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A half-blind man in a wheelchair is blown apart on a crowded city street. An insecure 16-year-old boy is coaxed into donning an explosive vest. Are the events of last week in Israel a preview of the future of warfare in the age of "asymmetric" conflict?
And if so, what rules of law and morality should govern such a conflict, bringing its conduct into some semblance of conformity with recognized humanitarian principles?
When Israel killed the Hamas founder and spiritual leader Sheikh Ahmed Yassin with a missile launched from a helicopter, it provoked a firestorm of criticism. As one Israeli commentator put it, this was the mother of all targeted assassinations.
From Kofi Annan to Jack Straw to the European Union's Javier Solana, international statesmen lined up to denounce the strike as unlawful. Among the Western countries, only the United States stood partly aside from the chorus of condemnation its muddled response a telling reflection of its own contentious anti-terrorist war.
Israel countered by describing Yassin as the "godfather of the suicide bombers" and giving notice that its campaign of targeted killings would be intensified. Anyone involved in the terrorist war against Israel should know there is no immunity, the country's public security minister said the day after the attack.
The morality and legality of assassinating terrorist suspects is being argued out around the world, and is one of the hottest topics in the field of international law.
Not just theoretical
Such discussions often seem merely theoretical, unlikely to have any impact on the actions of the governments involved. But in the case of Israel, there is one body whose assessment of the question could have real and immediate consequences the country's own Supreme Court.
Within months, the court is likely to deliver its decision in a case brought by two non-profit groups seeking a declaration that the Israeli Government's policy of targeted killing is contrary to international law and should be halted.
"I believe this may be the most important case that the supreme court has yet been asked to consider," says one of the lawyers for the petitioners, Michael Sfard. In line with the significance of the moral, legal and security issues at stake, the court has not rushed to a decision.
It has had the case before it for two years. Nevertheless Sfard is confident that the case is now in "the final few metres." The groups he represents and the Israeli Government have been asked to submit their final briefs.
The first targeted killing in response to the violence of the current Palestinian intifada took place in November 2000, when the Fatah activist Hussein Abayat was killed in a helicopter attack near Bethlehem. Since then, well over 100 Palestinian militants have been the victims of such attacks (not counting the roughly equal number of bystanders who have also died).
At first, the assassinations were directed at people who were said to be "ticking time bombs" individuals who were actively involved in organizing terrorist attacks. But in more recent incidents the Israeli military has shifted to a wider range of targets, including figures such as Sheikh Yassin, who are leaders of militant groups rather than actual bomb-makers.
The government of Ariel Sharon openly acknowledges these targeted strikes as an essential part of its armed struggle to protect Israel's citizens against terrorism.
According to Sfard, though, the killings are not merely unjustified they are war crimes, perhaps even crimes against humanity. However much we may castigate terrorists, he argues, we must accept that they are not soldiers but civilians, and must be fought with law enforcement methods.
That means they can be killed only when there is no other way to prevent them from carrying out an attack that would endanger human life. Otherwise, suspected terrorists should be detained and put on trial before they can lawfully be punished for their actions.
"If a terrorist or any criminal is threatening someone's life, then you can do everything necessary to stop him," says Sfard. "But these assassinations target people at home, sleeping in their beds, or when they're simply driving in their cars they're not endangering anyone at the time when they're killed." To kill under these circumstances is simply execution but carried out without any trial or proof of guilt.
Not surprisingly, the Israeli Government and its supporters present the matter in an entirely different way. They argue that Palestinian militants may not be soldiers, but they are still participants in an armed conflict determined fighters who aim to kill Israeli civilians and who have engineered a concerted campaign of atrocities.
"These targeted killings are almost always legitimate," argues Yoram Dinstein of Tel Aviv University, one of the country's foremost authorities on the laws of war.
Under these, he points out, civilians who join in a conflict by directly participating in hostilities make themselves a lawful target for enemy forces. And that doesn't just mean the people who carry out terrorist missions, but also those who equip and send them.
"There is no difference in this respect between the person who blows himself up and the dispatcher," Dinstein argues.
Criminals or combatants?
Are the leaders of Hamas criminals or combatants? The terms of the question echo a familiar argument over Guantanamo Bay and the US proclaimed war against al-Qaida.
In the Israeli-Palestinian case, though, few would deny that there is an armed conflict going on. The crux of the case is therefore likely to come down to a dispute about what it means for someone to take a direct part in hostilities. In the law, this is a notoriously slippery and contested concept all the more so in the age of low-intensity terrorist warfare.
Like much of the modern law of war, the guiding principle here can be found in the horrific experience of "total war" in World War II. The aim was to make sure that it was no longer acceptable to target civilians assisting in the general war effort.
But are those who train and equip suicide bombers taking part in hostilities? What about those such as Sheikh Yassin who approve strategic decisions for instance by giving the go-ahead for women to be used in suicide missions?
And if these people lose their immunity from attack, is that true only while they are directly engaged in terrorist activity? Or do they forfeit their civilian status indefinitely so that they can be attacked not just when they're fitting an explosives belt or poring over a list of targets, but when they're sleeping, driving, or leaving a mosque? And what about the inherent problem of targeting suspects who don't admit that they are fighters?
These are the issues that Israel's Supreme Court will have to grapple with. There is no clear legal precedent, and the court will have to base its decision on a view about how the underlying principles of the law should be applied in this unforeseen kind of war.
But there are a couple of factors that it might fall back on. The court might make a distinction between the military and political wings of organizations such as Hamas so that it might rule that only those involved in the military chain of command could be attacked. And it might specify that targeted killings are never permissible when the suspected terrorists can be apprehended without the risk of serious loss of life.
In such an emotive case, though, the factors shaping its decision may not be entirely legal. Sfard believes the biggest obstacle he and his colleagues face is a political one.
"The justices are in a very problematic position," he argues. "I am sure that they don't want to be the first judges from a liberal democratic country to authorize a policy of execution without trial but if the policy was put to a popular vote, it would certainly win. It may be difficult for the court to take a step that would be seen by much of the public as harming the government's power to defend the nation's security."
Choose a middle way
In fact, there may be a middle way the court could choose, as Dinstein points out. "I don't believe the court will rule against the government in total," he says.
But he adds that the present supreme court is notoriously activist: it won't want simply to give the government free rein. Therefore the judges may set some guidelines on the practice of targeted killing, and at the same time extend a wide degree of deference to the Israeli army as to how it applies these guidelines in practice. For instance, they might say that military commanders are best placed to judge whether a particular killing is militarily necessary to defend the country against the risk of future attacks.
Whenever it comes, the court's decision is likely to be minutely scrutinized and passionately disputed. Judges on the US Supreme Court have already said they may look to the Israeli legal system for precedents when they consider the ground rules for the US war on terror.
(China Daily March 31, 2004)
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