Defence or murder?

Does Israel have a legal right to assassinate its enemies - or are such
executions war crimes? After two years deliberating, its supreme court
is set to decide. Anthony Dworkin reports

Tuesday March 30, 2004
The Guardian

A half-blind man in a wheelchair is blown apart on a crowded city
street. An insecure 16-year-old boy is coaxed into donning an
explosive vest. Are the events of last week in Israel a preview of the
future of warfare in the ageof "asymmetric" conflict? And if so, what
rules of law and morality should govern such a conflict, bringing its
conduct into some semblance of conformity with recognised humanitarian
principles? When Israel killed the Hamas founder and spiritual leader
Sheikh Ahmed Yassin with a missile launched from a helicopter, it
provoked a storm of criticism. As one Israeli commentator put it, this
was the mother of all targeted assassinations. From Kofi Annan to Jack
Straw tothe European Union's Javier Solana, international statesmen
lined up to denounce the strike as unlawful. Among the western liberal
democracies, only the United States stood partly aside from the chorus
of condemnation - its muddled response a telling reflection of its own
contentious anti-terrorist war.

Israel countered by describing Yassin as the "godfather of the suicide
bombers" and giving notice that its campaign of targeted killings
would be intensified. Anyone involved in the terrorist war against
Israel should know there is no immunity, said the country's public
security minister the day after the attack.

The morality and legality of assassinating terrorist suspects is being
argued out around the world, and is one of the hottest topics in the
field of international law. Such discussions often seem merely
theoretical, unlikelyto have any impact on the actions of the
governments involved. But in the case of Israel, there is one body
whose assessment of the question could have real and immediate
consequences - the country's own supreme court. Within months, the
court is likely to deliver its decision in a case brought by two
non-profitgroups seeking a declaration that the Israeli government's
policy of targeted killing is contrary to international law and should
be halted.

"I believe this may be the most important case that the supreme court
has yet been asked to consider," says one of the lawyers for the
petitioners, Michael Sfard. In line with the significance of the
moral, legal and security issues at stake, the court has not rushed to
a decision. It has had the case before it for two years. Nevertheless
Sfard is confident that the case is now in "the final few metres". The
groups he represents and the Israeli government have been asked to
submit their final briefs.

The first targeted killing in response to the violence of the current
Palestinian intifada took place in November 2000, when the Fatah
activist Hussein Abayat was killed in a helicopter attack near
Bethlehem. Since then, well over 100 Palestinian militants have been
the victims of such attacks (not counting the roughly equal number of
bystanders who have also died).

At first the assassinations were directed at people who were said to
be "ticking time bombs" - individuals who were actively involved in
organising terrorist attacks. But more recently the Israeli military
has shifted to a wider range of targets, including figures such as
Sheikh Yassin, who are leaders of militant groups rather than actual
bomb-makers. The government of Ariel Sharon openly acknowledges these
targeted strikes as an essential part of its armed struggle to protect
Israel's citizens against terrorism.

According to Sfard, though, the killings are not merely unjustified -
they are war crimes, perhaps even crimes against humanity. However
much we may castigate terrorists, he argues, we must accept that they
are not soldiers but civilians, and must be fought with law
enforcement methods. That means theycan be killed only when there is
no other way to prevent them from carrying out an attack that would
endanger human life. Otherwise suspected terrorists should be detained
and put on trial before they can lawfully be punished for their
actions.

"If a terrorist - or any criminal - is threatening someone's life,
then you can do everything necessary to stop him," says Sfard. "But
these assassinations target people at home, sleeping in their beds, or
when they're simply driving in their cars - they're not endangering
anyone at the time when they're killed." To kill under these
circumstances is simply execution - but carried out without any trial
or proof of guilt.

Not surprisingly, the Israeli government and its supporters present
the matter in an entirely different way. They argue that Palestinian
militants may not be soldiers, but they are still participants in an
armed conflict - determined fighters who aim to kill Israeli civilians
and who have engineered a concerted campaign of atrocities.

"These targeted killings are almost always legitimate," argues Yoram
Dinstein of Tel Aviv University, one of the country's foremost
authorities on the laws of war. Under these, he points out, civilians
who join in a conflict by directly participating in hostilities make
themselves a lawful target for enemy forces. And that doesn't just
mean the people who carry out terrorist missions, but also those who
equip and send them. "There is no difference in this respect between
the person who blows himself up and the dispatcher," Dinstein argues.

Are the leaders of Hamas criminals or combatants? The terms of the
question echo a familiar argument over Guantánamo Bay and America's
proclaimed war against al-Qaida. In the Israeli-Palestinian case,
though, few would deny that there is an armed conflict going on. The
crux of the case is therefore likely to come down to a dispute about
what it means for someone to take a direct part in hostilities. In the
law, this is a notoriously slippery and contested concept - all the
more so in the age of low-intensity terrorist warfare.

Like much of the modern law of war, the guiding principle here can be
found in the horrific experience of "total war" in the second world
war. The aim was to make sure that it was no longer acceptable to
target civilians assistingin the general war effort - which in a
modern society could be taken to cover almost any adult. But are those
who train and equip suicide bombers taking part in hostilities? What
about those such as Sheikh Yassin who approve strategic decisions -
for instance by giving the go-ahead for women to be used in suicide
missions?

And if these people lose their immunity from attack, is that true only
while they are directly engaged in terrorist activity? Or do they
forfeit their civilian status indefinitely - so that they can be
attacked not just when they're fitting an explosives belt or poring
over a list of targets, but when they're sleeping, driving, or leaving
a mosque? And what about the inherent problemof targeting suspects who
don't admit that they are fighters? These are the issues that Israel's
supreme court will have to grapple with.

There is no clear legal precedent, and the court will have to base its
decision on a view about how the underlying principles of the law
should beapplied in this unforeseen kind of war. But there are a
couple of factors that it might fall back on. The court might make a
distinction between the militaryand political wings of organisations
such as Hamas - so that it might rule thatonly those involved in the
military chain of command could be attacked. And it might specify that
targeted killings are never permissible when the suspected terrorists
can be apprehended without the risk of serious loss of life.

In such an emotive case, though, the factors shaping its decision may
not be entirely legal. Sfard believes the biggest obstacle he and his
colleagues face is a political one. "The justices are in a very
problematic position," he argues. "I am sure that they don't want to
be the first judges from a liberal democratic country to authorise a
policy of execution without trial - but if the policy was put to a
popular vote, it would certainly win. It may be difficult for the
court to take a step that would be seen by much of the public as
harming the government's power to defend the nation's security."

In fact, there may be a middle way the court could choose, as Dinstein
points out. "I don't believe the court will rule against the
government in total," he says. But he adds that the present supreme
court is notoriously activist: it won't want simply to give the
government free rein. Therefore the judges may set some guidelines on
the practice of targeted killing, and at the same time extend a wide
degree of deference to the Israeli army as to how it applies these
guidelines in practice. For instance, they might say that military
command ers are best placed to judge whether a particular killing is
militarily necessary to defend the country against the risk of future
attacks.

Whenever it comes, the court's decision is likely to be minutely
scrutinised and passionately disputed. Judges on the American supreme
court have already said that they may look to the Israeli legal system
for precedents when they consider the ground rules for the US war on
terror. The new international criminal court (though it is unlikely to
have jurisdiction over Israeli or American actions for the foreseeable
future) may also have to consider the use of force against terrorists
at some point. Israel's justices will be the first to enter this legal
minefield, but they will certainly not have the final wordon the
subject.

· Anthony Dworkin is editor of the Crimes of War website.