Ethical Dilemmas in Counterterrorism

By Moshe Yaalon

Israel's self-image as a moral nation with a right to survive has been put to a severe test.

Over the course of the past six decades, the reason for the existential threat to Israel has remained unchanged: The refusal of many, if not most, governments and peoples in the Middle East to accept the existence of the Jewish state. The nature of that threat, however, has undergone a dramatic evolution. In recent years, we have witnessed a shift from conventional warfare—that is, wars between armies and states—to “subconventional” warfare (such as terrorism and crude rockets) and superconventional warfare (such as missiles and weapons of mass destruction). Accompanying this change has been a profound political-ideological shift, from the prominence of nationalist-secular movements to that of religious-jihadist ideologies.

This new type of warfare, and the ideology that fuels it, are defined by the intent to kill civilians. Terrorism, rockets, missiles, and WMDs all avoid engaging the Israel Defense Forces (IDF) directly, aiming instead at the general Israeli population. The groups that exploit these methods of warfare do so partially because they know they cannot emerge victorious from a direct confrontation with the IDF. They do so primarily, however, because of their belief that Israeli society is the weakest link in Israel’s national-security chain. And indeed, attacks on Israeli civilians—and the military retaliation they provoke—are the kind most likely to arouse critical moral dilemmas for both the Israeli military and the democratic society it seeks to protect.

Faced with this new kind of warfare, military decision makers at every level, from the chief of staff down to the regular soldier, are forced almost daily to make choices of the most extreme kind—namely, those that will cost lives. In order to grasp the true difficulty, even impossibility, of these choices, it is first necessary to understand what the IDF has been up against in recent years.
Since September 2000, when Yasser Arafat launched the terror war (which is falsely called the second Intifada), the IDF has faced a systematic effort by Palestinian terrorists to wreak death and destruction on Israeli society. This unprecedented onslaught, carried out by well-organized and well-funded groups, is in fact a full-blown and calculated armed conflict.
In this conflict, Israel’s enemies have distinguished between combatants and non-combatants only insofar as such a categorization clarifies their target: Civilians. Now, anyone with even the most rudimentary knowledge of modern military ethics knows that the basic distinction between combatants and non-combatants (or civilians) is what determines the rules of engagement and defines the scope of the battlefield. But terrorism, which subscribes to no code of ethics—which is, in fact, the very embodiment of the unethical—deliberately targets those who should be immune to war’s devastation.
Furthermore, Palestinian terrorists not only attack Israeli civilians in their homes, their restaurants, their shopping malls, and their buses, but they also use their own civilians as human shields. They operate from highly populated civilian areas so as to complicate and deter Israel’s ability to thwart their attacks. Indeed, due to the likelihood of civilian casualties, any Israeli military action—offensive or defensive—is extraordinarily costly in terms of both lives and publicity. By triggering a panicked response by the government and provoking potentially overzealous army tactics, the terrorists are certain to ensure condemnation of Israel by foreign governments, non-governmental organizations, and the world media. Most importantly, perhaps, such counterterror measures may cause a rift within Israeli society itself over the legitimacy of our cause and the moral stature of our armed forces.
Put simply, the more we apply force and the heavier the collateral damage to the Palestinian civilian population, the more we play into the hands of our enemies, and the more we undermine the legitimacy of our actions.
If there is any doubt as to the nature of our enemy’s strategy, one need only look at the frequency with which Palestinian terrorists falsely accuse Israel of gross human rights violations and massacres in pursuit of sympathetic media coverage. An example is the infamous claim of a “Jenin massacre,” a sensational fabrication of Palestinian propagandists and their abettors in the international media. In this instance, it was claimed that the IDF had massacred hundreds, even thousands of civilians in the West Bank city of Jenin during an offensive operation in April 2002. In reality, only fifty-two Palestinians were killed in intense, house-to-house urban combat in the Jenin refugee camp—almost all of them armed terrorists. In this same battle, twenty-three Israeli officers and soldiers were killed in a surgical operation that shunned the use of artillery or air strikes—which would have dramatically decreased the number of Israeli casualties—in order to avoid a greater number of Palestinian civilian ones.
Nevertheless, the commanders of the IDF were hit with criticism from all sides: The media, foreign governments, and, most painful of all, the families of the fallen soldiers. These families are naturally more concerned with soldiers’ lives than with the potential for increased collateral damage on the enemy’s side—and understandably so. Yet the military, and the government that directs it, must strive to keep in mind the larger picture. This is what we strove to do in Jenin, and in this, we were successful: While our caution did not change Palestinian attitudes (nor did we expect it to), it did serve a critical strategic purpose. So, then, who was right: The families of the fallen soldiers or our political and military leaders? I am not sure.
One of the most important considerations in counterterrorism operations is a cost-benefit analysis of the fallout from the use of force. On one hand, killing a terrorist prevents more terror attacks; on the other hand, it often elicits revenge emotions, as terrorists and their supporters use the occasion as a rallying cry for still more attacks. This is also the case in defensive measures, such as checkpoints, closures, and curfews, which, while they frequently succeed in foiling an imminent terror attack, stir hatred among civilians. Humiliated by their powerlessness, these civilians may turn into terrorists themselves, or at least their supporters.
Another example of a controversial anti-terror tactic of which Israel has made use in recent years is the practice of so-called “targeted killing”—surgical killings of terrorists, primarily high-ranking members of terror organizations. These operations are often condemned as “extra-judicial,” since terrorists are eliminated without bringing them to trial. Yet objections often misunderstand, among other things, the nature of targeted killings. These operations are not used to punish terrorists for past acts; rather, they are used to prevent future ones. Furthermore, in a targeted killing, just as in any other military act, there are strict rules of engagement, including political and legal oversight. An operation must first be approved by both the highest military commander and the highest echelon of the political leadership, on the advice of both the military and civilian attorney generals. Second, a targeted assassination is used as a last resort, when we have concrete, reliable intelligence regarding a terrorist’s plans but no way to arrest him. Indeed, our preference is always to arrest terrorists, since they can then be interrogated and possibly provide vital, life-saving information. Furthermore, arrests also reduce revenge emotions. When targeted killings are carried out, the public may be assured that we felt we had no other, better option.
Finally, even in the case of targeted killings, the IDF has demonstrated a remarkable concern for morality. In the seven years since the Palestinian terror war began, there has been only one case in which the IDF deliberately targeted a civilian, along with a terrorist, in an operation. The terrorist in question was crucial to the planning and execution of numerous suicide attacks. The first time we had the chance to kill him, he was with his daughters, and we aborted the mission to spare their lives. Six months later, we decided to target him when he was alone with his wife. Did the fact that his wife was also killed make our mission wrong? Was our delay in killing him—during which time many Israelis were killed on his orders—correct? On questions such as these, who can decide? Morally, one might claim that “by being merciful to the cruel, we were cruel to the merciful.” And he might well be right.

Although there are no clear answers to these dilemmas, there are certain principles that we must always follow, even when confronted with a terrorist threat. First, the use of force should be a last resort; second, targeted killing should be the last resort of the use of force; and third, when we are forced to kill, we should do so as surgically and decisively as possible. All three principles aim to impart the same message: That terrorism does not pay.

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