In his book on terrorism, a Foreign Ministry official 'rethinks the rule of state responsibility.'
By HERB KEINONcar blown up 298 88 ap(photo credit: AP)
On March 6, the IAF fired a missile into a car in Gaza City that killed a senior Islamic Jihad commander, Munir Abu Sukker, an Islamic Jihad comrade and two bystanders - a 17-year-old girl and an 8-year-old boy.
Britain quickly denounced the raid, issuing a statement that read: "The British government condemns yesterday's Israel Air Force attack in Gaza, which resulted in the death and injury of Palestinian civilians, including young children."
The statement continued: "Israel has the right to defend itself, but any actions it takes must be in accordance with international law and should be proportionate. We have repeatedly expressed our concern about Israel's policy on targeted killings, particularly the number of civilian casualties."
To most Israelis, this condemnation sounds like typical fare, the types of statements reflexively issued by foreign governments following an IDF raid, especially when civilians are regrettably killed.
But for Tal Becker, the acting director of the Foreign Ministry's international law department, there is something in that brief statement that indicates a significant change in the world's attitude toward how it feels Israel, and indeed other countries, can fight terrorism.
That key phrase is "Israel has the right to defend itself."
For most people living here under the cloud of terrorism, the right to use the military as a defense against terrorism seems like an inalienable right. But it isn't in the eyes of the world today and was deemed even less acceptable pre-September 11, 2001.
"One of the things that has happened because of the enormity of the 9/11 attack and the risk of catastrophic terror worldwide, is the realization that sometimes you have to fight terrorism not through a law enforcement, criminal model, but rather through a war model," said Becker, author of a recently released book entitled Terrorism and the State: rethinking the rules of state responsibility (Oxford: Hart Publishing, 2006; www.hartpub.co.uk http://www.hartpub.co.uk/> ).
The French-born, Australian-raised Becker, who served from 2001-2005 as the legal adviser to Israel's mission at the United Nations, said that for many years the world viewed Israeli military action against terrorists "with skepticism," because it was widely believed that states should deal with terrorists only as they do with criminals: arrest, prosecute - extradite if need be - try and sentence.
Slowly, Becker said, people have come to realize that "it is hard to talk about a solely criminal model when the actor is engaged not for a private agenda, but for a public ideological agenda, and when he has the capacity to wreak the kind of devastation we used to think that only states with armies were capable of inflicting.
"It's all about trends," said Becker, pointing out that after the first unsuccessful attack on the World Trade center in 1993 the US reaction was to arrest the culprits. This was in line with the way of thinking that was extant at the time.
"But this is not the case anymore," he said. Even a UN Security Council statement after 9/11 indicated as much.
"In the specific context of Israel, time and time again European leaders, and not just European leaders, now say that they recognize Israel's right of self defense against terror. With that statement they are saying that sometimes an armed-conflict model regulates dealing with terrorism, and that is a dramatic shift."
Becker pointed out, however, that the right of self-defense is not a blank check given to a country that can then take whatever action it sees fit, as the other part of the March 7 British statement on the IDF action in Gaza clearly indicated.
"Self-defense is restricted by law," Becker explained. "Those employing it have to target combatants, not civilians, and it has to be proportionate."
Becker said there has also been a significant change in whom the international community holds responsible for terrorist attacks. This is the overriding theme of his book, the outgrowth of a PhD dissertation he wrote at Columbia University while working at Israel's UN mission.
The basic question the book addresses, Becker said, is that of "the responsibility of the state for what terrorists do."
Israel's position on this is abundantly clear, has been for years, and was amply evident in an IDF statement issued Wednesday following the IDF targeting of a structure in Gaza used for "the manufacturing and storage of rockets."
"The Palestinian Authority is fully responsible for any attacks emanating from its territory," the statement said, repeating what for many here is self-evident.
But, Becker said, this fact - like the right to use force against terrorists - has not been universally self-evident, and getting the world to recognize a state as a perpetrator of terrorism if it "only" gives safe haven or encourages terrorism has never been a given on the world stage. But it is becoming more and more acceptable.
BECKER'S BOOK looks at the evolution of how the international community views a state's responsibility for terrorism emanating from its territory. And the key date in this evolution, again, is 9/11.
"Every state has a legal responsibility to prevent terrorism and refrain from supporting terrorism," said Becker. "What I look at in this book is the difference between holding a state responsible for not preventing terrorism on the one hand, and holding it directly responsible for the terror attack itself on the other. And this is where you are beginning to see a gradual shift."
He brings an example from another sphere to illustrate the point.
"A fire fighter has an obligation to put fires out," Becker said. "Lets say he comes to a building and sees an arsonist, but instead of stopping the arsonist, he gives him a match, and watches as he burns the building. There is a point where we say that the fire fighter is responsible not only for not preventing the fire, but for the fire itself - there is a point where he becomes a party to the fire."
After 9/11 the Bush administration said that the US was holding the Taliban in Afghanistan responsible and accountable for the devastating attacks in New York and Washington, as if the Taliban themselves had attacked the US. This was ground-breaking, because then the right of self-defense was applied not only against al-Qaida, but against the Taliban itself; and the world acquiesced.
Becker argued that this marked a paradigmatic shift in attitudes. Up until then, a state could only be held directly responsible if the terrorists acted as direct agents of the state, such as Abu Nidal operating on behalf of Libya in the 70s and 80s.
The US position was that the Taliban was responsible, not because al-Qaida was its agent, but because it let them operate and allowed them safe haven.
"The Taliban had duties and a capacity to prevent terrorist activity, but for years it didn't do so, and so the US reached a point where it held the Taliban directly responsible for the act, not only for not stopping it," Becker said.
The state, then, became not an accomplice, but a perpetrator. What the book tries to do, he said, is cement the idea that terrorists do not only have to be the state's agents for the state to be held directly accountable.
One of the reasons the world is now more open to this idea, Becker said, was the risk of "catastrophic terrorism," the fear that non-conventional weapons could fall into the hands of terrorists.
"This has meant that we need to look for ways to ensure that states, in calculating the costs and benefits of being tolerant to terrorist activity, do a recalibration of that analysis, and part of that is to provide the legal tools to allow that to happen."
Becker, with his UN expertise, also tackled what he said was the international body's limited focus on "capacity building" to fight terrorism, based on the erroneous assumption that there were only two kinds of states: those able and wiling to fight terrorism, and those that were willing but unable.
"But there is a third category that the Security Council has been reluctant to take on," Becker said. "This is the category of states that are able but unwilling to fight terrorism. We can't ignore that category; we have to put a spotlight on it in our region and others."
Becker said that states had to be made to realize that there was a cost for "conducting wars on the cheap and turning a blind eye to the conduct of terrorist groups. This cost will be internalized when they are held responsible not only for not preventing or for supporting terrorism, but when they realize that at some point they may be held accountable as if they themselves had attacked."
Just like in Afghanistan.
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