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What Israeli Illegality? The Yassin assassination was perfectly lawful.
The National Review Online ^ | March 25, 2004 | Lee Casey & David Rivkin

Posted on 03/25/2004 7:55:03 AM PST by drb9

The international community in general and the European Union in particular have leapt to condemn Israel for its successful attack on Sheik Ahmed Yassin. Yassin was the target of an Israeli missile attack on Monday and is frequently described as the "spiritual" leader of Hamas. This was, claims the EU, an extra-judicial killing, one in violation of international law. It was not.

Yassin may well have been a spiritual man, but he was no Francis of Assisi, tending his sparrows as Israeli missiles screamed into his garden. He was the founder of Hamas, an organization described by the United States as a militant terrorist group pursing "a combined program of violence and terror" against the government and people of Israel. Its charter suggests a war of extermination, and Hamas's stated goal is the destruction of the Israeli state and its replacement with an Islamic theocracy from the Jordan River to the Sea. It purposefully targets civilians and has taken scores of innocent lives, including those of at least three Americans. Hamas's specialty is the suicide-bomb attack.

Moreover, Sheik Yassin was not merely the founder of this group and its continuing inspiration; according to Condoleezza Rice, the United States believes that Yassin was personally involved in terrorist planning. He was, in short, a Hamas operative, fully within the chain of command. Under international law, specifically the laws and customs of war, that makes him a combatant and a legitimate target for attack by the Israeli armed forces.

Ironically, for years, European leaders — along with various non-governmental organizations — have demanded that Israel apply the Geneva Conventions to its fight against the Palestinians and its so-called occupation of Gaza and the West Bank. This suggests that Europe and the NGOs fully accept that the Israeli-Palestinian struggle is an armed conflict to which the laws and customs of war apply. Of course, if Israel is engaged in an armed conflict with Hamas and other Palestinian militant groups, as it surely is, then the Israeli military is legally entitled to target and attack any Hamas combatant, high or low, at any time — so long as the attack does not result in disproportionate damage to civilians or civilian objects.

In condemning Yassin's killing, then, Europe contradicts itself. It has made clear that Israel must apply the laws of armed conflict vis-à-vis the Palestinians. Now, however, it says that individual militants cannot lawfully be targeted. Indeed Europe's outrage over the Yassin assassination is far more troubling than a little Israel- (and by implication America-) bashing. It reveals, once again, the ever-widening canyon that separates the United States, and Israel, from its NATO allies on the question of fighting terror and on the laws of war themselves.

IRRECONCILABLE DIFFERENCES? Hamas, of course, is not merely a group of ordinary combatants. Because of its irregular organization and illegal tactics, its members are in fact unprivileged or unlawful combatants. Under the traditional laws of war, based on centuries of state practice, such individuals are fully subject to attack, just like lawful combatants. But, if captured, they do not merit the rights and privileges of prisoners of war (hence the non-POW status of the U.S.'s Guantanamo Bay detainees) and can be subject to prosecution in military courts. Hamas is, as a matter of law, in precisely the same position as al Qaeda.

By now it is no secret that Europe views the situation differently. Leaving aside the Old World's growing consensus that the war on terror should be treated as a criminal law-enforcement matter — a recipe for disaster and defeat — most European states have accepted the 1977 Protocol I Additional to the Geneva Conventions. Like the 1949 Geneva Conventions (to which both the United States and Israel are parties), this instrument preserved the classification of unlawful combatant. But it also can be interpreted to provide new and extraordinarily beneficial advantages to such groups. In particular, under one of Protocol I's provisions, irregular or guerilla fighters can arguably be attacked only when they are themselves attacking. At all other times, they must be treated as part of the civilian population.

Of course, this absurd rule disadvantages the lawful armed forces of sovereign states (as it was designed to do), by giving the practitioners of asymmetric warfare incalculable advantages, since lawful combatants can still be attacked at any time. It also allows them to benefit from their own violations of otherwise applicable legal norms, such as the requirement that combatants clearly distinguish themselves from the civilian population and carry their arms openly. Protocol I was relentlessly promoted by third-world governments — not a few of which had started out as guerilla movements — and was embraced (whether from guilt, fatigue, or absentmindedness) by the former imperialists of Western Europe.

Fortunately for the American people, Ronald Reagan was paying attention, and rejected Protocol I outright, making clear that the advantages it provided to irregular and unlawful combatants were entirely unacceptable to the United States. Fortunately for the citizens of Israel (although not for Hamas), Jerusalem also refused to ratify Protocol I. Thus while European states may not be permitted to target a known terrorist in the context of an armed conflict, it remains entirely lawful for both Israel and the United States to do so. The next time Europe's leaders jump to condemn Israel for such actions, they would do well to keep this in mind.

They may also wish to rethink their own position on unlawful combatants. There is now little doubt that, in the years to come, transnational guerillas will be one of the most difficult challenges faced by civilized societies in the West — and in the East, North, and South. Adopting legal rules designed to profit mid-20th-century national-liberation movements, and attempting to impose those rules on states that wisely eschewed them, is in no one's interest — except the terrorists'. Whatever political chits European leaders may collect today by attacking Israel will very likely be paid for later in innocent blood. Sheik Yassin's death certainly revealed a humanitarian crisis — but in the cabinet rooms of Europe, not the streets of Gaza.

— David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP. They served in the Justice Department during the Reagan and Bush Sr. administrations.

TOPICS: Editorial; Israel; News/Current Events
KEYWORDS: ahmedyassin; assissination; israel; yassin

1 posted on 03/25/2004 7:55:03 AM PST by drb9
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To: drb9
What bother with all these elaborate justifications, from pundits far and wide? On and on--"We were right to waste the goon." Does somebody want a pat on the head, or something? Approval?

It was war, and an act of war. But it'll have consequences--the question is, is Israel ready for it?

Trouble is, there doesn't look like a second act to this play.

2 posted on 03/25/2004 8:07:44 AM PST by Mamzelle (for a post-neo conservatism)
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To: drb9
To be blunt, the U.S. has no right to be hunting down Osama, if Israel doesn't have the right to hunt down a monster that was responsible for the killing and wounding of so many Israelis.
3 posted on 03/25/2004 8:09:11 AM PST by xJones
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To: Mamzelle
It was war, and an act of war. But it'll have consequences--the question is, is Israel ready for it?

What, more bombings? Israel is used to it, unfortunately.

Trouble is, there doesn't look like a second act to this play.

I can see one glimmer of hope if the top leadership realizes that they aren't safe anymore.

4 posted on 03/25/2004 8:14:57 AM PST by xJones
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To: Mamzelle; drb9
Does somebody want a pat on the head, or something? Approval?

This drives me crazy.

YES. Israel DOES want approval. They DO want a pat on the head.

Why else are they always raving on about "right to exist", or "UN Resolution this-and-that"?

Israel's right to exist comes out of the barrel of a gun, and in this they are just like anyone else on earth.

Does the United States have a right to the Intermountain West?

Hell yes, we do, thanks to Nelson Miles and a few thousand dead Indians.

Israel did the first smart thing they've done in years when they waxed Yassin. Let's hope Arafat is next.

If Israel needs the UN and the EU to give them their precious "right to exist", they'd better move out now while there are still condos in Fort Lauderdale.

5 posted on 03/25/2004 11:16:35 AM PST by Jim Noble (Now you go feed those hogs before they worry themselves into anemia!)
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To: drb9
This was, claims the EU, an extra-judicial killing, one in violation of international law. It was not.


What is "international" law? Law is an attribute of the sovereign.

Who or what has the requisite sovereignty to make a law that would bind Israel at war?

Answer: No one, and nothing.

6 posted on 03/25/2004 11:18:45 AM PST by Jim Noble (Now you go feed those hogs before they worry themselves into anemia!)
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To: Jim Noble
Israel cannot operate its foreign policy expecting the US to provide a rhetorical and diplomatic shield. The wasting of Yassin was a "shot across the bow"--and now...what? Looked like a fine opening salvo.

Next, they scream for a badge of approval. Perplexing--a waste of energy and a sign to me that they lack resolve. If they lack resolve, we don't have it to give to them.

This is ridiculous--they will not get approval. Ever. Like, the UN and France is going to beam with delight? All they'll get is a grudging "right to defend" from Bush. Why should he extend anything else? And Bush cannot allow, in the interests of the US, for Israel to dictate our policies by gesture and provocation.

If Israel won't face the awful realities of defending itself, what will an "attaboy" do?

From where I sit, Israel seems to have an awful need for the world to say--"OK, I guess you can keep on breathing."

7 posted on 03/25/2004 11:46:07 AM PST by Mamzelle (for a post-neo conservatism)
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To: drb9
The Palestinians and their Eurotrash friends scream for the imposition of the Laws Of War. Except that the Palestinians do NOT abide by and regular violate accepted wartime rules. They do not have movements that are organized under a regular commander, that wear a distinctive military uniform, and that carry their arms openly and refrain from attacking non-combatants in the course of a conflict. To the contrary. The Palestinians have groups of terrorists headed by individuals who operate in the shadows, whose troops cannot be easily distinguished from civilians, who do not show signs of being armed, and who make it regular practice to attack non-combatants in the course of a conflict. The Palestinians want all the protections of the Laws Of War without fulfilling any of the corresponding obligations. Israel can be excused for thinking the motivation behind the Palestinians and Eurotrash demands is less a commitment to uphold honorable norms of warfare than it is to strip Israel of the means of defending the lives and property of its citizens. And since the true motivation is clearly the latter, there is no chance Israel will agree to a curtailment of its sovereign rights just to make things easier for its enemies as well as soothe the guilt-ridden conscience of a Europe guilty over its colonial practices. Israel is in fact defending itself with admirable restraint and is doing only the minimum necessary to neutralize a hostile target, and when one takes into account ALL the circumstances, the dispatch of Sheik Ahmed Yassin was a lawful act under even the most restrictive reading of international law. Most of us may not be lawyers but even a cursory glance at the facts reveals what Israel did holds up even under the Just War Doctrine.
8 posted on 03/25/2004 1:04:30 PM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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