Terrorism and the law of identified consequences

Dr. Ruwantissa ABEYRATNE

SELF DEFENCE: We all know that there is an ancient Chinese curse which exhorts: “May you live in interesting times”.

At one of my classes on international law I asked the students “suppose you are law enforcers and you have clear evidence that a certain person will plan and carryout a bomb attack that would kill an entire village in your jurisdiction and suppose you know that if you apprehend him, there is a danger of many innocent bystanders being killed , would you go ahead and apprehend him?”

We were in the process of discussing the right of a country to exercise self defence against a possible armed attack.

In particular my class was discussing the fact that international law allows, by virtue of Article 51 of the United Nations Charter, a State to defend itself against an armed attack that occurs against its territory and people, while the attack occurs.

This prohibition implicitly prohibits pre-emptive or preventive attacks on an aggressor based on evidence gathered beforehand.

The United Nations High Level Panel on Threat, Challenges and Change, issued in December 2004 a report which acknowledged that a threatened State can take necessary action as long as the threatened attack is imminent, no other means would deflect it and the action taken to respond to the threat is proportionate.

This statement recognises that the right of self defence extends beyond an actual attack to an imminently threatened one, provided there is credible evidence of such a threat and the threatened State has no obviously alternative recourse available.

Built into my question was the issue of collateral damage, or as we lawyers call it the law of unidentified consequences. A case in point is the 2002 targeted killing of a military wing leader of Hamas who was known to be planning and ordering numerous successful bombings against civilians.

He was also known to have been planning attacks that were unprecedented in size and consequences. He was also using young children as human shields to carry out suicide attacks against Israel.

The Israelis believed that killing the Hamas military leader would thwart the planned attacks and save hundreds of innocent lives.

The difficulty in killing this terrorist was that he was constantly changing his living quarters. Often his wife slept beside him, exposing her, an “uninvolved” person, to being killed in an attack against the terrorist.

The decision was therefore taken to order a hit only when the terrorist was alone. In one instance, a strike was called off when it was discovered he was with family members.

However, when the strike was eventually carried out, the rocket killed not only the terrorist but also his wife, fourteen year old daughter and several others. Israel later issued a statement saying that if they had known the strike action would have resulted in collateral damage the attack would never have taken place.

The law of unidentified consequences dictates that under no circumstances should innocent bystanders be adversely affected intentionally.

At this point, I added a new dimension to my question and asked my class: “suppose in killing the terrorist you have no alternative but to kill his eight year old daughter first, whom you know he will use as a human shield while carrying out his attack and this is the only opportunity you will get to save hundreds of lives. How would you weigh the one innocent life against hundreds of others?”

Alan Dershowitz, Professor at Harvard Law School and leading criminal lawyer and constitutional scholar, in his book “Pre-emption - A Knife that Cuts Both Ways”( Norton: New York, 2006) asks the question differently.

In the context of the Holocaust of the Second World War, Dershowitz asks: “what if the Jewish Underground had credibly believed that by blowing up German Kindergartens in Berlin, they could force the closure of death camps - that the killing of a hundred of innocent German children could save the lives of one million innocent Jewish children and adults, would this be a morally permissible choice of evils?”

It will not be difficult to surmise that most people, in considering this dilemma, will agree that the wilful killing of innocent people crosses a certain moral line that should be crossed, if ever, in the most extreme and compelling circumstances.

The same question was asked by Fyodor Dostoyevski in his monumental work The Brothers Karamazov where one brother (Ivan) asks the other (Alyosha) whether the latter would, if it were in his power, build an edifice of human destiny that brings happiness to all mankind, but for that he must inevitably and unavoidably torture just one tiny creature, a child and build the edifice upon the unrequited tears of that child. Alyosha vehemently says he will not agree to such a condition.

In theory and in fiction, Alyosha’s position is both noble and admirable. However, it becomes a legislative nightmare when put into practice. In his book Dershowitz, with his characteristic intellectual dexterity, offers guidance for the development of an appropriate jurisprudence for the international community to follow with regard to pre-emptive.

But first, commonsense would dictate that one consider the uncanny pliability of the English language in identifying two types of strikes against terrorism: Preventive strikes and pre-emptive strikes. The first characterises a strike against an aggressor who is likely to attack sometime in the future.

A Pre-emptive strike on the other hand responds to circumstances that already show action taken toward launching an attack. An example for a pre-emptive strike is the six day war launched by Israel against Egypt and Syria in 1967.

The Israeli attack took place after Egypt and Syria had already closed the Strait of Tiran, expelled United Nations plenipotentiaries, massed their regular armies on the order and threatened a genocidal war.

Israeli attacked pre-emptively, destroying Egyptian and Syrian forces on the ground and went onto to carve out a comprehensive and decisive victory in just six days.

In this sense, it is arguable along similar lines whether the United States action in Afghanistan can be termed “preventive or pre-emptive” in removing the threat of further action on the United States after the events of 11 September 2001.

The preventive part of united States action would have been to remove the ruling government which was allegedly harbouring those who could cause further harm to the United States.

Be that as it may, the words “preventive” and “pre-emptive” are unique to the English language where they are used in separate contexts while most other languages use the words inter-changeably.

The result is that an explicit distinction between the two words could often be tenuous. Certain circumstances over the past decade has made the world more cautious, leading it to guide its philosophy of mutual trust along a path which is now called “the precautionary approach”.

The world would no longer sit and wait, reacting only when a crisis causes massive human suffering and loss of lives. A new doctrine, propounded by a group of scholars at the behest of the United Nations Secretary General Kofi Annan in 2001 has come into being.

Called “the responsibility to protect”, this doctrine embraces the principle that all member States of the United Nations have a responsibility to protect the lives, liberty and basic human rights of their citizens, and that if they fail or are unable to carry it out, the international community has a responsibility to step in.

All this is well and good. But it does not give me an answer to my question on the law of identified consequences - the same question posed by Dershowitz and Dostoyevski.

Can we sacrifice one known innocent person to save the lives of a hundred innocent humans? This is where I go back sheepishly to my undergraduate law class on Jurisprudence.

I am bound to find in my third year law notes that Bentham, one of the most influential utilitarians, who argued that the right act or policy was that which would cause “the greatest happiness of the greatest number” might have favoured sacrificing an innocent life to save more lives, and that Kant, with his categorical imperative as the central philosophical concept of his moral philosophy that human beings occupy a special place in creation and that morality can be summed up in one, ultimate commandment of reason, or imperative, from which all duties and obligations derive, might have totally rejected the idea of sacrificing even one innocent life.

Thomas Hobbes, on the other hand, is an enigmatic source on this issue.

His philosophy, found in his Leviathan, is, “do not that to another, which thou wouldst not have done to thyself”.

Does he mean, do not sacrifice the innocent girl as you would not like to be sacrificed in a similar manner? Or would he say, as he has, that a human’s primary right is self defence against a violent death and because man is constantly at war and his life is “Solitary, poor, nasty, brutish and short, one human sacrifice could be natural consequence of the exercise of self defence? We certainly live in interesting times.

(The author is Coordinator, Air Transport Programmes at the International Civil Aviation Organisation and Professor of Aero-politics, Law and Policy, Concordia University, Montreal)