There is a trickling but wild change occurring regarding the opaque shroud drawn over the world of targeted killings.
Over the last several months, US courts have ruled multiple times against US agencies like the CIA and the Defense Department, forcing them to reveal previously classified legal documents related to drone-based targeted killings, including an earth-shattering July 2010 memorandum by David Barron of the US Justice Department.
Could Israel be next?
Israel (or at least many IDF personnel) is under preliminary examination by the International Criminal Court Prosecutor relating to the 1,000-1,700 Palestinian civilian deaths from the 2014 Gaza war.
The UNHRC report on the issue slammed the IDF’s investigations and explanations of its targeting decisions as being insufficient in transparency and divulging information, leaving the UNHRC Commission unable to evaluate whether IDF intelligence and legal analysis were sufficiently robust in trying to avoid civilian casualties.
When much of the UNHRC report was being drafted, at latest in early June, many of the now released US national security documents were not out.
The report had to make the highly questionable claim that the IDF needed to disclose even its classified intelligence sources to beat off a criminal proceeding based on a 2010 report of the special rapporteur on targeted killings.
Rapporteur, Philip Alston, wrote that states must sometimes disclose classified information to show they did not commit war crimes, but also noted, “To date, no state has disclosed the full legal basis for targeted killings, including its interpretation of the legal issues.”
In other words, the UNHRC report was trying to obligate Israel, under threat of declaring its investigations insufficient, to comply with a standard that no country has.
But now US courts are pushing the CIA and the US military into new territory of disclosing classified targeting information.
The various documents, some released as recently as mid-July, according to the courts, relate to the general “legal basis for use of lethal force against a US citizen abroad,” the basis for the 2011 assassination of American-Yemeni terrorist Anwar al-Aulaqi (and incidentally his family) and the nuts and bolts of the before and after for how the government assesses the legality of an attack.
Put differently, the ACLU says that its lawsuits forcing the disclosures are targeted at getting to the heart of “who the government has killed and why” – in particular regarding allegedly thousands of unnamed civilians who it says the US has not sufficiently protected.
The disclosures of classified material have included unprecedented revelations of factors US drone target decision-makers use to make collateral damage assessments.
According to the now declassified material, factors include: a scorecard for evaluating risks like the expected blast radius of the weapon being used, likely number of nearby civilians depending on time of day, accounting for potentially misfiring, specific different weapons for different circumstances and many other issues.
In the US, advocates for greater transparency want this and more information to assess the issue of how free is the US military to target anyone around the world off the battlefield if they are deemed “associated forces” of Al-Qaeda or ISIS (meaning part of the elite terror club)?
In the same vein, these advocates want to know how a targeted person “constitutes an imminent threat” and how the US decides it is “not feasible to capture” that person.
These are both definitions which heavily impact whether US drone and other strikes are legal since an off-battlefield terrorist who is also not an imminent threat or who could be feasibly captured without being killed might not be targetable.
Some are already demanding more details of the US’s targeted killing last week of Britain Junaid Hussain known as one of ISIS’s leading computer experts.
A recent ground-breaking manual by the US Defense Department, its first updated manual in decades, has done little to clarify the debate.
While the manual says it is committed to the idea of taking all necessary precautions when ordering an attack on a military target which could also engulf civilians, some question that commitment based on the manual’s other statements.
One scholar of international humanitarian law wrote that, “The Defense Department seems to think that it may kill civilians if there is any risk that the precautions necessary to avoid killing them might prove militarily disadvantageous” and that “feasible means risk free.”
Scholars on this side of the debate would admit that the manual recognizes the concept of feasible precautions, including giving warnings, changing an attack’s timing, or selecting weaker weapons with lower risk to civilians.
But then they would argue that the manual goes too far in essentially disregarding those precautions as “not feasible” if they could hurt the mission’s success or risk harm to US forces.
The same accusations have been lodged at the IDF.
While there is a long list of distinctions between what is being disclosed in the US (and many of the US disclosure issues are themselves distinguishable) and what the ICC may ask of the IDF, the fact is that the flagpoles of what is “enough disclosure” are moving.
In light of the new trend in the US, even disclosures the IDF made which were unprecedented six months ago, may not be viewed by the ICC as enough tomorrow.
As reported by The Jerusalem Post