Israel’s killing of Hamas spiritual leader Sheikh Ahmed Yassin is by no means the first act of “targeted killing” (= extra-judicial execution, = assassination) that the Israeli government has carried out in recent years. This is a practice whose sheer barbarism has been recognized by nearly all other governments of the world. Even repressive governments that have in fact carried out similar acts in the past (including Israel, until a couple of years ago) made some effort to “hide” their responsibility for these killings.
The apartheid government in South Africa did, we all know, carry out extrajudicial executions, including of many people known to be in the custody of its security forces. In those cases, the killings were never described as deliberate acts of killing, but excuses were given that the deceased had “slipped on a piece of soap and fallen through the window”, or “had been shot while trying to escape.”
The terror regime in Argentina deliberately killed thousands of opponents in the most heinous way. But it always tried to hide the fact and the details of those deaths: hence the large-scale phenomenon of the “disappeared”.
Israel itself carried out many acts of assassination prior to the current intifada. Most notable were the killings of three PLO leaders in Beirut in 1973 and then the killing of Abu Jihad in Tunis in January 1988. But on all those earlier occasions, the Israeli government was happy to keep the same kind of (translucent) “veil of possible deniability” over its involvement that it has for years wielded with regard to its huge nuclear-weapons program.
Everyone in the international community in those (post-Frank Church) days recognized that it was just not “appropriate” for governments openly to admit to their involvement in extrajudicial killings. Engagement in such acts did, after all, seriously undercut the most basic foundations of any idea of the “rule of law”.
That dissociation of governments from openly admitted involvement in assassinations lasted until the election of Ariel Sharon as Israeli PM in 2001. Then, as part of his well-known tendency toward defiance of longheld international norms, he announced that “targeted killings” of accused terrorist leaders would henceforth be an open part of his government’s policy.
Btselem, the Israeli Center for Human Rights in the Occupied Territories, has a good list of the number of openly admitted assassinations the government has carried out since that announcement. I think it is more than 80– but their website is not currently responding, so I can’t check that. The site also notes that a large number of people–far more than the 80-plus actual “targets”, and many of them innocent bystanders– have also been killed as “collateral damage” in these operations.
Many of those earlier assassinations, like Shaikh Yassin’s, were carried out by helicopter gunships. Not exactly known as mechanisms for fine discrimination of targets.
In response to today’s news, European Union foreign ministers have gone on the record to condemn the whole concept of extrajudicial killings:
- “Not only are extra-judicial killings contrary to international law, they undermine the concept of the rule of law, which is a key element in the fight against terrorism,” they said at their regular monthly meeting in Brussels.
Nearly every other other government in the world has also expressed the same view.
Not so the Bush administration.
Condi Rice’s only comments were twofold: (1) to voice a totally milquetoaste and content-less appeal for “calm” in the aftermath of the killing, and (2) to deny vociferously that the Bush administration had known in advance about Sharon’s plans to do this.
Methinks the lady perhaps protested a little too much on the latter score?? Why on earth would anyone even imagine that Sharon might have given his American friends a helpful heads-up before he undertook an act that quite foreseeably escalates tensions worldwide??
The reason for the Bush administration’s non-condemnation of the Yassin assassination is quite clear: Washington itself also these days reserves the right to engage in extrajudicial executions of those accused of involvement with terrorism. We have seen at least one clear episode– that one in Yemen four or five months back– where US forces have done just that.
In asserting the “right” to undertake such actions, the Bushies were following the lead of their master in so many tactical aspects of the “war on terrorism”: Ariel Sharon. That’s why they don’t condemn his use of acts of deliberate, extrajudicial killing today.
Welcome to the Dark Ages of the collapse of the rule of law.
Welcome to the Dark Ages of the collapse of the rule of law.
It’s not as if the rule of law ever existed in the first place; as is clear from the examples you point out, the most that existed was the sort of hypocrisy that vice pays as a tribute to virtue.
In any event, the legality and morality of “targeted killings” all comes down to whether terrorism is a form of crime or a form of warfare. If the latter, then killing a member of a terrorist faction is no more an “extrajudicial execution” than killing an enemy soldier on the battlefield. As I’ve argued before, I’m not entirely convinced either way; terrorism exists in a gray area between war and peacetime crime, and the rights of governments and terrorist combatants aren’t clearly defined. But regardless of whether killing terrorists is legal or illegal, I certainly wouldn’t put it in the same category of illegality as killing prisoners in custody; the latter are obviously no longer a threat.
A killing in Gaza
A number of people have solicited my thoughts on the assassination of Sheikh Ahmed Yassin. The answer is that I’m not sure. One thing is clear: like last week’s Ashdod bombing, the Yassin assassination is as much a form of…
I beg to disagree, Jonathan. Throughout the apartheid era, and especially during the years South Africa engaged in the selective murder of those it deemed enemies of the state, the Mass Democratic Movement’s greatest spur remained the apartheid regime’s greatest threat, the imprisoned Nelson Mandela. If one views MSNBC’s graphic representation of the fall-off in the number of Hamas-sponsored suicide attacks on Israel since the final quarter of last year in conjunction with Sharon’s Herzliya Disengagement Speech, it is patently obvious that Sharon merely seeks to stoke the fires of dissent and further his goal, i.e. the elimination of all Palestinians. Quibbling about definitions of extra-judicial killing (murder), is a waste of time. Whether at war or not, Yassin was a negotiating partner. Those who kill their negotiating partners generally lose the peace and Sharon is destroying Israel as he destroys Greater Palestine. As you point out, perhaps that nebulous entity, the Rule of Law, does not exist for Ariel Sharon. It does for most though. Without it, we are no more than animals; and it shows.
There is a strange paradox, which Jonathan hints at…. The extra-legal killings have always occured, so, in an ironic way, the new “transparency” of the Israeli government permits the world to condemn the breach of international law. But then, as Mike suggests, what else could this transparency be but a political move? Since there is no need to be up front about the killings, then acknowledging them must be intended to provoke, no? Surely Sharon doesn’t expect the Palestinians to be cowed into a sudden ceasefire.
Jonathan, hi–
You say: If [terrorism is a form of warfare], then killing a member of a terrorist faction is no more an “extrajudicial execution” than killing an enemy soldier on the battlefield.
However, surely even if the “category” we are talking about is warfare, then killing a civilian leader is still not allowed. Nobody credibly claims that this 67-year-old quadriplegic was in any military chain of command. He was a political/spiritual leader who may well have given orders to people in the military chain of command– as Sharon and his cabinet do, for example, to their military. (And long live the important democratic principle of civilian control of the military, I say.)
But in the laws of war there is an extremely strong injunction against the killing of all non-military people regardless of how high their position in the political echelon– even, or perhaps we should say especially, of political leaders.
Why so? Because evidently you need a political leadership in order to terminate a conflict. Even if you succeed in winning the most abject surrender, you need someone in the authoritative political leadership to give all the military units the order to surrender and thus to terminate the conflict.
Mike is correct to point out that Yassin was a negotiating partner. He was one of the key people who gave the order to the Hamas military to abide by the not-insignificant hudna last June; on a number of occasions he has proved his worth as a negotiating partner.
If killing Yassin was legitimate, Jonathan, then surely the PFLP’s killing of Rehavam Ze’evi in 2001 could be seen as–under the laws of war– equally legitimate. Here was a man (Ze’evi) who, being in the Israeli government, was in a political leadership that was directing military organs at its disposal to carry out hostile acts against the PFLP and who moreover was engaged in continual open acts of racist (indeed, near-genocidal) incitement against the Palestinians.
I personally am not convinced that the portion of the laws of war dealing with interactions between opposing armed forces is the right lens to look through, however. I think looking at Israel’s responsibilities under Geneva-4, as the occupying power in Gaza and the WB, is much more appropriate/applicable (and cannot, anyway, be set aside). Let’s look at Art.71: “No sentence shall be pronounced by the competent courts of the Occupying Power except after a regular trial.” There then follow a number of articles detailing the protections a defendant in such a trial must be afforded.
Jonathan, on what grounds can you claim that protections as vital as these can be simply set aside? Everyone in the world (and this includes the US government), but with the sole exception of the Govt. of Israel, agrees that the protections that Geneva-4 provides to residents of occupied territories do apply in the West Bank and Gaza.
I am, actually, fairly troubled by your argument that you think “terrorism” lies in a gray area between crime and warfare. It is precisely this argument that the Bush administration has used to justify its outrageous behavior at Guantanamo where the detainees are denied both the protections they would have under the criminal law and those they would have under the laws of war; and therefore, they are treated as, essentially non-persons. That is scary, indeed. It strikes me you come close to making the same argument in the case of Sheikh Ahmed Yassin.
But we need to discuss this much more, evidently. (Here, or elsewhere.)
I am, actually, fairly troubled by your argument that you think “terrorism” lies in a gray area between crime and warfare. It is precisely this argument that the Bush administration has used to justify its outrageous behavior at Guantanamo where the detainees […]treated as, essentially non-persons. That is scary, indeed. It strikes me you come close to making the same argument in the case of Sheikh Ahmed Yassin.
I wouldn’t say that terrorists are non-persons. Rather, it is arguable that a terrorist – or at least a terrorist who is part of an organized faction carrying on a sustained campaign of political violence – is a specific type of person: a soldier. This seems to me a natural evolution of the law of war as it has developed during the late twentieth century; the various additional protocols to the Geneva convention have granted an increasing number of non-state actors the right to wage war, but the flip side of this is that members of such groups forfeit the protection afforded to civilians.
As yet, this treatment has not yet been formally accorded to terrorists, leaving a legal gray area which both governments and terrorists interpret to their advantage. Terrorists claim to be soldiers when they are tried and civilians when they are shot; governments take the opposite view. (This is the real problem with the Bush administration’s behavior w/r/t the Guantanamo detainees; it treats them as soldiers but then denies them the rights of prisoners of war.) I think, though, that the fundamentally military nature of prolonged terrorist conflicts – which are functionally low-level insurgencies – will be recognized before very long.
Keep in mind that this is a two-way street; if members of terrorist organizations are legally soldiers, they have the right to attack military targets. Thus, an attack on an Israeli checkpoint or military installation would be legal. Note that you don’t see me condemning any such attacks; I accept this as the price of treating armed conflicts like the Israel-Hamas conflict as what they are. At the same time, though, I don’t think that Hamas members should be entitled to the protections afforded to civilians under Geneva-4, or that
Re the political-military divide: I didn’t shed too many tears for Ze’evi, and in any event I’ve never really bought the distinction Hamas makes between its political and military wings. Hamas is an army without a state, and Yassin wasn’t insulated from the “military chain of command” in the way that members of a national government would be. Wheelchair-bound, yes, but a wheelchair-bound person with a cell phone can order quite a few killings. He wasn’t just a little old man in a wheelchair; I’m of two minds about this assassination, but I’m appalled at the way some of the world press has been making him into a Mandela or Gandhi.
I do agree, though, that the assassination has deprived Israel of a potential negotiating partner and, more to the point, has deprived Egypt of one. The best argument I’ve seen thus far against the Yassin assassination is this week’s Al-Ahram editorial, which points out that Egypt had been including him in discussion of post-withdrawal security arrangements in Gaza. Egypt is a key player in coordinating the withdrawal and, by taking Yassin out, Sharon has made both Mubarak’s and his own job harder. It’s a bloody mess, both figuratively and literally.
At the same time, though, I don’t think that Hamas members should be entitled to the protections afforded to civilians under Geneva-4, or that
or that the killing of Yassin constituted the execution of a penal sentence.
It occurs to me that I skipped a step in my comments above, in that I argued that terrorism falls within a “legal gray area” without explaining what that gray area is. The particular point of law I have in mind derives from the 1977 Protocol Additional to the Geneva Convention, article 1(4) of which extends the law of war to “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.” Additionally, under article 43(1), the armed forces of a party to such a conflict include “all organized armed forces, groups and units which are under a command responsible to that Party… even if that Party is represented by a government or an authority not recognized by an adverse Party” (emphasis mine). Such armed forces have the right to “participate directly in hostilities” and their members are classified as combatants.
The non-state-actor provisions of the Protocol Additional were written at least in part with the Israeli-Palestinian conflict in mind (although the South African and Rhodesian conflicts were also a factor), and its applicability to that conflict seems plain. Whether or not the Palestinians are fighting a “racist regime” (which I deny), they are clearly under “alien occupation” and are fighting for self-determination within a specific territory and against a specific state. The Protocol Additional has indeed been embraced by both the Palestinian factions and their advocates to support their argument that such factions are legitimate resistance forces rather than criminals. This means that organized Palestinian armed forces can, at least in theory, be classified as combatants under the international law of war.
The status of particular factions or persons can still be problematic. For instance, can the Hamas-Israel conflict be legally unpackaged from the overall I-P conflict, allowing Hamas to fight for the Palestinians independently of the PA? Is the “political wing” of Hamas the equivalent of a civilian government (although it governs nothing) rather than a “direct participant” in hostilities? Does the failure of the Hamas disciplinary structure to insure obedience to the law of war take Hamas out of the category of armed forces (as Israel argued in 1977), or does it merely turn bus bombings and the like from civil crimes into war crimes? Does Israel’s failure to ratify the Protocol Additional obligate it to treat members of Palestinian armed factions as civilians, or has it become part of the customary law of war (especially due to its inclusion in the Rome Statute)? Not only haven’t these questions been definitively answered, most of them haven’t even been asked, because – as I noted above – both terrorists and governments benefit from the law being unsettled. If Hamas were recognized as the armed force it is, Israel would no longer be able to prosecute its members for attacking military targets and it would no longer be able to claim that assassination of its members constitutes “extrajudicial execution,” and neither side wants to give up the advantages that come from mutable legal interpretation.
In any event, I don’t think that extending the law of armed conflict to Hamas and similar factions would result in its members being treated as non-persons. They would simply be combatants, with the rights, obligations and vulnerabilities of other combatants in international armed conflicts. Nor would all armed Palestinians be considered soldiers; only those who were members of armed factions that met the requirements of article 43(1) would have this status. For instance, the 16-year-old who almost blew himself up at a checkpoint the other day remains a civilian because, although he may have been the dupe of an organized group, he is not one of its members. Yassin is another story.
Jonathan, you are quite right to point to the relevance of the First Additional Protocol of 1977. (Though I would have said the defining context in which it was concluded was more the continuing conflict in Vietnam than anything else… but still, you’re right, it’s very relevant.)
Anyway, you make some very good points and some I’d like to discuss more. But I’m so incredibly tired!! This Mozambique chapter I’m working on has proved to be much more burdensome than I expected…. But a good burden. I have some really fabulous material I’m trying to wrestle into shape there.
Ah, yes, Vietnam – over by 1977, but no doubt very much in mind when AP1 was framed. Great essay about Mozambique, BTW.
I wish that there had been anything like this sort of outrage in relation to the many people that Yassin killed.
Jonathan – I like the way you think, although I disagree with you again. Israel never ratified the 1977 Protocol (at least to my knowledge). Therefore, assuming that an international law justification is required, Israel is not entitled to base its justification on the Protocol (although the European countries that are party to the protocol are hypocritical in their criticisms (what’s new?)).
I would argue that the correct approach is that Yassin is a combatant (whether lawful or otherwise). Under the Geneva convention, Israel is entitled to target and attack combatants so long as the attack does not result in disproportionate damage to civilians or civilian objects.
Yassin was clearly in the chain of command of organising the terrorist attacks and was therefore a legitimate target. There is no reasonable suggestion in this case that there was disproportionate damage as a result of the Israeli strikes. Note that Article 71 does not apply, as a military action such as this is not a ‘sentence’ of the type contemplated by the article.
A reductio ad absurdum application of Helena’s interpretation would be that no actions could ever be taken against combatants in occupied territories without giving them a trial first. Sorry, but warfare (modern or ancient) doesn’t work that way.
Mind you, Yassin would probably have been given a fair trial if Arafat had ever complied with his obligations under the Oslo accord to arrest terrorists.
Finally, although I am not convinced that Yassin’s targeted killing was in Israel’s interests, it couldn’t have happened to a nicer guy.
A re-reading of the Geneva-4 and Protocol I are a healthy reminder of the extent to which they have totally ignored by the Palestinians, except as a basis for attempting to restrict Israel from engaging in self-preservation.
Lewis, I did mention that Israel hasn’t ratified AP1, but that isn’t necessarily controlling. Some international lawyers and human-rights NGOs have proposed a doctrine of “non-signatory binding” under which a human-rights instrument that is ratified by a sufficient number of countries becomes part of customary international law. Many human-rights activists haven’t hesitated to cite AP1 against Israel when cataloging its violations of international law and characterizing Palestinian militant factions as legitimate resistance forces. Whether the concept of non-signatory binding is a valid one is a hot topic of debate in international law circles, which is one of the reasons why AP1 creates a legal gray area in the I-P conflict, but it seems clear that if Israel has obligations under AP1, it’s also entitled to the benefits.
Simply treating Hamas members as combatants is problematic because “combatant” is a legal term, and some legal justification is required to treat people as combatants. Israel signed Geneva-4, so it can’t play by the old rules and treat any armed Palestinian as a partisan to be shot out of hand (nor should it do so). If I were representing Israel at an international court, I would rest my argument on AP1; if I were representing it at a conference, I would argue that another protocol defining the status of organized terrorist groups should be added to the law of war.
Jonathan – I agree that the Protocol and Geneva conventions are manifestly inadequate when it comes to dealing with organised terrorist groups.
If followed strictly, they would arguably have given a mass-murderer like Yassin total immunity. He can’t be arrested, as that would require door-to-door combat as per Jenin to even get close to him (or co-operation from the PA)and he can’t be targeted, as he doesn’t neatly fit within the semantics of the international legal documents.
The arguments against killing Yassin will backfire on the Europeans when they have their own Yassins,Zawahiris, etc. to deal with.