The expansion of legal rules around targeted killings by the United States is one of the most consequential legacies of the post-9/11 era. Under both the Bush and Obama administrations, the U.S. government arrogated itself broad rights to kill individuals far from any battlefield. The legal reasoning that former President Barack Obama used to publicly justify the ramped-up drone warfare program had its origins in a similar past effort by Israeli military lawyers to justify Israel’s targeted killings of Palestinians in the West Bank and Gaza Strip.
This month, The Intercept published an article about the history of this Israeli legal effort. In the story, Harvard law professor Gabriella Blum explained how, when she was a young lawyer working for the Israel Defense Forces, she and her team sought to give a legal justification for Israel’s burgeoning assassination program. Noura Erakat, a human rights attorney and author of the forthcoming book “Justice for Some: Law and the Question of Palestine,” spoke with The Intercept.
Noura Erakat: There is a direct relationship that we can trace between knowledge production in the academy and what states seek to legally justify during armed conflict. What legal scholars publish contributes to an aspect of opinio juris, or what states believe is legal, which together with state practice constitutes something called international customary law. This is a form of international law, which, in contrast to treaties, is effectively a form of tacit consent. Effectively, legal scholars publish opinions which indirectly help shape customary law. If there is robust objection to what states do based on these opinions, then it falls into the realm of illegitimacy. But if, in contrast, the practice and the legal concepts gain traction, it can become the seed for new customary law, which can develop overnight or over a long period of time. If it crystallizes into a new norm, then it not only applies to the state proposing the law, but will be applicable to other states in the international community as well. More here.