Guiora_Targeted_Killing_Case_West_Sp_2005

Guiora_Targeted_Killing_Case_West_Sp_2005 - TARGETED...

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TARGETED KILLING AS ACTIVE SELF-DEFENSE Amos Guiora 1 I. INTRODUCTION Since June 1967 Israel has implemented a wide variety of measures to combat Palestinian terrorism in the West Bank and the Gaza Strip. Examples of such measures include the sealing and demolition of terrorist homes, imposition of a curfew and other movement restricting measures, administrative detention in those instances when criminal evidence was unavailable or when the only basis of detention was security information which could not be introduced in Court, deportation, and, recently, the introduction of three new policies: assigned residence (as distinguished from deportation), the erection of a security fence, and targeted killings. 2 The focus of this paper will be a legal and policy examination of the decision to implement targeted killings within the context of the right to active self-defense as interpreted by the State of Israel. I should add that while the majority of my comments refer to the legal arguments behind targeted killing, I will also analyze its effectiveness as Professor Michael Scharf has done in a Washington Post article 3 and Professor Ed Kaplan of Yale University has done in empirically based research challenging the effectiveness of targeted killing. Furthermore, an important question which will not be discussed deals with the type of court in which terrorists should be tried. This is an issue that we at Case are 1 Visiting Professor of Law at Case Western Reserve University School of Law; served for 19 years in the Israel Defense Forces, Judge Advocate General Corps (Lt. Col.). The opinions expressed are the authors alone. Special thanks to research assistant Niki Dorsky and colleagues Jon Leiken and Marc Stern for their significant contributions to this work. 2 Benjamin A. Gorelick, The Israeli Response to Palestinian Breach of the Oslo Agreements , 9 N EW E NG . J. I NT L OMP . L. 651 (2003). 3 Michael Scharf, In the Cross Hairs of a Scary Idea , The Washington Post, April 25, 2004. 1
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examining in a course I am teaching based in large part on conversations I have had with Associate Dean Hiram Chodosh, Professor Michael Scharf and Mr. Andrew McCarthy, from whom we shall have the pleasure of hearing later. However, before we begin, a short historical survey is necessary to help understand both the context and the significance of the present armed conflict between the State of Israel and Palestinian terrorist organizations. In addition, to appreciate the considerations involved in implementing a policy of targeted killing, it is critical to understand the fundamental difference between the armed conflict of the past four years and the nature of the Palestinian opposition to the occupation between 1967-2000. II. HISTORICAL BACKGROUND
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Guiora_Targeted_Killing_Case_West_Sp_2005 - TARGETED...

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