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The terrorist groups that kidnapped Cpl. Gilad Shalit have announced that, in true terrorist fashion, they will not even say whether he is dead or alive following the passing of their deadline yesterday morning. These are the same groups that call the attack on Kerem Shalom, in which Shalit was taken, a "military operation" and demand that Israel release terrorists as "prisoners of war" in exchange.
Indeed, many Palestinians are proud that these groups, including Hamas, finally launched a "military" operation. "The Israelis have no right to use the term 'terror' to describe a purely military operation that targeted a military location," columnist Daoud Kuttab wrote in The Jerusalem Post on Monday.
Kuttab is correct that an attack on a military target, such as the IDF post at Kerem Shalom, is not terrorism. "Terror" is not an epithet that should be thrown around blithely as if it has no precise meaning, and simply conveys harsh condemnation. The purpose of this word is to distinguish between military and civilian targets.
This distinction is a foundation stone of international humanitarian law and of the concept of a "war crime" - that is acts that are not permissible even during a state of war and regardless of whether a state is otherwise legitimately exercising its right of self-defense. And it is precisely this distinction that terrorists do not recognize and rampantly violate.
Shalit was kidnapped in a guerrilla attack. But while in this instance the target was a military one, Hamas and the other terrorist groups taking "credit" continue to target Israeli civilians, whether through suicide bombings or missile attacks. One "military" attack does not whitewash their terrorist status. Neither does it whitewash the status of the terrorists they seek to release from Israeli jails.
As it happens, the US has been confronting similar questions. In a narrow and controversial decision, the US Supreme Court has just ruled that, absent further legislation from Congress, the US may not use military commissions to try al-Qaida and other terrorist detainees, such as those held at Guantanamo Bay.
Though considered a blow to the Bush administration, the significance of the decision arguably lies in the aspects of US policy that it upholds. As legal scholars David Rivkin and Lee Casey write in The Wall Street Journal: "All eight of the justices participating in this case agreed that military commissions are a legitimate part of the American legal tradition that can, in appropriate circumstances, be used to try and punish individuals captured in the war on terror. Moreover, nothing in the decision suggests that the detention facility at Guantanamo Bay must, or should, be closed...
"Together with the Supreme Court's 2004 decision in 'Hamdi v. Rumsfeld' - directly affirming the government's right to capture and detain, without criminal charge or trial, al-Qaida and allied operatives until hostilities are concluded - 'Hamdan' vindicates the basic legal architecture relied upon by the administration in prosecuting this war."
Captured terrorists, in other words, are neither conventional criminals nor prisoners of war. We should obviously not emulate the sadistic tortures that terrorists and dictatorships have often employed against kidnapped or captured Israelis, but neither do we have the right, let alone the obligation, to treat captured terrorists as prisoners of war.
Moreover, even prisoners of war are not normally exchanged except in the context of a peace agreement.
Israel, it must be admitted, has run roughshod over these principles when it released hundreds of prisoners to Hizbullah in 2004 and in other exchanges. But following a mistaken precedent simply compounds the mistake. The government is right, therefore, to have ruled out the release of convicted terrorists in Israeli jails.
Releasing prisoners to Hamas now, after Hamas boasted during its election campaign that it would succeed in freeing Palestinian terrorists by kidnapping Israelis, would vindicate the path of terror and violence over negotiations. Those who believe that Fatah should be preferred over Hamas should be the first to oppose an Israeli prisoner release that would markedly weaken the former and strengthen the latter.
The Palestinian leadership must learn that neither guerrilla attacks nor terrorism will achieve anything for them. A Palestinian decision to formally and universally end all such attacks, by contrast, should and would achieve positive results.
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