli constitutional law, mainly human rights law.

International laws of war are considered relevant too, as the Court enforces the prohibition to

launch an indiscriminate attack that risks the lives of civilians. However, to a great extent,

these norms are viewed as setting necessary but not sufficient conditions for permissibleanti-terror actions. As indicated, the Court has developed an individual-based requirement,

which partially aligns with the paradigm discussed in this Article. This discussion illustrates

the plausibility of the alternative paradigm and its limitations.I.

REGULATING ANTI-TERROR WARFARE

According to the prevailing approach, anti-terror warfare is regulated by explicit domestic

legislation (such as the Non-Detention Act of 1971),22

and international laws of war, but notby human rights law. It is often argued that the laws of war serve as lex specialis in

determining the legal status of human rights infringements during armed conflicts.23

At the

same time, as discussed above, a doctrinal shift has recently occurred, applying therequirement personal dangerousness. This new approach is not grounded in international

laws of war, and to a great extent is not required by domestic legislation as well. Indeed, as

mentioned above, the Obama administration presented the decision to apply the new policyas a self-imposed restriction, based on operational, pragmatic considerations, rather than onedictated by the applicable legal norms. Accordingly, it is assumed that the government

enjoys a full discretion in determining what parts of its anti-terror activities should be subject

to the more stringent requirement.

This Section questions this premise. I argue that the government is legally bounded by

the individual dangerousness requirement, based on the position that inflicting harm or

otherwise restricting peoples freedoms in anti-terror warfare should be considered as humanrights infringements, and are permissible only subject to meeting the terms of thisrequirement. Elsewhere I elaborated on one reason justifying this approach, namely that

applying exclusively the laws of war results in insufficient involvement of Congress in

22This Act states that [n]o citizen shall be imprisoned or otherwise detained by the United States except

pursuant to an Act of Congress. Another example is the Uniform Code of Military Justice, which prohibits

trying suspected terrorists in military commissions for crimes which do not amount to war crimes.23

See, e.g., International Court of Justice, The Legality of the Threat or Use of Nuclear Weapons(8 July

1996), para. 25; David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or

Legitimate Means of Defence?16 EUR.J.INTL L. 171, 186 (2005).


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determining what anti-terror measures are permissible, while regulating anti-terror warfare

through human rights law can serve the aim of greater democratic accountability in thisrespect.24 In what follows I focus on another policy considerations substantiating this

position, namely that the laws of war do not provide sufficient protection to the interests of

innocent people, at least in the context of anti-terror warfare.

Regulating anti-terror warfare exclusively through international laws of war raisesseveral difficulties. Among these are the indeterminacy of the classification of suspected

terrorists, and the insufficient protection that these laws provide to the interests of innocent

people. These concerns are better resolved by addressing anti-terror warfare as infringement

of human rights.

Consider first the indeterminacy concern. According to international laws of war, the

enemy is grouped into two categories, civilians and combatants, a classification which

determines the permissibility of warfare activities. Applying this approach to anti-terrorwarfare proved to be problematic. On the one hand, terrorists typically fail to meet the

formal conditions for recognizing persons as combatants, set forth in the 1907 Hague

Conventions, and in Article 4 of the 1949 Third Geneva Convention, mainly the condition ofwearing a fixed distinctive sign.25At the same time, it is improbable to classify as civilians

those who are involved in hostilities. It cannot be justified to award terrorists greaterprotection (at least in terms of the permissibility of targeting them or holding them in

detention) than that given to enemy soldiers.

The customary solution to this difficulty is to look for a middle ground between these

two categories. One approach calls for classifying terrorists as unlawful combatant,

separating the status of combatants into two elements: the terrorist is not entitled to the rightsawarded to combatants (mainly the immunity from prosecution once captured, and the status

of prisoner-of-war), but may nevertheless be considered as a combatant for the purpose of

denying him the protection awarded to civilians, thus legitimizing targeting him.26

A second

solution uses a category of unprotected civilians. It classifies terrorists as civilians, anddenies them the protection from military actions only for the period in which they take part

in hostilities.27

Interestingly, while these categories are not explicit in the laws of war, both

24Medina, supra note 15; Barak Medina, The Role of the Legislature in Determining Legitimate Responses

to Security Threats: The Case of Israel, in ISRAELI CONSTITUTIONAL LAW MAKING 445, 450-460 (Aharon

Barak, Daphne Barak-Erez, and Gidon Sapir eds., 2013).25According to Article 1 of the Regulations Annexed to the Hague Convention Respecting the Laws and

Customs of War on Land (October 18, 1907), 36 Stat. 2295, individuals who are not members of the regular

armed forces of a state are considered combatants if (1) they are members of an armed group otherwise

belonging to a state, and (2) they fulfill all of the following conditions: (a) being under responsible commander;

(b) wearing a fixed distinctive sign recognizable at a distance; (c) carrying arms openly; and (d) conducting

their opperations in accordance with the laws and customs of war. A similar definition may be inferred fromthe categories of persons who have the right to the status of prisoner of war according to Article 4 of the Third

Geneva Convention Relative to the Treatment of Prisoners of War (August 12, 1949), 6 U.S.T. 3316.26

See, e.g. John C. Yoo and James C. Ho, Exploring the Limits of International Law: The Status of

Terrorists, 33 VA. J. INTL L. 207, 216 (2003) (al Qaeda members fall within the category of illegal

combatants.); Tamar Meisels, Combatants, Lawful and Unlawful, 26 LAW &PHIL. 31 (2007).27

See, e.g., Michael Bothe,Direct Participation in Hostilitiesin Non-International Armed ConflictExpertPaper, ICRC (2004), available at http://www.icrc.org/eng/assets/files/other/2004-05-expert-paper-dph-icrc.pdf.


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have some basis in the 1977 First Additional Protocol of the Geneva Conventions,28

which

was designed primarily to address conflicts between a state and a non-state entity, mostlyguerilla combatants. On one hand, one may infer from Article 43 to the First Protocol that

terrorists can be targeted as combatants, as this provision extends the status of combatants to

all organized armed forces, groups and units.29

On the other hand, the position thatterrorists should be viewed as civilians, unprotected only during the time they participate in

hostilities, is also rooted in the same First Additional Protocol, as Article 51(3) states that

civilians shall enjoy the protection afforded by this section, unless and for such time as they

take a direct part in hostilities.30

Both solutions raise difficulties. The unlawful combatants approach fails to provide the

details for determining what involvement in hostilities is sufficient to recognize a person as

an (unlawful) combatant. Similarly, the prohibition to act against suspected terrorists beyond

the time in which they are actually engaging in combat provides terrorists an unjustifiedshield from preemptive warfare. The result is a considerable ambiguity regarding the

applicable norms.31

Employing human rights law analysis, where the permissibility of

targeting a person is determined by an explicit reference to the necessity and proportionalityrequirements, implemented on an individualized basis, helps to considerably resolve this

indeterminacy.32

Another concern, which is even more troubling than the indeterminacy about the legal

conditions in which a person should be considered as (unlawful) combatants, is the difficultyin determining whether these conditions are met in a specific case. It is often challenging to

determine with sufficient level of accuracy whether a certain person is indeed involved in

terror.33

Terror groups are distinct from militias or guerilla fighters that form a military-likeorganization, as terrorists not only act clandestinely but they purposely disguise themselves

as civilians. The problem is the magnitude of the likelihood of mistakes in this identification.

28Protocol Additional of the Geneva Conventions of 12 August 1949, and Relating to the Protection ofVictims of International Armed Conflicts, Protocol I, June 8, 1977, 1125 U.N.T.S. 3.

29There is some irony in the use of this provision to justify targeting terrorists as combatants while at the

same time denying them the protections afforded to (legal) combatants, as this Additional Protocol was

designed to protectguerilla fighters from prosecution if captured. Ariel Zemach, The Law that Turned against

Its Drafters: Guerilla-Combatants and the First Additional Protocol to the Geneva Conventions, in

RETHINKING THE LAW OF ARMED CONFLICT IN AN AGE OF TERRORISM 1(CHRISTOPHER A.FORD AND AMICHAI

COHEN EDS.,2012).30

Article 51(3) to the First Protocol to the Geneva Conventions, supranote 28.31

See, e.g., Emily Crawford,Regulating the Irregular: International Humanitarian Law and the Question

of Civilian Participation in Armed Conflicts, 18 UC Davis J. Intl L. & Policy 163 (2012) (reviewing the

history of international humanitarian law and regulation of irregular participation in armed conflict as a case

study to demonstrate the increasingly difficult task of achieving international consensus on the rule of lawduring armed conflict).

32SeeReport of the Special Rapporteur, supranote 18, at 10 (To the extent that IHL does not provide a

rule, or the rule is unclear and its meaning cannot be ascertained from the guidance offered by IHL principles,

it is appropriate to draw guidance from human rights law.).33

See, e.g., Matthew C. Waxman, Detention As Targeting: Standards of Certainty and Detention of

Suspected Terrorists, 108 COLUM. L. REV. 1365, 1382-83 (2008); Curtis A. Bradley & Jack L. Goldsmith,

Congressional Authorization and the War on Terrorism, 118 HARV.L.REV. 2047, 2113 (2005).


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Military-wise, the main concern is that terrorists will be successful in disguising themselves

(false negatives), but the legal difficulty in employing the laws of war is the prospect ofmistakenly targeting innocents (false positives). This is the central normative concern of

anti-terror warfare, namely the fact that the likelihood of mistakenly targeting innocent

persons is much higher than in classic warfare.34

Applying the laws of war paradigm imposes the would-be innocent victims of the anti-terror warfare the burden of bearing a substantial part of this risk of false positives. The

requirement to verify that the targeted person is sufficiently involved in hostility mitigates

the risk of mistake, but the exemptions from the requirements to demonstrate that thespecific persons expected future behavior poses a high risk of a terror attack, and the

minimal impairment doctrine, leave considerable room for mistakes. The underlying

assumption of the laws of war is that this assignment of risk is justified. The risk is the result

of the enemy states decision that its combatants will disguise themselves as civilians andavoid wearing a fixed distinctive sign recognizable at a distance. The laws of war are based

on the presumption that the civilians and combatants are part of the same political entity, and

that it is thus reasonable to impose at least part of the costs of the enhanced risk ofmistakenly targeting civilians on the state whose military tactics induce this risk.

However, this rationale is relevant only when the combatants operate on behalf of apolitical entity. Typically, terror groups operate independent of, or even in conflict with the

civilian population. The relevant political entity cannot be reasonably held responsible forthe terrorists strategy. The state that fights against the terrorists is not to be blamed for the

difficulties in distinguishing between terrorists and civilians. At the same time, it is its own

military actions that might inflict harm on innocent people. The civilians, as a group and asindividuals, do not bear political or moral responsibility for the terrorists decision to avoid

distinguishing themselves from civilians. Consequently, the state that fights against the

terrorists is required to bear a greater part of the cost of the enhanced risk of mistakenly

targeting civilians.35

It should take additional precautions, in addition to those that resultfrom the discrimination principle (and from the rules governing collateral damage) to further

mitigate the risk of mistakenly targeting or detaining innocent persons. Specifically, the

targeted persons specific actions and intentions and the risk that he poses, rather than hisaffiliation to a group which poses a risk, should determine what actions, if at all, the

34See, e.g., Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminal and Military

Detention Models, 60 Stan. L. Rev. 1079, 1099 (2008) (associational status as a detention trigger is difficult to

apply to an amorphous clandestine network such as al Qaeda.); G ABRIELLA BLUM & PHILIP B.

HEYMANN, LAWS, OUTLAWS, AND TERRORISTS: LESSONS FROM THE WAR ON TERRORISM3-4 (2010) (when

targeting unlawful combatants the suspect would be far more likely to be no danger at allto be mistakenly

suspectedthan would be a uniformed soldier of a hostile government.).35

The same reasons apply to refute the view that targeting terrorists is permitted on the basis of the right to

use force in (collective) self-defense (based on Article 51 of the UN Charter). For this view see, e.g., Kenneth

Anderson, Targeted Killing in US Counterterrorism Strategy and Law(working-paper, 2009). The applicability

of this collective right to self-defense to launch warfare against non-state actors is contested, following the

position of the International Court of Justice (in its Advisory Opinion on the Legal Consequences of the

Construction of a Wall in the Occupied Palestinian Territory, I. C. J. Reports 136, 194 (2004)), that such

warfare is not covered by this right. See, e.g.,MARY E.OCONNELL,INTERNATIONAL LAW AND THE USE OF

FORCE7 (2002).


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government is allowed to take against him. For this purpose, the power to target or detain

suspected terrorists should be subject to the constraints that result from human rights law.According to this constraint, the fact a person has some involvement in terror is insufficient

to justify targeting him. Requiring a proof of only some involvement in acts of terror raises

the risk of targeting innocents. Some involvement in terror may well be sufficient for judicialproceedings, within the criminal justice system, but not for extra-judicial anti-terror

warfare.36

The above rationale for rejecting the exclusive applicability of the international laws of

war to the fight against terror serves to delineate the scope of the proposed approach. Asindicated, the rationale is not based on the specific nature of the attacks conducted by

terrorists, including the fact that they commit war crimes. The crucial element in defining

terrorism for the current purposes is the dual characteristics discussed above: the

perpetrators who take part in hostilities disguise themselves among civilian, innocentpopulation, thus creating an enhanced risk that anti-terror warfare will result in mistakenly

targeting innocent civilians; and this group is not acting as part of a political entity, which

can be reasonably held responsible for the terrorists choice to employ this practice ofblurring the distinction between combatants and civilians.

Accordingly, the decision which set of norms applies in a given armed conflict requires adetailed inquiry of the nature of the relations between the relevant terror group(s) and the

political entity in which it operates. The required distinction is between an armed groupacting on behalf of a state (or some other viable political entity) and one which is not, as this

distinction is relevant in determining the legitimacy of taking the risk of mistakenly targeting

civilians. In the former case, the prohibition on indiscriminate attack and other norms ofhumanitarian law that protect civilians are considered as sufficient; whereas in the latter case

a more stringent approach is required, to further mitigate the risk of mistakenly targeting

innocent people. For instance, in the armed conflict between Israel andHamas, a Palestinian

terror organization, one may distinguish between the Gaza strip, in whichHamasholds a de-facto political control, and its activities in the West Bank, where it defies the Palestinian

Authority, who is the (partial) political sovereign, and those of Israel itself, the occupying

power in the area. Consequently, while it may seem plausible to apply only the laws of warin regulating Israels anti-terror activities in Gaza, at least after Israels withdrawal from this

territory in 2005, not so with respect to such warfare in the West Bank. In Afghanistan, the

U.S. is in conflict with two groups, the Taliban and Al-Qaeda. The former organization isassociated with the same group that was, in the eve of the war, in de-facto control of most of

the country. However, at least since the beginning of the war (if not beforehand, given the

oppressive ruling of the Taliban) it does not seem plausible to hold the civil population inAfghanistan responsible for the Taliban or Al-Qaedas choice to employ the practice of

blurring the distinction between combatants and civilians. As a result, and given thatmembers of these groups do not wear uniforms nor do they display any other fixed

36For a similar view, based on other reasons,seeMonica Hakimi, International Standards for Detaining

Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide, 33 YALE J.INTL L.369 (2008); Adil

Ahmad Haque, Criminal Law and Morality at War,inPHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW481

(R.A.DUFF,&STUART P.GREEN,EDS., 2010).


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distinctive emblem,37

which increases the risk of mistakenly targeting innocent people, the

exclusive application of the laws of war to regulate the anti-terror warfare is hard to

sustain.38

Subjecting anti-terror warfare to individual-based conditions is not based on the view

that terrorists should benefit from the protection afforded by human rights law. Theprotected interests are those of innocent people, who might be mistakenly targeted in anti-terror warfare. There may be circumstances in which the involvement of a certain person in

hostilities is certain, for instance if he is identified during a fight, targeted while launching

rockets, or if he wears military uniforms and openly carries arms. In these cases it can bejustified to exclusively apply the laws of war, and thus, given the classification of the

relevant person as combatant, it is permissible to target or detain him, and avoid the

requirement to verify the existence of an individualized justification. The basis of this

approach is not the position that an aggressor forfeits his right to life,39

which states that aperson possesses the right to life only so long as he does not pose an unjust, immediate threat

to others.40

Several scholars justly questioned this premise, and submit that the right to life

and other basic liberties are inalienable, and thus even when the targeted person is anaggressor, taking action against him is subject to certain limits, most notably those that

constitute the proportionality requirement.41

The permissibility of targeting a terrorist in

these circumstances is based on his involvement in hostilities and the general paradigm ofthe laws of war. As argued above, there is no good reason to distinguish in this respect

between regular combatant and an unlawful one. The focus of the discussion here is,

however, on instances in which there is uncertainty regarding the blame of the targetedpersons, and it seems that this is often the case. The protected interests are those of innocent

people, who might be mistakenly targeted in the anti-terror warfare. It is the commitment to

avoid targeting persons who are not involved in hostilities, based on the (moral) prohibition

against targeting innocent people, which requires individuating anti-terror warfare.

37SeeRudiger Wolfrum & Christiane E. Philipp, The status of the Taliban: Their Obligations and Rights

under International Law, 6 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW559 (2002).38

Note that the current discussion does not address the eligibility of the Taliban and Al-Qaeda fighters to

the status of prisoners-of-war. Given that they do not fulfill the conditions of lawful combatants, the answer

is clearly that they are not entitled to the privileges of prisoners-of-war. See, e.g., DINSTEIN, supranote 3, at55-57. The discussion here addresses the permissibility of targeting or detaining them.

39JOHN LOCKE,TWO TREATISES OF GOVERNMENT279 (PETER LASLETT ED., 1988) (1690) (arguing that by

his own actions, the aggressor expose[s] his Life to the others Power to be taken away by him).40

Judith Jarvis Thomson, Self-Defense, 20 PHIL. & PUB. AFF. 283, 302 (1991); SUZANNE UNIACKE,

PERMISSIBLE KILLING:THE SELF-DEFENCE JUSTIFICATION OF HOMICIDE213 (1994); FIONA LEVERICK,KILLING

IN SELF-DEFENCE62 (2006).41See, e.g., Sanford H. Kadish, Respect for Life and Regard for Rights in the Criminal Law, 64 CAL.L.

REV. 871, 883 (1976) (The presumption that the aggressor actually chooses to forfeit his right to life is hard to

sustain); George P. Fletcher,The Right to Life, 13 GEORGIA L.REV. 1371, 1382-83 (1979); BOAZ SANGERO,

SELF-DEFENCE IN CRIMINAL LAW44 (2006) (the presumption is incompatible with the notion that the right to

life is inalienable). See also Cheyney C. Ryan, Self-Defense, Pacifism, and the Possibility of Killing, 93 ETHICS

508 (1983); Tziporah Kasachkoff, Killing In Self-Defense: An Questionable or Problematic Defense? 17 LAW

&PHIL. 509, 517 (1998).


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Finally, note that the doctrine of individual responsibility reflects a fundamental change

regarding the nature of combatants moral and legal responsibility for their actions. The lawsof war prohibit states from imposing criminal liability on enemy combatants (as long as the

soldiers do not commit war crimes).42

A soldier is not held personally liable (criminally or in

torts) toward the enemy state for his activities during the conflict. Respectively, the enemy-state is not required to justify inflicting harm on a soldier based on his individual

responsibility.43The use of the criminal justice system in the fight on terror rejects the first

element of this paradigm. The state may subject suspected terrorists not only to its military

power but also to its legal jurisdiction. Suspected terrorists can be (and often are) charged fortheir involvement in terror activities. Indeed, recognizing this power to individuate

responsibilityto hold suspected terrorists individually responsible for their actions by

employing the criminal justice systemis insufficient to justify recognizing that the state isalso under a duty to justify targeting terrorists on the basis of their individual actions and

intentions when acting extra-judicially. As indicated, this duty is justified based on the

concern of mistakenly targeting innocents, and it is thus independent of the power to indictsuspected terrorists. But this latter power is an important indication of the paradigm

transformation. It reflects the introduction of the states duty to treat those targeted as moral

agents, and thus of the idea of individual responsibility.

To sum, the required approach is one of individuating the inquiry of the permissibility oftaking a specific anti-terror measure. Determining whether the targeted person takes part in

hostilities is relevant. But unlike the international laws of war paradigm, in which the result

of this inquiry is decisive in evaluating the permissibility of employing a specific anti-terrormeasure, under the suggested approach this inquiry is relevant but not sufficient. In the

circumstances discussed here, the risk of mistake is substantial, such that even though there

is sufficient evidence to reasonably determine that a person takes part in hostilities, the

possibility of mistake cannot be ruled-out. A government that fights terror should takeseriously the risk of mistake, by subjecting the permissibility of employing an anti-terror

measure to an individually-based inquiry. It should consider whether, given the relevant

circumstances, the targeted-persons role in the activities of a terror group is sufficient tojustify taking the specific action. It should consider the scope of the risk of harm that this

individuals activities poses, to verify that targeting him is necessary and that the scope of

harm inflicted on him is proportional. Stated differently, instead of an all-or-nothingapproach, where all actions are permissible once a person is classified as (unlawful)

combatant, the alternative approach requires a sliding-scale approach, which takes into

account the severity of the specific measure which the government considers taking and the

42DINSTEIN, supranote 3, at 35-39.43 See, e.g., MICHAEL WALZER, JUST AND UNJUST WARS 77-9 (3d ed. 2000); GEORGE FLETCHER,

ROMANTICS AT WARGLORY AND GUILT IN THE AGE OF TERRORISM 108 (2003). For a critique of the

traditional position see, e.g.,JEFF MCMAHAN,KILLING IN WAR(2009); Gabriella Blum, The Dispensable Lives

of Soldiers, 2 J.LEGAL ANAL.69 (2010) (suggesting that combatants who pose no real threat should bespared

from direct attack, and that the principle of military necessity should serve to introduce a least-harmful-means

test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever

feasible.).


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scope of risk posed by the suspect. The next Part offers a more detailed account of these

principles.

II.

THE INDIVIDUAL DANGEROUSNESS DOCTRINE

The individual responsibility paradigm imposes on the government a duty to justify

employing measures that inflict harm on suspected terrorists. It consists of three mainelements. The first focuses on legitimate purposes (section II.A). Employing extra-judicial

measures can be justified only for the purpose of preempting the danger posed by the

targeted person, but not for retribution or deterrence. The second issue addresses the scope

of the risk posed by the suspected person (II.B). The government is required to demonstratethat this risk is sufficiently high, to exceed a probability-threshold which is set according to

the severity of the anti-terror means. Lastly, it is permissible to employ only the least

harmful measure among the ones possible to eliminate the risk (II.C). These conditionsdetermine the permissibility of targeting a person given the uncertainty about his

dangerousness.44

A. Permissible Aimsof Extra-Judicial Anti-Terror Warfare

In general, anti-terror measures may serve three main goals: preemption, retribution, anddeterrence. All three purposes can justify, at least in principle, a governmental action directly

and intentionally inflicting harm on a person. However, the extra-judicial nature of the anti-

terror warfare limits the scope of legitimate purposes. It seems that there is a growing

consensus that as far as targeted killings are concerned, the exclusive legitimate purpose ispreemption. States may not extra-judicially execute a terrorist for purposes other than

preemption, irrespective of the relevant persons past wrongs.45

It is debated, however,

whether this constraint applies when states consider taking other anti-terror measures, mostimportantly detention.46 May a government impose some harm for the purpose of general

deterrence, for instance demolishing the houses of a suicide bomber in an attempt to deterothers from acting similarly, as Israel did for several years? Can a state hold a person in

44 An additional requirement refers to the risk of inflicting unintended harm on bystanders. This

requirement of proportionality is not unique to the paradigm presented here, as it applies under the laws of war

as well. This aspect is thus beyond the scope of the current discussion.45

See, e.g.,Michael Schmitt, State-Sponsored Assassination in International and Domestic Law, 17 YALE

J.INTL L. 609 (1992).46 Harold Koh, Legal Adviser of the U.S. Department of State, remarks at the Annual Meeting of the

American Society of International Law in Washington, DC on March 25, 2010 available at

http://www.cfr.org/international-law/legal-adviser-kohs-speech-obama-administration-international-law-march-2010/p22300 (noting that the U.S. policy is based on the position, which was approved by courts

decisions, that individuals who are part of an organized armed group like al-Qaeda can be subject to law of

war detention for the duration of the current conflict.); Jeh Johnsons Speech on National Security Law,

Lawyers and Lawyering in the Obama Administration (2012), available at http://www.cfr.org/national-

security-and-defense/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obama-

administration/p27448 (In the detention context, we in the Obama Administration have interpreted this

authority to include: those persons who were part of, or substantially supported, Taliban or al-Qaeda forces or

associated forces that are engaged in hostilities against the United States or its coalition partners.).


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detention (without charge and trial) as a retribution for his wrongs, regardless of the risk that

this persons poses if released?

Consider retribution. Retributive punishment presupposes guilt and must be proportionalto the degree of the wrongdoers guilt.47The determination of guilt and the apportionment of

punishment require reliable procedures, such as a fair trial and impartial judges. Theseconstitutive elements are typically lacking in a military or administrative action conducted aspart of the fight against terrorism. The requirement that retributive sanctions would follow a

judicial finding of criminal liability reflects not only the concern of a wrong, and possibly

biased attribution of guilt in the absence of judicial proceedings, but also a normativejudgment about fairness and rights of the accused. A person can justifiably be subject to

harm based on retribution only if his blame was determined in a way that meets the

requirements of procedural justice.48

The bundle of rights of the accused to a fair trial limits

the powers of the government not only when a person stands to trial but whenever thegovernment aims to harm him for the purpose of retribution. Imposing a sanction through

military tribunals can be justified only as long as the proceedings fully respect the procedural

rights of the accused.

49

Indeed, there are instances in which it is impractical to bring awrongdoer to justice. However, the right to a fair trial prohibits the government from

targeting a person for the purpose of retribution, save possibly only extreme circumstances,

in which the targeted persons guilt is not contested and his activities are especially severe.

For similar reasons, general deterrence too cannot serve as the exclusive or even themain purpose of targeting a person. Indeed, the fight against terrorism may require dynamic

military tactics to affect terrorists motivation and willingness to fight. However, the aim of

deterrence is based on an attribution of guilt to the targeted person, and the above reasonsthat question the permissibility of harming a person for the aim of retribution apply here as

well. Moreover, more often than not it is impossible to scrutinize the claim that an action is

efficient in achieving deterrence, as it requires evaluating counterfactual scenarios and

controlling for other potentially relevant factors.50

It is also impractical to evaluate themarginal contribution of each instance of inflicting harm to achieving a certain level of

deterrence, and thus to determine the necessity of each anti-terror action.51

As a result, it is

hard to distinguish between a policy whose actual motivation is retribution from one aimed

at deterrence.

47 See, e.g., Thomas E. Hill, Kant on Wrongdoing, Desert and Punishment, 18 LAW & PHIL. 407, 409

(1999).48See, e.g., Erwin Chemerinsky, The Constitution and Punishment, 56 STAN.L.REV. 1049 (2004).

49For a discussion of the alleged violations of procedural rights in U.S. military tribunals for detainees inAfghanistan see, e.g. DAPHNE EVIATAR,HUMAN RIGHTS FIRST,DETAINED AND DENIED IN AFGHANISTAN:HOW

YO MAKE U.S.DETENTION COMPLY WITH THE LAW (2011).50

See, e.g., Mark Tunick, Efficiency, Practices, and the Moral Point of View: Limits of Economic

Interpretations of Law, in THEORETICAL FOUNDATIONS OF LAW AND ECONOMICS 77, 7779, 9091 (MARK

WHITE ED., 2009).51

Adil Ahmed Haque, Torture, Terror, and the Inversion of Moral Principle, 10 NEW CRIM.L.REV. 613,

642-43 (2007).


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It is also impermissible to inflict intended harm, expose a person to the risk of harm, or

even threaten to do so, for the purpose of forcing suspected terrorists to call off a terrorattack or to surrender or provide information. These are cases where a person is used as a

means for achieving an end. Thus, for instance, an army must neither use enemy civilians as

human shields, nor take hostages as bargain chips.52

Accordingly, siege is a legitimatemeans of anti-terror warfare if it serves a specific preemptive military objective, but not if it

aims at starving a civilian population in order to force the enemy to surrender.53

Preemption is the only legitimate aim of extra-judicial anti-terror warfare measures.

Preemptive measures are acts that aim at directly thwarting terror attacks of would-beterrorists, by capturing the would-be perpetrators, killing or physically disabling them,

obtaining information, and so forth. It is often difficult to determine the actual purpose of a

specific anti-terrorist measure. It may be difficult to ascertain the decision-makers true

motive. Another difficulty arises when an anti-terrorist measure is taken for more than onepurpose. Punitive measures ordinarily serve both backward-and forward-looking aims. When

a person who committed a terrorist act is contemplating another attack, targeting him may be

retributive, preventive, and deterring, all at the same time. Notwithstanding this possiblemultiple purposes, in most cases it is possible to determine what the actions dominant

subjective and objective purpose is. Assuming that the anti-terror measure is aimed at

preemption, the unintended potential benefit of such action, mainly the indirect effect ofreducing terror attacks through general deterrence, can count in evaluating the acts

permissibility. But it cannot serve as the measures (dominant) aim.54

B. Dangerousness, Moral Certainty, and Probability-Threshold

1. General

52On the prohibition to use human shields see, e.g., DINSTEIN, supranote 3, at 152-55; and the Israeli

Supreme Court decision in HCJ 3799/02 Adalah v. Head of the Central Command, IDF 60(3) PD 67, 80

(2005). English trans. available at http://elyon1.court.gov.il/files_eng/02/990/037/A32/02037990.a32.htm. The

Court prohibited even the solicitation of a local residents assistance, for the purpose of relaying an early

warning when that resident gives his consent and when performance of the role will cause him no damage.

On the prohibition to detain suspected terrorists for the purpose of using them as bargain chips See the Israeli

Supreme Court decision in CrimFH 7048/97 John Does v. Ministry of Defence, 54(1) PD 721 (2000). English

trans. available at http://elyon1.court.gov.il/files_eng/97/480/070/a09/97070480.a09.htm. See also Orna Ben-

Naftali & Sean S. Gleichgevitch, Missing in Legal Action: Lebanese Hostages in Israel, 41 HARV.INTL L.J.

185 (2000).53

See, e.g.,Yuval Shany, The Law Applicable to Non-Occupied Gaza, 42 ISR.L.REV. 101 (2009).54

See, e.g., Robert Cryer & A.P. Simester, Iraq and the Use of Force: Do the Side-Effects Justify the

Means?, 7 THEORETICAL INQ. L. 9 (2006). The Israeli Supreme Court ruled that the military commander is

empowered to issue an order assigning a place of residence only when it can demonstrate that the person is

dangerous. However, in its decision the court stated that once this element is proved, the discretion whether to

exercise this power is subject to the proportionality requirement, and in this respect there is no defect in the

military commander taking into account considerations of deterring others in deciding whether to issue the

order. HCJ 7051/02 Ajuri v. IDF Commander in West Bank, 56(6) PD 352 (2002), 27. An English

translation is available at http://elyon1.court.gov.il/files_eng/02/150/070/A15/02070150.a15.htm.


18/43


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One reason is based on an analogy from self-defense. Intentionally targeting a person can

be justified when this person is an aggressor. If a terrorist has made it inevitable that eitherhe or the potential victim(s) will be harmed, fairness requires that it be the terrorist. 58

Instances of preempting a (blameworthy) aggressor, who poses a risk to others, give rise to

a unique type of justifiable infringement of the aggressors rights. For instance, targetingblameworthy aggressors can be justified even if the number of targeted aggressors exceeds

the number of their intended victims.59But this justification is not based (at least not fully)

on the high expected harm that the person will cause if he is indeed an aggressor. This

justification to target a person exists only when it is certain, or very close to it, that he is anaggressor, one which intends to harm others. Thus, the justification exists only when there is

sufficient information to establish that the targeted person is indeed an aggressor, i.e. when

the probability that this is the case is very high, one which provides what is known asmoral certainty.60If the probability that the targeted person is blameworthy is lower than

the threshold, taking action to preempt an attack can be justified, if at all, only in extreme

circumstances.

There is some similarity between this case and that of an innocent aggressor, in whicha blameless person imposes a risk to others (for instance, someone who is the unknowing

carrier of a bomb). In the latter context, only the avoidance of catastrophic consequences can

justify scarifying vital interests of one innocent person (the innocent attacker) to savethose of others.61The case of targeting a person where the probability that he poses a risk is

lower than the threshold is analogue to that of the innocent aggressor in the sense that

58See, e.g.,Michael S. Moore, Torture and the Balance of Evils, 23ISR.L.REV. 280, 321-2 (1989); David

Wasserman, Justifying Self-Defense, 16 PHIL. & PUB. AFF. 356 (1987); Shlomit Wallerstein, Justifying the

Right to Self-Defense: A Theory of Forced Consequences, 91VA.L.REV.999, 1027-32 (2005); Jeff McMahan,

Torture, Morality, and Law, 37 CASE WEST.RES.J.INTL L.241 (2006).59

See, e.g.,Jeff McMahan, Self-Defense and the Problem of the Innocent Attacker, 104 ETHICS252, 261

(1994) ([A]ccording to commonsense morality, an Innocent Victim is permitted to kill a [culpable aggressor]

irrespective of differences in age, quality of life, or usefulness to society . . . . She may kill any number of

[culpable aggressors] if this is necessary for self-defense.); GEORGE P. FLETCHER, RETHINKING CRIMINAL

LAW 85758 (1978); Paul H. Robinson, A Theory of Justification: Societal Harm As A Prerequisite For

Criminal Liability, 23 UCLAL.REV. 266, 27273 (1975).60

Adil Ahmad Haque, Killing in the Fog of War, 86 Southern Cal. L. Rev. _ (2013) (arguing that soldiers

are prohibited from intentionally killing an individual whom they do not reasonably believe is a combatant, to

establish a minimum threshold of certainty). See also Frank Jackson & Michael Smith, Absolutist Moral

Theories and Uncertainty, 103 J. PHIL. 267, 275 (2006); Ron Aboodi, Adi Borer, and David Enoch,

Deontology, Individualism, and Uncertainty: A Reply to Jackson and Smith, 105 J.PHIL. 259 (2008).61

According to one view, the prohibition against targeting innocent persons, who unintentionally expose

others to risk, is an absolute one. See, e.g., the German Constitutional Court decision in the hijacked aircraft

case, in which the court stroke down a statute authorizing the shooting down of an aircraft intended to bewielded as a lethal weapon, as it infringes the right to dignity of the passengers on board, even if these people

are doomed to die anyway.Judgment of the Bundesverfassungsgericht [BVerfG] [German Federal

Constitutional Court] Feb. 15, 2006, BVerfGE, 1 BvR 375/05, 130 available at

http://www.bundesverfassungsgericht.de/entscheidungen/rs20060215_1bvr035705.html. According to another

view, intentionally targeting innocent attackers can be justified when necessary to prevent a catastrophe. DAVID

ORMEROD,SMITH &HOGAN CRIMINAL LAW322 (11th ed. 2005); Michael Bohlander, Of Shipwrecked Sailors,

Unborn Children, Conjoined Twins and Hijacked AirplanesTaking Human Life and the Defence of Necessity,

70 J.CRIM.L. 147, 158 (2006).


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targeting that person is not based on attributing blame to him. From a deontological

perspective it is thus essential to distinguish between instances in which the probability thatthe suspect will launch a terrorist attack if not preempted is sufficiently high and instances

that do not meet this requirement.

A second ground for the probability-threshold requirement is the distinction between themoral costs of two different types of mistakes. Faced with uncertainty regarding the threatimposed by a suspect, a decision-maker must weigh the risk of a false negative, that is,

inaction that would result in a terror attack, against that of a false positive, namely, an

infringement of ones liberties when the suspect would not have attacked anyhow. Whenpunitive measures are concerned, providing a probability threshold (the requirement that the

guilt of the accused be proven beyond a reasonable doubt) reflects a normative judgment

regarding the appropriate weight of each of these errors. It embodies the notion that the

harms generated by false convictions of innocent people greatly exceed, morally speaking,the harms generated by acquitting guilty criminals.62Applying a probability threshold in the

case of preemptive measures reflects a related rationale. The normative weight of the harm

that results from a false positivean active and intended infliction of harmexceeds that ofharms generated by a false negativea passive, unintended failure to prevent harm. A

states failure to eliminate threats of terror is normatively less significant than an erroneous

active and intended harming of people.63

The view that one type of errors (false positive) ismorally worse than the other (false negative) entails that the government can justifiably act

only when the probability of a terror attack by or with the essential assistance of the suspect

is sufficiently high, such that the likelihood of a false positive is lower than that of a falsenegative. For this reason, notions such as thePrecautionary Principle, which requires the

government should employ measures to address even remote risks of terror attacks,64are not

helpful in the current context. The idea of addressing even remote risks is a plausible one

only as long as taking these measures is costless in terms of the possibility of inflicting harmon innocents. When this condition is not met, and this seems to be the more typical case, the

precautionary principle may actually require, as discussed above, a tendency to avoid, rather

than employ anti-terror measures when the targeted persons blameworthiness is in doubt.65

Finally, the probability-threshold requirement may also serve important second-orderconsiderations. The concern is that when certain preemptive measures can be employed

according to the magnitude of the expected harm, even if the probability of a terror attack is

low the use of such measures might become standard policy, implemented on a regularbasis.66 The probability-threshold requirement is aimed at mitigating the risk of erroneous

62See, e.g.,ROBERT NOZICK,ANARCHY,STATE AND UTOPIA96-108 (1974); STEIN,supranote 56, at 141-

53, 172-83.63

See, e.g.,ZAMIR &MEDINA, supranote 19, at 166-69.64

See generally CASS SUNSTEIN, LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE (2005);

Jonathan B. Wiener & Jessica Stern, Precaution Against Terrorism, 9 J.RISK RESEARCH393 (2006).65

See Haque, supra note 60 (calling to apply Deontological Precaution, which requires that soldiers take

as much risk as necessary to reach the required level of certainty that the targeted person poses a risk).66

For the use of this argument in the broader context of preventive war see WALZER,supranote 43, at

77-79; Luban, supranote 55, at 225.


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evaluation of the legitimacy of the anti-terror action. One may expect systematic

overestimation of threats, driven by cognitive bias,67

and by the governments possibletendency to give a higher weight to one type of error (inaction that results in a terror attack)

over the other (inflicting harm on innocent persons).68

The decision to target a certain

individual is often based on information obtained through human intelligence, that is,informants who provide information for various private motives. It is information that is not

subject to cross examination and in the case of targeted killing may not be verified even ex-

post. Setting probability thresholds may serve as a necessary corrective mechanism.

On these grounds, targeting a person in anti-terror warfare can be justified only when itis (morally) certain that this person is involved in terror. The permissibility of these

measures is subject to the existence of reliable information that the probability that this

person is dangerous is sufficiently high, and the state is thus under a duty to develop fair,

rational procedures for its use of targeted killing, detentions, and similar anti-terror

measures.69

The implementation of this condition requires addressing several difficult issues. In what

follows I address four of them: setting the magnitude of the probability-threshold; thetemporal element of this requirement (including the concept of imminence), implementing

the probability-threshold doctrine when the targeted person is a member of terror

organization, and its application to the case of targeting a group when it is certain that at

least some of its members are innocent.

2. The Magnitude of the Probability-Threshold

The more severe the harm that the state aims to inflict in taking a certain anti-terror measure,

the more stringent is the probability-threshold requirement. Intentionally killing a person canbe justified only when the probability that the action is required to preempt this person from

launching a deadly attack is very high, that is, only when it is almost certain that the action is

required. For other anti-terror activities, such as detention, the probability-threshold is

somewhat lower, but it still has to be highly likely, given the concern that the state inflicts

harm on innocent persons.

While the concrete level of probability cannot be accurately measured, and setting

specific numerical threshold values might be arbitrary, it is justified to determine the range

of the required probability. Similar to instances of determining the burden of proof in

67See, e.g., W. Kip Viscusi, Valuing Risks of Death from Terrorism and Natural Disasters, 38 J. Risk &

Uncertainty 191 (2009) (reporting that nationally representative sample values preventing terrorism deaths at

about the same level as preventing deaths from traffic accidents, although the latter poses a much greater

personal risk); Moshe Cohen-Eliya & Gila Stopler, Probability Thresholds as Deontological Constraints in

Global Constitutionalism, 49 COLUM.J.TRANSNATLL. 75 (2010) (the imposition of the judicial requirementthat the government meet a certain pre-defined probability threshold after engaging in means-ends

analysis and prior to engaging in balancing serves as a useful and important deontological constraint that

secures the priority of rights.). See also John Monahan, The Individual Risk Assessment of Terrorism, 18

Psych., Pub. Polcy & L. 167 (2012).68

Jonathan S. Masur, Probability Thresholds, 92 Iowa L. Rev. 1293 (2006-2007).69

John Radsan & Richard W. Murphy, Due Process and Targeted Kill ing of Terrorists, 31 CARDOZO L.

REV. 405 (2009).


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criminal proceedings and human rights law, in the current context too expressions such as

highly likely, very high probability, and near certainty provide important guidelines

regarding the permissibility of taking certain measures.70

3. Imminence

In the context of the criminal law justification of self-defense, the probability-thresholdrequirement contains a temporal, in addition to a probabilistic element. A threat isconsidered one which can justify targeting the aggressor only if it is imminent, that is only

if it is expected to materialize within a very short period of time.71The idea is that when the

risk is remote, it is normally less likely that inflicting harm on the aggressor is necessary to

prevent the attack.

However, this more stringent approach to the requirement is questionable. An often-cited

example in the criminal law literature is that of a battered woman, who kills her abusive

partner when the threat to her life is not immediate but still inevitable, as she lacks anymeaningful alternatives to the use of deadly force.72In the international relations context, a

typical example is that of launching an attack against a hostile state that does not yet possess

weapons of mass destruction, but is highly likely to gain such weapons and to wield themagainst the state in the near future.

73In the fight against terrorism, it is often the case that a

terrorist can be preempted only before the harm becomes immediate. While some scholars

insist that if the risk is not imminent the self-defense justification does not apply,74

others

argue that in some or all of these examples, the infringement of the aggressors right to lifemay well be justified.75According to the latter view, the imminence requirement should be

subsumed within necessity (the so-called immediately necessary standard),76

so that the

relevant issue is not the immediacy of the harm, but the immediacy of the responsenecessary to neutralize it.77In addition, one may argue that the requirement of imminence in

the criminal law self-defense justification primarily aims at restricting the use of self-help.

70See, e.g.,ZAMIR &MEDINA, supranote 19, at 108-10.

71LEVERICK, supra note 40, at 87-89.

72LEVERICK, supra note 40, at 89-93; Richard A. Rosen, On Self-Defense, Imminence, and Women Who

Kill Their Batterers, 71 N.C. L. REV. 371 (1993); Kimberly Kessler Ferzan, Defending Imminence: From

Battered Women to Iraq, 46 ARIZONA L.REV. 213, 231-37 (2004).73

Ferzan, id., at 218-31; ALAN M.DERSHOWITZ,PREEMPTIONAKNIFE THAT CUTS BOTH WAYS76-104

(2006).74

WALZER,supranote 43, at 79; UNIACKE, supra note 40, at 159.

75 See, e.g., Rosen, supra note 72; PAUL H. ROBINSON, CRIMINAL LAW DEFENSES 131(c) (1984);Anthony Clark Arend,International Law and the Preemptive Use of Force, 26 WASH.Q. 89, 98 (2003).

76ROBINSON, id., at 77.

77 Id., at 77; Abraham D. Sofaer, On the Necessity of Pre-emption, 14 EUR. J. INTL L. 209 (2003);

MICHAEL N. SCHMITT, COUNTER-TERRORISM AND THE USE OF FORCE IN INTERNATIONAL LAW 65 (2003)

(Imminency is not measured by the objective time differential between the act of self-defense and the attack it

is meant to prevent, but instead by the extent to which the self-defense occurred during the last window of

opportunity.).


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It reflects the presumption that when the risk is not imminent one may call the police for

help. This rationale does not apply to the case of state action in anti-terror warfare.78

Consider in this respect the rule set forth in Article 51(3) to the First Additional Protocol,which states that civilians shall enjoy the protection afforded by this section, unless and for

such time as they take a direct part in hostilities.

79

According to one view, this rule providesthat a civilian might be permissibly targeted only if the attack against him is carried outwhile he is directly participating in the hostile activities, such as when he shoots a rocket or

plants a bomb.80

For instance, Antonio Cassese argued that persons can legitimately be

targeted only while they are actually engaging in combat, or while carrying arms openlyduring a military deployment preceding an attack in which they participate .81I find this

restriction unjustified. A person may take a direct part in hostilities in numerous other

ways than actually shooting at others. A person who is involved in terror activities by

organizing an attack, recruiting suicide bombers, providing substantial logistic help requiredto execute an attack, as well as other related activities imposes a threat that the government

may justifiably act to neutralize.82

Accordingly, the crucial question is not how close to completion the threat is, but ratherwhen the preemptive measure should be taken. Sometimes, to be effective, one must act

before the threat is imminent in the temporal sense. Otherwise, the would-be victims wouldhave to bear the risk that when the attack is imminent it will be too late to take an effective

measure to prevent the harm.83

It thus seems that the decisive factor is the probability of the

78Assuming, that is, that an action by the United Nations Security Council under chapter VII of the Charter

of the United Nations is not a viable option.79

Article 51(3) to the First Protocol to the Geneva Conventions, supranote 28.80See, e.g.,Kristen E. Eichensehr, On Target? The Israeli Supreme Court and the Expansion of Targeted

Killings, 116 YALE L.J. 1873, 1877 (2007) (This narrow reading assures that the target poses an immediate

threat (the timing of the attack signals the proximity of the threat)); Georg Nolte, Preventive Use of Force and

Preventive Killings: Moves into a Different Legal Order, 5 THEORETICAL INQ.L. 111 (2004).81

Antonio Cassese, Expert Opinion on Whether Israes Targeted Killings of Palestinian Terrorists Is

Consonant with International Humanitarian Law, in the matter concerning HCJ 769/02 The Public Committee

Against Torture v. The Government of Israel (2003), available at

http://www.stoptorture.org.il/files/cassese.pdf. For a review of different positions about the interpretation of

this requirement see, e.g., W. Jason Fisher, Targeted Killing, Norms, and International Law. 45 COLUM. J.

TRANSNATL L. 711, 723-24 (2007).82See George P. Fletcher, The Law of War and Its Pathologies, 38 COLUM.HUMAN RIGHTS L.REV. 517,

528 (2007) ([S]elf-defense depends on how much imminent risk is posed to the victim. If the civilian taking

direct part in hostilities creates an imminent risk to either combatants or civilians, those exposed to the risk

could rely on the doctrine of self-defense without invoking the law of war. To make a difference, therefore, the

law of war must apply to cases below the threshold of imminent risk to others.); DINSTEIN, supra note 3, at

147-49; AVERY PLAW,TARGETING TERRORISTS:ALICENSE TO KILL? 135-37 (2008); Amos Guiora, Targeted

Killing as Active Self-Defense, 36 CASE W.RES.J.INTL L. 319, 325 (2004).83

Jeremy Horder, Killing the Passive Abuser: A Theoretical Defece, in CRIMINAL LAW THEORY:

DOCTRINES OF THE GENERAL PART283, 292 (S.SHUTE &A.P.SIMESTEREDS., 2002); DERSHOWITZ, supranote

73, at 105-52.


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attack in the absence of preemption, rather than its timing.84

Indeed, permitting the

government to inflict harm only in instances of imminent threat, or target personsexclusively while they are actually engaging in combat, would prevent almost entirely the

risk of targeting innocent people. But this would come at a too high cost in terms of the

ability to preempt terror attacks, a cost that cannot be justified.

This is not to say that the temporal element of the risk is irrelevant. Ignoring the temporalelement may raise the problem of cumulative likelihood over time. Occasionally, even

relatively improbable attacks can attain a high cumulative likelihood within several years.85

It may also raise difficult evidentiary problems.86

The assessment of imminence should thustake into account both the likelihood of harm and the period for which this likelihood is

calculated.87 The probability-threshold should be interpreted as referring to the likelihood

that the targeted person will be involved in a

regulating antiterror warfare.pdf

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