Israeli Targeted Killings against HAMAS: Legality

The Legality and Efficacy of Israeli Targeted Killings against HAMAS

Extra-judicial killing is often referred to by the United States in the case of its enemies as “exporting terrorism,” and has gained special notoriety since its employment by the State of Israel in the years of the two Palestinian intifadas, or “uprisings.” The political assassinations and recent attempts by the Israeli government, disputed by many in the international community, are argued by Israel and the United States as legally sanctioned by Articles 2 and 51 of the United Nations Charter. Israel claims suicide bombings against its civilians have been curbed significantly by successful assassinations to which it fully admits, albeit each of these assassinations has resulted in “collateral damage” in the form of innocent bystander casualties. Others, such as Member States of the EU and the Arab League, have denounced Israeli assassinations as illegal. Whether or not the targeted killings were the factor behind the drastic reduction in suicide bomb and other terrorist attacks on Israeli citizenry is a point of major contention; several other factors including HAMAS’ calling of a hudna, or ten-year truce, in hostility and the construction of the separation wall along the UN-recognized “Green Line” demarcating Israeli from Palestinian land should be taken into consideration.

One of Israel’s most impenetrable arguments in favor of the practice of targeted assassination is not deterrence, but rather preemption:

“On November 9, 2000, Fatah leader Hussein Abayat was assassinated by fire from a helicopter, along with two women who were walking nearby. The killing initiated a new Israeli policy of publicly acknowledging assassinations—officially termed ‘targeted killings,’ ‘liquidations,’ and ‘pre-emptive strikes.’ This policy was premised on a set of interconnected justifications: 1) that Palestinians were to blame for the hostilities, which constituted a war of terror against Israel; 2) that the laws of war permit states to kill their enemies; 3) that targeted individuals were ‘ticking bombs’ who had to be killed because they could not be arrested by Israeli soldiers; and 4) that killing terrorists by means of assassination was a lawful form of national defense”[1].

The legality of Israeli targeted killings relies on a fine balance of situational interpretation of international law; while the Israelis never argue the validity of a law in the UN Charter, their political stance on the Palestinian territories often contrasts their approach in dealing with the Palestinians as a sovereign entity. Lisa Hajjar dissects the varied Israeli responses to intifada in her Courting Conflict: The Israeli Military Court System in the West Bank and Gaza, noting Israel’s relative position of morality and transparency in comparison to nations in similarly enduring conflicts. Hajjar notes that “what distinguishes the Israeli model from many other states embroiled in protracted conflict is that Israel does not repudiate or ignore international law”; “rather, it ‘domesticates’ international law by forging interpretations of its rights and duties in the West Bank and Gaza to accommodate state practices and domestic agendas”[2]. The Israeli government currently administers authority over the West Bank (referred to as “Judea” and “Samaria” in Israeli political circles), and since it controls Palestinian air space, borders, natural resources, and collects taxes from the Palestinian people, both the Gaza Strip and the West Bank would erstwhile be considered under Israeli sovereignty. However, the international community (which includes the UN) does not recognize the Israeli occupation, leaving the Palestinian situation somewhat in political limbo.

The UN Charter, in Article Two, states “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”; since “Palestine” is not a state under international law, this aspect of Article 2 does not apply. However, the simultaneous objections by the UN in the past, including the passing of more than sixty resolutions of which Israel is currently in violation[3], do not apply as according to the same Article, nothing “shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement,” including the “application of enforcement measures” taken by any given member state. By these technicalities, Israel is not breach of international law, since few international laws can apply to the occupied territories (OT) which have yet to be recognized as a sovereign state. Article 51 adds that “nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”; moreover, “measures taken by members in the exercise of this right of self-defense shall be immediately reported to the Security Council” in order to “maintain or restore international peace and security.” Israel is transparent regarding its attacks and since the Jewish state technically is not attacking the Palestinians as a whole (hence the phrase “targeted assassinations”), it is not in breach of the UN Charter. Given Israel’s membership in the UN and the absence of sovereignty on behalf of the Palestinians, no claim can be made to the contrary vis-a-vis international law. According to Hajjar:

“Many states engage in practices that deviate from and thus challenge prevailing interpretations of international law. However, when powerful and dominant states like the US and Israel do so, this cannot simply be written off or criticized as “violations” because it produces an alternative legality. Contrary to the claims of both critics who take prevailing interpretations of international law as their point of reference and political realists who disparage the relevance of law, neither state ignores the law. Rather, both use laws and legal discourse to authorize and defend the legality of policies such as military pre-emption, indefinite incommunicado detention, abusive interrogation tactics, assassinations, and targeting of areas dense with civilians”[4].

The efficacy of the targeted killings is disputed from a purely number-oriented statistical study. According to The Alternative Information Center on Palestine/Israel and the Israeli human rights organization B’tselem, Israeli deaths spiked in mid-2002, decreasing steadily through 2006[5]. Three cases of successful targeted assassinations on HAMAS (an acronym for Harakat al-Muqawama al-Islamiya, or “Islamic Resistance Movement”) to consider are those of former Izzedine al-Qassam (the militant wing of HAMAS) leader Salah Shehade in 2002, HAMAS spiritual founder and figurehead Sheikh Ahmed Ismail Yassin, and HAMAS co-founder Abdel Aziz al-Rantisi, who was killed within months of replacing Sheikh Yassin as the organization’s head. Between the established spike in violence in 2002 and the assassination of both Rantisi and Yassin in 2004, several events transpired. Between the assassinations of Shehade in 2002 and al-Rantisi in 2004, the Israeli army engaged the Palestinians with an incursion into the intifada stronghold of Jenin and began the construction of the West Bank separation barrier. Though the physical number of casualties decreased, the number of attempted attacks did not subside until as recently as December 2006[6]. While the execution of figureheads such as those named above are undoubtedly a positive force in the dissembling of HAMAS and other terrorist organizations’ leadership, the question of whether they are an effective means of deterrence and prevention is another issue, especially given the religious component of suicide bombing in the OT and its culture of martyrdom. To some extent, the system of targeted assassinations has been “marginalized as extrajudicial executions (i.e. assassinations) have come to vie with prosecutions as means of punishment and deterrence for suicide bombings by Palestinian militants”; both “suicide bombings and assassinations have a history that predates the second intifada, and both emanate from human rights claims—dystopian in the extreme—to kill to survive”[7].

Perhaps more contested from a legal standpoint than the act of targeted assassinations is the factor of innocent bystanders caught in the crossfire. The area most targeted by Israeli assassinations, especially by aircraft, is the densely-populated Gaza Strip whose population of approximately 1.3 million is estimated by many to be the most densely-populated region in the world. The case of Shehade is one of the more notorious in recent Israeli history, whose death sparked the protests of “tens of thousands vowing revenge”[8]. According to CNN and other sources, a squadron of F-16 jets dropped an armament of significant magnitude on the apartment building in which Shehade lived; sources claim the armament deployed weighed nearly a metric ton. As a corollary of the attack on the “three story building in which Shehade lived,” fifteen other people, including women and children, were killed in the residential complex[9]. Justifying the attack that killed the architect of attacks that resulted in the murder of “hundreds of Israelis,” the assassination of Shehade prompted speculation that Israel had to have been cognizant that an attack of such magnitude would certainly result in “collateral damage”[10]. Active awareness of civilian death as a measured loss in such an action prompts the question as to whether or not Israel should have been held accountable on the same counts as groups like HAMAS, despite the difference in the nature of the attacks. Hajjar, whose writings lean toward the side of the Palestinian cause, nevertheless concedes unconditionally that “suicide bombings and assassinations can by no means be considered equivalent except in their effects (death)”; while the two are not the “only forms of violence that characterize the exchanges during the Al-Aqsa Intifada, “together they illustrate with brutal clarity the human costs of unbearable justice and intractable conflict”[11]. In order to adequately address Israeli culpability in targeted attacks, one must first put into larger context the timing of such attacks. Unlike the first intifada, the roots of the second are “entwined in the military court system, which has been a central setting for the conflict”[12]. The second intifada in particular marked the change in Israeli occupation of the OT, an expansion from a predominantly “law enforcement model to a war model”[13]. Since the attacks on both sides escalated in both nature and cost, the Israeli retaliatory actions also warranted a change in their degree of severity. The deterrent component of Israeli retaliation to the first intifada was surmised to have failed, given the reorganization of additional terrorist organizations that despite their political competition inside the framework of Palestinian government collaborated in their attacks on Israeli citizenry. There existed a perception that “the duration of the first intifada had forced the Israeli government to make concessions to Palestinians and that these concessions, namely the redeployment from Palestinian population centers, had weakened the military’s ability to provide for Israeli security, creating a reliance on the Palestinian Authority that was ineffective in preventing suicide bombings and other types of attacks on Israelis”[14]. A low-intensity, small-arms confrontation, the first intifada was dwarfed by the weaponry and frequency of attacks inside Israel proper. Where the first intifada was characterized by stone-throwing at tanks, the second is today notorious for suicide bombs and gruesome lynching of Israeli settlers and soldiers. While deterrence may not have been achieved, the escalation in the degree of Israeli retaliatory measures and those of pre-emption undoubtedly carried with it the intent to assert Israeli military dominance.

Targeted assassinations took place long before the Al-Aqsa Intifada in 2000. While the legal ramifications of such assassinations are as yet to be officially disputed, the moral indignation inside Israel and abroad has been considerable. Opinions clash over the morality of such assassinations, even among Israel’s populace. Detailed by Nachman Ben-Yehuda in Political Assassinations by Jews: A Rhetorical Device for Justice, targeted assassinations should hardly be a significant point of contention in the international community. Though assassinations may be equated with executions (albeit doled out without formal trials), targeted attacks are not murder. Ben-Yehuda points out that “a political assassination event is typically carefully planned and cold bloodedly executed,” despite the large numbers of “collateral damage” as previously mentioned[15].

Israel has done well in the past to point to its critics the fact that “at the risk of seeming to provide a ‘justification’ for political assassination events in the form of executions, one must be reminded that selecting the route of political executions was in fact taken by governments in different cultures as a useful and pragmatic tool”[16]. Unlike Syria’s Asad regime, which in 1982 massacred nearly 40,000 members of the Islamic Brothers following an assassination attempt on then-President Hafiz al-Asad, Ben-Yehuda is careful to make note of Israel’s use of targeted assassination in specific cases when no other course of action will spare its soldiers’ lives. He makes a point to note that “while it is inaccurate to assert that political executions were a major tool used by Israel, it was used whenever the decision makers felt that executions could achieve specific goals like revenge, or in preventing future occurrences of aggression and violence against Israel”[17] . Ben-Yehuda also observes how some equate “a government’s reliance on assassinations to a ‘desperate gambler’s stroke’”; political analysts have speculated that “assassination is the tactic of the resource-less” and that “a government which cannot pursue foreign policy by conventional means and uses assassins instead is likely to be a government so vulnerable that its weapons perform like boomerangs in the hands of the inexperienced”[18].

America has recently endeavored to use the Israeli model of late, adopting the tactic of assassination in 2002 “which had been prohibited by executive orders since 1977”[19]. Studying Israeli legal arguments, the US militarily justified its assassination of suspected al-Qaeda member “Ali Qaed Sinan al-Harithi and five others (including a US citizen) in Yemen by a pilotless drone”[20]. Unlike, Israel, however, the US violated Yemeni airspace, a questionable act given distinction in its targeting of an American citizen. Targeted assassinations executed by the United States should not be conflated as a purely Israeli export, however; missions that transpired in the Vietnam conflict’s notorious Project Phoenix “neutralized 8,104 Viet Cong cadres” and was considered so potent a practice that the “Saigon interior minister set goals for 1969 noting the United States’ hope for 33,000 neutralizations through the rest of the year”[21]. While Israel used assassinations as a relatively domestic tool and was met with criticism, the majority of the world remained silent for several reasons in the case of America’s Project Phoenix. First, Israel has yet to officially declare war, as such a declaration would imply the sovereignty of Palestine as a nation. Second, the US was embroiled in a conflict that would later claim in excess of 50,000 soldiers and countless hundreds of thousands of Vietnamese. As a preemptive measure, Phoenix was morally admissible due to the magnitude of the conflict and the fact that Vietnam, official or not, was a multi-national, regional conflict and full-blown war. It should be noted that even in war, however, “Phoenix had become known and increasingly controversial in the US, a problem that would never cease” and added to the long list of grievances the American public would take with the war in general[22].

Robert Freedman recalls the Israeli public opinion of targeted assassination, stating “public opinion in Israel is characterized by high levels of knowledge and personal involvement regarding issues of security and by low levels of perceived influence”; “the public relies on the leadership and is aware of its own ineffectiveness” despite such reliance[23]. An open society, Israel’s actions are not only carried out on behalf of the people, but are approved by the people. As per the international outcry abroad, those who defend Israel’s actions—namely states embroiled in similar conflicts such as Serbia, Cyprus, and Russia—remained staunch allies and knew the endorsement of Israel’s actions would lessen international reaction to their own respective situations. Among Israel’s political adversaries, however, the escalation of the violence in the second intifada, along with well-documented media coverage of bus and cafe bombings, changed the character of international outcry significantly. Unlike the PLO’s activities in the late 1960s through 1980, HAMAS and its extreme tactics of suicide bombing after 2000 earned the Palestinian cause worldwide antipathy as well as scorn directed at the Israeli state. Such changes in threats, Freedman argues, precipitated changes in responses which varied in intensity. The escalation of targeted assassinations was a two-fold public relations strategy. On the one hand, it showed a change from the popular perception of Israeli indiscriminate fire on the Palestinian population, and on the other, it showed a general concern for IDF soldiers and law enforcement, starkly contrasting the willingness of HAMAS and Islamic Jihad to knowingly detonate and kill its own members. Freedman notes how “the Israeli response to the threats posed by the PLO, particularly during the height of its armed struggle in the 1968-1971 period, was based on a combination of administrative, economic, and military actions”[24]. The military component and predominance of assassinations reflects the difference between PLO secularist attacks and HAMAS-style religious branding, adding more weight to the conflict and another dimension of severity. To date, the Israelis have been able to continue in their targeted assassinations, owing to a combination of brutal Palestinian aggression as well as the language of ambiguity adhered to in the UN Charter.

BIBLIOGRAPHY

Ben-Yehuda, Nachman. (1993) Political Assassinations by Jews: A Rhetorical Device forJustice. Albany: State U of New York P.

Freedman, Robert Owen. (1991) The Intifada: Its Impact on Israel, the Arab World, andthe Superpowers. Miami: U of Florida P.

Hajjar, Lisa. (2005) Courting Conflict: The Israeli Military Court System in the WestBank and Gaza. Berkeley: U of California P.

Hirst, David. (2004) “Obituary: Sheikh Ahmed Yassin.” [Online Resource] Available at:http://www.guardian.co.uk/israel/Story/0,2763,1175854,00.html.

Prados, John. (2003) Lost Crusader: The Secret Wars of CIA Director William Colby.New York: Oxford U P.

Rice, Edward E. (1988) Wars of the Third Kind: Conflict in Underdeveloped Countries.Berkeley: U of California P.

Various. (2007) “Al-Aqsa Intifada Enters Sixth Year.” [Online Resource] Available at:http://www.alternativenews.org/aic-publications/other-publications/al-aqsa intifada-enters-sixth-year-20050929.html.

Vause, John. (2002) “Israel Takes Heat for Gaza Airstrike.” [Online Resource] Availableat: http://archives.cnn.com/2002/WORLD/meast/07/23/mideast/index.html.

Various. (2004) “Hamas Chief Killed in Air Strike.” [Online Resource] Available at:http://news.bbc.co.uk/1/hi/world/middle_east/3635755.stm

Watson, Geoffrey R. (2000) The Oslo Accords: International Law and the IsraeliPalestinian Peace Agreements. Oxford: Oxford U P.

Note: UN Charter available at: www.un.org/aboutun/charter