Law as a Battleground: Fighting over the Legality of Targeted Killing

• In Event: Law and Violence in Transnational Perspective

Abstract

This paper engages the concept of “lawfare” (an amalgamation of law and warfare) as it is used in the context of the Israeli-Palestinian conflict, as well as the US “war on terror.” The dominant theme in debates about lawfare turns on the contested legitimacy of bringing cases to court to challenge the legality of a state’s war-waging policies and practices, to sue or prosecute individual state agents (and government-funded contractors and corporations) who are alleged to have engaged in or abetted serious violations of the law in the conduct of war, and, more broadly, to monitor and judge wartime behavior vis-à-vis enemies on and off the battlefield. Over the decades since 1967, many aspects of Israel’s occupation policies have been challenged in the Israeli High Court of Justice; the outcomes have rarely achieved victory for petitioners but rather have served to further entrench an Israeli “national” understanding of state’s rights under international law. The main focus of this paper is litigation concerning the policy of targeted killing, starting with a reading of the Israeli High Court of Justice’s 2006 decision and then explaining how the US government has emulated official Israeli rationales for the “legality” of targeted killing in its own responses to civil cases challenging the practice’s legality and seeking damages for victims. I conclude by examining critiques by UN Special Rapporteurs about the lawfulness of targeted killing.

Author

• Lisa Hajjar, University of California, Santa Barbara (CA)