Targeting the Targeted Killings Case – International Lawmaking in Domestic Contexts

The targeting of non-state armed groups members is perhaps the most debated legal issue in the law of contemporary armed conflicts between states and non-state actors. The 2006 Targeted Killings case of the Israeli Supreme Court (ISC) is a key reference point in this debate. Recently, without much scholarly or public attention, the government of Israel, in its report on the summer 2014 conflict in Gaza (the 2014 Gaza Conflict Report), dramatically diverged from the Targeted Killings case’s definition of legitimate targets in asymmetric conflicts. The Targeted Killings case held a conduct or functional membership-based approach to targeting. This approach allows only the targeting of those individuals who directly participate in the hostilities. The 2014 Gaza Conflict Report, on the other hand, holds a formal membership approach. This approach allows the targeting of all members of the relevant armed group, regardless of their role in the organization or their actual participation in the hostilities. This change widens the scope of legitimate targets in such conflicts. It signals an increasing support for the formal membership approach, which has thus far been explicitly endorsed only by the United States.

This Article offers three complementary explanations for the decision of the Israeli administration to deviate from the Targeted Killings case: (1) the decrease in the ISC’s activism with respect to conduct of hostilities cases. The activist role of the ISC in such cases from the late 1990s to 2008 was widely recognized, celebrated, and discussed in the international law literature. This Article suggests that the international law literature has ignored a countertrend in which, since 2009, the ISC has appeared to defer to the executive’s positions in conduct of hostilities cases. The court’s deference enabled the Israeli administration to deviate from the Targeted Killings case without fear of judicial intervention; (2) the open endorsement in recent years of the formal membership approach by the interpretive community of Military lawyers and the U.S. administration, resulting in the “Americanization” of the Israeli targeting position; and (3) the significant rise in the conflict death toll which may have incentivized a broader definition of legitimate targets.

The development of the targeting approach in the Israeli context provides an opportunity to look closely at international law-making processes in the domestic context. It offers new theoretical insight into the relationship between international law and domestic institutions and sheds light on the unique role of competing domestic and international interpretive communities in the internalization of international law norms.