The Evolution of International Law and the War on Terrorism (JCPA-JERUSALEM CENTER FOR PUBLIC AFFAIRS) Alan Baker, Legal Advisor, MFA, Col. Daniel Reisner, Head of the International Law IDF. JERUSALEM ISSUE BRIEF Vol. 2, No.14 12/24/02)
JCPA-Jerusalem Center Public Affairs
JCPA-Jerusalem Center Public Affairs Articles-Index-Top
Alan Baker, Legal Advisor, Israel Foreign Ministry
Col. Daniel Reisner, Head of the International Law Department,
Israel Defense Forces
* A country -- whether it be Israel, or the United States in its
fight with al-Qaeda -- whose army is involved in fighting a terrorist
organization which has no state and no boundaries, has to be able to
carry out those acts necessary to deal with terror.
* What happens if the police see a suicide bomber who opens his
jacket and shows his explosive belt? Can the Israeli police kill him?
He hasn´t done anything.
* There is a rich international legal literature covering war crimes
of military forces, but no agreed international legal definition that
covers all cases of terrorism. There is a basic asymmetry in
international law with respect to terrorists and armies fighting
terrorism that needs to be resolved.
* If we receive information about a terrorist bomber going to carry
out a suicide attack and we can catch him en route, and shoot a
missile into his car while he´s trying to come into Israel, are we
permitted to do so? The answer is definitely yes. The United States
has now targeted combatants in the same way in its drone attack in
* International law must recognize terrorists as combatants and not
No Accepted Definition of Terrorism
Alan Baker: There are several international conventions that define
war crimes, but there is no internationally accepted definition of
terrorism. There is not one international convention that actually
One definition of terrorism was given by the Convention of the
Organization of the Islamic Conference on Combating International
Terrorism in 1999:
Terrorism means any act of violence or threat thereof,
notwithstanding its motives or intentions, perpetrated to carry out
an individual or collective criminal plan with the aim of terrorizing
people, or threatening to harm them or imperiling their lives, honor,
freedoms, security or rights, or exposing the environment or any
facility or public or private property to hazards or occupying or
seizing them or endangering a natural resource or international
facilities or threatening their stability, territorial integrity,
political unity, and sovereignty of independent states.
A terrorist crime "is any crime executed, started or participated in
to realize a terrorist objective in any of the contracting states or
against its nationals." This is a very thorough definition; however,
in Article 2 of this regional convention by the Conference of Islamic
States, it says, "peoples´ struggle including armed struggle against
foreign occupation, aggression, colonialism, hegemony, aimed at
liberation in accordance with the principles of international law,
shall not be considered a terrorist crime."
In other words, attempts to define the attack on the World Trade
Center or attacks in Israel as terrorism would be scuttled by the
Conference of Islamic States. The Islamic states insist that fighting
an occupation cannot be considered terrorism. Similarly, Hizballah in
Lebanon claims that what they are doing today, or before Israel
withdrew from Lebanon, is not terrorism. It is resistance, they
claim, something that is permitted according to international law.
In fact, there is no such right of resistance to occupation in
international law. When placing the question of terrorism opposite
the question of international war crimes, we meet the difficulty that
terrorism has not yet been defined as a war crime. The components of
terrorism are war crimes, and the international community is working
to develop a definition of the crime of terrorism.
Israel faces the dilemma of having bilateral commitments with the
Palestinians, including commitments by the Palestinians not to engage
in terrorism. In a letter signed on the eve of the first Oslo
agreement in 1993 on the White House lawn, part of an exchange of
letters between Yasser Arafat and Yitzhak Rabin, Arafat undertook not
to carry out acts of terror, to bring to trial those who had been
involved in terror, and to solve all future problems with respect to
settling the questions between the two parties in a peaceful manner.
There are very detailed provisions in the various agreements with the
Palestinians requiring them to fight terror, collect illegal arms,
fight incitement, and do all sorts of things.
How are we going to deal with the fact that there is terror being
carried out on a daily basis in Israel? To explode a bus is very
similar to exploding planes on the World Trade Center. How is the
international community going to deal with this? Are we going to
continue to see this double standard? While everybody acknowledges
that there is terror and that Israel has the right to fight terror,
when Israel does fight terror it is accused of carrying out war
A Country Must be Able to Defend Against Terror
The war crimes definitions fit the Geneva Conventions and
international law up to World War II and immediately afterwards, when
armies were fighting armies. Yet with the development of terrorism by
groups that are not state entities, the whole concept of what a war
crime is has changed. But the international community has not yet
developed the legal texts in international law that fit these
developments. A country -- whether it be Israel, or the United States
in its fight with al-Qaeda -- whose army is involved in fighting a
terrorist organization which has no state and no boundaries, has to
be able to carry out those acts necessary to deal with terror. If
this means using a helicopter or sending a drone to target
terrorists, then this is perhaps what is necessary, and such actions
should not be considered a violation of international conventions or
a war crime.
Drafting an International Convention Against Suicide Terrorism
Given this clear legal necessity, Israel has decided on its own
initiative to draft a new international convention against suicide
terrorism to offer the international community. The convention would
be directed against those elements who assist in financing,
incitement, family support, or state support of such terrorists.
In Western European countries such as the Scandinavian countries,
people are permitted to demonstrate wearing mock suicide belts. Such
scenes are interpreted by Palestinians as approval and support for
such actions. This is why there is a need for an international
convention. Several countries, including Russia, India, and Germany,
have expressed interest in the draft being prepared by Israel.
Who is a Combatant?
Col. Daniel Reisner: There are no books on international law and
fighting terrorism, and no conventions on how to fight terrorism.
Classic international law deals with two generic situations: war and
peace. There is a big rule book dealing with the laws of warfare, the
laws of how to open war, how to end war, what weapons may be used,
how to treat captives. Different rules apply to countries when there
Where does a terrorist fit in to this structure? In peacetime, people
are divided into two different categories. They are either law-
abiding citizens or criminals, to be dealt with by the police and the
In wartime, people are divided into two different categories. They
are either civilians or combatants. Who is a combatant? is a big
question in international law, but there is general consensus that
anyone taking part in hostilities is a combatant, regardless of where
he lives or whether or not he wears a uniform.
Where does a terrorist fit in, such as a suicide bomber? Is he a
criminal offender? Are we supposed to send the police to catch him en
route? What happens if the police see a suicide bomber who opens his
jacket and shows his explosive belt? Can the Israeli police kill him?
He hasn´t done anything. If he is a criminal offender, he cannot be
shot because he hasn´t blown himself up yet. He´s a potential
terrorist but he hasn´t done it yet. No country in the world has come
up with a good response as to what should be done to a suicide
bomber. This police matter actually occurs to policemen in Israel and
some of them have died.
What is the main significance of the difference between combatants
and civilians in warfare? The difference is that an army has the
right to initiate fire and kill combatants. Must a combatant be given
a chance to surrender? Absolutely not. An army can launch a missile
from 25km away at a target which has no idea it is being targeted,
and kill everyone inside a military base, because all soldiers are
fair game in warfare, irrespective of their position. Those are the
clear rules of warfare.
The law breaks down when civilians start taking up weapons because
the law´s main objective is to protect civilians in warfare. The idea
is that armies can take care of themselves, but the civilians need
help. The law says civilians may not be targeted and they and their
property are not to be harmed. But what happens when a civilian picks
up a rifle and shoots at an army vehicle and then drops the gun on
the ground. What can be done to him? If he were a soldier I could
kill him. If he surrenders, I have to accept his surrender. But with
a civilian combatant, do I continue shooting, or because the danger
has now passed I treat him as a criminal offender once again? Does he
go back to being a civilian just because he put down his rifle? Let´s
say he didn´t put down his rifle, he just ran out of ammunition; is
he still a combatant?
Defending Against "Ticking Bombs"
For the past year and a half, Israel has had a policy relating to
what we call "ticking bombs," terrorists who we know are going to
carry out very severe attacks in the near future and whom we are
unable to arrest. Our policy is to "take them out." However, they
have a tendency to hide in populated civilian areas, which raises the
problem of collateral damage. We want to minimize the effect on
When we started this policy, we took a lot of criticism from the
international community, which said, "How dare you kill civilians?"
We replied that they are not civilians. They cannot be civilians if
they are fighting. If we receive information about a terrorist bomber
going to carry out a suicide attack and we can catch him en route,
and shoot a missile into his car while he´s trying to come into
Israel, are we permitted to do so? The answer is definitely yes. Why?
Because he is a combatant, so we may shoot him. We have actually
convinced most of the international community that we can do this
because it makes sense and complies with the old laws of war. These
terrorists are genuine combatants, they are fighters, they are on
their way to carry out attacks. The United States has now targeted
combatants in the same way in its drone attack in Yemen.
Why are Palestinians Never Considered Combatants?
There is a basic asymmetry between an army and a terrorist
organization that works in favor of the terrorist organization. The
army has to wear uniforms and carry arms openly. The terrorists know
where we are and where we can go, while they can hide. They can take
out their weapons and shoot and then hide the weapons again. When the
army shoots back, it is accused of shooting "civilians." When anyone
on the Palestinian side is killed, he is never considered a
The IDF has finished compiling its response to the Amnesty
International report on Jenin. Amnesty reported that there were
between 100 and 150 Palestinian combatants in the camp. The
Palestinians themselves reported on their website that there were
250. Amnesty claimed that the army destroyed 3,000 buildings. Based
on aerial photographs, there were 120. Amnesty claimed that the army
did not allow medical transports to travel into Jenin. Then how did
257 people get to hospital in Jenin and another 70 to hospitals in
Israel during the fighting? We have video footage of ambulances going
in and out all day. It is very easy for the media to get carried away
with stories of atrocities by armies, and it is very difficult to
bring footage of the opposite.
International Law Must Adapt
International law does not address terrorism in any form or fashion,
so Israel has come to the recognition that it is now in a situation
of armed conflict against terrorism. The problem is that this is an
armed conflict in which I cannot specifically tell you who my enemy
is. I know him when I see him, but I can´t give you a total list in
advance. Interestingly, U.S. President George Bush came to the same
conclusion. He published a military order in his capacity as
Commander in Chief of the U.S. Armed Forces, saying, the "United
States is in an armed conflict against al-Qaeda."
International law will have to evolve and adapt itself to the new
reality. The countries which have no terrorism committed against them
are the most disinclined to change the law, and there is a bloc of
Arab countries with an interest in leaving the law in relation to
terrorism empty. Yet if international law wants to survive this new
period, it must give countries and armies the tools to fight
terrorism instead of requiring those who must do so to adapt by
ourselves and then hope people will agree with what we´re doing.
Terrorism is no longer just a theoretical issue. It affects every one
of us in this part of the world. We need to adapt our thinking and
find a way to reach the correct balance between protecting human
rights, protecting civilians, and allowing governments the freedom to
deal with those terrorists, because people who are fighting without
reference to the rules don´t deserve any protection. (www.jcpa.org. ©
Return to Top
MATERIAL REPRODUCED FOR EDUCATIONAL PURPOSES ONLY