dealing with hamas - good legal opinion

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    Dealing with Hamas

    By Alan Dershowitz
    The Globe and Mail
    September 16, 2003

    It now seems clear that Israel will persist in its policy of targeting for assassination terrorist leaders it cannot arrest or otherwise disable or disarm. Two fundamental questions are raised by this practice. The first is: Is this tactic legal under international law? The second is: Even if legal, is it wise as a matter of policy?

    As to the first question, there can be absolutely no doubt of the legality of Israel's policy of targeting Hamas leaders for assassination. Hamas has declared war against Israel. All of its leaders are combatants, whether they wear military uniforms, suits or religious garb. There is no realistic distinction between the political and military wings of Hamas, any more than there is a distinction between the political and military wings of al-Qaeda. The official policy of Hamas, like that of al Qaeda, is the mass murder of civilians. The decision to employ that policy was made by its so-called "political" leaders.

    The United States properly targeted Osama bin Laden and his associates, as well as Saddam Hussein and his sons. Under international law, combatants are appropriate military targets until they surrender. They may be killed in their sleep, while preparing military actions or while participating in any other activity. They need not be arrested, or even given a chance to surrender. Only if they come out with their hands up, or waving a white flag, or affirmatively manifesting surrender by some other means, may they avoid the ultimate sanction of a war they started, namely death.

    Military law does of course require that purely civilian casualties be minimized, even in pursuit of legitimate military targets. Both the United States and Israel seek to minimize purely civilian deaths, in part because neither has any incentive to kill entirely innocent civilians. When Israel recently went after Sheik Ahmed Yassin, the head of Hamas, it deliberately used a 500-pound bomb in order to minimize collateral damage. As a result, its legitimate target escaped with minor injuries. Had Israel not cared about collateral damage, it could easily have used a multi-ton bomb, which would have assured Sheik Yassin's death, but also increased the likelihood of killing more innocent bystanders.

    Precisely how much collateral damage is too much is a matter of degree, but international law does not condemn the targeting of combatants unless the number of innocents killed in the process is completely out of proportion to the importance of the military objective. Preventing terrorist leaders from planning, approving or carrying out acts of terrorism against innocent civilians is an important and appropriate military objective.

    Having concluded that Israel's (and America's) policy of targeting terrorist leaders is entirely lawful, it does not necessarily follow that it is always wise as a matter of policy. Reasonable people can differ as to the wisdom not only of the policy, but of its particular application to individual cases. For example, prior to the actual commencement of the recent war against Iraq, the United States tried to take out Saddam Hussein, but failed. Had it succeeded in killing the Iraqi leader, it might have avoided a war that has proved very costly in terms of human life. The targeted assassination of Saddam Hussein would have been good policy, especially if it succeeded without the killing of large numbers of innocent civilians. Likewise with the targeting of Osama bin Laden and some of his chief deputies. The early deaths of these combatants might have saved many Afghan and American lives.

    In Israel's case, Hamas leaders have sworn to increase their terrorism until Israel is destroyed. The group rejects any two-state solution to the conflict. Occasionally, it agrees to a temporary ceasefire, but it uses that period of Israeli inaction to rearm and to prepare for a recommencement of terrorism. If Israel could actually end the so-called "cycle of violence" by stopping its targeting of Hamas leaders, it would be wise to do so. But the historical record suggests that when Israel eases up in its preventative attacks on terrorist leaders, the terrorism eventually persists, sometimes even increases. It is not a "cycle of violence." It is a Hamas policy of terrorism against innocent civilians to which Israel responds by targeting guilty murderers that it is unable to arrest. These actions are in no way morally (or legally) equivalent, as the International Red Cross has mistakenly stated.

    I believe that targeted assassination should only be used as a last recourse, when there is no opportunity to arrest or apprehend a murderer, when a terrorist leader is involved in planning or approving on-going murderous activities, and when the assassination can be done without undue risk to innocent bystanders. Proportionality is the key to any military action, and targeted assassination should be judged under that rubric. Under any reasonable standard, Israeli policy with regard to the targeted assassinations of "ticking-bomb terrorists" does not deserve the kind of condemnation it is receiving, especially in comparison with other nations and groups whose legal actions are far less proportionate to the dangers they face. Any democracy facing threats to its civilian population comparable to those faced by Israel would respond in much the same way Israel is now responding to the terrorism being conducted by Hamas and other terrorist groups.

    Alan M. Dershowitz is the Felix Frankfurter professor of law at Harvard Law School and author of The Case for Israel.
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