Targeting the targeted killings case : international lawmaking in domestic contexts
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Michigan journal of international law, Vol. 39, no. 2, 2018, p. 241-281
Can members of a non-state armed group be targeted based on their formal membership in the armed group, or should their targeting be based on their function within such group? The 2006 Israeli Supreme Court (ISC) Targeted Killings case is a key reference point in this debate. Without scholarly or public attention, the Israeli report on the 2014 conflict in Gaza dramatically diverges from the definition adopted in the Targeted Killings case. This new approach, which has thus far been explicitly endorsed only by the U.S. administration, significantly widens the scope of the legitimate targets. This Article offers three complementary explanations for the decision of the Israeli administration to deviate from the Targeted Killings case. It then criticizes this new approach, arguing that states try to have their cake—insisting on normative symmetry as the main reason for the adoption of the formal membership approach—and eat it too—maintaining the practical inequality of other norms in the law of asymmetric armed conflicts.