Since September 11, 2001, the United States’s much more aggressive approach to combating terror has often provided Israel with a blanket of immunity. Even as many groups and states criticized Israel for targeting killings and for the death of civilians during military operations, the impact of the criticism was always attenuated by Israel’s ability to quickly point out examples of recent US targeted killings and of large civilian casualties in Iraq and Afghanistan.
There are many operations and strategies employed by Israel that might have never been considered prior to the war on terror initiated by the US. While Israel successfully defended the legality of its actions in Operation Cast Lead (December 2008-January 2009) and prevented subsequent war-crimes cases from going forward, it may very well have employed less aggressive tactics in its operations in the era before the war on terror. At that time, the US still categorically opposed targeted killings and was much more conservative in its use of force in situations where there could be civilian casualties.
The blanket of immunity may be gone as of President Barack Obama’s speech on Thursday, in which he essentially declared an (almost) end to the war on terror, and reset US policy regarding targeted killings by drones.
There are a number of fascinating aspects to the new, more conservative US standards for targeted killings, but two salient ones are the “continuing, imminent threat” standard and the standard requiring a “near certainty” that civilians will not be hurt.
As commentators have pointed out, “continuing” is almost by definition the opposite of “imminent.” The inclusion of the word almost certainly indicates that Obama is still willing to target terrorists off the battlefield, long before they intend to execute their next attack.
This standard is still more aggressive than the pre-9/11 mentality, which was wary of targeting terrorists if they were not on a battlefield.
But the White House fact sheet on the matter also specifically stated that “it is simply not the case that all terrorists pose a continuing, imminent threat to US persons,” and Obama said that “not every collection of thugs that labels themselves al- Qaida” threatens the US.
It is not entirely clear where this qualification positions the goalposts, but it likely means that the US will not target enemies off the battlefield anymore unless they are arch-terrorists (as opposed to the many mid-level terrorists who the US has been hunting down in Afghanistan, Pakistan, Yemen and elsewhere).
Could Obama’s new guidelines make it more difficult for Israel to be aggressive against some Hamas and Hezbollah agents without more clearly illustrating how credible a threat they are? Could merely proving their membership in a terror organization no longer be sufficient? The “near certainty” standard for avoiding civilian casualties is, on its face, a much more conservative standard than the proportionality test required under international law. Under international law, civilian casualties are legal in cases when the collateral damage is not excessive in relation to the military advantage afforded by the strike. This is not necessarily the most difficult standard to meet, as long as you have a real target and there is no large group of civilians nearby, which can usually be accomplished in a nighttime strike.
In contrast, proving a “near certainty” that there are no civilians in a given area could be nearly impossible.
Terrorists are often struck in urban environments where civilians are constantly moving around, and it is difficult to know who is inside a building.
Some commentators believe that the standards were put forward with loopholes or or in anticipation of new situations, and that ultimately, Obama’s speech was largely an exercise in public relations. But the bottom line of these two changes could be that the US will generally refrain from targeted killings in urban environments, and will be much less aggressive in general.
If so, Israel – which primarily strikes terrorists in urban environments – will once again find itself alone in its aggressive approach to fighting terror. That is not to say that Israel is not willing to stick its neck out, as numerous foreign reports on Israeli unilateral attacks on Iraq and Syria’s nuclear reactors and on Syrian weapons convoys headed for Hezbollah have shown.
But it does mean that sometimes Israel will likely self-censor or limit its actions, and that if and when it doesn’t, it may face even harsher criticism than it has in the past 12 years.