Posted on 04/30/2004 2:30:57 AM PDT by me_newswire
The author is a professor of law and director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law.
With the simple press of a button, the pilot of an Israeli helicopter gunship unleashed three missiles, instantly killing Sheik Ahmed Yassin, founder of Hamas, as he was being driven home from prayers at his local mosque in the Gaza Strip. Yassin had not been sentenced to death by any court, nor was he on a battlefield in any conventional sense. Seven others died in the attack. Israeli Prime Minister Ariel Sharon made no apologies, justifying the action by calling Yassin the "Palestinian Osama bin Laden." Sharon pledged to continue the campaign against the rest of Hamas’s leadership; just a few ago earlier Israel assassinated Yassin’s successor, Abdel Aziz Rantisi, bringing the total of Palestinians assassinated by Israel during the current intifada to nearly 140.
Now, international headlines ask: "Is Arafat next?"
Around the globe, many people have expressed outrage. The United Nations Commission on Human Rights voted 31-2 (with 18 abstentions) in favor of a resolution condemning Israel’s assassination policy, with only the United States and Australia opposing it.
Contrary to what many think, Israel’s actions do not necessarily violate international law or even moral rules of war. Under the U.N. Charter’s provisions for self-defense and the Articles of the Geneva Conventions that allow the targeting of commanders of a hostile force, Israel can plausibly claim that its acts are permissible. But even if Israel’s assassination campaign is legal, it may still be misguided, creating new legions of foes rather than diminishing them.
Even in the most legitimate circumstances, assassination arouses a discomfort that other war tactics do not. The targets are frequently unarmed; surprise is critical. The very word assassin comes from the Arabic word for hashish user, originally applied to a secret Muslim sect of the 11th to 13th centuries whose members killed their political enemies as a religious duty, allegedly while under the drug’s influence. Long a weapon of guerrillas or revolutionaries against more powerful armies or influential leaders, assassination is now also employed by powerful militaries against individuals suspected of leading terrorist organizations. While the targets of assassination often have military roles, they generally play political ones as well, blurring the lines of what is acceptable and what isn’t.
From a public relations standpoint, it certainly did not help Israel that Yassin was a 67-year-old, nearly blind, quadriplegic cleric, whose radical organization also served as a political movement, social service provider and religious community in the Gaza Strip. While Yassin was indeed a terrorist, he was also an extremely popular leader in the Palestinian community.
Israel’s campaign coincides with changing attitudes in the United States about our own assassination policy. Invoking the internationally recognized right of self-defense, the United States has begun to openly hunt down members of the al-Qaeda terrorist organization. Testimony before the 9/11 commission recently revealed that President Clinton had secretly authorized the CIA to kill bin Laden even earlier. It is a sign of how much public opinion about assassinations has changed that, rather than criticizing Clinton for targeting bin Laden, members of and witnesses before the 9/11 commission have been asking why Clinton and the CIA didn’t try harder.
The mood was different 30 years ago. In 1975, a Senate select committee chaired by Frank Church, D-Idaho, found information about U.S. assassination plots against leaders in the former Belgian Congo (later Zaire), Cuba, Chile, South Vietnam and the Dominican Republic that were shocking in their cold-bloodedness. "The Committee believes that, short of war, assassination is incompatible with American principles, international order and morality," the committee’s final report said. "It should be rejected as a tool of foreign policy."
This conclusion, however, never became federal law. President Ford preempted Congress by issuing Executive Order 11905 which prohibited assassinations. But since an executive order is not a statute, the president can get around the ban simply by approving secret case-by-case exceptions, as we now know Clinton did with respect to bin Laden.
Two decades ago, Pentagon lawyers created a giant loophole when they produced a memorandum of law concluding that the executive order did not apply to the killing of persons in command positions during periods of armed conflict. Thus, the assassination ban did not prevent the United States from trying to kill Col. Moammar Gadhafi by dropping bombs on his quarters in Tripoli in 1986. Nor did the ban prevent U.S. forces from dropping laser-guided smart bombs on the Belgrade residence of Slobodan Milosevic during the 1999 NATO intervention. These were deemed lawful targets under the laws of war.
The war on terrorism at once expands and complicates America’s assassination policy. This policy was extended in November 2002, when CIA agents, using an unmanned Predator drone, fired a Hellfire missile against a vehicle in Yemen, killing six passengers. One was suspected of being a high-ranking al-Qaeda lieutenant. Referring to the Bush policy of preemptive self-defense, an administration official said, "the U.S. will now target without warning al-Qaeda and other international terrorists around the world." Innocent civilians killed alongside the terrorists were considered acceptable collateral damage.
But while it may have been permissible under U.S. law, the Hellfire attack in Yemen was denounced by the U.N. human rights commission, whose special rapporteur on "extrajudicial, summary or arbitrary executions," concluded that the strike constituted "a clear case of extrajudicial killing." Outside a zone of armed conflict, international law prohibits the extrajudicial killing of suspected terrorists unless they forcibly resist arrest.
Since the war on terrorism is not a traditional war, with a clear beginning, end and demarcated battlefield, this is a gray area in international law. The Bush administration argues that the zone of armed conflict against al-Qaeda encompasses the entire globe, justifying assassinations anywhere. In reference to the operation in Yemen, Bush’s national security adviser, Condoleezza Rice, said, "We’re in a new kind of war. And we’ve made it very clear that it is important that this new kind of war be fought on different battlefields."
While I’m a lawyer, my argument is not a legal one. It is political precedent that weighs most heavily against a policy of assassination. Even if such lethal measures do not violate international law, there are serious practical problems with pursuing an aggressive policy of assassination, as the United States and Israel seem poised to do.
First, even when the intelligence is perfect and the target is, in fact, guilty of terrorism, acts of assassination often result in the morally troubling slaughter of innocent family members or bystanders.
Second, there is no way to undo a mistake - and mistakes are surprisingly common. Israel, for example, has apologized in the past for assassinating people who turned out to be victims of mistaken identity, such as five Palestinian policemen killed in 2001. The faulty nature of intelligence in other areas does not inspire the sort of confidence one should have before pulling a trigger. Despite the initial Bush administration assertion that Guantánamo Bay detainees were all members of al-Qaeda, dozens were released when the administration determined that it had been mistaken.
And let us not forget that the administration’s certainty that Iraq possessed weapons of mass destruction on the eve of the 2003 invasion. Or the Clinton administration’s misplaced confidence in 1998 that a Sudanese plant it destroyed with cruise missiles was producing chemical weapons and was owned by bin Laden. Neither was true. The first Bush administration initially believed the Iranian government was responsible for the bombing of Pan Am 103, though Libya was the real culprit.
Third, the more frequent use of assassination may present cascading threats to world order. For example, in response to the assassination of Yassin and the Bush administration’s refusal to rebuke Israel for it, Hamas declared open season on America. It appears Yassin’s assassination has crossed a "red line", internationalizing the Israeli-Palestinian conflict for the first time in years. The United States will now have to guard against two separate, highly motivated and well-financed terrorist organizations like al-Qaeda and Hamas. This action has also fueled anger throughout the Muslim world against the United States, setting back efforts to obtain counterterrorism cooperation from Middle Eastern countries.
Finally, targeting specific individuals may elevate them to martyrdom, strengthening enemy morale and resolve. Rather than dealing a mortal blow to the terrorist organization, the targeted individuals are more likely to be replaced by others. In recognition of this, an unnamed Israeli official was said by Cox News Service to have described the Israeli assassination policy as "like cutting the lawn" - a task that must be carried out routinely. In the case of al-Qaeda, experts believe that it has morphed into a Hydra-like organization, with numerous deadly cells operating independently of a central leadership, thus diminishing the potential effectiveness of assassinating bin Laden and his lieutenants.
These concerns explain the reluctance of past administrations to implement an aggressive policy of hunting down suspected terrorists despite the domestic legal authority to do so. But after the 9/11 attacks, U.S. public opinion has gone full circle from the days of Sen. Church’s investigations. Today, the CIA is criticized for not being aggressive enough in bumping off suspected members of al-Qaeda earlier.
Now when Bush says that terrorists must be brought to justice, what he is really saying is that justice must be brought to the terrorists. The danger is that we could end up in a deepening and bloody campaign reminiscent of the Vietnam War-era Phoenix Program, which employed assassination to "neutralize" some 20,000 opponents of the South Vietnamese government.
Other courses of action are possible. While the criminal approach of apprehending terrorists for trial may have gone out of favor, the Pan Am 103 case illustrates the value of this tactic in the war on terrorism. I was counsel to the State Department’s counterterrorism bureau when the first President Bush weighed how to respond against Libya. Rather than attempt to assassinate or overthrow Gadhafi, we used economic sanctions to compel him to turn over the Libyan agents behind the airliner bombing for trial at a Scottish court sitting in the Netherlands.
After Libyan culpability was proved in a court of law, Gadhafi agreed to compensate the victims and to end Libya’s support to terrorist organizations. In return, the United States has lifted sanctions on Libya and reestablished diplomatic ties. The legal route ended the 30-year cycle of tit-for-tat attacks between Libya and the United States and helped transform a rogue state into a potential partner in the fight against terrorism. It is far from clear that the assassination of Gadhafi would have produced any better results.
Neither were his victims.
Neither were his victims.
Good point which is made far to seldom.
ScaniaBoy
Mosques are going up as fast as the price of gasoline as our community leaders cater to these Christian haters. The courts say we cannot profile anyone so sit back in your chair and when the next terrorist attack happens in America don't yell about the tighter boundaries the politicians slap on Americans.
Sitting back and not being decisive on this issue will cost American lives.
Question: Do we continue to fight in Iraq for the safety of America and ignore our rights at home? Do we continue to allow the Muslim immigration as they demand more religious privileges in our communities?
Yet we continue to allow Muslims from every country in this world to emigrate to the USA.
It appears we have one of three choices; to allow the muslumists to continue to congregate in their nation-enclaves where they plot various schemes of world domination and conquest, disassemble those communities and scatter them throughout the world, or build efficient exterminatiuon camps for them on a grander scale than those of 1933-'45 Germany.
But in any event, we should more likely be considering the elimination of Islamicist cities, rather than individuals.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.