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THOUGH THESE EUPHEMISMS MAY have been helpful for public relations, it was not clear whether Israel’s new, open campaign of extrajudicial killings—be they “assassinations” or “targeted preventive acts”—was legal.
Not surprisingly, some of the families of the assassinated Palestinians and victims of “accidental damage” didn’t believe so. They enlisted the help of human rights associations and experienced liberal left-wing Israeli attorneys to petition the Israeli Supreme Court to order the investigation and prosecution of those responsible, or at least to ban the use of assassinations and order that only the regular law enforcement legislation should be applied to the Israeli-Palestinian conflict.
Opposition to the policy was not limited to its targets, either. Major General Aharon Zeevi-Farkash, the head of AMAN, for instance, did not oppose assassination in principle, but he did think it was dangerously myopic. “Every decision, every consideration, every reference to every subject was examined by the cabinet only through the lens of the targeted killing policy,” he said. “All of a sudden, the Shin Bet, which had acquired enormous power, was the first to be consulted about everything. I thought that was a problematic situation.”
More surprisingly, the previous head of the Shin Bet, Ami Ayalon, whose overhaul of the intelligence and operational systems had allowed the new assassination program to begin, agreed. He argued that the Shin Bet was killing people without first considering relevant political and international events, and that they failed to understand when an assassination would quell the flames of conflict and when it would fan them.
On July 31, 2001, for instance, IDF drones fired several missiles into the office of Jamal Mansour, a member of the political arm of Hamas, a student leader at Al-Najah University in Nablus, and head of a Palestinian research institute.
He was killed, together with one of his helpers and six other Palestinian civilians, including two children. The IDF spokesman’s statement said that although he was a political and media figure, he was involved in terrorism and organized suicide attacks. Ami Ayalon called up the Shin Bet command and asked a top-level official there if they had gone insane. “Why, this man just two weeks ago came out with a statement saying that he supported a halt to terror attacks and that the peace process should be given a chance!”
The official replied that they were not aware of such a statement. “What does that mean, you ‘aren’t aware’?” Ayalon fumed. “All the Palestinian newspapers covered it! The whole world is aware!”
Another assassination Ayalon disagreed with was that of Raed Karmi, one of the leaders of the Tanzim, Fatah’s armed militia. Tanzim had begun to carry out terror attacks, and Karmi’s Red Page was growing longer due to its murders of Israeli merchants, settlers, and soldiers in the occupied territories. Karmi had survived a number of assassination attempts, and he took extraordinary precautions as he went about his business.
Eventually, the Shin Bet found a weak spot. Karmi used to pay regular afternoon visits to a mistress of his, the wife of one of his subordinates, always taking the same footpath along the wall around the Nablus cemetery, hugging the wall, for fear that an Israeli drone might be hovering overhead. One night, Birds operatives replaced one of the stones of the wall on that path with a new one filled with a powerful explosive material. The next day, as Karmi headed for his lovers’ tryst, the bomb was detonated by remote control, and he was killed outright.
Ayalon did not doubt that Karmi was involved in terror, but he said that the timing chosen—in the midst of an intensive U.S. initiative for a ceasefire, for which Arafat had declared his support—was a mistake and, in fact, made the act illegal. “The rules of war exist in order to make the end of wars possible, to ensure that they do not keep on escalating. It is forbidden to execute warlike acts when it is obvious that they will only make the end of the conflict more remote.” Ayalon claimed that in the wake of the killing of Karmi, Fatah had become much more deeply involved in terrorism and had even begun to carry out suicide attacks.
Shin Bet chief Dichter told Ayalon that he, Ayalon, was not familiar with the intelligence, that Karmi was engaged in planning attacks, and that neither he nor Arafat had any sincere intent to cease the terror. In the absence of an understanding ear in the Shin Bet, Ayalon called up the minister of defense in the Sharon government, Benjamin “Fuad” Ben-Eliezer, and loudly scolded him: “[U.S. Secretary of State Colin] Powell is due to come on a visit, and Arafat is looking for an opportunity to resume the peace process. He has issued an order to all of his forces forbidding terror attacks.” Ayalon quoted up-to-date intelligence that Arafat’s order had had an impact on the internal debate in Fatah, in which Karmi himself had been involved. “So what if the Shin Bet wanted to kill him? Why was it necessary to kill one of Arafat’s men precisely at this point in time? Just because there was an operational opportunity?”
Ben-Eliezer, according to Ayalon’s account, said to him, “What do you want from me? It’s that crazy Dichter.” Ayalon responded, “You are the minister of defense, not Dichter. It’s your call, not his.”
“I call it the banality of evil,” Ayalon said later, borrowing Hannah Arendt’s observation about what happens when ordinary people are put into corrupt situations that encourage their conformity. “You get used to killing. Human life becomes something plain, easy to dispose of. You spend a quarter of an hour, twenty minutes, on who to kill. On how to kill him: two, three days. You’re dealing with tactics, not the implications.”
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THOUGH THE ISRAELIS MIGHT not have given full consideration to the moral implications of the new program, they were aware that they needed to provide legal cover for officers and subordinates who might later face prosecution, either in Israel or abroad. In early December 2000, IDF chief of staff Shaul Mofaz summoned the chief of the Military Advocate General’s Corps, Major General Menachem Finkelstein, to his office.
“I assume that you know that Israel sometimes has a policy of ‘negative treatment,’ ” Mofaz told Finkelstein. “In the current legal situation, is it permitted for Israel to openly kill defined individuals who are involved in terrorism? Is it legal or illegal?”
Finkelstein was stunned. “Do you realize what you are asking me, Chief of Staff?” he replied. “That the IDF’s advocate general will tell you when you can kill people without a trial?”
Mofaz fully realized that. He asked again: Was it legal to assassinate suspected Palestinian terrorists?
Finkelstein told him that it was a delicate and complex matter, one that required a comparative study of statutes all over the world, probably even the invention of an entirely new legal concept. “Inter arma enim silent leges,” he said finally, quoting Cicero. In times of war, the law falls silent.
Nevertheless, he ordered a team of bright young attorneys in the IDF to puzzle out a solution. On January 18, 2001, a top-secret legal opinion signed by Finkelstein was submitted to the prime minister, the attorney general, the chief of staff and his deputy, and the director of the Shin Bet. Under the title “Striking at Persons Involved Directly in Attacks against Israelis,” the document opened with this statement: “In the framework of this opinion, we have for the first time set out to analyze the question of the legality of the initiated interdiction”—another euphemism—“actions taken by the IDF….We have been told by IDF and Shin Bet that such actions are carried out in order to save the lives of Israeli civilians and members of the security forces. This is, therefore, in principle, an activity that leans on the moral basis of the rules concerning self-defense, a case of ‘He who comes to kill you, rise up early and kill him first.’ ”
For the first time, a legal instrument had been proposed for endorsing extrajudicial execution by the security forces. The opinion noted that its authors had done their best to find “the balance between a person’s right to life and the duty of the security authorities to protect the citizens o
f the state.”
For Finkelstein, it was a difficult moment. A religious man, well versed in the Bible, he was painfully aware that God prevented King David from building the Temple because he had killed so many enemies on behalf of the people of Israel. Finkelstein wondered if he would be punished one day. “I submitted the opinion with trembling hands,” he said. “It was clear that this was not a theoretical matter, and that they were going to make use of it.”
The opinion fundamentally recalibrated the legal relationship between Israel and the Palestinians. No longer was the conflict a matter of law enforcement, of police arresting suspects so that they can face trial. Rather, the intifada was an “armed conflict short of war,” but to which the laws of warfare applied. Those laws allowed striking at the enemy wherever he may be, as long as a distinction is drawn between combatants and civilians.
In classic wars, that distinction is relatively easy: Members of the adversary’s armed forces, as long as they are in the service, are legitimate targets. In the confrontation between Israel and the Palestinians, however, the distinction was much harder to make. Who is the enemy? How can he be identified? When, if at all, does he cease being the enemy?
The opinion posited a new kind of participant in armed conflict: the “illegal combatant” who takes part in armed operations but is not a soldier in the full sense of the word. The term covered anyone active in a terrorist organization, even if his activity was marginal. As long as he is an active member in the organization, he could be considered a combatant—even when he is asleep in his bed—unlike a soldier on leave who has taken off his uniform.
This expansive interpretation of “combatants” led, in marathon discussions in the International Law Department (ILD) of the IDF Military Advocate General’s Corps, to an issue called “the Syrian Cook Question”: If Israel were in a normal state of war with Syria, any Syrian combatant could be killed legitimately, even an army cook in a rear echelon. By that standard, then, given the broad definition of “illegal combatant” in the Israeli-Palestinian conflict, it could be presumed that any person assisting Hamas would qualify as a target, too. This might potentially include a woman who washed a suicide bomber’s clothes before he set out on his mission or a taxi driver who knowingly took activists from one place to another.
That, according to the opinion, was too extreme. The opinion stipulated that only those about whom there is “accurate and reliable information that the person concerned carried out attacks or dispatched attackers” could be targeted. Moreover, assassination could not be used as punishment for past acts, nor as a deterrent to other combatants. It could be used only when “it is almost certain that the target will in the future continue carrying out actions such as this.”
The opinion also stressed that, whenever possible, it was preferable to make an arrest than to kill someone, especially in areas controlled by the IDF. Unlike professional soldiers in a regular war, illegal combatants did not enjoy criminal immunity or prisoner-of-war status, so they could still be arrested and tried in regular criminal proceedings.
When killing was necessary, a principle of “proportionality” must still apply. The opinion stipulated that any killing should be as contained as possible, so that “the loss of life and damage to property collateral to the operational action” would not “immoderately exceed the military advantages expected from the action.”
Finally, only the prime minister or the minister of defense could sign a Red Page.
The document was welcomed by Israeli officers, with a sigh of relief. “It was a stamp of confirmation that we’re working in accordance with the criteria of international law,” said Shin Bet deputy director Diskin. In 2003, the state submitted a non-classified version of the opinion to the Supreme Court, which it affirmed in 2006.
But while Finkelstein might have reasoned Israel into compliance with international law, international opinion was another matter altogether.
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IN HIS DESK, PRIME Minister Sharon kept a booklet he’d occasionally pull out to share with visiting diplomats. He’d received it from the Israel Police, and it contained color photographs of a bus minutes after a suicide terrorist had blown himself up inside it. Decapitated bodies and human limbs were scattered in every corner. The fire had scorched the clothing off of victims and painted their skin with blotches of green and blue. “When one of those pesky diplomats came to talk to us once again about the elimination of this or that terrorist,” said Dov Weissglass, Sharon’s chief of staff and confidant, “Arik would force the person to look. He’d page through it, picture after picture, watching their eyes widen as they took in the atrocity of it. He didn’t let them off even one contorted body or headless neck. When he was finished, he calmly asked, ‘Now tell me: Would you be prepared for such a thing to happen in your country?’ ”
To provide Sharon with more material to show the diplomats, Weissglass’s staff bought photographs from a Palestinian press agency showing Arabs being executed for suspected collaboration with Israel. Some of them were indeed Shin Bet agents and some merely victims of malevolent score settling. A few of the depicted executions were done by Muhammad Tabuah, a local gang leader nicknamed Hitler because of his cruelty. “He used to shoot them like dogs, with a murderous mob around him,” Weissglass said. “The Palestinians looked like a chaotic maniacal mob.”
Sharon did not, of course, share any reconnaissance of the aftermath of Israeli attacks. And, in any case, his visual aids ultimately were of little use: The rest of the world continued to criticize the targeted killing program, as well as Sharon’s aggressive expansion of Jewish settlements in the occupied territories. Diplomats from scores of countries argued that there was a connection between those two policies and the Israeli bloodshed in the streets. Even the United States considered the targeted killing policy illegitimate, if not an outright war crime, and the settlements a needless provocation.
Sharon rejected such claims out of hand. “My problem,” he proclaimed, “is that I was born long ago, long before all of you, yes? And I remember the thousands of Jews who were murdered by Arabs before the occupation. There’s no connection between the two things.”
Nevertheless, he realized that some agreement had to be made with the United States if he was to have any hope of placating the rest of the world. “If there was one lesson I learned from that period,” Sharon said, referring to his term as defense minister in the 1980s, “it was never to get into a fight with the Americans.”
Fortunately, Sharon already had a relationship with President George W. Bush, who had taken office at the same time as he had. Bush had come to Israel in November 1998, shortly after being reelected governor of Texas, in a visit organized by Texas Jewish Republican businessmen as a stepping-stone toward the White House. At the time, Sharon was still a political pariah, but he and Governor Bush toured the country in a helicopter. Sharon lectured the governor on the security threats facing Israel and entertained him with tales of his own military exploits. By the end, Bush was convinced that “Sharon was a man he could trust,” said Fred Zeidman, one of the men who’d organized the trip. The governor was profoundly affected by the tour and repeatedly stressed, “It’s hard to believe as a Texan how small Israel is…how small the population was between, what has been over the course of history, enemy lines and population centers.”
Two and a half years later, soon after his landslide victory, Sharon traveled to Washington. The aides who set up the visit told their American counterparts how suspicious Sharon was of the United States, and how he had been hurt by its attitude toward him personally over the preceding two decades. President Bush heard the reports and ordered that everything be done to make Sharon feel welcome: meetings with all the top administration officials, presidential hospitality at Blair House, an honor guard, and a twenty-one-gun salute. “Sharon was in the clouds,” recalled his foreign affairs adviser, Shalom Turgeman. “Even he, skeptic and
cynic that he was, could not but be affected by this treatment, and he realized that they really wanted to work with him.”
Eventually, Weissglass proposed an idea to Sharon. “Arik,” he said, “any warmth, support, and friendship that you may earn from the U.S. government in your role as an anti-terror warrior fades away when you put on your mega-settler cap. The more compliance you show toward the American demands to stop the settlement project, the more slack the Americans will cut you when it comes to taking out the bad guys.”
With Sharon’s go-ahead, Weissglass worked out a secret deal with U.S. National Security Adviser Condoleezza Rice and her deputy, Stephen Hadley: Israel would significantly reduce the construction of new settlements in exchange for American backing of the war with the Palestinians and of Israel’s targeted killing policy.
“After that, there was a perfect disproportion,” Weissglass said. “On the one hand, our severest measures against the Palestinians were never rebuked—silence, or sometimes an obligatory expression of regret if innocent people were hit. On the other hand, any publication, even on some marginal right-wing blog about a planned settlement, and I’d get a phone call at 3 A.M. from Condi [Rice], bawling me out.”
The moment President Bush got confirmation from his representatives in Israel and the territories that Sharon was sticking to his word, operational and intelligence cooperation between the two countries deepened considerably. Though there was still a good deal of criticism leveled by countries in Europe, the United States continually used its veto power in the UN Security Council to block attempts to condemn Israel for the assassinations. Eventually, the Arab states simply gave up and stopped submitting petitions on the subject.
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