Fighting Terror – A View from Israel*

* The present paper is a result of work done within the framework of the IDF College of National Defense. However, the paper itself is not an official IDF document.

Introduction

The purpose of the present lecture is to briefly present and very briefly defend some ingredients of a new doctrine of the Just War of Fighting Terror. It is an extension of the classical Just War Doctrine,1See, for example, Walzer (1992) and Coppieters and Fotion, eds. (2002). but it includes new principles of military ethics. Most of the lecture in the sequel will be devoted to our conception of ‘terror’. The rest will be devoted to presentation of three principles.

The doctrine, in its fully fledged form, has been developed by a team we have headed at the Israel Defense Force (IDF) College of National Defense, whose work has been done in the context of the ongoing conflict between Israel and various Palestinian organizations and individuals involved in committing terrorist activities against Israelis, most conspicuously in the form of homicide-suicide bombings. Although, the problems discussed were those that the IDF had faced, the principles have been formulated on a broad theoretical level. Hence, the principles of the doctrine are meant to be justified and practically applicable under any circumstances of a parallel nature.2In addition, it should be emphasized that nothing of what appears in the sequel rests on any particular view of the Israeli settlements or of the future borders of Israel.

At our starting point we suggest a working definition of ‘terror activity’. Numerous definitions of ‘terror’ that have appeared in the political arena and the professional literature of different disciplines,3For a philosophical discussion of several definitions, see Corlett (2003: 116-121). A 1988 guide, Schmid, Jongman, et al. (1988) enumerates 109 different definitions. The present figure would be above 150. but we have not adopted any on them. On the other hand, we have adopted some major ubiquitous ingredients of those definitions, and formulated our own working definition.4The explanation of our working definition is crucial for its understanding. Hence, our definition should not be considered on its own, but rather against the background of our explanations in the sequel.

We define an ‘act of terror’ as:

an act, carried out by individuals or organizations, not on the behalf of any state, for the purpose of killing or otherwise injuring persons, insofar as they are members of a particular population, in order to instill fear among the members of that population (‘terrorize’ them), so as to cause them to change the nature of the related regime or of the related government or of policies implemented by related institutions, whether for political or ideological (including religious) reasons.

Two ingredients of our working definition of terror require clarification. The first has to do with the agents of acts of terror. Under consideration in the present work are acts (and activities, which are series of acts) that are carried out by individuals or organization, but not on the behalf of a state. We do not deny that a state can act for the purpose of killing persons in order to terrorize a population with the goal of achieving some political or ideological goal. However, acts of states are under consideration, we apply to the ensuing conflict moral, ethical and legal principles that are commonly held to pertain to ordinary international conflicts between states or similar political entities.5In such a context, a state that killed numerous citizens of another state in order to terrorize its citizenry would be guilty of what is commonly regarded as a war crime. Interestingly and regrettably, there is no international treaty against terror that would define terror crimes of individuals, organizations and states. Since the nature of the situation in which a state faces acts of terror committed by individuals and organizations is rather different from that of a state facing acts of terror committed by another state, we take it that those cases should be discussed separately.

Secondly, according to our definition targets of acts of terror are persons in general, not necessarily noncombatants.6The UK Terrorism Act 2000 too define acts of “terror” without confining targets to noncombatants only. Thus, imagine the following circumstances: At a checkpoint into the state, a woman pretends to be disabled, is allowed into a gate where she activates an explosive belt she carries under her garments and explodes, killing three people in addition to herself. The victims are a soldier, a conscript who serves in a border police combat unit and a guard employed by a private security company. A portrayal of such circumstances in terms of an act of terror that killed the guard, an act of guerrilla warfare that killed the soldier and a third act of an ambiguous nature that killed the policeman, makes no sense. We portray it as an act of terror that killed all three of them, using the same method in pursuit of the very same goal.

We do not deny the fact that occasionally acts of guerilla warfare are similar to acts of terror, in some respects. Acts of both kinds are often conducted by persons who live in seemingly ordinary residential areas and use them for planning their acts and hiding from their enemies. However, guerrilla warfare differs from terror activity in that it is conducted primarily for the purpose of disrupting military activity through the use of military or quasi-military means and methods. Guerilla acts are very similar to military acts, whereas acts of terror are very different from them. Hence, principles related to fighting terror and principles related to anti-guerilla warfare should be treated separately, forming separate parts of Military Ethics.

Quite often, acts of terror are described as acts of revenge by the organizations that take responsibility for having carried them out. We do not mention revenge among the purposes of acts of terror, because when acts of terror are thus depicted they are presented as reactions to some counter-terrorism acts or activities and hence are derivatives of acts or activities of terror as defined above. Accordingly, we consider them to be acts of terror.7We thank Prof. David Heyd for his comments on this point. See also McMahan (2004: 694, footnote 5).

The definition we have proposed is a working definition of an ‘act of terror’. A naturally related working definition would be that of an ‘activity of terror’, which involves individuals or organizations that regularly try to carry out acts of terror or seriously threaten to do so.

Given our working definition of ‘act of terror’ and the derivative notion of ‘activity of terror’, we are in a position to formulate a moral evaluation of acts and activities of terror, in the given sense of those terms. The major moral focus of acts of terror does not reside in the political or ideological reasons for committing them. Such reasons can be anywhere on a moral scale of reasons, between noble and wicked. If acts of terror are performed for wicked reasons they are morally wrong at least because they are intended to serve wicked goals, but at the same time if acts of terror are performed for legitimate or even noble reasons, they are still morally wrong. Clearly, an act of killing persons or otherwise injuring them is morally justified only if it is an appropriate act of self-defense, used as a last resort, against perpetrating persons. However, an act of killing or injuring persons qua members of a population is not as such an act performed against perpetrators. Moreover, an act intended to terrorize a population by killing or otherwise injuring members of it is never an act genuinely used as a last resort. Most importantly, killing or injuring persons in order to terrorize a population is using persons merely as means. Hence, acts of terror and activities of terror are always morally unjustified.8See Walzer [1988] (2004: 51-66) and [2002] (2004: 130-142). Attempts to justify some acts of terror involve a definition of ‘terror’ different from our definition and justification of a highly restricted class of acts. (See Corlett (2003. However, on no serious account is the performance of acts of terror (as we defined them) considered as morally justified.))

Accordingly, there is no reason for accepting the commonly used slogan, ‘One man’s freedom fighter is another man’s terrorist, and vice versa’9Similar remarks would fit a similar slogan, viz. ‘One man’s suicide bomber is another man’s martyr’, mentioned in Govier (2002: 84).. A description of a person as ‘a freedom fighter’ pertains to the goals of one’s activity, while a description of that person as ‘a terrorist’ pertains to the means used in one’s activity. Hence, an apparent presentation of an opposition between being ‘a freedom fighter’ and being ‘a terrorist’ is misleading. A person can be properly portrayed as both ‘a freedom fighter’ and ‘a terrorist’ at one and the same time. Facing activities of terror, a state may use different portrayals of the same individuals and organizations on different levels.10One reason for doing this could be related to jus post bellum considerations. See Orend (2000: 21-263) for a suggested system of such considerations. We believe that the principles of the present paper are all compatible with a firm commitment to the pursuit of peace post bellum. However, from the point of view of Military Ethics, a terrorist is a terrorist is a terrorist.

A strategy of fighting terror in order to protect persons from activities of terror, and even from sporadic acts of terror, is of a relatively new nature. It is of a uniquely novel nature for two reasons. First, terror itself has taken a new shape. It has gained the ability to commit acts of mass destruction, as shown by the September 11, 2001 event at the Twin Towers and the Pentagon, and it has put to use the mode of homicide-suicide acts. Secondly, the fight against terror has to be new because it cannot be carried out in a pure, proper and effective way, within any of the traditional paradigms of a state fighting familiar sources of public danger11Terror activity has appeared and been eliminated in the past outside those paradigms, but usually it involved harsh activities on the part of non-Democratic states which are incompatible with the principles underlying any democratic state..

Both paradigms of warfare rest on assumptions that do not hold for the situation of a state facing terror. The conflict that is characteristic of classical wars has a core of activity that takes the form of a series of clashes between professional organizations of combatants that take place in battle fields away from areas of noncombatants. The conflict that is characteristic of activities of terror has a core of an utterly different nature. Persons who are not in military uniform play the major roles in that core, both as agents and as victims.12For several related discussions, see Gilbert (2003). Similarly, the paradigm of police law-enforcement rests on assumptions that do not hold when it faces activity of terror. Thus, for example, an ordinary police force protects citizens from activities of other citizens. Presumably, every person a police squad encounters when it carries out a mission is a citizen, a party to the ‘social contract’ to which every policeman is also a party. It would be reasonable to assume that most of the citizens thus encountered would be interested in being protected by the police. However, an ordinary anti-terror force usually protects citizens from activities of persons who are not parties to the same ‘social contract’. It will usually be right in assuming that almost all the persons it encounters during a mission do not support it.

Since missions of fighting terror are significantly different from both military missions of fighting armies and law enforcement missions of fighting criminals, it is desirable to form a conception of fighting terror within the framework of a democratic state.13Obviously, we do not take the 1977 Protocol I to provide us with a framework for fighting terror, not because Israel has not ratified it, but for conceptual and moral reasons. Nothing in Protocol I indicates that it was meant to be considered applicable to cases of alien homicide-suicide bombers acting against citizens of a state. Notice, also, that Article 44 of it states that ‘combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack’ and during preparations for such an act. Accordingly, he (or she) ‘carries his arms openly during each military engagement’ and during visible preparations for it. No terrorist carries his or her arms openly during their acts of terror and when they commit an act of homicide-suicide bombing in a mall they are not involved in what could be felicitously called ‘military engagement’. In another paper, we put forward the principles of such a conception and defend them in detail.14Kasher and Yadlin (2005). Ethics 4:1 (2005).

Here are two of our principles.

Principle A.1 – The Principle of Self-Defense Duty

  1. It is the prime duty of a democratic state to effectively defend its citizens against any danger posed to their lives and well being by acts or activities of terror, both in the short run and in the long run.
  2. In doing so, the state discharges its obligation to protect the human dignity of the citizen, both as person and as citizen.
  3. Moreover, being a democratic state, it must fulfill its obligation while properly respecting the human dignity of each person, as a person.

Principle B.1 – The Principle of Military Necessity

Military acts and activities against terror are right only if they are carried out under the following conditions:

  1. Purpose Condition:

The act or activity is taken in fulfillment of the basic duty of the state to defend its citizens from terror acts and activities.

  1. Relative Effectiveness Condition:

Any alternative act or activity (including refraining from any act or activity, respectively) would expose the lives or wellbeing of the citizens of the state, including its combatants, to greater danger.

  1. Minimizing Collateral Damage Condition:

The act or activity is carried out in a manner that strictly protects human life and dignity by minimizing all collateral damage to individuals not directly involved in acts or activities of terror.

  1. Proportionality Condition:

The act or activity is carried out in a manner that takes into account the relationship between its contribution to the defense of citizens from dangers of terror and the collateral damage it causes.

  1. Fairness (or universalizability) condition:

The act or activity is of universal applicability: Its justification would justify carrying out parallel acts or parallel activities in all parallel situations.

Conclusion

The present paper has be en devoted to a brief presentation of proposed principles of the military ethics of fighting terror. What has been proposed does not follow from the Doctrine of Just War in any of its common variants. However, the doctrine that consists of the proposed principles can be naturally interpreted as a new extension of the classical doctrine to the case of fighting terror. New distinctions, conceptions and norms have been introduced within those principles or underlying them, but the moral attitude and the practical approach of the classical doctrine have, so we believe, been kept intact.

Military history has seen many developments of the sphere of laws of armed conflicts. Generally speaking, every stage in those developments introduced a moral improvement over preceding stages. We believe that the present proposal provides us with a moral improvement of what classical variants of the Doctrine of Just War have to say about fighting terror when stretched to do it. Moreover, new distinctions, conceptions and norms that have been introduced in the present paper for the case of fighting terror, can and should be adapted for the case of ordinary international armed conflicts. Full presentation and defense of such an adaptation are, however, beyond the scope of the present paper.

References

Coppieters, Bruno and Fotion, Nick, eds., 2002. Moral Constraints on War, Principles and Cases. Lanham, MD: Lexington Books.

Corlett, J. Angelo, 2003. Terrorism, A Philosophical Analysis. Dordrecht: Kluwer.

Gilbert, Paul, 2003. New Terror, New Wars. Edinburgh: Edinburgh University Press.

Govier, Trudy, 2002. A Delicate Balance, What Philosophy Can Tell Us About Terrorism. Boulder, CO and Oxford: Westview Press.

Kasher, Asa and Yadlin, Amos, 2005. ‘Military Ethics of Fighting Terror: An Israeli Perspec­tive’ Journal of Military Ethics 4:1, in press.

McMahan, Jeff, 2004. ‘The Ethics of Killing in War’, Ethics 114: 693-733.

Orend, Brian, 2000. War and International Justice, A Kantian Perspective. Waterloo: Wilfrid Laurier University Press.

Schmid, Alex P., Jongman, Albert J. et al., 1988. Political Terrorism: A New Guide to Actors, Authors, Concepts, Data Bases, Theories, and Literature. New Brunswick, NJ: Transaction Books.

Walzer, Michael, 1988. ‘Terrorism: A Critique of Excuses’; republished in Walzer (2004: 51-66).

Walzer, Michael, 1992. Just and Unjust WarsA Moral Argument with Historical Illustrations, 2nded.. New York: Basic Books [1st ed., 1977; 3rd ed., 2000].

Walzer, Michael, 2002. ‘After 9/11: Five Questions about Terrorism’; republished in Walzer (2004: 130-142).

Walzer, Michael, 2004. Arguing about War. New Haven and London: Yale University Press.

 

Fotnoter   [ + ]

1. See, for example, Walzer (1992) and Coppieters and Fotion, eds. (2002).
2. In addition, it should be emphasized that nothing of what appears in the sequel rests on any particular view of the Israeli settlements or of the future borders of Israel.
3. For a philosophical discussion of several definitions, see Corlett (2003: 116-121). A 1988 guide, Schmid, Jongman, et al. (1988) enumerates 109 different definitions. The present figure would be above 150.
4. The explanation of our working definition is crucial for its understanding. Hence, our definition should not be considered on its own, but rather against the background of our explanations in the sequel.
5. In such a context, a state that killed numerous citizens of another state in order to terrorize its citizenry would be guilty of what is commonly regarded as a war crime. Interestingly and regrettably, there is no international treaty against terror that would define terror crimes of individuals, organizations and states.
6. The UK Terrorism Act 2000 too define acts of “terror” without confining targets to noncombatants only.
7. We thank Prof. David Heyd for his comments on this point. See also McMahan (2004: 694, footnote 5).
8. See Walzer [1988] (2004: 51-66) and [2002] (2004: 130-142). Attempts to justify some acts of terror involve a definition of ‘terror’ different from our definition and justification of a highly restricted class of acts. (See Corlett (2003
9. Similar remarks would fit a similar slogan, viz. ‘One man’s suicide bomber is another man’s martyr’, mentioned in Govier (2002: 84).
10. One reason for doing this could be related to jus post bellum considerations. See Orend (2000: 21-263) for a suggested system of such considerations. We believe that the principles of the present paper are all compatible with a firm commitment to the pursuit of peace post bellum.
11. Terror activity has appeared and been eliminated in the past outside those paradigms, but usually it involved harsh activities on the part of non-Democratic states which are incompatible with the principles underlying any democratic state.
12. For several related discussions, see Gilbert (2003).
13. Obviously, we do not take the 1977 Protocol I to provide us with a framework for fighting terror, not because Israel has not ratified it, but for conceptual and moral reasons. Nothing in Protocol I indicates that it was meant to be considered applicable to cases of alien homicide-suicide bombers acting against citizens of a state. Notice, also, that Article 44 of it states that ‘combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack’ and during preparations for such an act. Accordingly, he (or she) ‘carries his arms openly during each military engagement’ and during visible preparations for it. No terrorist carries his or her arms openly during their acts of terror and when they commit an act of homicide-suicide bombing in a mall they are not involved in what could be felicitously called ‘military engagement’.
14. Kasher and Yadlin (2005). Ethics 4:1 (2005).

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