Assassinating
Terrorists - Is It Legal?
Israel
is perfectly within its rights to execute its terrorist enemies,
says
Harvard law professor ALAN DERSHOWITZ
By
ALAN DERSHOWITZ
Toronto Globe and Mail Tuesday, September 16, 2003
It now seems clear that Israel will persist in
its policy of targeting for assassination terrorist leaders it cannot
arrest or otherwise disable or disarm. Two fundamental questions are
raised by this practice. The first is: Is this tactic legal under international
law? The second is: Even if legal, is it wise as a matter of policy?
As to the first question, there can be absolutely no doubt of the legality
of Israel's policy of targeting Hamas leaders for assassination. Hamas
has declared war against Israel. All of its leaders are combatants,
whether they wear military uniforms, suits or religious garb. There
is no realistic distinction between the political and military wings
of Hamas, any more than there is a distinction between the political
and military wings of al-Qaeda.
The official policy of Hamas, like that of al Qaeda, is the mass murder
of civilians. The decision to employ that policy was made by its so-called
"political" leaders.
The United States properly targeted Osama bin Laden and his associates,
as well as Saddam Hussein and his sons. Under international law, combatants
are appropriate military targets until they surrender. They may be killed
in their sleep, while preparing military actions or while participating
in any other activity. They need not be arrested, or even given a chance
to surrender. Only if they come out with their hands up, or waving a
white flag, or affirmatively manifesting surrender by some other means,
may they avoid the ultimate sanction of a war they started, namely death.
Military law does of course require that purely civilian casualties
be minimized, even in pursuit of legitimate military targets. Both the
United States and Israel seek to minimize purely civilian deaths, in
part because neither has any incentive to kill entirely innocent civilians.
When Israel recently went after Sheik Ahmed Yassin, the head of Hamas,
it deliberately used a 500-pound bomb in order to minimize collateral
damage. As a result, its legitimate target escaped with minor injuries.
Had Israel not cared about collateral damage, it could easily have used
a multi-ton bomb, which would have assured Sheik Yassin's death, but
also increased the likelihood of killing more innocent bystanders.
Precisely how much collateral damage is too much is a matter of degree,
but international law does not condemn the targeting of combatants unless
the number of innocents killed in the process is completely out of proportion
to the importance of the military objective. Preventing terrorist leaders
from planning, approving or carrying out acts of terrorism against innocent
civilians is an important and appropriate military objective.
Having concluded that Israel's (and America's) policy of targeting terrorist
leaders is entirely lawful, it does not necessarily follow that it is
always wise as a matter of policy. Reasonable people can differ as to
the wisdom not only of the policy, but of its particular application
to individual cases. For example, prior to the actual commencement of
the recent war against Iraq, the United States tried to take out Saddam
Hussein, but failed. Had it succeeded in killing the Iraqi leader, it
might have avoided a war that has proved very costly in terms of human
life. The targeted assassination of Saddam Hussein would have been good
policy, especially if it succeeded without the killing of large numbers
of innocent civilians.
Likewise with the targeting of Osama bin Laden and some of his chief
deputies. The early deaths of these combatants might have saved many
Afghan and American lives.
In Israel's case, Hamas leaders have sworn to increase their terrorism
until Israel is destroyed. The group rejects any two-state solution
to the conflict. Occasionally, it agrees to a temporary ceasefire, but
it uses that period of Israeli inaction to rearm and to prepare for
a recommencement of terrorism. If Israel could actually end the so-called
"cycle of violence" by
stopping its targeting of Hamas leaders, it would be wise to do so.
But the historical record suggests that when Israel eases up in its
preventative attacks on terrorist leaders, the terrorism eventually
persists, sometimes even increases. It is not a "cycle of violence."
It is a Hamas policy of terrorism against innocent civilians to which
Israel responds by targeting guilty murderers that it is unable to arrest.
These actions are in no way morally (or legally) equivalent, as the
International Red Cross has mistakenly stated.
I believe that targeted assassination should only be used as a last
recourse, when there is no opportunity to arrest or apprehend a murderer,
when a terrorist leader is involved in planning or approving on-going
murderous activities, and when the assassination can be done without
undue
risk to innocent bystanders. Proportionality is the key to any military
action, and targeted assassination should be judged under that rubric.
Under any reasonable standard, Israeli policy with regard to the targeted
assassinations of "ticking-bomb terrorists" does not deserve
the kind of condemnation it is receiving, especially in comparison with
other nations and groups whose legal actions are far less proportionate
to the dangers they face. Any democracy facing threats to its civilian
population comparable to those faced by Israel would respond in much
the same way
Israel is now responding to the terrorism being conducted by Hamas and
other terrorist groups.
Alan M. Dershowitz is the Felix Frankfurter professor of law at Harvard
Law School and author of The Case for Israel.
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