Rule of lawlessness

Gross opens the Pandora's box of dilemmas associated with democracy's struggle with terrorism.

jaffa blast 298 (photo credit: Ariel Jerozolimski)
jaffa blast 298
(photo credit: Ariel Jerozolimski)
The Struggle of Democracy against Terrorism By Emmanuel Gross University of Virginia Press 291 pages Emmanuel Gross's book is not an easy read and often raises more questions than it answers. It comes at a particularly timely moment in Israel's ongoing battle against terrorism, especially given its efforts over the past few months to cope with the threat from the Gaza Strip and Lebanon. We will return to the question of how a democratic state, committed to human rights and the rule of law at home and in its international relations, is supposed to confront terrorists who deliberately embed themselves among the civilian population. But this issue is only one of the many that Gross addresses. Others include the interrogation of terrorist suspects, the use of administrative measures such as administrative arrests, house demolitions, imposition of curfews, closures and roadblocks, the incarceration of "illegal fighters," intelligence-gathering techniques that invade privacy, the use of civilians as human shields, targeted assassinations and how to cope with the terrorists' use of their own people as human shields. Gross, a professor of criminal law at Haifa University, calls for moderation and balance between the state's obligation to protect the lives of its citizens and the social and political structure that enables them to enjoy their liberties, and its obligation to safeguard those very liberties at the same time. In several cases, he compares the way Israel deals with some of the problems with the way it is done in the US and Britain. The book provides a highly detailed account of the laws that apply to each of the methods for fighting terrorism discussed, including the rationale behind them. From time to time, Gross refers to examples from Israel's recent past, which help clarify the issues under discussion. For example, in writing about targeted assassinations, he refers to the controversial incident in which the IAF dropped a one-ton bomb on an apartment building in Gaza City, killing Salah Shehadeh, the head of the Hamas military wing, his wife and daughter, a military aide and 15 civilians, including nine children. In the section on the legality of the status of "unlawful combatants," a concept which does not exist in international law, Gross refers to the case of Abdul Karim Obeid and Mustafa Dirani, Lebanese who were held in administrative detention for many years, not only because they posed a threat but because they were regarded as bargaining chips for the release of Ron Arad. When the court ruled that it was illegal to hold them in administrative detention, the Knesset passed a law creating a new status for citizens of an enemy entity falling between the officially recognized categories of civilians and combatants. Indeed, Israel maintains that the current laws of war and international humanitarian law are not appropriate for the ever-evolving war on terrorism. A classic example of this is the decision of the International Court of Justice that all of the security barrier located inside the West Bank was illegal. In making this decision, the ICJ rejected Israel's invocation of Article 51 of the UN Charter to defend the barrier as a matter of self-defense. According to Article 51, "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." The ICJ ruled that Article 51 referred to an armed attack by one sovereign state against another, and therefore did not justify the use of force against terrorism emanating from territory under the control of the country that has been attacked. Gross, like so many other Israeli international law experts, rejects this position. "The UN must adapt the criteria for the exercise of self-defense to global developments, which show that armed attacks are no longer restricted to invasion by a state," he writes. He concludes that the UN should interpret its Charter as a constitution, thus making it open to interpretation "in the spirit of [changing] times." If that proves to be politically impossible, presumably because of the opposition of non-democratic countries that support terrorism, "action must be taken to unite all the states of the free world in an international convention that will establish cooperative measures of a legal, political and strategic nature in the fight against international terrorism." Note, however, that Gross does not simply recommend ignoring international law and international public opinion. This is an expression of the moderation and balancing of values which is a constant theme throughout the book. His guiding light is retired Supreme Court president Aharon Barak, who wrote a foreword to this volume, and whom Gross frequently cites. Even before the text begins, Gross inserts a quote from Barak that is meant to summarize the main theme of this book: "This is the destiny of a democracy. It does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties." As erudite as the book is, it may be frustrating to readers looking for definitive answers to the moral and security dilemmas raised by a war in which civilians are often deliberately or inadvertently put in the middle. But the legal complexities of the issues and the constant need to balance self-defense with human rights provide no simple answers. This is true, for example, in Chapter 7, entitled "Use of Civilians as Human Shields." Gross notes many conflicting theories and axioms that are relevant to the discussion. For example, he presents the utilitarian and moral approaches to the question of terrorists operating within a civilian population. According to the first approach, it is permissible to strike at the terrorists even if nearby civilians are hurt in the process, if the outcome is greater social happiness than unhappiness (i.e. more people benefit from the killing of the terrorists and the civilians in their vicinity than suffer from it). In contrast, the second approach focuses exclusively on the intrinsic nature of the action and does not consider the overall outcome. According to this approach, killing civilians can never be justified by the goal. The moral approach raises its own questions. An army that employs less accurate, long-distance measures, such as aircraft, artillery or missiles, to fight terrorism is less likely to endanger its own soldiers than one that sends in ground forces. Is it more moral to endanger one's own soldiers than enemy civilians? This was certainly the kind of question Israel faced when IDF troops confronted the Hizbullah embedded among Lebanese civilians or tried to stop Kassam rocket attacks by striking at Beit Hanun in the Gaza Strip. According to Gross, the answer is not absolute, but relative - sometimes it is and sometimes it isn't. "The moral thing to do depends on finding the correct balance in accordance with the circumstances of each case," he writes. "In my opinion, as a rule, it is not proportional to aerially bombard places that are known to house terrorists alongside innocent civilians. It is necessary to choose less lethal means, even if they are less certain and may endanger the state's military forces." On the other hand, Gross distinguishes between two types of enemy civilians, those who actively collaborate with the terrorists by providing shelter and those held hostage by them against their will. The former, he writes, are "guilty civilians" and the state that has been attacked need have no compunction about their fate. How can one distinguish between "guilty" and "innocent" civilians, he continues. Those "who do not choose to escape from the battle arena (assuming they were warned in advance and could have escaped) and prefer to supply the terrorists with shelter, incur moral blame," he writes. "Their deaths will not be the deaths of innocents, and the moral duty to protect the lives of the soldiers will take priority." I discussed this issue with Gross because I felt this classification was too simplistic. It seems to me that many, if not most, civilians, remain in their homes because they are by nature passive or proud, or because they are too old, too young, too poor or too sick to leave. This "silent majority" of civilians is more than likely to sympathize with the terrorists against those who are bombing them, but that does not mean they are active collaborators. They would prefer that the action was going on somewhere else. My comments, needless to say, did not persuade the author. Given Gross's views, one might wonder whether he justified the IAF bombing of Shehadeh's apartment building. In fact, he writes that he opposed it on the grounds that it was disproportional. The question that comes up time and again in trying to assess the legality of actions taken in the war against terrorism is whether the government struck the "proper balance" between national security and human rights. This is a question which each individual will answer for himself. There is no mathematical formula that precisely calculates this elusive "proper balance." Gross's contribution is, therefore, not in giving absolute answers to these questions but in providing the background and methodology for examining them. He told me that in writing the book, he hoped to provide new ways of thinking for the country's decision-makers and citizens. He believes that Israel cannot only take security considerations into account but must take the entire picture into account. He reminds his readers that there are human beings on both sides of the equation, and even if a democratic government is duty bound to protect the lives of its own citizens, it must give due consideration to the rights of all the human beings affected by its actions.