By Lee A. Casey & David B. Rivkin Jr., partners in the Washington, D.C., office
of Baker & Hostetler LLP. They served in the Justice Department during the
Reagan and Bush Sr. administrations.
March 25, 2004.
The international community in general and the European Union in particular
have leapt to condemn Israel for its successful attack on Sheik Ahmed Yassin.
Yassin was the target of an Israeli missile attack on Monday and is frequently
described as the “spiritual” leader of Hamas.
This was, claims the EU, an extra-judicial killing, one in violation of
international law. It was not.
Yassin may well have been a spiritual man, but he was no Francis of Assisi,
tending his sparrows as Israeli missiles screamed into his garden.
He was the founder of Hamas, an organization described by the United
States as a militant terrorist group pursing “a combined program of violence and
terror” against the government and people of Israel.
Its charter suggests a war of extermination, and Hamas’s stated goal is
the destruction of the Israeli state and its replacement with an Islamic theocracy
from the Jordan River to the Sea. It purposefully targets civilians and has taken
scores of innocent lives, including those of at least three Americans. Hamas’s
specialty is the suicide-bomb attack.
Moreover, Sheik Yassin was not merely the founder of this group and its
continuing inspiration; according to Condoleezza Rice, the United States
believes that Yassin was personally involved in terrorist planning.
He was, in short, a Hamas operative, fully within the chain of command.
Under international law, specifically the laws and customs of war, that makes
him a combatant and a legitimate target for attack by the Israeli armed forces.
Ironically, for years, European leaders – along with various non-governmental
organizations – have demanded that Israel apply the Geneva Conventions to its
fight against the Palestinians and its so-called occupation of Gaza and the West
Bank. This suggests that Europe and the NGOs fully accept that the
Israeli-Palestinian struggle is an armed conflict to which the laws and customs
of war apply.
Of course, if Israel is engaged in an armed conflict with Hamas and other
Palestinian militant groups, as it surely is, then the Israeli military is legally
entitled to target and attack any Hamas combatant, high or low, at any time –
so long as the attack does not result in disproportionate damage to civilians or
civilian objects.
In condemning Yassin’s killing, then, Europe contradicts itself. It has made clear
that Israel must apply the laws of armed conflict vis-A-vis the Palestinians.
Now, however, it says that individual militants cannot lawfully be
targeted. Indeed Europe’s outrage over the Yassin assassination is far more
troubling than a little Israel- (and by implication America-) bashing.
It reveals, once again, the ever-widening canyon that separates the
United States, and Israel, from its NATO allies on the question of fighting terror
and on the laws of war themselves.
IRRECONCILABLE DIFFERENCES?
Hamas, of course, is not merely a group of ordinary combatants. Because of its
irregular organization and illegal tactics, its members are in fact unprivileged or
unlawful combatants. Under the traditional laws of war, based on centuries of
state practice, such individuals are fully subject to attack, just like lawful
combatants.
But, if captured, they do not merit the rights and privileges of prisoners
of war (hence the non-POW status of the U.S.’s Guantanamo Bay detainees)
and can be subject to prosecution in military courts. Hamas is, as a matter of
law, in precisely the same position as al Qaeda.
By now it is no secret that Europe views the situation differently. Leaving aside
the Old World’s growing consensus that the war on terror should be treated as
a criminal law-enforcement matter – a recipe for disaster and defeat – most
European states have accepted the 1977 Protocol I Additional to the Geneva
Conventions.
Like the 1949 Geneva Conventions (to which both the United States and
Israel are parties), this instrument preserved the classification of unlawful
combatant. But it also can be interpreted to provide new and extraordinarily
beneficial advantages to such groups.
In particular, under one of Protocol I’s provisions, irregular or guerilla
fighters can arguably be attacked only when they are themselves attacking. At
all other times, they must be treated as part of the civilian population.
Of course, this absurd rule disadvantages the lawful armed forces of sovereign
states (as it was designed to do), by giving the practitioners of asymmetric
warfare incalculable advantages, since lawful combatants can still be attacked
at any time. It also allows them to benefit from their own violations of
otherwise applicable legal norms, such as the requirement that combatants
clearly distinguish themselves from the civilian population and carry their arms
openly.
Protocol I was relentlessly promoted by third-world governments – not a
few of which had started out as guerilla movements – and was embraced
(whether from guilt, fatigue, or absentmindedness) by the former imperialists of
Western Europe.
Fortunately for the American people, Ronald Reagan was paying attention, and
rejected Protocol I outright, making clear that the advantages it provided to
irregular and unlawful combatants were entirely unacceptable to the United
States.
Fortunately for the citizens of Israel (although not for Hamas), Jerusalem
also refused to ratify Protocol I.
Thus while European states may not be permitted to target a known terrorist in
the context of an armed conflict, it remains entirely lawful for both Israel and
the United States to do so.
The next time Europe’s leaders jump to condemn Israel for such actions,
they would do well to keep this in mind.
They may also wish to rethink their own position on unlawful combatants.
There is now little doubt that, in the years to come, transnational
guerillas will be one of the most difficult challenges faced by civilized societies
in the West – and in the East, North, and South. Adopting legal rules designed
to profit mid-20th-century national-liberation movements, and attempting to
impose those rules on states that wisely eschewed them, is in no one’s
interest – except the terrorists’.
Whatever political chits European leaders may collect today by attacking Israel
will very likely be paid for later in innocent blood. Sheik Yassin’s death certainly
revealed a humanitarian crisis – but in the cabinet rooms of Europe, not the
streets of Gaza.
