Right on Target

6 novembre

Right on Target


By J. Peter Pham & Michael I. Krauss : BIO| 30 Oct 2006

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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.