A moral test for fighting terror

December 19, 2006|By Amos N. Guiora

MEVASSERT, Israel -- Last week, the Israel Supreme Court rendered one of its most anticipated and important judicial rulings with respect to counterterrorismfighting terrorism. The case concerns Israel's policy of preventive strikes against known terrorists in the West Bank and the Gaza Strip. Starting in February 2000, with the beginning of the second intifada, Israel's policy of "targeted killings" resulted in the deaths of close to 300 known terrorists through the end of 2005. However, more than 30 attempts failed during that time, and approximately 150 civilians were killed. Hundreds of other civilians were wounded.

The opinion, written by Supreme Court President Aharon Barak as his last decision after retiring in September, articulates the limits of operational counterterrorism by holding that the targeted killing of known terrorists is legal if done in accordance with international law. This means that the decision and order to go after a terrorist must be rooted in principles that take into consideration proportionality, collateral damage and alternatives.

The decision, the last in Mr. Barak's corpus of rulings on fighting terrorism, is the final piece in a puzzle of judicially mandated rules for how an army should conduct operational counterterrorism. Mr. Barak's Supreme Court decisions over the past 15 years reflect a realization that damage to democracy and human rights outweigh whatever operational advantages commanders can gain from judicial ambiguity. Operational success would be enhanced by a strict moral and legal code.

The ruling establishes a checklist of how the state is to proceed in these cases. Harming civilians who "take direct part in hostilities," as defined in the decision, "even if the result is death, is permitted, on the condition that there is no other means which harms them less, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportional. That proportionality is determined according to a values-based test, intended to balance between the military advantage and the civilian damage."

Mr. Barak has often commented that civil, democratic states must conduct counterterrorism with "one arm tied behind their back." When I used that phrase, military commanders often told me that terrorists fight with two arms in front, implying that Mr. Barak's theory will lead to soldiers' deaths.

Mr. Barak's one-armed approach is reflected in his opinion on targeted killings: If we fight with both our arms, we will not only be in violation of international law but will also have lost the moral high ground.

In holding that targeted killings are lawful, the Israeli Supreme Court established a clear base line of legally authorized, aggressive, operational counter-terrorism.

The Israeli model of active, interventionist judicial review in armed conflict is foreign to American commanders, decision makers and jurists. Nevertheless, the decision extends far beyond Israel's borders.

Recently, the United States Supreme Court, in Hamdan v. Rumsfeld, held that the military tribunals established by President Bush in the aftermath of 9/11 did not pass judicial muster. The presidential order of November 2001, creating the tribunals, was not subject to rigorous checks and balances. The U.S. Congress was largely somnolent, and then-Chief Justice William H. Rehnquist had previously written that in times of conflict, the court must be "reticent."

Counterterrorism consists of four "legs": the rule of law, morality, operational considerations, and intelligence gathering. Successful, aggressive counterterrorismoperations reflect a harmonious confluence of the four. Balancing the rights of the individual with the equally legitimate rights of the state is the essence of counterterrorism. It is also very difficult to develop, implement and articulate.

Nevertheless, decision makers in civil, democratic societies have no alternative but to address this extraordinarily complicated and complex principle. A nation's leadership cannot, in the name of "national security," duck the necessity of carefully vetting operational decisions to make sure that they always meet obligations of international law and reflect a firm moral compass. One can argue that the Abu Ghraib prison scandal is an example of what happens when this process is not followed.

By not allowing "national security" as an excuse for not charting a legal and moral path in fighting terrorists, the court grants the executive power to make the most awesome decision - the killing of a human being - while explicitly limiting that power.

This is the essence of checks and balances and of active judicial review, which is the hallmark of civil, democratic society. It also reflects a moral code that makes a society worth fighting for.

Amos N. Guiora is professor of law and director of the Institute for Global Security, Law and Policy at Case Western Reserve University School of Law. He served for 19 years in the Israel Defense Forces and held senior command positions including commander of the IDF School of Military Law. His e-mail is amos.guiora@case.edu.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.