Deadly hypocrisy

Those who condemn targeted killings misrepresent Israel's situation, and the law.

As hundreds of innocent Iraqi civilians had their houses pounded to dust and were themselves killed in Falluja, in an effort to arrest Mustaqa al Sadr, one was left wondering what strange logic considers this random deluge of death and destruction preferable to the targeted killing by Israel of Hamas leaders Abdel Aziz Rantisi and Sheikh Ahmed Ismail Yassin.

Extra judicial killing is governed by the legal codes of all Western democracies, and under international law by the Geneva conventions, the Charter of the United Nations, the Manual of the Red Cross and elsewhere. For example, Article 51 of the UN Charter embodies “the inherent right of individual or collective self-defense.” This includes a right to a pre-emptive strike where carried out in self-defence once an attack has occurred.

Israel’s decision to kill Rantisi and Sheikh Yassin should be judged against those principles of international law in the same way as the decisions to hunt down Al-Qaeda leaders and other terrorists around the globe are judged. Oppenheim’s respected work on ‘International Law’ sets out four suggested tests to justify extra judicial killing: that the armed attack should be immediately threatened; defensive action must be necessary; there is no practicable alternative and fourthly, that the action taken is proportionate. Can Israel justify its actions against these tests?

  1. Was an armed attack immediately threatened? Hamas, one of the few organisations which has made it to the “terrorist organisation” list of the EU, the UK and the USA, is dedicated to killing Israeli citizens. The Hamas charter calls for the violent eradication of the Jewish state and eschews negotiation. True to its charter, Hamas has carried out some of the most gruesome attacks, particularly targeting young women and children. Rantisi himself, on inheriting the mantle of Hamas leadership, swore to continue the bloodletting and since then Israel has apprehended a number of suicide bomb attempts, including ten over the Passover festival. Sadly , today Hamas poses a daily threat and attacks are, it appears, always imminent.

  2. Is defensive action necessary? Israel has suffered some 900 deaths through terrorism. Pro rata for the UK, which has more than ten times the population of Israel, this is the equivalent of 10,000 deaths. Yassin hailed as a “spiritual leader”- had declared that Israelis do not count as citizens and so may be lawfully killed under Islamic law. Rantisi agreed. Governments are elected at the very least to keep the peace. It is hard to understand that Israel should be denied the right to defend itself.

  3. Is there a practicable alternative? Clearly the ideal would be for terrorist leaders to be arrested and brought to trial. Israel claims that this is impractical. It would result in a bloody street battle, the loss of Israeli troops, the death of innocent Palestinian civilians in the melee of Israeli soldiers fighting their way out of trouble, and Rantisi would slip away amidst all the dust and noise anyway.

    Knowledge of the logistical difficulties facing Israel is essential to reach a fair assessment of the true cost of an attempt to arrest Rantisi. The episode of Faluja certainly supports Israel’s assessment, as indeed does Israel’s attempt to disarm terrorists in Jenin, . The death of a targeted few who have publicly boasted about their terrorist outrages and who credibly claim to be planning more, is surely better than the death of hundreds, many of whom would be innocent civilians.

    The Hamas covenant states that “Initiatives, proposals and international conferences are all a waste of time and vain endeavors”. It advocates jihad as the only solution. If attempts at dialogue are rebuffed which they are and if inactivity is ruled out which it must be - then force remains.

  4. Was the response proportionate? The idea that a single car with a specific passenger can be picked out for destruction in one of the busiest and most over-crowded urban environments on earth is technologically both impressive and scary.

    Collateral damage is deeply regrettable. Philosophically, a single innocent life is clearly too high a price to pay. But the law is less sanctimonious and more practical than that. International law can tolerate limited collateral damage. If the terrorist strategy of hiding in civilian areas were to afford total protection, then they would become inviolable.

    To tolerate the hunting down of al Qaeda and other terrorist suspects, with the concomitant loss of life of innocents that this has and will cause, and to condemn Israel for following the same policy is to impose double standards.

European leaders Jack Straw at their head have glibly rushed to condemn Israel, inter alia on the grounds that the policy of targeted killings does not work and is therefore, they imply, illegal. This seems illogical. Leaders have an affect on the bodies they lead. They are credited with successes; failure brings expulsion or resignation. It is also absurd. One cannot judge the legality of a policy by its future success. International law is not so ridiculous.

The Israeli supreme court is at this moment considering an application for judicial review to stop future targeted killings. The Israeli court is fearless. In recent years it has struck down Keneset laws for constituting a breach of human rights; indicted senior politicians, and prohibited the use of torture even in a “ticking bomb” situation. Those who want to know whether the killing of Rantisi was legal are more likely to find a proper consideration of the legal and factual issues in the ruling of the Israeli court than in the ill thought-out posturing of band wagon politicians.

Trevor Asserson practices as a solicitor in London where he is a Senior Partner in an International law firm.

Published by Globes [online] - www.globes.co.il - on April 25, 2004

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