Vigilante Justice and its Risks

There has been debate recently between certain rabbis over whether an individual can harm or kill a terrorist who has been neutralized e.g. handcuffed.

Rav David Stav, although agreeing that terrorists are deserving of the death penalty, raised two arguments against killing a terrorist who does not pose a current danger:

1. From a practical standpoint- what will the world say if they see Jews killing prone and handcuffed terrorists? It would likely lead to further murders of Jews.
2. From a Jewish and moral perspective-: "it is important to preserve our moral superiority; [we must] not harm those involved in murderous acts who have already been neutralized and do not represent a threat.” 

On the other hand, Rav Shmuel Eliyahu said that the Jewish law is clear that we should not let murderers live. It is our lives on the line here. “We can’t be consumed all day with what others are thinking about us,” the rabbi concluded. [note- In the articles I read he brought a proof from Moses's killing the Egyptian that was striking a Jewish man. I don't understand that proof because a) we typically do not learn halacha from before the Torah was actually given at Mt. Sinai, b) the Egyptian was not neutralized, but was in the act of striking the Jewish man.]

In a later interview with Arutz 7, Rav Eliyahu said that "Rav Stav is telling [soldiers] not to shoot to kill the terrorists." Something which I think misrepresents Rav Stav's position.

Also, Rav Ben-Tzion Mutzafi, when asked by his students whether, if a terrorist has been injured and incapacitated, it is permitted according to Jewish law to kill him responded that “It is commanded to take hold of his head and hit it against the ground until there is no longer any life in it... Do not listen to Stav, for the one who is merciful to the cruel will end up being cruel to the merciful.”

I do not understand the position of Rabbis Mutzafi and Eliyahu who say that Jewish law is clear that you can kill a terrorist after he has been incapacitated and poses no threat. Even if the halacha is clear what should be done to a murderer, we have many cases in Jewish law where meta-halachic considerations apply and we do in fact take into consideration what the rest of the world will say (e.g. darchei shalom / aiva, darchei noam, dina d'malchusa dina).

Also, the mistaken vigilante killing of an Eritrean man after the terror attack in Beer Sheva, seems to support the position that individuals should not take the law into their own hands but let the justice and political systems operate. (Even if the outcomes of those systems are frustrating we have a ballot box to change that.)

Israel Hayom | Israel Medical Association opposes force-feeding law

In another story related to coercion of medical procedures, there is this story from Israel Hayom (see prior related posts here, here and here). The proposed law would require doctors to force-feed hunger strikers. If a certain doctor refuses, he would be obligated to transfer the care of the patient to another doctor. There are potentially two people being coerced here, the hunger strikers and the doctors.

According to the article, the Chairman of the Israeli Medical Association claims that this clause would cause doctors to violate the Israeli code of medical ethics. But I am not certain how. Perhaps the relevant clauses are on page 24:

k) The right to continue proper medical treatment 

1. The physician shall respect the patient's right to continue medical treatment with another physician or as part of some other medical arrangement. 

2. The physician shall respect the patient's right to receive continuous treatment, with full cooperation from the physicians treating him. 

If the patient has the right to switch doctors, presumably he has the right to keep his current doctor (who refuses to force-feed him).

I never quite understood the issue with hunger strikes. How exactly do the strikers force their captors or others to release them by not eating? According to Wikipedia, it works mainly by guilt or public perception. The jailing entity does not want to suffer the public outcry that would result from the death of the prisoners while incarcerated. I guess it just depends on the will of the jailor and the striker. 

Israeli Settlements' Legal Basis- USA Today

Israeli Settlements' Legal Basis: Opposing View

The oft-used term "occupied Palestinian territories" has no basis whatsoever in law or fact. The territories are neither occupied nor are they Palestinian. No legal determination has ever been made as to their sovereignty, and by agreement between Israel and the Palestine Liberation Organization, they are no more than "disputed" pending a negotiated solution, with both sides claiming rights to the territory.

Israel has solid legal and historic rights to the territory, in light of the undeniable historic fact that the Jewish people are, for more than 3,000 years, the indigenous people in the region, including the source of Christianity there. Add to this the legal rights granted to the Jewish people by the 1917 Balfour Declaration, the 1923 San Remo Declaration, the League of Nations Mandate instrument and the United Nations Charter.

Israel has thus a very well-based claim to sovereignty over the area, more so than any other people, but has nevertheless committed itself to negotiate the fate of the area with the Palestinians.

Further to Israel's solid basis of rights to the territory, the Oslo agreements with the Palestinians contain no prohibition whatsoever on building settlements in those parts of the territory agreed upon as remaining under Israel's control.

Israeli settlements are built on public land that is not owned by Palestinian residents of the area, and their construction is in full accordance with the norms of international law regarding the use of land in disputed situations.

Furthermore, the prohibition of mass transfer of populations to occupied territory as set out in the 1949 Geneva Convention is not applicable, and was never intended to apply to Israel's settlement policy. It was drafted to prevent the mass transfers as carried out by the Nazis in World War II.

Accordingly, as long as settlements do not violate local Palestinian private property rights, and as long as the issue of the fate of the areas remains a negotiating issue, there is no legal basis for preventing continued settlement, pending the outcome of the final status negotiations.

Alan Baker is the director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs. He formerly served as a legal adviser to the Israeli Foreign Ministry and as Israel's ambassador to Canada.

Israel to resume targeted killings in Gaza?

According to an article in Israel Hayom, Israel is considering resuming targeted killings of Hamas leaders in response to the rocket barrages against the south of the country. The article states that Israel had ceased its policy of targeted killings due to international pressure.

Below are some links to papers regarding the legality and wisdom of targeted killings of terrorists:

• Targeted Killing by Daniel Statman.
  Abstract: The purpose of this paper is to provide a philosophical defense for targeted killings in the wars against terror. The paper argues that if one accepts the moral legitimacy of the large-scale killing of combatants in conventional (what are soon to be called "old-fashioned") wars, one cannot object — on moral grounds — to the targeted killing of terrorists in wars against terror. If one rejects this legitimacy, one must object to all killing in war, targeted and non-targeted alike, and thus not support the view, which is criticized here, that targeted killings are particularly disturbing from a moral point of view.
  

  
  
• Israel’s Policy of Targeted Killing by Steven R. David
  
  Abstract: Since the beginning of the second intifada in the fall of 2000, Israel has pursued a policy in which alleged Palestinian terrorists have been hunted down and killed by government order. The policy is not one of assassination and is consistent with international law because Israel is engaged in armed conflict with terrorists, those targeted are usually killed by conventional military means, not through deception, and the targets of the attacks are not civilians but combatants or are part of a military chain of command. Targeted killing has also been affirmed by Israel's High Court.
  Although targeted killing has been pursued by Israel throughout its history, the scale of the present effort and the use of sophisticated military assets such as helicopter gunships and jet fighters set it apart from earlier practices. The effectiveness of the policy is called into doubt because it has not prevented–and may have contributed to–record numbers of Israeli civilians being killed. The policy has also resulted in informers being revealed, intelligence resources diverted, potential negotiating partners eliminated. It has also produced murderous retaliation and international condemnation of Israel. Benefits of the policy include impeding the effectiveness of terrorist operations, keeping terrorists on the run, and deterring some attacks. In addition, it affords the Israeli public a sense of revenge and retribution.
  Because it targets the actual perpetrators of terrorism, targeted killing provides a proportionate and discriminate response to the threat Israel faces. Improving the policy will require better civilian oversight, greater care to eliminate harm to innocent bystanders, and refraining from killing political leaders. Despite its many shortcomings, Israel is justified in pursuing this policy so long as it faces a terrorist threat that the Palestinian Authority will not or cannot control.
  
  

• On Target? The Israeli Supreme Court and the Expansion of Targeted Killings by Kristen Eichensehr
  Abstract: After four years of consideration, the Israeli Supreme Court recently issued the world's first judicial decision on targeted killings in Public Committee Against Torture in Israel v. Government of Israel (PCATI). In PCATI, the court held that terrorists are civilians under the law of armed conflict and thus are lawfully subject to attack only when they directly participate in hostilities. But the court also expanded the traditional definition of direct participation and the time period during which civilians may lawfully be attacked. By disregarding the direct participation requirement's important evidentiary function, the court weakened the protections that international law affords to all civilians, not just to terrorists.
• Targeted Warfare: Individuating Enemy Responsibility by Samuel Issacharoff and Richard H. Pildes
  Abstract: This Article argues that the legitimacy of the use of military force is undergoing a fundamental but insufficiently appreciated moral and legal transformation. The transformation is this: whereas the traditional practices and laws of war defined “the enemy” in terms of categorical, group-based judgments that turned on status – a person was an enemy not because of any specific actions he himself engaged in, but because he was a member of an opposing army – we are now moving to a world that, implicitly or explicitly, requires the individuation of personal responsibility of specific “enemy” persons before the use of military force is justified. Increasingly, the legitimate use of military force is tied to adjudicative-like judgments about the individual acts and roles of specific “enemy” figures; that is the case whether the force involved is military detention or lethal killing. This transformation transcends the conventional debates about whether terrorism should be treated more like war or crime and is more profound in its implications.
  
  This readjustment in the basic premises underlying the justified use of military force will have, and is already having, implications for all the institutions involved in the use of military force and in the processes by which decisions are made to use force. For the military, this change will generate pressures to create internal, adjudicative-like processes to ensure accurate, credible judgments about the individual responsibility of particular “enemy” fighters. For the executive, these changes will propel greater engagement in decisions that had previously been more exclusively within the province of the military itself. For the courts, this transformation toward individuated judgments of responsibility will inevitably bring about a greater judicial role in assessing wartime judgments than in the past, as has begin to occur already. These changes are not yet directly reflected (or at least fully reflected) in the formal laws of war, but we anticipate that as these changes embed themselves in the practices of states, especially dominant states, these changes in practice will also eventually come to be embodied in the legal frameworks that regulate the use of force. This Article, after identifying this fundamental transformation as the central factor driving struggles over the proper boundaries of military force, then explores the ramifications of this change for issues like military detention and targeted killings.
  
  
• Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence? by David Kretzmer
  Abstract: Whether a state that has been subject to attacks by a transnational terrorist group may target active members of that group who are not in its jurisdiction has caused controversy. Some refer to targeted killings of suspected terrorists as extra-judicial executions; others claim they are legitimate acts of war. The author examines the legality of such killings under norms of international human rights law and international humanitarian law. Under the former system, such killings can only be lawful when carried out to prevent an imminent attack that cannot be stopped by other means. Under the latter system, such killings may be lawful if the suspected terrorists are to be regarded as combatants. He argues that while in international armed conflicts suspected terrorists are generally not combatants, in noninternational armed conflicts they may well  be combatants. In such conflicts norms of international humanitarian law cannot stand on their own; the applicable system must be a mixed model, which incorporates features of international human rights law. In the final section the author discusses the  Israeli policy of targeted killings and the US attack on suspected members of al-Qaeda in Yemen, and applies the mixed model to these cases.
  
  
• Targeted Killing in U.S. Counterterrorism Strategy and Law by Kenneth Anderson
Abstract: Targeted killing, particularly through the use of missiles fired from Predator drone aircraft, has become an important, and internationally controversial, part of the US war against al Qaeda in Pakistan and other places. The Obama administration, both during the campaign and in its first months in office, has publicly embraced the strategy as a form of counterterrorism. This paper argues, however, that unless the Obama administration takes careful and assertive legal steps to protect it, targeted killing using remote platforms such as drone aircraft will take on greater strategic salience precisely as the Obama administration allows the legal space for it in international law to shrink. Moreover, the paper argues that non-state enemies of the United States will not always be al Qaeda or groups covered by Security Council resolutions or the US Authorization for the Use of Military Force. Eventually there will emerge other threats that do not fall within the existing armed conflicts, and the United States is likely to seek to address at least some of those threats using its inherent rights of self-defense, whether or not a conflict within the meaning of international humanitarian law (IHL) and its thresholds is underway, and using domestic law authority under the statutes establishing the CIA. In that case, a US administration seeking to offer a legal rationale justifying its use of targeted killing might discover that reliance upon a state of IHL-armed conflict does not provide it the robust authority to use force that the US has traditionally asserted under its rights of inherent self-defense.This is a policy paper, not a law review or scholarly article, and it offers blunt advice to the Obama administration and the US Congress with a particular normative goal in mind - to preserve the legal rationales for the use of self-defense in targeted killing, whether or not an IHL armed conflict is underway, consistent with the positions taken by the United States in the 1980s, and culminating with a statement of the US position on self-defense against terrorism and targeting terrorists in third-state safe havens by then-State Department legal advisor Abraham Sofaer in 1989. The point of the paper is to urge the Obama administration, and offer it advice, on how to preserve the legal category of targeted killing as an aspect of inherent rights of self-defense and US domestic law. As such, this paper runs sharply counter to the dominant trend in international law scholarship, which is overwhelmingly hostile to the practice. It urges the Obama administration to consider carefully ways in which apparently unrelated, broadly admirable human rights goals, such as accepting extraterritorial application of the International Covenant on Civil and Political Rights, or accepting its standards as a complement to the lex specialis of IHL, or accepting recent soft-law standards offered by some influential NGOs such as the International Committee of the Red Cross to define "direct participation in hostilities," have the effect of making legally difficult, if not legally impossible, a counterterrorism strategy of targeted killing using standoff platforms that the Obama administration has correctly embraced as both more effective and more discriminating from a humanitarian stance. It is frank, practical advice to the Obama administration that it must assert the legality of its practices in the face of a hostile and influential international soft-law community or risk losing the legal rationale for a signature strategy.

• Efficiency in Bello and ad Bellum: Targeted Killing Through Drone Warfare by Kenneth Anderson
  Abstract: A peculiar feature of the targeted killing using drone technology debate is that it appears to set up a tension between the two traditional categories of the law and ethics of war, jus in bello and jus ad bellum. The more targeted killing technologies allow more precise targeting and reducing collateral casualties and harm (jus in bello), and that moreover at less personal risk to the drone user’s forces, perhaps the less inhibition that party has in resorting to force (jus ad bellum).
  A strong version of this claim says: The perverse effect of increasing the efficiency of jus in bello through targeted killing (reducing civilian harm and increasing military effectiveness) is to reduce the efficiency of jus ad bellum (making the resort to force too easy). Improvements in jus in bello conduct ironically makes it too easy, too unconstrained (by lack of personal risk to one’s forces because of drones and lowered civilian harm because of improved targeting) to resort to force. This paper evaluates this claim, and more broadly the idea that jus in bello proportionality and jus ad bellum resort to force can each have a form of efficiency. It rejects the claim as incoherent, because the existence of sides in conflict results in incommensurable meanings of winning and losing in jus ad bellum, without which there cannot be an “optimal” level of the resort to force.
  The conceptual claim depends upon highly fact specific assumptions about the practice of targeted killing and drone warfare today. The essay walks through a number of these assumptions in an informal way, drawing upon the author’s discussions with governmental and non-governmental actors, particularly on the question of civilian casualties, and ways in which some of the anxieties over targeted killing and drone technologies might not reflect current practices. These assumptions are ones that the reader might or might not accept, given that they are not corroborated and reflect interviews, informal, and off the record discussions that are far from conclusive. Even if the reader does not share the premises in fact, the essay invites accepting them for purposes of evaluating the ethical argument. The essay intertwines an abstract argument about efficiency in the ethics of war, and a practical part that discusses premises crucial to that abstract argument. (This is working paper v3 of 3. It runs approximately 12,000 words; it is lightly footnoted, rather than law review footnoted, intended for an academic philosophy forum.)

Catch and Release- Israel Style

In a few hours the government of Israel is going to release the first batch of hundreds of convicted terrorists in exchange for captured soldier Gilad Shalit, with the release of hundreds more in a few days. Gilad Shalit's parents single-handedly waged a battle to get their son back. They did what any parent would do but it has been questioned whether the government was inordinately swayed by a vocal minority. But in fact, Israelis are generally supportive of the exchange. The most vocal opposition to the trade are the families of victims of terror attacks who don't want to see their loved ones' killers be released before serving their time. Needless to say, this is a complicated issue. I am most interested to hear from Gilad Shalit (when he is ready to talk about this whole episode) about whether he thinks the government did the right thing in agreeing to this exchange.
This reminds me of a review of the movie Saving Private Ryan by Mark Steyn: