Ethical
Dilemmas in Fighting Terrorism
Maj.
Gen. Amos Yadlin
- When
the IDF updated its military doctrine in 2003, Prof. Asa Kasher,
Professor of Professional Ethics at Tel Aviv University, joined
me on an ethics committee to craft principles on how to make moral
and ethical decisions in Israel’s operational campaign against
terror.
- As
we sought to formulate how to fight terror, we understood that
the main asymmetry is in the values of the two societies involved
in the conflict – in the rules they obey. We are fighting
with a people that have totally different values and rules of
engagement.
- How
do we differentiate between terrorists and non-terrorists? Everyone
who is directly involved in terror is a legitimate target. Those
who are indirectly involved in terror are not a legitimate target.
- Some
asked if the collateral damage was producing future terrorists.
We found that because of the level of incitement, the collateral
damage only raised public support for terror from 95 to 96 percent.
- In
August 2002 we had all the leadership of Hamas in one room and
we knew we needed a 2,000-pound bomb to eliminate all of them.
Think about having Osama bin Laden and all the top leadership
of al-Qaeda in one house. However, use of a 2,000-pound bomb was
not approved, we used a much smaller bomb, and they all got up
and ran away.
- We
should do the job at the checkpoints ethically, professionally,
and as fast as we can because we have to care about the many times
the ambulance is really carrying somebody who needs help.
- The
bottom line is that Israel has to fight terror because terror
declared war on us. We can win, but we must do it ethically as
the Jewish people, as a democratic state, and as IDF officers
who respect our ethical profession.
Updating
the Concept of War
The
IDF found it necessary to update its military doctrine in 2003 in
light of changing threats to Israel’s security. While we were
prepared for traditional war, a war in which tanks fight tanks,
planes fight planes, and infantry fight infantry, we needed to update
our doctrine to include threats from ballistic missiles, weapons
of mass destruction, and terror – in which the fighting has
no clear front where armies meet.
As
part of that updating, Prof. Asa Kasher, Professor of Professional
Ethics at Tel Aviv University, joined me on an ethics committee
– comprised of field commanders, brigade commanders, division
commanders, philosophers, even a lawyer – to craft principles
on how to make moral and ethical decisions in Israel’s operational
campaign against terror.
As
we sought to try and formulate how to fight terror, we understood
that we were in a different kind of war, where the laws and ethics
of conventional war did not apply. It involves not only the asymmetry
of tanks hunting against guerilla fighters or airplanes chasing
terrorists. The main asymmetry is in the values of the two societies
involved in the conflict – in the rules they obey. This is
not a war between the U.S. and Russia or Germany and France, where
the international rule of law is accepted by both sides. In this
case, we are fighting with a people that have totally different
values and rules of engagement.
In
postmodern warfare, every fundamental concept of war has changed.
First, who is the enemy in this case? Normally, a state is the enemy,
or a well-defined organization such as the PLO. In this war, no
state or organization is accountable. Second, wars in the past happened
at the front line. Suddenly there is no defined front, no defined
border. The terrorists are all over. What kind of rules are we to
take into consideration when we plan an operation when there is
no border? Third, who are the combatants? Are they soldiers with
uniforms? The basic law of a just war was based on the assumption
that one has to differentiate between those who fight and those
who are non-combatants. There are rules of engagement based on the
idea that it is possible to differentiate between the two. In the
case of terrorists, however, civilians are killing civilians.
The
Definition of Victory
Finally,
what does it mean to win such a war? Is it putting a flag on a hill?
Is it conquering territory? Is it destroying the enemy’s divisions
or airfields? To answer this question, it is necessary to understand
the rationale of the other side.
In
the current war Israel has lost over 1,000 people. This is equivalent
to the U.S. suffering 45,000 dead and 300,000 wounded. This is more
than Israel lost in the Six-Day War, a “real” war. At
the start, all of Israel’s strategic criteria were declining:
no economic growth, no newcomers, no tourists, no hope in the hearts
of people, no light in their eyes. But today the economy is growing,
we see tourists arriving again, we see that people are getting back
to their normal lives. This is the meaning of victory, in this case.
New
Ethical Rules for the Counter-Terrorism War
A new
model of warfare – the counter-terrorism war – requires
a new set of rules on how to fight it. The other side is fighting
outside the rules and we have to create new ethical rules for the
international law of armed conflict, in keeping with the traditional
IDF concept of “the purity of arms.”
Terror
is easier to fight in non-democratic states. King Hussein used a
lot of force in 1970, with no supreme court, and without being exposed
to the media, and terror stopped in Jordan. In 1982 in Hama, Syrian
President Assad killed 30,000 people and he got rid of Islamic fundamentalist
terror. Yet Israel cannot use these means; we have to do it in an
ethical way.
Our
job is preventing terror. Yet we face a tragic dilemma. Whatever
we decide when fighting terror, some innocent people are going to
get hurt. On the one hand, there are the Israeli citizens that the
terrorists want to kill. On the other hand, the terrorists are hiding
behind innocent civilians. It is very important when people’s
lives are at stake that there is a moral understanding and precise
rules for moral conduct.
The
duty of the state is to defend its citizens. Any time a terrorist
gets away because of concerns about collateral damage, we may be
violating our main duty to protect our citizens. We look for alternatives
so as not to cause collateral damage, or to cause the minimum amount
of collateral damage, but the main obligation is to defend our citizens.
We also have an obligation towards the citizens on the other side
who are under our effective control. We have an obligation to hit
the terrorists. And we have an obligation toward our soldiers, to
protect their lives. Who should be our first priority?
We
decided we have two separate obligations to the citizens on the
other side. Those who are under our effective control are almost
like our citizens. When we are in a position to arrest the terrorists,
there is no need for a targeted interception. But in Gaza, which
is controlled by the terrorists, many people will be killed on both
sides when trying to arrest a terrorist. In such a situation, interception
becomes much more efficient and a more ethical choice in this case.
Under
the international law of war, military necessity justifies almost
everything. Yet Israel has limited its right to invoke military
necessity by requiring additional conditions, including: Purpose
– that the action is really helping to defend our citizens;
Intelligence and Proof – that what we are doing is really
saving the lives of people in Israel; Effectiveness – that
if there is going to be a lot of collateral damage we have to look
for another alternative.
We
did not tailor this ethical code just for the IDF in its war against
Palestinian terrorists. We think this code is good for the Americans
or for the Russians when they are fighting terrorists – it
fits any kind of hypothetical counter-terrorist scenario.
Differentiating
between Terrorists and Non-Terrorists
How
do we differentiate between terrorists and non-terrorists? International
law says one may target any soldier. Today, everyone in Israel will
agree that one is allowed to kill someone carrying a ticking bomb.
But where do we draw the line? We know that everyone on the other
side who belongs to a certain mosque may support terror because
in that mosque they are inciting to terror. Everyone on the other
side who watches Palestinian TV may support terror because the entire
Palestinian media is supporting terror. Is it legitimate to attack
them? No.
We
have to learn who belongs to the operational terror chain, which
includes the suicide bomber, the one who produces the explosives,
and the driver. Everyone who is directly involved in terror is a
legitimate target in this war on terror. Those who are indirectly
involved in terror are not a legitimate target. The one who brings
in money to the Hamas charity in Nablus, who is indirectly involved
in terror, will be arrested by the legal system and not targeted
by a military action. The same holds for the preacher in the mosque
who says that all Jews are pigs and monkeys.
The
principle of liability also comes into consideration. How liable
is it that someone who has committed ten suicide bomber deliveries
will do the eleventh? Until he announces his retirement from the
terror attack business, he is on the list based on liability. If
he retires, the legal system will take care of him, not the military.
Deterrence
is also a principle to be considered. If Israel is seen to be targeting
every terrorist, this tells the terrorists that they have to worry
about being terrorists.
In
the case of preventive action based on liability or deterrence,
since the prevention of imminent threat is not as clear, the bar
of collateral damage is much higher. We are not allowed collateral
damage when we are operating based on liability or deterrence.
The
principle of proportionality in Israel’s actions is based
on the amount of danger: How imminent? How great is the threat?
Is it mega-terror? Is it a weapon of mass destruction? Is it chemical
terror?
Some
members of the committee asked if we weren’t creating wonderful
rules of engagement for fighting terror, but that the collateral
damage was producing future terrorists. We looked very seriously
at this issue of the long-term consequences of operations against
terror and found that because of the level of incitement, the collateral
damage only raised public support for terror from 95 to 96 percent,
and not from 30 to 90 percent.
Nevertheless,
we decided that from an ethical point of view, whenever possible,
we must give early warning to those who are living around terrorists.
Sometimes from an operational point of view this will cancel the
operation because the terrorist whose neighbor is being warned will
disappear. This is balanced on a scale and, if the threat is not
imminent, a decision is sometimes made to let the terrorist run
away and look for an opportunity to target him in a place where
there will be no collateral damage.
Targeting
the Dolphinarium Bombing Planner
The
case of Salah Shehada, the head of the military arm of Hamas, is
a prime example of ethical concerns in decision-making. Shehada
planned terror attacks in Israel, including the attack on the Dolphinarium
discotheque where twenty-one teenagers were killed, and he was in
the process of planning a “mega-attack.” We knew that
if we hit him, the mega-terror process would stop because he was
the mind behind it, the planner, the one who was really pushing
the button. Shehada was always surrounded by innocent people until
one night in July 2002 we found him almost alone, and we delivered
a 2,000-pound bomb on his apartment and he was killed. Unfortunately,
the intelligence about those in the surrounding buildings was wrong,
and innocent people were killed. Yet when the decision was made,
it was the right decision from an ethical point of view because
the scale included a mega-attack threatening the lives of hundreds
of Israelis, balanced against a terrorist with some collateral damage.
But in this case the collateral damage was too high.
A month
later, in August 2002, we had all the leadership of Hamas –
Sheikh Yassin and all his military commanders, all his engineers,
all the minds of terror – in one room in a three-story house
and we knew we needed a 2,000-pound bomb to eliminate all of them
– the whole leadership, 16 people, all the worst terrorists
in the world. Think about having Osama bin Laden and all the top
leadership of al-Qaeda in one house. However, due to the criticism
in Israeli society and in the media, and due to the consequences
of innocent Palestinians being killed, a 2,000-pound bomb was not
approved and we hit the building with a much smaller bomb. There
was a lot of dust, a lot of noise, but they all got up and ran away
and we missed the opportunity. So the ethical dilemmas are always
there.
The
chief of staff is always asking, “Bring me an operational
plan that will endanger fewer civilians around the terrorist.”
This is an important principle: We never target civilians. They
kill our civilians but we will not kill theirs as a punishment.
We are always targeting terrorists on their way to do us imminent
harm. The dilemma is that the terrorists are within these civilians.
Closing
Weapons Tunnels in Rafiah
The
IDF operation earlier this year in Rafiah in which the army had
to eliminate Palestinian homes because of the weapons tunnels raised
some very difficult ethical dilemmas, but there were good solutions
for them. There was good intelligence about smuggling weapons with
a new scale of capabilities that would change the whole situation
in Gaza. We had a situation where the citizens of Israel in Sderot
and even Ashkelon would be under the threat of katyusha rockets
like the Hizballah has in southern Lebanon. On the other hand, there
were houses in places where we knew the tunnels led to.
Let
us remember that the entire Philadelphia corridor along the Egypt-Gaza
border is Israeli territory in an area three hundred meters wide,
according to an international agreement between Israel and Egypt.
Israel never imposed its authority all the way to three hundred
meters because there were Palestinians living there. As long as
everything was under control, Israel agreed to PA authority in these
areas within the corridor, which in practice narrowed to seventy
meters in some places. But now there is war there. Terrorists are
shooting from the houses of civilians at IDF forces and, according
to the Geneva Convention, one is allowed to shoot at a house where
gunfire originates, even if there are civilians inside. So what
do you do?
On
the one hand, we had to deal with the terrorists and look for the
tunnels. On the other hand, we had to avoid collateral damage or
hitting the civilians. So first of all we applied the principle
of warning. We warned the civilians that they had to leave because
the terrorists were there.
We
had to make every attempt to move them before the fighting began.
Two soldiers paid with their lives because they were trying to help
a Palestinian old lady get some water and Palestinian snipers killed
them. Think about the commander who has to go to the parents of
the soldiers and tell them that because of ethical issues they helped
this old lady but your son is dead because of it. It’s an
awful dilemma.
Israel’s
Security Fence
Everyone
can see that where the anti-terror fence was built, the number of
terror attacks in the area facing it dropped almost to zero. One
of the reasons terror has declined is due to the fence which closes
off the ease of getting into Israel’s cities. In addition,
closing the border between the Palestinian area and the State of
Israel freezes the situation and it becomes easier for intelligence
to trace the movement of operational members of Hamas and Islamic
Jihad.
Steps
to Protect the Innocent
The
ethical dilemma is easily solved when the intelligence is very clear
about a suicide bomber coming. But how do we balance this at a checkpoint
used by 1,000 people every day and there is only one terrorist every
week?
The
indignity, suffering, and waste of time for innocent Palestinians
presents a moral dilemma. But even if the probability is low of
a terrorist appearing, this is not negligible when human life in
big numbers is at stake.
But
we must behave ethically. We can check an ambulance in two minutes
instead of two hours. But we have to check it because the Palestinians
have taken advantage of this and in the past have hidden explosive
belts and terrorists in ambulances. We should do the job at the
checkpoints ethically, professionally, and as fast as we can because
we have to care about the many times the ambulance is really carrying
somebody who needs help.
The
IDF is very sensitive to humanitarian issues. On the other hand,
most of them can be corrected in the future. Even the refugee camp
in Jenin is now rebuilt. But those young, sixteen-year-old girls
that were killed in the discotheque, or the 1,000 people who were
killed in Israel, will never be brought back to life. There are
another 10,000 people who are now handicapped. Did we destroy too
many houses in Rafiah to find the tunnels and stop the Palestinian
terrorists who were shooting at us? We can rebuild them when peace
will come. From an ethical point of view, I think we did the right
thing.
The
bottom line is that Israel has to fight terror because terror declared
war on us. We can win, but we must do it ethically as the Jewish
people, as a democratic state, and as IDF officers who respect our
ethical profession.
* *
*
Maj.
Gen. Amos Yadlin became Israel’s military attache in Washington
on August 23, 2004. Formerly head of the IDF National Defense College
and deputy commander of the Israel Air Force, he participated in
the bombing of the Iraqi nuclear reactor. Gen. Yadlin headed the
IDF team that outlined the principles of the war against terror.
This Jerusalem Issue Brief is based upon his presentation at the
Institute for Contemporary Affairs in Jerusalem on June 23, 2004.
***
Source:
Jerusalem
Issue Brief
Jerusalem
Center for Public Affairs
Institute
for Contemporary Affairs
founded
jointly with the Wechsler Family Foundation
Vol.
4, No. 8 – 25 November 2004
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