Does legal compliance enhance counterterrorism effectiveness?
Does adhering to the principles of distinction, necessity and proportionality reduce terrorism?
By OPHIR FALKFormer Israeli soldier Elor Azaria (C), who was convicted of manslaughter and sentenced to 18 months imprisonment for killing a wounded and incapacitated Palestinian assailant, waits to hear the ruling at an Israeli military appeals court in Tel Aviv, Israel July 30, 2017. (photo credit: REUTERS)
Elor Azaria’s day in court has come to an end. The soldier, who shot and killed an incapacitated terrorist, was convicted of manslaughter and sentenced to 18 months’ imprisonment, 12-month probation and demoted in rank.Despite Azaria’s testimony that he shot the terrorist because he felt he and his surroundings were endangered, eight different judges sitting in two distinguished courts were convinced otherwise. The judges reviewed an abundance of evidence, heard Azaria’s testimony twice, and that of countless others, before ruling that the soldier was driven by revenge and/ or a desire to punish the neutralized terrorist, rather than self-defense. The verdict is to be respected.Elor could have made the IDF chief of staff’s decision to accept his request for pardon much easier had he unequivocally expressed complete remorse for his actions. Elor chose to express his regret for shooting, but to stick to his sense of endangerment argument. That choice can also be respected, regardless of the consequences that may entail.Now, beyond the current question of clemency in this specific case study, a bigger question should be addressed as to whether the existing legal directives and the compliance with those directives enhances counterterrorism effectiveness, or is it counterproductive?Does adhering to the principles of distinction, necessity and proportionality reduce terrorism? Or are these principles detrimental, overly restrictive and outdated, obsolete in today’s reality of asymmetric warfare and global terrorism?Going forward, would arresting Abdel Fattah Sharif, the neutralized Palestinian terrorist, and providing him medical treatment, have been more effective in the war on terrorism than shooting him dead? Would arresting the Yavne stabber be more effective than killing him? Would more flexible rules of engagement increase deterrence and facilitate counterterrorism?There is no consensus in opinion among security experts or laymen.Avraham Shalom, the former head of the Shin Bet (Israeli Security Agency) during the 1984 Bus 300 Affair, and who allegedly gave the orders to kill two captured terrorists, said that there is no question of morality in counterterrorism. Further, he said that the mere asking of such questions is detrimental to the state and its capabilities to confront terrorism.Shalom was wrong. The questions should be asked. Candidly researched replies may eventually contribute to the effectiveness of the virtuous war against terrorism. It is one of the key dilemma of our time. Finding the right balance between security and liberty, to maximize the effectiveness of counterterrorism has yet to be reached, or at least agreed upon.A recent PhD dissertation published at Haifa University found that legally compliant targeted killings carried out by Israel in the territories during the first decade of the 21st century, resulting in the death of the targeted terrorist solely, were more effective in mitigating suicide bombings than targeted killings that resulted in the death of civilians alongside the designated target. This is just one small facet of the counterterrorism puzzle. The impact of legal compliance on the effectiveness of other methods should be evaluated.Does legal and moral compliance enhance counterterrorism effectiveness? The public jury is still hung on this question.The author is a licensed lawyer and Research Scholar at Georgetown University.