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Any Name Illegal and Immoral

Published online by Cambridge University Press:  28 September 2012

Yael Stein
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Abstract

Since November 2000, Israel has been implementing an assassination policy in the occupied territories. The Israeli policy is both illegal and immoral. The legal questions are much more complicated than would appear from David's argument. Although individual killings may be lawful in specific cases, this debate concerns a policy providing systematic justification for such acts. Neither international nor Israeli law ensures any backing for this policy. Armed Palestinians are not combatants according to any known legal definition. They are civilians–which is the only legal alternative–and can only be attacked for as long as they actively participate in hostilities.

The argument that this policy affords the public a sense of revenge and retribution could serve to justify acts both illegal and immoral. Clearly, lawbreakers ought to be punished. Yet, no matter how horrific their deeds, as the targeting of Israeli civilians indeed is, they should be punished according to the law. David's arguments could, in principle, justify the abolition of formal legal systems altogether.

The Israeli government has not endorsed the minor changes of policy that David suggests, and for a reason. Israel's initial refusal to acknowledge the very existence of this policy and even its later hesitant admission suggest it is aware of the problems the policy entails and of the difficulties of dismissing them. Assassinations have been part of Israel's security policy for many years, and Israel is currently the only democratic country that regards such measures as legitimate. The Palestinian violations of international law, however, cannot be used to grant legal and/or moral legitimation to these violations when perpetrated by others.

Type
Debate
Information
Ethics & International Affairs , Volume 17 , Issue 1 , March 2003 , pp. 127 - 137
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2003

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References

1 Michael L., Gross, “Fighting by Other Means in the Mideast: A Critical Analysis of Israel's Assassination Policy,” Political Studies, forthcoming.Google Scholar

2 B'Tselem, “Collaborators in the Occupied Territories: Human Rights Abuses and Violations,” January 1994; summary available at http://www.btselem.org/English/Publications/index.asp#Anchor-1994.

3 See Amnesty International, “Israel and the Occupied Territories: State Assassinations and Other Unlawful Killings,” MDE 15/005/2001; available at http://www.amnesty.org; and Human Rights Watch, “Israel, the Occupied West Bank and Gaza Strip and Palestinian Authority Territories,” in World Report 2002; available at http://www.hrw.org/wr2k2/mena5.html.

4 The transfer of several responsibilities to the Palestinian Authority (PA) did not end the occupation. Some authority was indeed transferred to the PA, but Israel retained “effective control,” and therefore it is still considered the occupying power. This is the definition used by the International Committee of the Red Cross, the body responsible for the implementation of the Geneva Conventions. See “Statement by the International Committee of the Red Cross, Geneva, 5 December 2001”; available at http://www.icrc.org/Web/eng/siteengo.nsf/html/57JRGW?OpenDocument&style=custo_final.

5 Dr. Siham Thabat v. the Prime Minister and the Minister of Defense, HCJ 192/01, Preliminary Response of the State Attorney, February 11, 2001, par. 11.

6 Yves, Sandoz, Christophe, Swinarski, and Bruno, Zimmermann, eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff, 1987), pp. 618–19Google Scholar.

7 Article 3 of the 1948 Universal Declaration of Human Rights states: “Everyone has the right to life, liberty and security of person.” Article 6, Section 1 of the International Covenant on Civil and Political Rights states: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” According to Article 4 of the covenant, the right secured in Article 6 is also applicable during states of emergency.

8 UN General Assembly, 40th Session, Official Records, Supplement 40, Report of the Human Rights Committee, “General Comment: The Right to Life,” Article 6.

9 “Concluding Observations of the Human Rights Committee: Israel,” August 18, 1998, CCPR/C/79/Add.93.

10 The High Court of Justice issued a ruling on January 29, 2002, on Muhammad Baraka v. the Prime Minister and the Minister of Defense, HCJ 5872/01.

11 Dr. Siham Thabat v. the Prime Minister and the Minister of Defense, HCJ 192/01.

12 The Public Committee Against Torture in Israel and Law: Palestinian Society for the Protection of Human Rights and the Environment v. The Government of Israel et al., HCJ 769/02.

13 See Akiva, Eldar, “Nay-sayers Speak Out While Silenced Man Blushes in the Corner,” Ha'aretz, January 4, 2001, p. B3Google Scholar; Amos, Harel, “Wildly Throwing Punches,” Ha'aretz, December 12, 2000, p. A7Google Scholar; and Roni, Shaked, “Seven Liquidations in a Week,” supplement, “24 hours,”Yedioth Aharonot, December 19, 2000, pp.2–3Google Scholar.

14 Yossi, Melman, “With Guns, Bombs, Poison: No Questions Asked,” Ha'aretz, March 17, 1998, p. B2Google Scholar; and Yossi, Melman, “Wiping Out the Liquidation Policy,” Ha'aretz, November 23, 2000, p. B1Google Scholar.

15 See B'Tselem, “Activity of Undercover Units in the Occupied Territories,” May 1992, pp. 15, 39–40, 46–47; available at http://www.btselem.org/English/Publications/index.asp#Anchor-1992.

16 James Liebman, “A Broken System: Error Rates in Capital Cases, 1973–1995,” Columbia University Law School, June 2000; available at http://www.law.columbia.edu/news/PressReleases/liebman.html.

17 U.S. Congress, Subcommittee on Civil and Constitutional Rights, Committee on the Judiciary, “Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions” (Washington, D.C.: Death Penalty Information Center, 1993Google Scholar).

18 Richard C., Dieter, “Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent” (Washington, D.C.: Death Penalty Information Center, 1997), p. 23Google Scholar.

19 Amos, Harel, “Israel Not Intending to Target Fatah Leaders,” Ha'aretz, November 12, 2000, p. A3Google Scholar.

20 Eldar, “Nay-sayers Speak Out While Silenced Man Blushes in the Corner.”

21 Yoav, Limor and Arie, Bender, “The Target: The Authority,” Ma'ariv, January 3, 2001, p. 2Google Scholar.

22 See B'Tselem, “Legislation Allowing the Use of Physical Force and Mental Coercion in Interrogations by the General Security Service,” position paper, January 2000, pp. 35–36; available at http://www.btselem.org/Download/engtorture.doc.

23 The Public Committee against Torture in Israel et al. v. The Government of Israel et al., HCJ 5100/94, Piskei Din 53, no. 4, p. 817.

24 See B'Tselem, “Legislation Allowing the Use of Physical Force,” pp. 41–46.

25 See statements by former attorney general Michael Ben-Yair, Ha-Lishkah, October 27, 1995, p. 4.