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What Israeli Illegality?
The Yassin assassination was perfectly lawful.


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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.

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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.



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