By J. Peter Pham & Michael I. Krauss : BIO| 30 Oct 2006
On October 23, after ten more Qassam missiles were fired from northern Gaza into Israel in forty-eight hours, Israeli Defense Forces (IDF) troops entered the area in search of the launchers and their Palestinian crews. Confronted by a large group of gunmen in the town of Beit Hanoun, the IDF patrol exchanged fire with the heavily armed men, nine of whom were killed while twenty were injured. [None of the patrol members was harmed.] Palestinian Authority (PA) president Mahmoud Abbas, also known as Abu Mazen, was quick to accuse Israel of carrying out a "heinous massacre," noting that this "ugly crime against the Palestinian people" took place on the first day of Eid al-Fitr, the holiday that marks the end of Ramadan, the Islamic month of fasting.
Left out of Abu Mazen's carefully scripted indignation was any mention of who the deceased were. One of them, according to the well-connected DEBKA news agency, was Ata Shinbari, senior commander of the Popular Resistance Committees (PRC) in Gaza, which has been active in the missile offensive and which teamed up with Hamas in June to kidnap IDF Corporal Gideon Shalit. Others were lower-ranked militants with the PRC, which lent vital support to members of the al-Qaeda linked cell that carried out the kidnapping of Corporal Shalit. These have been identified as Muataz Durmush, cousin of PRC leader Zakariah Durmush, Mahmoud Bastal, Taher Atawa, Ahmed Azzam, and Ibrahim Kahil.
Let us remember that the kidnapping and continued captivity of Corporal Shalit, as well as the daily shower of rockets across an internationally recognized border, are each individually casus belli (acts of war) which, as we argued previously in another context, fully and legally justify the use of force by Israel acting in its own self-defense. However, what if, instead of running into him and his accomplices and being forced to exchange fire as happened in Beit Hanoun, the IDF had come into possession of actionable intelligence on the whereabouts of terrorist commander Shinbari and members of the al-Qaeda cell? What should it do?
Normally, when a democratic state governed by law is confronted with this problem it turns to the government that has sovereignty over the territory where the wanted criminal is located. It then asks that government to take the person into custody and, according to the relevant international conventions in force between the two states, to extradite him or her for trial. Alas, Israel does not live in a normal neighborhood. Since the Jewish state's voluntary disengagement from Gaza more than a year ago -- a step which we demonstrated Israel was never legally obliged to take -- the PA has stepped up to assume the responsibilities of a civil society. Quite to the contrary, the PA, now controlled by the terrorist group Hamas, refuses to recognize Israel's very existence. Needless to say, PA cooperation on security issues like the arrest of militants, painfully inadequate in the best of times, has become non-existent since Hamas swept PA elections earlier this year.
In such cases, international law countenances self-help: Israel may justifiably pursue the terrorists, using the necessary force to bring them back to its territory for trial and eventual punishment. But that is easier said than done in a densely populated area like Gaza, where any incursion to arrest the likes of the late and unlamented Shinbari would have quickly degenerated into urban warfare with massive collateral injury ("ugly crimes") for the otherwise ineffectual Abu Mazen -- and for his well-wishers among the chattering classes abroad -- to wax indignant over.
In response to this unique set of circumstances, Israel has honed its policy of terrorist preemption or, as some have labeled it, targeted killing. It is a counterterrorism tool that, although not to be taken up lightly, deserves consideration as America begins the sixth year of her own global war on terrorism.
The targeting of terrorists for individual punishment, when extradition is not available, is not new. As last year's Stephen Spielberg film purports to document, after the massacre of eleven Israeli athletes at the 1972 Olympic Games in Munich, Israeli forces hunted down those responsible. However, the use of the tactic to preempt violence rather than to respond to it is of more recent vintage. In 1995, Israeli agents killed Palestinian Islamic Jihad chief Fathi Shaqaqi, leaving that group in disarray for years. Nonetheless, it was the start of the second Palestinian intifada in late 2000 which gave the policy its current impetus. Hard numbers are difficult to come by, especially since the Israeli government, true to the Jewish reverence for life, does not officially trumpet the counterterrorism successes obtained by the killing of killers. However, according to B'Tselem, the leftist "Israeli Information Center for Human Rights in the Occupied Territories" which opposes pre-emption, and whose numbers may therefore be inflated, between 2000 and 2005 Israeli security forces successfully targeted 203 Palestinian terrorists, collaterally killing an additional 114 people.
Can the policy of terrorist preemption be justified?
Some have criticized it as counterproductive, arguing that it perpetuates a "cycle of violence" and therefore causes more Israeli casualties. While undoubtedly targeted killings raise tensions, especially when targeted terrorists have taken shelter among innocent bystanders who are themselves hurt or killed, it is unquestionably true that the policy seriously degrades terrorist capacity. To cite just one example from the data sets maintained by the National Memorial Institute for the Prevention of Terrorism, while the number of Palestinian suicide attacks launched against Israeli civilians increased steadily since 2000, the number of deaths (not counting those of the terrorist perpetrators) declined from a high of 5.4 per incident in 2002 to 0.11 last year. The reason? Quite simply, while there may be an "infinite" number of angry Palestinians, the number of adept and experienced teachers and planners is quite finite.
Groups such as Amnesty International and Human Rights Watch counter that, whether or not it is effective, preemptive counterterrorism is simply "illegal." However, this position does not withstand scrutiny when one applies the relevant jurisprudence. First, Israel, like all sovereign states, has what the United Nations Charter refers to as the "inherent right of individual or collective self-defense" against armed attack. The attacks launched from Gaza and other Palestinian areas clearly constitute armed attacks. And, since the legislative elections in January, the would-be Palestinian state is governed by a group committed to the destruction of, and essentially at war with, the State of Israel. Second, while international humanitarian law, as codified in the Geneva Conventions, particularly common article 3, protects civilians, members of terrorist groups are ipso facto (illegal) non-uniformed combatants in an armed conflict who may be targeted even when they are not engaged in a belligerent action. Recall, for example, U.S. targeting during World War II of Japanese Admiral Isoroku Yamamoto, a legal uniformed combatant, while the officer was riding in airplane en route to Bougainville in the Solomon Islands. Third, the targeting of terrorists, especially those who purposely hide themselves among the civilian population, is always a difficult proposition which carries the risk of collateral effects. However, terrorists should not be allowed to reap the benefits of their cynical choices and one must also weigh the dangers to the civilian population of deploying the forces necessary to apprehend them in hostile urban settings like Gaza. (See our earlier extensive discussion of the norm of proportionality.)
Some, while conceding the practicality and legality of selective targeting in Israel's counterterrorism operations, nonetheless question the ethics of this practice. It turns out, however many ethical objections are, upon closer examination, more moralistic than moral. Targeting killing takes place within the context of war and must -- and has -- been carried out in a manner consistent with the discrimination and proportionality required by the just war tradition. If done not out of hatred but out of the will to incapacitate those who would threaten lives by inciting or carrying out terrorist attacks, it serves the additional legitimate end of protecting the innocent. Furthermore, Israel has largely exhausted all other options. It has tried unsuccessfully to get the Palestinian authorities to stop the terrorists. By disengaging from Gaza, it gave the Palestinians exactly what they claimed they wanted: lives free from day to day run-ins with Israeli "occupiers." What Israel got in return was a wave of violence and the election of a group of terrorists whose Covenant commits them to "obliterating" the Jewish state "from every inch of Palestine."
In sum, while not every effective practice is legal, and not every legal practice is ethical, Israel's preemptive counterterrorism efforts are right on target with respect to efficacy, law, and morality.
Fatwas galore currently call upon young Muslim men to wage jihad. They tempt them by describing in detail the great reward they will receive, the status of martyrs in Paradise, and the virgins who await them there. With its increasing need to reconcile scarce resources to broad responsibilities in defending itself and its allies against this specter, the United States would do well to arm itself with all appropriate weapons, including one that its Israeli ally has developed to comply with a higher obligation, incumbent upon governments and individuals, to do everything possible to protect innocent lives in peril (pikuach nefesh).
J. Peter Pham is director of the Nelson Institute for International and Public Affairs at James Madison University. Michael I. Krauss is professor of law at George Mason University School of Law. Both are adjunct fellows of the Foundation for the Defense of Democracies.
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