+(,121/,1(
Citation: 29 Wis. Int'l L.J. 1 2011-2012
Content downloaded/printed from
HeinOnline (http://heinonline.org)
Thu Jun 26 09:41:15 2014
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:
https://www.copyright.com/ccc/basicSearch.do?
&operation=go&searchType=0
&lastSearch=simple&all=on&titleOrStdNo=0743-7951
FIGHTING TERRORISM WITH ONE HAND TIED BEHIND
THE BACK: DELINEATING THE NORMATIVE FRAMEWORK
FOR CONDUCTING THE STRUGGLE AGAINST TERRORISM
WITHIN A DEMOCRATIC PARADIGM
PROFESSOR EMANUEL GROSS*
Last century, the phenomenon of terrorism confronted many
democratic countries. This article suggests the legal and moral
dimensions of how a democratic regime should fight
terrorism.
In tro d uctio n ..........................................................................................................
1. Emergency Regime and Terrorism ..............................................................
lI.The Choice of Law in Fighting Terrorism ....................................................
111. Is the Existing Law Enough? .................................. .. . .. .. .. .. .. .. .. .. .. . .. .. .. . . . .
IV. The Balance Between Human Rights and Security Needs ......................
V . Self-Defense and Terrorism .....................................................................
VI. The Right to Access the Courts ...............................................................
C onclusion ...................................................................................................
..
1
2
5
10
22
27
32
33
INTRODUCTION
The twenty-first century poses many new challenges to the free
world. The phenomenon of terrorism is one of its most ominous and
perilous challenges. Terrorism is different from all other types of
traditional armed conflict faced in the past, because of its different nature
and the character of its participants. Fighting terrorism is not like
conducting classic wars or armed conflicts between states. Terrorism is
characterized by states fighting against non-state actors-individuals or
private terrorist organizations-that do not necessarily belong to, nor are
they endorsed by, a sovereign state and that are acting independently
from countless possible places on the globe.
In this article, I suggest a legal paradigm by which a democracy
should conduct itself when it struggles against terrorism. This article
provides a macro point of view on international law. It does not presume
Professor of Law, Faculty of Law, Haifa University.LL.M, LL.B, SJD - Tel
Aviv University. Colonel (retired) Previously President of Military Tribunal,
Southern Command, lDF. Email: [email protected]. Thanks are due to
my research assistant Ella Ben Dor. I am also grateful to Prof Eyal Benvenisti
of Tel Aviv University for his useful comments.
Wisconsin InternationalLaw Journal
to handle and analyze every aspect of international law. Instead, this
article refers to the cornerstones of international law, and emphasizes the
parts, elements, and interpretations of it, which, when applied,
demonstrate that international law is simply incompatible with reality.
Part I discusses the meaning of an emergency and how an
emergency regime can be used to combat terrorism in the legal context.
Part II discusses the legal dimension and the choice of law in fighting
terrorism. Part III discusses the relevance of the legal framework
applicable to an armed conflict between states and non-state actors in the
international arena. Part IV is devoted to the question of how to justly
balance the interests of human rights against the need for security. Part V
deals with the meaning of self-defense in connection with the
phenomenon of terrorism. The last Part poses the question of what the
proper role of the judiciary is during times of emergency when the
executive branch struggles with how to deal with terrorists.
I. EMERGENCY REGIME AND TERRORISM
A democratic regime is a government of law, not of men.' The
cornerstone of every democracy is the principle of the rule of law.'
Therefore, a democracy's struggle against terrorism should be solved
within our understanding of the rule of law.
What is the role of the law in fighting terrorism? To answer this
question, we should understand the general role of law in a civilized
society. In a democracy, the law might have different roles. First, it
reflects the basic norms-the bedrock foundation of the society--or an
agreement between all members of the society on how to live together.3
A second role for law in a democracy is the promotion of the principle of
the rule of law.' The rule of law is the keystone of democracy.5 Its true
See HCJ 4764/04 Physicians for Human Rights et al. v. Commander of the IDF Forces in the
Gaza Strip 58(5) PD 385
[2004] (tsr.),
available at http://clyonl.court.gov.il/
files eng/04/640/047/a03/04047640.a03.pdf; see also H.C. 2161/96, Rabbi Said Sharif v.
Military Commander, 50(4) PD 485,491 (tsr.) ("The branches of government hold a high place,
but the law is higher than all of us.").
2
3
See U.N Secretary-General, The Rule of Law and TransitionalJustice in Conflict and PostConflict Societies: Rep. of the Secretary General, 6, U.N. Doc. S/2004/616 (Aug. 23, 2004).
See generally Jerome Hall, Plato's Legal Philosophy, in PLATO AND MODERN LAW (Richard 0.
Brooks ed., 2007); HAROLD J. BERMAN, WILLIAM R. GREINER & SAMIR N. SALIBA, THE
NATURE AND FUNCTIONS
4
OF LAW
6-7 (5th ed. 1996);
JOHN LOCKE, Two TREATISES OF
GOVERNMENT 118-19 (Peter Laslett ed., 1988) (1960); JEAN-JACQUES ROUSSEAU, THE SOCIAL
CONTRACT 81-83 (Maurice Cranston trans., Penguin Books 1968) (1762).
See Steven G. Calabresi, The Historical Origins of the Rule of Law in the American
ConstitutionalOrder, 28 HARV. J.L. & PUB. POL'Y. 273, 273 (2004).
Vol. 29, No. I
Fighting Terrorism with One Hand Tied
value and its ability to protect society must be judged in exceptional
times, in times of tension and emergency.6
What does the "rule of law" mean in times of emergency? In
order to answer this question, we should first define the legal notion of
"emergency" and discuss the concept of an emergency regime. An
emergency, in the legal sense, is an unusual state of affairs or an unusual
time that poses a threat to a democracy and to people's ability to conduct
normal life.7 It should be stressed that an emergency regime is not
exclusively connected to existential problems.8 The character and
magnitude of the event does not necessarily have to pose a risk to the
existence of a society in order to be considered an emergency in the legal
sense. It is sufficient that the event or events gravely undermine public
order and prevent significant parts of society from being able to pursue
their normal life.9 For example, such events can exist when a strong
earthquake or a powerful hurricane causes devastating casualties, or
when a dangerous epidemic spreads and threatens many lives." Those
events cause a complete, or at least grave and exceptional, halt to normal
life. In response to those events, the government-in order to protect its
citizens and ensure the regular supply of essential services-may need to
employ some exceptional powers, such as sending the National Guard or
5
6
7
See Owen Fiss, The War Against Terrorism and the Rule of Law, 26 OXFORD J. LEGAL STUD.
235, 235 (2006).
See Yigal Mersel, Judicial Review of Counter-Terrorism Measures: The Israeli Model for the
Role of the JudiciaryDuringthe Terror Era, 38 N.Y.U. J. INT'L L. & POL. 67, 91-92 (2005); See
William J. Brennan, Jr., The Quest to Develop a Jurisprudence of Civil Liberties in Times of
Security Crises, 18 ISR. Y.B. HUM. RTS. 11, 14 (1988).
In this article, the use of the expression "emergency" will be in the context of a security threat on
a state, civilians or property. Although there is no clear analytical definition of "emergency," it is
commonly accepted to characterize an exceptional real or imminent threat as an emergency. See,
for example, the European Commission of Human Rights' definition of the term "public
emergency threatening the life of the nation" in the Convention for the Protection of Human
Rights and Fundamental Freedoms: "a situation of exceptional and imminent danger or crisis
affecting the general public, as distinct from particular groups, and constituting a threat to the
organized life of the community.which composes the state in question." Lawless v. Republic of
Ir., App. No. 332/57, 1 Eur. Comm'n. H.R. Dec. & Rep. (ser. B) at 90 (1960).
See JOAN FITZPATRICK, HUMAN RIGHTS IN CRISIS: THE INTERNATIONAL SYSTEM FOR
PROTECTING RIGHTS DURING STATES OF EMERGENCY 55-58 (1994). An emergency regime is
conducted by the government when a state emergency occurs. An emergency regime is usually
characterized by an increase in the discretionary powers of the government and restrictions on
the fundamental rights of citizens to a degree greater than normal.
9
Oren Gross, The Normless and Exceptiontess Exception: Carl Schmitt's Theory of Emergency
Powers and the "Norm-Exception" Dichotomy, 21 CARDOZO L. REV. 1825, 1833 (2000).
15 In Canada, for example, the Emergencies Act distinguishes between four types of emergencies:
public welfare emergency, public order emergency, international emergency, and war
emergency. See Emergencies Act, R.S.C. 1985, c. 22, §§ 5, 16, 27, 37 (Can.).
Wisconsin InternationalLaw Journal
the Army in to assist, or spending money that was not planned for in the
regular budget.'' In a federal system, an emergency regime must be
confined only to those places that have been affected by the events. 2
Another event that may constitute a need for an emergency
regime is an act of terrorism. 3 Terrorism is force used to intimidate
innocent people. 4 Individuals or groups use terrorism to attempt to
spread their ideas and to achieve a political goal of a nationalist,
religious, social, or economic nature. 5 Targeting people indiscriminately
may demoralize and terrify parts of the population, causing life to veer
from its normal course. 6 Thus, a government that is fighting terrorism
may be required to use special tools, such as certain interrogation
techniques, which are generally prohibited in normal, non-emergency
times.' 7 Those special legal tools create a potential threat to people's
liberties, and, therefore, the use of these techniques could conflict with
constitutional rights. 8
Emergency is also defined as a real and imminent crisis that
gravely and exceptionally endangers a state's sovereignty. 9 Thus, the
1
See William L. Waugh Jr., The Political Costs of Failure in the Katrinaand Rita Disasters, 604
ANNALS 10, 12 (2006).
12 Seeid. at l6,21.
13 Emanuel Gross, How to Justify an Emergency Regime and Preserve Civil Liberties in Times of
Terrorism, 5 S.C. J.INT'L L. & Bus. I, 1-2 (2008).
14 For a comprehensive discussion regarding the legal definitions and common characteristics of
the Patriot Act, see EMANUEL GROSS, THE STRUGGLE OF DEMOCRACY AGAINST TERRORISMLESSONS FROM THE UNITED STATES, THE UNITED KINGDOM, AND ISRAEL 15-16 (2006).
PAUL WILKINSON, POLITICAL TERRORISM 12-13 (1974).
16 See Cass R. Sunstein, On the Divergent American Reactions to Terrorism and Climate Change,
107 COLUM. L. REV. 503 (2007).
17 See Gross, supra note 13, at 15 16.
I8
d. at 10- 11.
'5
The concept of "emergency" has never received a descriptive definition that clearly expresses the
scope of its application. The reason for this is that states of emergency may be caused by an
infinite variety of circumstances and in various levels of severity. Furthermore states vary in the
size of their territory, their culture, the constitutional structure of their governments. Because of
the unique nature of each state, every attempt to define in advance the parameters that
characterize an "emergency" is inherently flawed because it ignores the need to examine each
event according to its context and circumstances. See JAIME ORAA, HUMAN RIGHTS IN STATES
OF EMERGENCY IN INTERNATIONAL LAW 31 (1992). In spite of these preliminary difficulties, it is
possible to indicate four basic elements that distinguish states of emergency from states of
normalcy: first, a state of emergency exists when state's sovereignty is at risk-i.e., when the
government is unable to ensure national and personal security, or the ordinary supply of essential
services, such as law enforcement, medical services, public transportaion, etc. Second, a state of
emergency exists only in light of grave and exceptional threats. Third, the crisis must be of a
temporary nature. Fourth, the crisis must be real or imminent. See Gross, supra note 13, at 3, 810 for a comprehensive examination of these elements.
Vol. 29, No. ]
FightingTerrorism with One Hand Tied
occurrence of an emergency also means that the government might need
to restrict its citizens' constitutional liberties in order to effectively
overcome the threat and restore the normal course of life as soon as
possible.2"
The next part describes the kind of law that should regulate a
democratic country's struggle against terrorism.
II. THE CHOICE OF LAW IN FIGHTING TERRORISM
A democratic government's response to terrorism-related states
of emergency ought to be derived from two sets of norms: the
international law regarding the conduct of hostilities and the domestic
laws that govern the use of force during times of emergency. This article
first discusses the former.
It is well-known that wars have been an inherent part of human
nature from the beginning of history.2 Beginning with the formation of
nations, the civilized world has tried to regulate the norms by which wars
were justified and the ways they should be conducted.22 During the
nineteenth and twentieth centuries, multiple nations worked together to
create the international laws of armed conflicts.23 The common
20
For a survey of the various theoretical models for responding to states of emergency see
generally
OREN GROSS & FIONNUALA
NI AOLAIN, LAW IN TIMES OF CRISIS: EMERGENCY
POWERS IN THEORY AND PRACTICE (2006). See also Wayne McCormack, Emergency Powers
21
22
and Terrorism, 185 MIL. L. REV. 69, 70 (2005).
Aristotle wrote: "[We] make war that we may live in peace." ARISTOTLE, "THE NICOMACHEAN
ETHICS," Book X, ch. 7 (David Ross trans., Oxford Univ. Press rev. ed. 1984).
See JAMES TURNER JOHNSON, MORALITY & CONTEMPORARY WARFARE 23 (1999) (noting that
just war theory has "developed over history as a result of contributions from both secular and
religious sources, reflecting the practice of statecraft and war as well as moral and political
theory"); see also Ronald J. Rychlak, Just War Theory, InternationalLaw, and the War in Iraq,
2 AVE MARIA L. REV. 1, 3-21 (2004) (discussing the just war theory and conditions for a just
war).
21
See generally Convention for the Pacific Settlement of International Disputes, July 29, 1899, 2
Malloy 2008 [hereinafter Hague I]; Convention with Respect to the Laws and Customs of War
on Land, July 29, 1899, 2 Malloy 2034 [hereinafter Hague II]; Convention with Respect to the
Laws and Customs of War on Land, Oct. 18, 1907, 2 Malloy 2261 [hereinafter Hague IV];
Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed
Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva 1];
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter
Geneva 11]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6
U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Ill]; Geneva Convention Relative to the
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287
[hereinafter Geneva IV]; Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977,
1125 U.N.T.S. 3 [hereinafter Protocol I].
Wisconsin InternationalLaw Journal
denominator of those rules was a general understanding and agreement
that despite all participants' desire to win a war, not all available means
and techniques are permissible.24
The war on terrorism is different from traditional wars, because
the participants are non-state actors. In the past, wars have typically been
fought among sovereign states.5 Terrorism is a new phenomenon: armed
struggles between a state and non-state actors. Thus, while the customary
rules of engagement are based on the assumption that all of the parties to
a conflict had agreed to restrain their use of power, with terrorism only
one side still sees itself as committed to those rules: the sovereign state.26
The other side, the terrorist organization, not only does not consider itself
bound by the laws of war, but also defies and despises those laws.27
Under these circumstances, the first question that arises concerns
the status of terrorists under international law. Under international law,
there are only two kinds of players in an international armed conflict.
There are the "combatants" who are persons who conduct the war, and
"civilians," those who find themselves involved in a war but do not take
part in the hostilities.2" How should the status of a terrorist be regarded:
as a combatant, or a civilian?
In view of the special nature of the war waged by terrorists, as
opposed to the other "classic" participants within the international arena,
I believe that a terrorist cannot be regarded as a lawful combatant, or
even as a freedom fighter.29 The international laws of war regulate the
status of civilians and lawful combatants during times of hostility.30
However, these laws do not regulate the status of unlawful combatants,
such as terrorists. Hence, there is no explicit international regulation for
the manner in which an armed conflict between sovereign states and
private terrorist organizations ought to be conducted. Article 2, common
24
25
26
27
28
29
See Tamar Meisels, Combatants Lawful and Unlawful, 26 L. & PHIL. 31, 32-33 (2007);
William H. Taft, IV, The Law ofArmed Conflict After 9/11: Some Salient Features,28 YALE J.
INT'L L. 319 (2003); Eric A. Posner, A Theory ofthe Laws of War, 70 U. CHI. L. REV. 297, 299
(2003).
PAUL GILBERT, NEW TERROR, NEW WARS 6-8 (2003).
See Emanuel Gross, The Laws of War Waged Between Democratic States and Terrorist
Organizations: Real or Illusive?, 15 FLA. J. INT'L L. 389, 415-17 (2003); LOTHAR KOTZSCH,
THE CONCEPT OF WAR IN CONTEMPORARY HISTORY AND INTERNATIONAL LAW 27-28 (1956).
Meisels, supra note 24, at 33.
See Hague IV, supra note 23, Annex art. 1; Geneva 1, supra note 23, art. 13; Geneva 11, supra
note 23, art. 13; Geneva I11, supra note 23, art. 4.
For a similar view, see YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF
INTERNATIONAL ARMED CONFLICT 29 (2004).
'0 See supranote 28.
Vol. 29, No. 1
Fighting Terrorism with One Hand Tied
to the four Geneva Conventions of 1949, provides that the norms
anchored in the conventions are intended to apply to international armed
conflicts (i.e., to conflicts between two or more entities possessing an
international legal personality)." Article 1(4) of the First Additional
Protocol to the Geneva Conventions expands the definition of an armed
conflict to situations where people fight against a colonial regime,
foreign occupation or racist regimes within the framework of their
struggle for self-determination. 2 International law also enables the
attribution of the activities of non-state actors to a state that is sponsoring
their acts. However, the attribution is only allowed if that state has
effective control over the non-state actors (i.e., if the person or group is
in fact acting on the instructions of, or under the direction or control of,
that state in carrying out the conduct).3
However, even though the vast majority of terrorist
organizations are supported by sovereign states, it is very difficult to
prove the existence of such support. 4 Thus, only in a few cases is it
possible to render the doctrine of effective control and to attribute to the
sponsoring state responsibility for the terrorist acts carried out in the
territory of another state. If the terrorists are inhabitants of the state and
operating against it from inside, it should be regarded as an armed
conflict not of an international character, and the domestic law should
provide the legal norms regulating this struggle. 5 Article 3, common to
the four Geneva Conventions, refers to armed conflicts of noninternational character. 6 If this article applies in terrorism scenarios, it
could provide minimum humanitarian norms that bind all the parties to
the dispute. Assuming a terrorist organization is not sponsored by a
state, or alternatively that it is impossible to prove such support, the
central question is whether this article is applicable to terrorist attacks
3' Geneva I, supra note 23, art. 2; Geneva II, supra note 23, art. 2; Geneva III, supra note 23, art.
2;
32
33
34
35
36
37
Geneva IV, supra note 23, art. 2.
Protocol 1,supranote 23, art. 1(4).
Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 65
(June 27); see also International Law Commission, Draft Articles on Responsibility of States for
Internationally Wrongful Acts, art. 8 (2001), available at http://untrcaty.un.org/ilc/texts/
instruments/english/commentaries/9 6_2001 .pdf.
See GROSS, supra note 14, at 52.
George P. Fletcher, The Law of War and Its Pathologies, 38 COLUM. HUM. RTS. L. REV. 517,
525-27 (2007).
Geneva 1,supranote 23, art. 3; Geneva 11,supra note 23, art. 3; Geneva 111,supra note 23, art. 3;
Geneva IV, supra note 23, art. 3.
Geneva 1,supra note 23, art. 3; Geneva I1,supra note 23, art. 3; Geneva III, supra note 23, art. 3;
Geneva IV, supra note 23, art. 3.
Wisconsin InternationalLaw Journal
against a sovereign state, where such attacks are perpetrated by a terrorist
organization operating from outside the country it attacks.
Article 3 sets out two cumulative conditions for its application:
first, the existence of an armed conflict; and second, that the dispute is
not of an international character. 8 Even assuming that the second
condition is directed to apply to every armed conflict not governed by
Article 2 (i.e., a conflict in which only one of the parties is a sovereign
state and the other is a non-state actor) the international community must
determine whether it is possible to regard terrorist attacks as armed
conflicts, and not merely as internal uprisings or riots. Although terrorist
acts are not armed conflicts in the traditional sense due to their special
nature and attributes, they nonetheless meet some of the basic
characteristics of the classic armed conflict.39 A terrorist organization is
an organization possessing a hierarchical structure, which consists of a
political wing and a military wing. n" Terrorist acts are not spontaneous
but are preceded by careful planning and by intelligence-gathering in
order to increase the chance of success.4 Additionally, terrorist acts are
capable of causing great damage to life and property. 2
Thus, even if it is not possible to clearly define the exact scope
of the term "armed conflict," the term should apply to hostilities which
pose a grave breach of international humanitarian law. Therefore, while
not all terrorist attacks may be an armed conflict according to the classic
definition, attacks that were planned and launched by terrorist
organizations against civilians and that threaten or cause serious damage
to people or to property should be regarded as armed conflicts. 3
Certainly these attacks cannot be considered merely riots or
insurgencies.'
38 Geneva I, supra note 23, art. 3; Geneva II, supra note 23, art. 3; Geneva III, supra note 23, art. 3;
Geneva IV, supra note 23, art. 3.
39 GROSS, supranote 14, at 52; see Taft, supra note 24.
40 See MATTHEW LEVITT, HAMAS: POLITICS, CHARITY, AND TERRORISM IN THE SERVICE OF JtHAD
41
42
9 (2006); David Matas, The New Laws on Terrorist Financing, 4 ASPER REV. INT'L Bus. &
TRADE L. 145, 146-49 (2004); Stephen C. Warneck, A Preemptive Strike: Using RICO and the
AEDPA to Attack the Financial Strength of International Terrorist Organizations, 78 B.U.L.
REV. 177, 184-85 (1998).
See Wameck, supra note 40, at 178.
Reuven Young, Defining Terrorism: The Evolution of Terrorism as a Legal Concept in
InternationalLaw and Its Influence on Definitions in Domestic Legislation, 29 B.C. INT'L &
COMP. L. REV. 23, 53-56 (2006).
43 GROSS, supra note 14, at 52-54.
44 See Derek Jinks, September II and the Laws of War, 28 YALE J. INT'L L. 1, 47 (2003).
Vol. 29, No. 1
Fighting Terrorism with One Hand Tied
In some scenarios, concluding that certain types of combat,
military operations, or warfare are "armed conflict" is even more
problematic. The United States' response to the terrorist attacks of
September 11, 2001 is an example of a situation in which it is difficult to
decide whether to classify it as "armed conflict." The United States
government decided that there was a military need to send the army to
Afghanistan in order to fight Al Qaeda, which had sent assailants to
attack the United States." Which law should govern this situation? Al
Qaeda is not a state; rather, it is a global terrorism network. 6 Because it
is not a state, some argue that Article 2, mentioned earlier, is not
applicable. If the international law of armed conflict is not applicable,
should it be considered as a problem of domestic law enforcement, as
one prominent scholar recently suggested?47 I do not think that the
domestic law should regulate situations in which the Army operates
outside of the state's borders. I agree with Professor Corn that between
domestic law and international law of armed conflict, applying the latter
is preferable and makes more sense in situations such as this. 8
The answer, I believe, should be found in Article 3, mentioned
earlier. Because terrorist organizations are not states, the fight against
terrorist organizations cannot be regarded as an armed conflict of
international character according to Article 2, and therefore Article 3
should apply. As noted above, Article 3 covers all armed conflicts that
are not of international character.49 It is important to apply this article
because it sets the minimum standards of humanity even if the terrorists
do not respect those norms."
In another scenario of armed conflict between a state and a nonstate organization, the latter operates from within a political entity that is
not a state. This is the case in the Israeli-Palestinian conflict.5 The
45 See Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)
(joint
resolution issued by the two Houses of Congress shortly after the 9/11 attacks).
46 NATIONAL COMM'N ON TERRORIST ATTACKS UPON THE U.S., OVERVIEW OF THE ENEMY, Staff
15,
available at http://www.9-I 1commission.gov/hearings/hearingl2/
Statement
No.
staff statement- I5.pdf.
47 Yoram Dinstein, Comments on War, 27 HARV. J. L. & PUB. POL'Y. 877, 884-88 (2004).
4' Geoffrey S. Corn, Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a
Hybrid Category ofArmed Conflict, 40 VAND. J. TRANSNAT'L L. 295, 296, 337 (2007).
49 Geneva 1, supra note 23, art. 3; Geneva I1, supra note 23, art. 3; Geneva 111,supra note 23, art. 3;
Geneva IV, supra note 23, art. 3.
50 Nathaniel Berman, Privileging Combat? Contemporary Conflict and the Legal Construction of
War, 43 COLUM. J. TRANSNAT'L L. 1, 20 (2004).
5' See, e.g., Ariel Zemach, Taking War Seriously: Applying the Law of War to Hostilities Within an
Occupied Territory, 38 GEO. WASH. INT'L L. REV. 645, 646-47 (2006); Mchir Shamgar, The
Wisconsin InternationalLaw Journal
Palestinian Authority has not been recognized by international law as a
sovereign state.52 For this reason, it is not clear whether the IsraeliPalestinian conflict ought to be regarded as an armed conflict of an
international character according to Article 2." However, the longstanding ruling of the Israeli Supreme Court is that Israel holds Judea,
Samaria, and the Gaza strip by virtue of belligerent occupation.
Consequently, the military commander's power stems from two
normative sources. 4 First, the power comes from the rules of
international law concerning belligerent occupation (including the
customary Hague Regulations and the Fourth Geneva Convention),
which are part of the laws of war. 5 Second, from the basic principles of
Israeli administrative law, which demand that the military commanderas a public official-will implement the powers conferred on him in a
reasonable, proportional, and fair manner and will appropriately balance
individual liberties against the public interest. 6
In the next part, I address the broader question of whether
international law as a corpus, with its configuration and its principles and
premises, is truly successful in promoting its humanitarian goals in an
armed conflict between a state and a non-state actor.
III. IS THE EXISTING LAW SUFFICIENT?
As discussed earlier, international law solely regulates the status
of civilians and combatants. 7 International law has not adjusted to deal
with the phenomenon of terrorism. 8 In order to view international law
through the lens of today's reality, I use the example of Operation Cast
Lead, and particularly the United Nations' fact-finding mission on the
Observance of InternationalLaw in the Administered Territories, 1 ISR. Y.B. HUM. RTS. 262
(1971).
52 Louis Rcne Beres, Implications of a Palestinian State for Israeli Security and Nuclear War: A
JurisprudentialAssessment, 17 DICK. J. INT'L L. 229, 229-44 (1999).
53 See Dinstein, supra note 47, at 887.
14 HCJ 2056/04 Beit Sourik Vill. Council v. Gov't of Isracl 43 ILM 1099,
" Id. 23-24.
56 See, e.g., HCJ 7015/02 Ajuri et al. v. IDF Commander 56(6) PD 352,
23 [2004] (lsr.).
13 [2002] (lsr.); HCJ
4764/04 Physicians for Human Rights v. The Commander of IDF Forces in the Gaza Strip 58(5)
PD 385, 10 [2004] (Isr.).
57 Michael N. Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private
Contractors or Civilian Employees, 5 CHI. J. INT'L L. 511, 522 (2005).
58 See Fletcher, supra note 35.
Vol. 29, No. 1
Fighting Terrorism with One Hand Tied
war in Gaza which followed Operation Cast Lead, led by Judge Richard
Goldstone,59 as a case study.
Since the year 2000, approximately 12,000 rockets fired by
Palestinian militants have hit Israel.6" These ongoing attacks on Israel's
civilian population have caused many casualties and generated a need for
action in order to re-establish security and order.6 As a sovereign state,
Israel has both the right to self-defense and the obligation to protect its
citizens.6 2 Thus, Operation Cast Lead was launched.63 Cast Lead was a
three-week armed conflict that took place in the Gaza Strip between
Israel and Hamas during the winter of 2008-2009. The operation was a
response to a sharp increase in the number and frequency of rocket
attacks into Israel, prior to and following the expiration of a cease fire,
agreed by Hamas. As a result of Operation Cast Lead, now known as the
Gaza War, the United Nations Human Rights Council gave the
previously fact-finding mission the mandate "to investigate all violations
of international human rights law and international humanitarian law that
might have been committed at any time in the context of the military
operations that were conducted in Gaza during the period from 27
December 2008 and 18 January 2009, whether before, during or after."'
The Goldstone report is an ideal example for demonstrating that
international law is not adequate to deal with the phenomenon of
terrorism. First, the legal framework of the Goldstone report is general
international law, international human rights law and international
humanitarian law in particular.65 Second, the "armed conflict" in question
was between a state and a non-state actor. The non-state actor, Hamas, is
59 Human Rights in Palestine and Other Occupied Arab Territories: Rep. of the U.N. Fact-Finding
1-2, U.N. Doc
Mission on the Gaza Conflict, Human Rights Council, 12th Sess.,
A/HRC/12/48 (Sept. 25, 2009), available at http://www2.ohchr.org/english/bodies/hrcouncil/
docs/12scssion/A-HRC- I 2-48.pdf [hereinafter The Goldstone Report].
60 See THE STATE OF ISRAEL, THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS
[hereinafter
OPERATION
IN
GAZA
REPORT],
available at
15 (2009)
http://dover.idf.il/NR/rdonlyres/
14998311-6477-422B-B5EE-50C2F 1 B3 I D03/0/FINALDRAFTwithclearance.pdf.
61 The Goldstone Report, supra note 59, T 16.
62 U.N. Charter art. 51 (refers to the "inherent right of individual or collective self-defense if an
armed attack occurs against a Member of the United Nations"). Article 1, paragraph 1, states the
first purpose of the United Nations is "[t]o maintain international peace and security, and to that
end to take effective collective measures for the prevention and removal of threats to the peace,
and for the suppression of acts of aggression or other breaches of the peace." Id. art. 1.
63 See OPERATION IN GAZA REPORT, supra note 60, 1% 1-14. Operation Cast lead was conducted
against Hamas, the organization that ruled Palestine at the time.
64 The Goldstone Report, supra note 59, 1.
65 See id.11 294-310.
Wisconsin InternationalLaw Journal
considered a terrorist organization by Israel and other nations," and is
therefore an appropriate factual basis for analysis. Most of all, the
Goldstone report is an extraordinary example because of its outcome and
the criticism it generated. Worldwide criticism arose about the report
itself. Moreover there was criticism of the UN as the body that initiated
the report; the United Nations Human Rights Council (UNHRC), which
endorsed it; and the Human Rights Watch organization, which supported
it. This criticism generally called for a change in international law and
the way these bodies make use of it.67 As I will show, it seems that the
Goldstone report can teach us a lot more about international law than
about Israel's alleged misconduct during the Gaza War.
There has been much criticism and commentary surrounding the
Goldstone report itself. Critics claim the Goldstone report is biased,
opinionated, and discriminatory against Israel.6" However, my intention
See LEVITT, supra note 40, at 1-7, 33-79; Matas, supra note 40; Warneck, supra note 40; see
also Hamas Charter art. 8 (explaining that "God is its goal; The Messenger is its Leader; The
Qur'an is its Constitution; Jihad is its methodology, and Death for the sake of God is its most
coveted desire"), reprintedin KHALED HROUB, HAMAS POLITICAL THOUGHT AND PRACTICE 272
(2000). In January 2006, after Hamas won the elections, the United States, the European Union,
and Israel categorized Hamas as a terrorist organization, and hence imposed economic sanctions
against the Palestinian Authority.
67 See Ed Morgan, Goldstone Report Undermines Faith in InternationalLaw, TORONTO
STAR, Oct.
22, 2009, at A27 (noting that "from a legal point of view, the Goldstone report is full of more
holes than the tunnel-riddled strip along the Gaza-Egypt border" and that the report "will
undermine faith in rule of international law"); Harold Evans, A Moral Atrocity, GUARDIAN
(London), Oct. 20, 2009, at 34. ("[T]he Goldstone report won the gold standard of moral
equivalence between the killer and the victim."); Robert L. Bernstein, Editorial, Rights
Watchdog, Lost in the Mideast, N.Y. TIMES, Oct. 20, 2009, at 31. Bernstein, the chairman of
Human Rights Watch from 1978 to 1998, stated "As the founder of Human Rights Watch, its
active chairman for 20 years and now founding chairman emeritus, I must do something that I
never anticipated: I must publicly join the group's critics. Human Rights Watch had as its
original mission to pry open closed societies, advocate basic freedoms and support dissenters.
But recently it has been issuing reports on the Israeli-Arab conflict that arc helping those who
wish to turn Israel into a pariah state." Id. Bernstein concludes, "Only by returning to its
founding mission and the spirit of humility that animated it can Human Rights Watch resurrect
itself as a moral force in the Middle East and throughout the world. If it fails to do that, its
credibility will be seriously undermined and its important role in the world significantly
diminished." Id. See also Editorial, The U.N. Sides with Terrorists;Relativism is Codified in the
Outrageous Goldstone Report, WASH. TIMES, Oct. 19, 2009, at 20 ("The Goldstone model makes
it impossible for civilized states to strike effectively against the world's barbarians who are
fighting a shadow war against decency that views innocent noncombatants as both legitimate
targets and useful shields."); John Bolton, Editorial, Israel, the U.S. and the Goldstone Report,
WALL
ST.
J.,
Oct.
19,
2009,
available
at
http://online.wsj.com/article/
SB 10001424052748704500604574480932924540724.html.
68 See, e.g., INITIAL RESPONSE TO REPORT OF THE FACT FINDING MISSION ON GAZA ESTABLISHED
PURSUANT TO RESOLUTION S-9/1 OF THE HUMAN RIGHTS COUNCIL (Sept. 24, 2009), available at
6
Vol. 29, No. 1
Fighting Terrorism with One Hand Tied
13
is not to revive these arguments, but rather to use the report, with all its
controversy, to show that current international laws covering the conduct
of war do not properly take into account the needs of states forced to
defend themselves against terrorism. Hence, this article does not consider
the report's conclusions, because they are based on the judgment of the
mission's members. The major partiality of the report actually
demonstrates and teaches us, more than anything, the extent to which
international law is not applicable in situations of armed conflict between
state and non-state entities, particularly when the non-state actor is a
terror organization. In other words, the more the Goldstone report is
critical of Israel, the more it reveals and emphasizes that application of
international law in this case is, to say the least, misguided.69 Obviously,
when a probable outcome of that application is individual criminal
responsibility under international criminal law, the outcome is even more
grave.7" It should be noted, at this preliminary point, that the very
relevance of international law to a conflict between a state and a nonstate actor is ambiguous. 7'
The difficulty arises when the questions become: what was the
primary and fundamental humanitarian goal that international law was
intended to accomplish, and has it been accomplished? The historical and
worldwide background leaves no doubt that the initial goal of
international law was to prevent "protected persons"from harm72 and
minimize human suffering and damage to civilian during the conduct of
war.
73
http://www.mfa.gov.il/NR/rdonlyres/FC985702-6I C4-41C9-8B72-E3876FEFOACA/0/
GoldstoncReportlnitialRcsponsc240909.pdf.
69
See generally LIESBETH ZEGVELD, THE ACCOUNTABILITY OF ARMED OPPOSITION GROUPS IN
INTERNATIONAL LAW (2002), (stating that international humanitarian and human rights law as a
corpus juris developed with a state-centric approach, and under such approach it is difficult to
apply international humanitarian law, as it protects the rights of victims in conflict situations
involving also non-state actors).
70 When international humanitarian law's norms have been breached and severely violated by
persons of a given state, international criminal law (ICL) is the set of rules which provides the
way to enforce international humanitarian law on the states that are compelled by it. In other
words, ICL makes grave breaches of international law indictable and punishable as war crimes.
See The Goldstone Report, supra note 59, 46, 291-93.
71 See Duncan B. Hollis, Why State Consent Still Matters: Non-State Actors, Treaties, and the
ChangingSources of InternationalLaw, 23 BERKELEY J. INT'L L. 137, 137-39 (2005).
72 See William J. Fenrick, InternationalHumanitarian Law and Combat Casualties, 21 EUR. J.
POPULATION 167, 168 (2005).
73 Geneva IV, supra note 23, art. 4 ("[P]rotected persons are those who, at a given moment and in
any manncr whatsoever, find themselves in the hands of a party to the conflict or occupying
Power of which they are not nationals.").
Wisconsin InternationalLaw Journal
When examining the Goldstone report, grounded as it is in
international law, and considering its acute repercussions, it seems that
international law manages to damage the very cause it attempts to
address.74 This article utilizes the report merely as a means to an end,
with the end being an examination of international law. To begin,
international law does not recognize the sui generis circumstances of the
Israeli-Palestinian conflict. According to international law, there are two
kinds of armed conflict: international and non-international.7 5 The Gaza
strip is neither a state nor is it a territory occupied or controlled by
Israel,76 and therefore the confrontation in the area is between a sovereign
state and a non-state terrorist armed group operating from a separate
territory. 77 It is not yet settled which definition of armed conflict applies
to this unique situation.78 The basic guidelines for the two regimes are
relatively similar, and thus classification of the armed conflict between
Hamas and Israel as either international or non-international is, for now,
abstract. However, it does show that the current rules of international law
are not set up to deal with these circumstances.
Additionally, most of the rules governing the use of force in
armed conflicts 79 that served as a legal framework for the Goldstone
report"° have been accepted by Israel, which considers them binding
74 See David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or
Legitimate Means of Defence?, 16 EUR. J. INTL L. 171, 171, 174 (2005); Orna Ben-Naftali &
Keren R. Michacli, 'We Must Not Make a Scarecrow of the Law': A Legal Analysis of the Israeli
Policy of Targeted Killings, 36 CORNELL INT'L L.J. 233, 289 (2003).
75 The law of international armed conflicts has traditionally been applied to cross-border disputes
between sovereign states, while the law of non-international armed conflicts has been applied
within the boundaries of a single state, such as during civil wars or insurgencies.
76 The Israeli High Court of Justice recognized that "since September 2005, Israel no longer has
effective control over what takes place within the territory of the Gaza Strip," and thus no longer
can be considered an occupying power under international law. See HCJ 9132/07 Jaber AlBassiouni Ahmed
v. The Prime
Minister, 1
12 [2008]
(lsr.), available at
http://www.mfa.gov.il/NR/rdonlyres/938CCD2E-89C7-4E77-B071-56772DFF79CC/0/
HCJGazaelectricity.pdf. For a different stance, see S.C. Res. 1860, U.N. Doe. S/ RES/1860 (Jan.
8, 2009) and Human Rights Council Res. S-9/I, Rep. of the Human Rights Council, 9th Special
Sess., Jan. 9 & 12, 2009, U.N. A/HRC/S-9/L.1 (Jan. 12, 2009). See also The Goldstone Report,
supra note 59, 11 276-77.
7
OPERATION IN GAZA REPORT, supra note 60, 1 29.
78 For more detailed observation, see Sigall Horovitz, Accountability of the Hamas under
International Law, 2009 JERUSALEM CENTER FOR PUB. AFF. 29, 31-33, available at
http://www.globallawforum.org/ViewPublication.aspx?Artieleld=99.
79 See supra note 23.
80 See The Goldstone Report, supra note 59,
158, 268.
Vol. 29, No. 1
Fighting Terrorism with One Hand Tied
under both international and Israeli law.8' The Palestinian side is also
bound by international humanitarian law8 2 and also by a substantial
portion of international human rights law.83 "Most," but not all,
international rules apply to Israel, because Israel is not a party to the
Additional Protocol 1,84 though it accepts that some provisions accurately
reflect customary international law and thus are applicable.85 In this
context, the 1949 Geneva Conventions have not been recognized as
customary international law,86 in contrast to the Hague Regulations
Respecting the Laws and Customs of War on Land, which have been
recognized as customary international law.87
Special consideration should also be given to the reason why
Israel is not a signatory to a significant part of international law (i.e.,
Protocol I). But before providing the explanation, and without yet
referring to the circumstances surrounding the initiation of the protocol
and its content, it should be stressed that provisions for regulating the
status of irregular combatants did not become part of the IV Geneva
Convention. The fact that these provisions are absent from the IV
Geneva Convention, which was drafted for the purpose of protecting the
civilian population, is somewhat concerning.
In May 2009, the International Committee of the Red Cross
(ICRC) published an interpretative guide clarifying what international
humanitarian law says concerning civilians participating directly in
hostilities.8 The aim of this document was to help distinguish between
8' HCJ 769/02 Public Committee Against Torture in Israel v. Israel 19 [2005] (Isr.), available at
http://elyonl.court.gov.il/FilesENG/02/690/007/a34/02007690.a34.pdf [hereinafter Targeted
Killing Case].
82 Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary
Motion Based on Lack of Jurisdiction (Child Recruitment), 1 22 (Special Ct. Sierra Leone May
3 1, 2004) ("It is well-settled that all parties to an armed conflict, whether states or non-state
actors, are bound by international humanitarian law, even though only states may become parties
to international treaties.").
83 The Goldstone Report, supra note 59, % 306-07.
84 Protocol I, supra note 23.
85 Targeted Killing Case, supra note 81, 120.
86 Yoram Dinstein, The Application of Customary InternationalLaw ConcerningArmed Conflicts
87
88
in the National Legal Order, in NATIONAL IMPLEMENTATION OF INTERNATIONAL
HUMANITARIAN LAW 29,31 (Michael Bothe ed., 1990); see also Geneva I11,supra note 23, art. 2
(stating explicitly that parties need not apply it to all conflicts, especially when the foes are not
parties, and when enemies do not abide by its terms).
See supra note 23.
INT'L COMM. OF THE RED CROSS,
PARTICIPATION
IN HOSTILITIES
INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT
UNDER
[hereinafter
THE
ICRC DOCUMENT],
files/other/icre 002 0990.pdf.
INTERNATIONAL
available
LAW 6 (2009)
http://www.icrc.org/eng/assets/
HUMANITARIAN
at
Wisconsin InternationalLaw Journal
civilians who must be protected against attack and those who, in very
exceptional circumstances, lose protection against direct attack. 9
According to this document, the Interpretive Guidance document does
not intend to change existing rules and principles of International
Humanitarian Laws, but facilitates their coherent interpretation.9" The
primary assumption of the document is that civilians are entitled to
protection against direct attack, unless they directly participate in
hostilities. 9' The document aims to answer the questions of who is a
civilian, what conduct amounts to direct participation in hostilities (and
therefore leads to the loss of the civilian's protection), and what
modalities govern the loss of protection against direct attack. 92
Though the ICRC document attempts to simplify the
interpretation, it creates a rather confusing, ambiguous, and problematic
classification: a civilian who supports insurgencies, even by directly
participating in hostilities, does not necessarily lose his civilian status
protections. 93 For example, if direct participation in hostilities occurred in
a spontaneous, sporadic, or unorganized way, rather than as a
"continuous combat function," the participant is still considered a
civilian under international humanitarian law, and is therefore protected
against attack. 94 While acts that directly inflict death, injury, or
destruction, or that directly harm the enemy's military operations or
capacity are considered "direct participation in hostilities;" acts like
production, shipment, hiding and smuggling of weapons, recruitment and
training of personnel, or financial, administrative, and political support,
do not directly cause harm and therefore are considered "indirect." 95
The difference between "direct" and "indirect" participation can
be difficult to discern, and the interpretation that the Red Cross suggests
makes it even more difficult.96 "For example, the delivery by a civilian
truck driver of ammunition to a shooting position at the front line would
almost certainly have to be regarded as an integral part of ongoing
combat operations and would therefore constitute direct participation in
'9
90
9'
92
Id at 6.
ld. at 9-10.
Id.at 20.
Id. at 12-13.
" Id.
at 70.
94 Id. at 44.
9' Id. at 47.
16
Bill Boothby, "And for Such Time As": The Time Dimension to Direct Participation in
Hostilities,42 N.Y.U. J. INT'L L. & POL. 741, 745-62 (2010).
Vol. 29, No. I
Fighting Terrorism with One Hand Tied
hostilities."97 However, transporting ammunition from a factory to a port
far from a conflict zone is too incidental to the use of that ammunition in
specific military operations to be considered as "directly" causing harm.9 8
"Although the ammunition truck remains a military objective subject to
attack, driving it would not amount to direct participation in hostilities
and, therefore, the civilian driver could not be targeted separately from
the truck."99 It is hard enough to distinguish between these two scenarios.
Add the pressure of decision-making and the uncertainty of a real-time
situation, and the outcome is grave. Of course, in case of doubt, the
document concludes the person in question must be presumed to be
protected against direct attack.'° In this context, international
humanitarian law does not privilege civilian direct participation in
hostilities, but at the same time, it is not expressly prohibited.''
Therefore, such participation does not constitute a war crime.0 2 On the
other hand, the defensive act taken by the other side in response to that
participation in hostilities apparently does constitute a war crime.0 3
To conclude, the interpretive guidance document of the ICRC
attempts to clarify some uncertainties regarding when to apply
international humanitarian law when civilians participate in hostilities.'"
As I have tried to show, the need for such clarification is essential, but
the document misses its aim, and maybe even drifts further from it.
The final text of Protocol I incorporated highly controversial
changes to which types of conflicts are legally characterized as interstate
wars, with the attendant consequence of conveying combatant immunity
to a far broader class of persons." 5 Accordingly, Protocol I has been
97 THE
ICRC DOCUMENT, supra note 88, at 56.
98 Direct Participation in Hostilities: Questions & Answers, INT'L COMM. OF THE RED CROSS,
(Feb.
6,
020609.
2009),
http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-faq-
99 Id.
50oTHE ICRC DOCUMENT, supra note 88, at 76.
'0' Id. at 83.
102 See
Fletcher, supra note 35, at 528-32 (quoting Justice Barak in the Targeted Killing Case, supra
note 81 ).
'03
The act may be regarded as a grave breach of international law and may be considered a war
crime. See Geneva IV, supra note 23, art. 147; see also The Goldstone Report, supra note 59,
32, 46, 50, 60, 75, 108,287-93,931,937, 1171-72, 1332, 1335, 1502, 1842.
'04 See supra notes 89-92 and accompanying text.
105
See Protocol I, supra note 23, art. 44(2). Protocol I bestows automatic "prisoners of war" status
on all combatants, including so-called freedom fighters, even if they violate the laws of war. Id.;
see also Gross, supra note 26, at 420-23.
Wisconsin InternationalLaw Journal
described as "law in the service of terror,"'' 6 serving to legitimize
international terror and protecting terrorists from punishment as
criminals." 7 These descriptions, in conjunction with the political
circumstances surrounding the drafters of Protocol I,0' had a crucial
impact on its final version, and eventually caused the United States to
reject the treaty. 9 Israel followed the path first laid by the United States
and also decided not to sign the treaty."'
One of the main concerns is the inability to distinguish between
a lawful combatant and an unlawful one under Protocol I." Article 51 of
the Protocol sets out provisions relating to the protection of the civilian
population, to which all sides to the conflict are obligated to adhere." 2
The primary purpose of the article is, of course, to protect the civilians
engaged in warfare. Civilians can be considered military objectives, and
thus, can be attacked only while they are taking a direct part in
hostilities, not before and not after.'" This is a great privilege to
terrorists. Instead of a title-once a terrorist, always a terrorist-the
article grants those unlawful combatants with a "double-value status,"
which makes it very difficult and even impossible for the other side to
effectively protect itself without being accused of breaching international
law and, particularly, of violating the principle of distinction: "Civilians
106
Douglas J. Feith, Law in the Service of Terror-The Strange Case of the Additional Protocol,
NAT'L INT., Fall 1985, at 36, 47; see also Abraham Sofacr, Terrorism and the Law, 64 FOREIGN
AFF. 901,912-15 (1986).
107Feith, supra note 106, at 36-41.
...
Protocol I was drafted at the height of the Cold war. Ted Lapkin, Does Human Rights Law Apply
to Terrorists?, MIDDLE E. Q., Fall 2004, at 3, 12. Many third world nations, as well as the Soviet
bloc and its allies, sought recognition for those who fight against colonial domination and
foreign occupation, and those who fight against racist regimes. Id. Supported by the negotiating
muscle of socialist states, these nations hijacked the Protocol to achieve explicitly political
objectives. Id.
109The United States signed Protocol I on December 12, 1977 but has never ratified it. Michael P.
Scharf, Defining Terrorism as the Peacetime Equivalent of War Crimes: Problems and
Prospects, 36 CASE W. RES. J. INT'L L. 359, 370 (2004). Nonetheless, the United States has
acknowledged that it is bound by portions of the Protocol that constitute a codification of
customary international law. ld; see also Berman, supra note 50, 21-24.
Io See Michael A. Newton, Exceptional Engagement: Protocol I and a World United Against
Terrorism, 45 TEX. INT'L L.J. 323, 324-25 (2009) ("The United States concluded that the most
controversial aspects of Protocol I represented an impermissible altering of the cornerstone
concepts of combatancy more than a natural and warranted evolution of the laws of war."); see
also Scharf, supra note 109, at 370.
See Derek Jinks, The Declining Significance of POW Status, 45 HARV. INT'L L.J. 367, 384-86
...
(2004).
112 Protocol I, supra note 84, art. 51.
113 William J. Fenrick, Riding the Rhino: Attempting to Develop Usable Legal Standards for
CombatActivities, 30 B.C. INT'L & COMP. L. REV. 111, 120(2007).
Vol. 29, No. 1
Fighting Terrorism with One Hand Tied
shall enjoy the protection afforded by this section, unless and for such
time as they take a direct part in hostilities." ' 4 Israel does not accept the
qualifying phrase "and for such time" as reflective of customary law."5
Should a person bearing arms (openly or concealed) on his way to the
place where he will use them against the army, at such place, or on his
way back from it, be considered a civilian? Isn't a person who transports
unlawful combatants to or from the place where the hostilities are taking
place, taking a direct part in hostilities? According to the Goldstone
report, in line with the implication of Article 51, that person is a
civilian." 6 The words of Article 51 thwart the ability of the army to
defend itself and its country's citizens," 7 and enables terrorists to operate
under the cloak of "civilians," who are naturally immune from attack
according to the principle of distinction.
Like the principle of distinction, proportionality is also one of
the core tenets of international law." 8 These two fundamental principles
are linked by underlying combat activity.'" In an armed conflict,
proportionality refers to the balance between the achievement of a
military goal and the cost of achieving that goal in terms of casualties. 2 '
The proportionality principle fits into the framework of a classic war, and
it has existed for centuries.' 2' Still, international law, with respect to
proportionality, has not been updated to the modem era and the recent
phenomenon of terrorism. Once again, there is no more suitable example
to demonstrate this than the Gaza war. The main characteristic of combat
Protocol 1, supra note 23, art. 51(3); see also Yoram Dinstein, The ICRC Customary
InternationalHumanitarianLaw Study, 2006 ISR. Y.B. HUM. RTS. 1, 11.
"5 Customary law refers to the law of nations, developed based on past acceptable conduct between
114
nations, and applies to all states. The government of Israel conceded that Article 51(3) of
Protocol I reflected customary law, with the exception of the "for such time" component.
30. The Israeli Supreme Court found that the entire
Targeted Killing Case, supra note 81,
provision was customary in nature. Id. 38.
116
OPERATION IN GAZA REPORT, supra note 60,
117
See, e.g., The Goldstone Report, supra note 59, at 812, 841, 862-63.
Judith Gail Gardam, Proportionalityand Force in InternationalLaw, 87 AM. J. INT'L L. 391,
18
98.
391 (1993).
'19 E.g., Protocol 1, supra note 84, at art. 51, sec. 5(b) ("Among others, the following types of
120
'2'
attacks are to be considered as indiscriminate: . . . An attack which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct military advantage
anticipated"(emphasis added)).
See, e.g., Gardam, supranote 118, at 406-11.
Id. at 397.
Wisconsin InternationalLaw Journal
in the Gaza War was that of fighting in a built-up area.'22 Where the
fighting occurs in the middle of a city, a town, or other urban terrain, the
danger of collateral damage to civilians and infrastructure is obviously
intensified. 3 This delicate situation clashes with the principle of
proportionality and, evidently, also with the principle of distinction." 4
Terrorists choose to operate from inside an urban terrain and among a
large civilian population." 5 These actions are designed to blur the
distinction between legitimate military targets and innocent civilians and
civilian objects. This blurring between military targets and innocent
civilians makes it impossible to direct military operations against
legitimate military objectives without injuring civilians or damaging
civilian objects.'26 The conclusion is that an army action taken against
unlawful combatants would forever be considered disproportionate in
terms of international law when the military objective is intentionally
located in the middle of a civilian population. 7 Further, when unlawful
combatants are considered civilians (according to Protocol I), 1'2 and with
regard to the principle of distinction, it seems that this conclusion is
inevitable.
The Goldstone report refers to the fulfillment of the principle of
distinction and proportionality in the Gaza War and veritably proves this
conclusion. It states that theoretically, there could be cases in which a
given army decides to operate in light of the principle of proportionality
(weighing the military advantage to be gained against the risk of killing
civilians), and therefore its action will indeed be considered
proportionate.'29 The report then addresses a specific incident of Israel
firing mortar shells toward an exact target in a setting where there were
many civilians nearby.' The report does not address why that military
target was a priory located in the middle of civilian territory, but rather
122 See Barry A. Feinstein, Proportionality and War Crimes in Gaza Under the Laws of Armed
Conflict, 36 RUTGERS L. REC. 224, 235-37 (2009).
123 Complicating factors in urban warfare include the presence of civilians and the complexity of the
urban terrain, which makes fighting in built-up areas very different from combat in the open at
124
both the operational and tactical level.
See Feinstein, supra note 122, at 238-43.
126
ld at 235 37.
Id. at 238.
127
See Emanuel Gross, Use of Civilians as Human Shields: What Legal and Moral Restrictions
125
129
Pertainto a War Waged by a DemocraticState Against Terrorism?, 16 EMORY INT'L L. REV.
445, 447, 484-85 (2002).
See supranotes 112-17 and accompanying text.
The Goldstone Report, supranote 59, 42.
130
Id. 41.
128
Vol. 29, No. 1
FightingTerrorism with One Hand Tied
concludes, "the mission does not consider this to be such a case"referring to the priciple of proportionality. 3 ' The grave outcome of the
report indicates the need for significant modification in the principles of
distinction and proportionality, at least when they are applied to combat
conditions involving fighting in built-up and urban areas.
International law, via Protocol I, acknowledges the right of socalled freedom fighters and resistance movements under a colonial
regime, to self-determination.'32 The acts of such movements against the
sovereign state are regarded as international armed conflicts.'33 The
Goldstone report refers to the cause of self-determination as "a
fundamental element in the legal framework"'34 stating that "the right to
self-determination has an erga omnes character whereby all states have a
duty to promote its realization."' 35 Even if Hamas is granted the status of
freedom fighters or of a liberation movement, it cannot mean, and does
not mean, that Israel, or any other sovereign state, would permit or
endure continuous terrorist acts against its citizens.' 36 The United Nations
maintains "an institutional commitment to self-determination that clouds
its vision relating to terrorism."' The right to self-determination is not
the privilege to terrorize an entire nation for nearly a decade. There
31 Id.
42. "[T]here are circumstances under international humanitarian law in which military
actions resulting in the loss of civilian life would not be unlawful. .
.
. The reportedly
exceedingly high percentage of civilians among those killed raises concerns about the
precautions taken by Israel in launching attacks as well as the legality of many of the attacks."
Id. 362.
132
Wars seeking self-determination and independence from colonial rule were the primary impetus
for the addition of Protocols I and II to the Geneva Conventions in 1977. Protocol I applies to
"armed conflicts in which peoples are fighting against colonial domination and alien occupation
and against racist regimes in the exercise of their right of self-determination." Protocol 1,supra
note 23, art. 1(4); see also Berman, supra note 50, at 21, 24-31; Catherine Bloom, The
Classification of Hezbollah in Both International and Non-InternationalArmed Conflicts, 14
ANN. SURV. INT'L & COMP. L. 61, 70 (2008); Jinks, supra note 11l,
at 409-10 & n.255, 412.
13
Protocol 1,supra note 84, art. 1(4).
134The Goldstone Report, supranote 59,
35
269.
Id. The Goldstone Report repeatedly states that any action of resistance pursuant to the right to
self-determination should be exercised with full respect of other human rights and international
humanitarian law, although (in contrast with countless references to the Israeli side) there is no
further implementation of this rule toward the Palestinian side. Id. 308, 1842.
136 See Gross, supra note 26, at 390-93.
137 Reuven Young, Defining
Terrorism: The Evolution of Terrorism as a Legal Concept in
InternationalLaw and Its Influence on Definitions in Domestic Legislation, 29 B.C. INT'L &
COMP. L. REV. 23, 37 (2006).
Wisconsin InternationalLaw Journal
should not be any congruence between the pursuit of self-determination
and terrorism.'"
To conclude this section, the Goldstone report exemplifies that
terror organizations have succeeded in paralyzing democracy in its
struggle against terrorism. The world now faces the paradoxical situation
in which terrorists are protected and sheltered by the patronage of
international law-the same set of rules that they dismiss and despise.39
At the same time, the report paints Israel as a consistent human rights
violator, committing grave breaches 4 ' of international law, considered
war crimes, and which may possibly amount to crimes against
humanity. 4 ' Among the various effects of the Goldstone report, the one
that is most relevant here is that it highlighted the need for a new
international legal framework.'4 2
In Part IV, I define the legal formula by which the need to
preserve an individual's human rights should be balanced against the
state's need to prioritize security needs.
IV. THE BALANCE BETWEEN HUMAN RIGHTS AND
SECURITY NEEDS
Choosing a law to regulate the state's war against terrorism
(assuming that an armed conflict between a state and a non-state actor
should be regulated by international law) is only one phase of the
problem. This choice determines the norms security forces should abide
by when fighting against terrorists. The other phase refers to determining
the legal norms that should regulate the conduct of security forces in
relation to civilians. The first dimension is external (a state confronting a
foreign entity) and the second phase points to the internal relation (a state
dealing with its own citizens). In order to be able to fight terrorism, the
state may need to provide its security organizations with extra legal
138 John Norton Moore, Towards Legal Restraints on International Terrorism, 67 AM. SOCY INT'L
L, PROC. 88, 88 (1973).
139See Gross, supra note 127, at 445-48, 461.
140 Geneva IV, supra note 23, art.
147.
141See, e.g., The Goldstone Report, supra note 59, IT 32, 46, 50, 60, 75, 108, 287-93, 931, 937,
1171-72, 1332, 1335, 1502, 1842.
law] takes an absolutist stance, rejecting any justification that might exculpate
states or individuals from liability for violating its rules. The claim that certain war crimes might
actually lead to the saving of innocent lives-even many thousands of innocent lives-is
categorically rejected by the laws of war. Put bluntly, in many cases, the laws of war demand an
excessive sacrifice of lives." Gabriella Blum, The Laws of War and the "Lesser Evil", 35 YALE
142"(International
J. INT'L L. 1,2-3 (2010).
Vol. 29, No. 1
FightingTerrorism with One Hand Tied
powers they do not need in normal times,'43 like the authorization to issue
an administrative detention or to interrogate individuals suspected of
being a terrorists.'" However, those powers might clash with citizens'
civil liberties, like the freedom and dignity of the individual.'45 How
should nations reconcile these powers when they compromise civil
liberties? What is the role of the constitution in those exceptional times?
For example, should there be a separate constitution for times of
emergency, as some scholars have suggested? 46
An emergency regime involves two seemingly conflicting
interests: a need for security-personal and national-and a need to
preserve civil liberties.'47 But a more careful examination will show that
there is no real conflict between these interests; rather, they are
complementary.' 48 One cannot have and enjoy basic human rights
without the benefit of security.'4 9 Security is an important brick in the
temple of civil liberties.' 0 But what does it mean to have security? Does
it mean that at times of emergency, people should forego their basic
rights in the name of security? The answer is almost self-evident. An
emergency regime does not compel a complete suspension of civil
liberties. 5 ' A regime that prioritizes security needs while completely
disregarding civil liberties is not a real democracy.
A regime that suppresses or completely suspends civil liberties,
especially in times of exigency, cannot be regarded as reflecting the true
ideals of a liberal democracy.' 52 However, when a threat overshadows the
'43
See RICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL
EMERGENCY
(2006).
144 Aharon Barak, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV.
L. REV. 16, 153-56 (2002).
145Id.; see also Gross, supranote 13, at 20.
146See Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029, 1029-31 (2004); Bruce
Ackerman, This Is Not a War 113 YALE L.J. 1871, 1872 (2004). For criticism of Ackerman's
thesis, see David Cole, The Priorityof Morality: The Emergency Constitution's Blind Spot, 113
YALE L.J. 1753, 1755 (2004); Laurence H. Tribe & Patrick 0. Gudridge, The Anti-Emergency
Constitution, 113 YALE L.J. 1801, 1801-04 (2004).
147Barak, supra note 144, at 153.
148For a comprehensive discussion on the connection between these two interests, see Gross, supra
note 13, at 2.
149
Id
'50 ASA KASHER, ETIKAH TSEVADIT [MILITARY ETHICS] 38-39 (3d ed. 1998) (lsr.).
'5' Barak, supra note 144, at 153; see Venkat Iyer, States of Emergency--Moderating Their Effects
on Human Rights, DALHOUSIE L.J., Fall 1999, at 125, 189.
152See, e.g., Gregory H. Fox & Brad R. Roth, Introduction: The Spread of LiberalDemocracy and
Its Implicationsfor International Law, in DEMOCRATIC GOVERNANCE AND INTERNATIONAL
LAW 1, 1-8 (Gregory H. Fox & Brad R. Roth eds., 2000). The principles of democracy include,
Wisconsin InternationalLaw Journal
ability to lead a normal life, common sense dictates a preference for
security needs. 53 It follows then, that we should remember that the real
need and ultimate test of a constitution, as the great protector of human
rights, is in times of emergency.154 Citizens should be aware that in those
exceptional times, there is a normal inclination to let the government do
whatever it thinks is needed in order to protect them, including
suspending civil liberties. 5 '
Thus, if it is admitted that in order to thwart terrorism, citizens
need to allow an increase in security, and yet also demand to save their
civil liberties, how can those two goals be achieved? There is a need for
a just and proper balance.'56 Constitutional balance is the benchmark for
resolving a potential conflict between advancing security needs and
protecting civil liberties. Which formula should be used to balance those
interests?
I propose the following legal formula to determine a proper
balance. This formula consists of three subtests:'57
1) The rational connection test: Does the security measure that
we want to apply produce the expected results?
2) The less restrictive means test: Is there a less restrictive way
to bring about the same results?
among others, the idea of pluralism, commitment to the principle of choice, transparency, and, of
course, protection of human rights in general. Id. The separation of powers model is in the heart
of a democratic regime. Needless to say, a regime that suppresses or suspends civil liberties does
not meet these fundamental principles, and may even contradict them.
153
LAURENCE
LUSTGARTEN &
IAN
LEIGH,
IN FROM THE COLD: NATIONAL
SECURITY AND
PARLIAMENTARY DEMOCRACY 16 (1994).
114 United States v. Rahmani, 209 F. Supp. 2d 1045, 1057 (C.D. Cal. 2002).
"The moral strength,
vitality and commitment proudly enunciated in the Constitution is best tested at a time when
forceful, emotionally moving arguments to ignore or trivialize its provisions seek a subordination
of time-honored constitutional protections." Id.
'55Alexander Hamilton eloquently expressed this public feeling as follows:
Safety from external danger is the most powerful director of national conduct.
Even the ardent love of liberty will, after a time, give way to its dictates. The
violent destruction of life and property incident to war, the continual effort
and alarm attendant on a state of continual danger, will compel nations the
most attached to liberty to resort for repose and security to institutions which
have a tendency to destroy their civilian and political rights. To be safer, they
at length become willing to run the risk of being less free.
THE FEDERALIST No. 8, at 120 (Alexander Hamilton) (Harvard University Press 1974).
156 Barak, supra note 144, at 153; Mersel, supra note 6, at 92; see David Cole, The Poverty of
Posner's Pragmatism: Balancing Away Liberty After 9/11, 59 STAN. L. REV. 1735, 1745-46
(2007).
157
See generally 3 AHARON BARAK, INTERPRETATION IN LAW: CONSTITUTIONAL INTERPRETATION
536 (1994).
Vol. 29, No. I
Fighting Terrorism with One Hand Tied
3) The proportionality test in the strict sense: Is the beneficial
outcome significantly greater than the harm inflicted?
This formula should be applied in a sensitive manner,
particularly when civilians who are already under belligerent occupation
are involved.'58 After the formula is applied, if the conclusion is that
there is a need to declare an emergency regime, the same formula should
be applied the next phase-that is, in deciding which operational means
should be taken in emergency times. According to the same structure, the
government should analyze whether the actions taken during an
emergency regime produced their expected results and accomplished
their initial goal. The government should consider whether there is a less
invasive way to bring about the same results. Is the beneficial outcome of
the action significantly greater than the harm inflicted by it?
This formula balances the needs of security with the needs of
both types of civilians: those who are inhabitants of the state fighting the
terrorists, and civilians who are under belligerent occupation.'59 Of
course, when dealing with civilians of the second type, the basic needs
may be different. If we move one step further to apply the second
subtest, the question should be whether there is a less invasive way to
achieve the security goal. However, even if military commander's choice
could bring about optimal results in terms of security, it does not
necessarily mean that there is no less invasive way to achieve the same
security goal. 6 Sometimes a compromise must be struck. When a
military commander faces two possible ways to satisfy security need and
the first is the optimum and the second is less effective in terms of
security needs but is more considerate of humanitarian concerns, the
commander should choose the second option. 6 '
This conclusion could also be reached by using the third subtest
of proportionality. Thus, if a military commander concludes that the
additional security advantage in the first option is not significant
compared to the second option, and the damage to humanitarian needs in
the first option is very significant, he should choose the second option,
'5
HCJ 7957/04, Mara'abe v. Prime Minister of Israel 38(2) PD 393, 9 24-30 [2005] (Isr.),
available at http://elyon I.court.gov.il/files eng/04/570/079/a 14/04079570.a 14.pdf [hereinafter
the The Mara'abe Judgement]; see Lassa Oppenheim, The Legal Relations Between an
Occupying Powerand the Inhabitants,33 L. Q. REV. 363, 365 (1917),
'59 The Mara'abe Judgement, supra note 158, 99 18-29.
'0
See id. 28-29.
id. 9j9 113-14 (illustrating a court's recognition that when implementing security measures
alternative measures that are less invasive to civilians must be considered).
161See
Wisconsin InternationalLaw Journal
even if it is less beneficial for security needs. Humanitarian needs should
always be part of the international law of armed conflict.'62 Indeed, these
needs should be regarded as the Magna Carta for civilians under
occupation. Security needs should always heed the state's humanitarian
law obligations.
Civilians should be spared, whenever possible, from the
suffering and agony of military operations. But suffering cannot be
avoided at all times. War is a deplorable way of resolving conflicts, but
sometimes it is inevitable. 63 The problem is magnified when a
democracy deals with hostilities and the horrors of terrorism, which
unlike war is usually directed deliberately toward civilians."6
By definition, terrorism targets civilians and terrorists usually
operate or find safe haven among civilian populations.'65 Sometimes
terrorists impose their will on innocent civilians, even if they consider
themselves to be a part of the citizenry.' 66 Terrorists might impose
themselves by taking civilians as hostages or using civilians as human
shields.'67 In those cases, a democratic state will be confronted with
heavy moral and legal dilemmas.
As mentioned earlier, humanitarian law should be respected, but
sometimes terrorists make it very difficult for a democracy to realize this
objective. For example, consider the case of using civilians as human
shields. No one disputes the right of those hostages to be protected in
their person. 6 What should a democracy do if terrorists pose demands
for their release? Should it defer to terrorists even if it means incurring
high risk to its security, for instance by releasing many dangerous
terrorists held captive? Should the state refrain from using any type of
force against such kidnappers just because the lives of the hostages might
be compromised? Should the answer be different if it is known that the
162 Id.
28;
JEAN S. PICTET, DEVELOPMENTS AND PRINCIPLES OF INTERNATIONAL HUMANITARIAN
LAW 62 (1985).
163
See generally MICHAEL WALZER,
JUST AND UNJUST
WARS: A MORAL ARGUMENT WITH
HISTORICAL ILLUSTRATIONS (3d ed. 2000) (discussing the morality of war).
'6' See Michael A. Newton, Reconsidering Reprisals, 20 DUKE J. COMP. & INT'L L. 361, 363-64
(2010).
165See Emanuel Gross, The Struggle of a Democracy Against the Terror of Suicide Bombers:
Ideologicaland Legal Aspects, 22 WIS. INT'L L.J. 597, 601 nn.4-5,662 (2004).
166
id.
167 See generally GROSS, supra note 14, at. 194-219 (providing a comprehensive discussion of the
use of civilians as human shields).
168Geneva 1, supranote 23, art. 3(1); Geneva 11, supra note 23, art. 3(1); Geneva ill, supranote 23,
art. 3(l); Geneva IV, supra note 23, art. 3(l); Protocol I, supra note 23, arts. 48, 50(3), 51(7)--
(8).
Vol. 29, No. 1
Fighting Terrorism with One Hand Tied
hostages had willingly agreed to become human shields?'69 These are
only a few examples of the types of dilemmas that nations might face
when applying the formula. The next part considers the concept of selfdefense in connection with combating terrorism.
V. SELF-DEFENSE AND TERRORISM
Professor Barak, the retired President of the Israeli Supreme
Court, has rightly observed that conducting a war on terrorism according
to the rule of law is the inevitable fate of democracy. 7" It means that the
state cannot always use the same means that terrorists use. Sometimes,
the state must conduct its war "with one hand tied behind its back."''
Indeed, the concept of "restraint" has seemed to become the identifying
mark of every democratic nation confronted by terrorism.'
While this has been the guiding notion, the question then
remains: to what extent are democratic states bound by these restrictions?
In particular, this dilemma intensifies whenever there is a conflict
between two commitments or loyalties: protecting one's own civilians or
the enemy's civilians. This dilemma occurs when we know that suicide
bombers hide themselves among friendly civilians and if we do not stop
them, they will arrive at our doorsteps and blow themselves up. Hence,
whose life should a state privilege? If the state is committed to respect
the lives of those civilians who are under its belligerent occupation but
who willingly harbor terrorists, it means risking the lives of its own
civilians. Why should any given state have to do so?
Another dilemma that is not unique to the war on terrorism,
although here it emerges more bluntly, is how far should we risk the
safety of our soldiers in order to minimize the risk of harm to civilians?
Let us assume that using ground forces will always be considered less
risky to the safety of civilians than using aerial raids. Therefore, does it
necessarily follow that we should always prefer ground operations,
169See
GROSS, supra note 14, at 205-07 and Elizabeth Anscombe, War and Murder, in WAR,
MORALITY AND THE MILITARY PROFESSION 285, 288 (Malham M. Wakin ed., 1979) for
elaboration regarding the legal and moral difference between innocent and guilty civilians-i.e.,
between civilians who are forced to accommodate or assist the terrorists in any way and civilians
who willingly volunteer to provide shelter to terrorists and allow them to operate from their
living areas.
170
See Barak, supra note 144, at 148-61.
17'HCJ 5100/94 Public Committee Against Torture in Israel v. Government of Israel 53(4) P.D.
817, 39 [1994] (Isr.).
72
See Barak, supra note 144, at 148-61.