If we're fighting a war on terror, are terrorists soldiers?

As you may recall, I mentioned that Gail, one of my regular readers, challenged me to give my position on the killing of Sheik Yassin, the Hamas leader, by an Israeli missle. Here is my response.

The key question that you have to answer when you take sides on the killing of Sheik Yassin is whether you believe that terrorists are properly targets for law enforcement or whether they are combatants who are targets of military action.

This is not a new debate. Since 9/11, the Bush administration has clearly taken the position that terrorists are combatants, even to the extent that an American terrorist forfeits his civilian status and becomes instead an "enemy combatant".

And some Democrats have adopted at least a version of this position, too. On September 9, 2003, Howard Dean told CNN's Wolf Blitzer "I think no one likes to see violence of any kind. That's why the United States is involved in this. I will say, however, that there is a war going on in the Middle East, and members of Hamas are soldiers in that war, and, therefore, it seems to me, that they are going to be casualties if they are going to make war." The context of the statement was a question of whether Dean supported Israel's policy of targeting Hamas leaders for assassination. Dean's answer can fairly be read to mean that terrorists who engage in an organized campaign of violence (which arguably descibes Hamas) are legitimate targets for military reprisal.

At the other extreme are many on the Left, who insist that a society that is founded on the notion of due process and freedom of thought can't suddenly decide to suspend due process because of the perpetrator's state of mind when he commits a crime. That is to say, that if two acts of violence are substantively identical in terms of how they were carried out and who the victim was, it can't be case that one is a crime and the other an act of war, or that that determination could fairly rest on the political views of person committing the violent act.

International law provides some help in resolving this issue, and for an easy-to-follow explication of its contours, I recommend an article in last month's Foreign Affairs by Kenneth Roth. [link] Roth discusses the implications of the Bush Administration's view of the law of war, as it is applied to the "war on terror", and concludes that by and large, the "all terrorists are soldiers" formulation is too broad to be either workable or defensible. But significantly, Roth discusses an example that is similar to the attack on Sheik Yassin and acknowledges that there is an argument to be made that the law of war would apply to known terrorists in certain circumstances. Here is Roth's discussion of the assassination by CIA forces of Qaed Salim Sinan al-Harethi:

Al-Harethi, who Washington alleges was a senior al Qaeda official, was killed by a drone-fired missile in November 2002 while driving in a remote tribal area of Yemen. Five of his companions, including a U.S. citizen, also died in the attack, which was carried out by the CIA. The Bush administration apparently considered al-Harethi to be an enemy combatant for his alleged involvement in the October 2000 U.S.S. Cole bombing. In this instance, the case for applying war rules was stronger than with Padilla or al-Marri (although the Bush administration never bothered to spell it out). Al-Harethi's mere participation in the 2000 attack on the Cole would not have made him a combatant in 2002, since he could have subsequently withdrawn from al Qaeda; war rules permit attacking only current combatants, not past ones. And if al-Harethi were a civilian, he could not have legally been attacked unless he was actively engaged in hostilities at the time. But the administration alleged that al-Harethi was a "top bin Laden operative in Yemen," implying that he was in the process of preparing future attacks. If true, this would have made the use of war rules against him more appropriate. And unlike in the cases of Padilla and al-Marri, arresting al-Harethi may not have been an option. The Yemeni government has little control over the tribal area where he was killed; indeed, 18 Yemeni soldiers had reportedly died in an earlier attempt to arrest him.

As Roth acknowledges, certain factors -- a known link to past and, more importantly, future acts of terrorism and an inability to arrest the suspected terrorist even if located -- may, when added to other "indicia" of war under the Geneva convention (intensity of hostilities, the regularity of armed clashes and the degree to which opposing forces are organized under a recognizable leadership structure), justify the use of military force instead of police force. As Roth puts it, "armed rebellions, once sufficiently organized and violent, are usually seen as 'wars.'"

Which brings me back to Sheik Yassin. I think it's fair to argue that the second intifada is "sufficiently organized and violent" "armed rebellion" that it qualifies as a war for purposes of applying the laws of war under the Geneva convention.

It's also fair to argue, that Hamas has played a leadership role in organizing that "armed rebellion" and frequently and repeatedly claimed credit for mounting attacks on Israel.

Although I don't have specific information, I further think it would be fair to say that at the time of the killing of Yassin, Hamas was planning additional attacks on Israel.

And finally, there's no argument that Yassin was the acknowledged leader of Hamas.

The only question that remains, then, is whether the Israeli action fit the doctrine of "military necessity" (that is, that you don't use lethal force if lesser force would accomplish the same goal). I think it did: given the depth of hostility in Gaza between Israelis and Palestinians and the strong likelihood that a pitched battle and substantial casualities would result if the IDF had tried to arrest Yassin, arrest was not realistically an option.

In the circumstances, therefore, I would say he was an active combatant, and therefore that the laws of war could fairly be applied to him, for better and for worse. As a result, I cannot condemn Israel's chosen course of action, even as I wish that there could have been a better (less violent) resolution.

Just so that I am not misunderstood, I still agree with the thrust of Roth's article, which is that it is far from clear that the US, unlike Israel (which Roth does not discuss), is engaged in a "war" on terror, as that word is used in the Geneva convention. Consequently, as astute readers of Laboville will recall, I stand by my positions regarding Jose Padilla and Yasser Esam Hamdi, and the due process rights that they're being denied. I'm not convinced that the dots have been sufficiently connected on them or their status as "active combatants" to warrant treating them according to the rules that apply in wartime rather than the rules that apply during peacetime.