The Ain Saheb Strike in Syria: clarifications about terrorism and international law, Part One
October 11, 2003

My argument last Sunday about the strike against Islamic Jihad based in Syria was the following: Israel has the legal and moral right to go after the terrorists that have planned and carried out thousands of attacks on its civilians, including in those countries that actively aid and abet those terrorists.

Israel's action, it turned out after more detail about the strike was revealed, was more calculated than a lashing-out after the bloody attack in Haifa last Friday, for the Islamic Jihad camp was deserted. The attack then, was not intended to diminish their capacity to perpetrate more attacks, but to serve a warning to Syria. It was, in short, a shot across the bow of the Syro-Palestinian terror-machine, that said: "We will go after those groups that are responsible for the mass-murder of our civilians, even if they're holed up in your territory, which is, by the way, illegal. You can either, one, remove them from your territory; or two, prepare yourself for escalation and more attacks." We note that according to international law, a state is responsible for those organizations operating within its borders. The attack's logic is unassailable: Islamic Jihad murders innocent Israelis, Israeli fights backs. Israel is not the state equivalent of a nebbish; quite the opposite, in fact.

The Syrians, for their part, have launched a diplomatic offensive in the United Nations, the primary forum for them and other less powerful countries to exert influence. In the General Assembly, far from reflecting the real balance of power in the Middle East, they are backed unquestioningly by 21 other Arab states, 54 or so majority-Muslim countries, the Communist countries, and many in the Third World. Note also that the declarations of the UN General Assembly are not laws, and most do not bind the members. Much of the problem, it seems, stems from the interpretation of terrorism itself, and this will certainly be of issue in the United Nation chambers. As the below article reports, Syria says that it doesn't consider act carried out in a "legitimate struggle against foreign occupation" as terrorism. They don't say this to convince you or me that Palestinian terrorism is justified; they do it to avoid the harsh penalties that support of terrorism incurs in this day and age.

First of all, let me say that this is called hypocritical rhetoric. If a group of Lebanese patriots, who continue to claim that they are currently being occupied by Syria, were to begin a bit of anti-Syrian freedom fighting, you can bet that the Syrian response would be swift, brutal, and undocumented.

Second, the problem with the Syrian reasoning is that terrorism is not defined in international law by its cause, however just or unjust. Terrorism is defined by what it is: violence that intentionally targets civilians, usually for political gain. "The international law of armed conflict does not permit the deliberate targeting of civilians by suicide bombings, no matter what the occasion or cause for struggle," the article says. If militants were to target Israeli soldiers only, then they would be guerillas; when they deliberately target Israeli civilians -- who are protected by international law as noncombatants -- then they are terrorists. There is some degree of interpretative wiggling allowed in law; that's why we have lawyers. But this is not such a case, nor is it an issue of semantics, nor is it my own personal opinion; this is a clear and undisputed definition. That Syria is unable to grasp this principle -- that law cannot be selectively ignored for political purposes -- is not entirely unexpected. What would Syrian elites know about the rule of law? Nor do their actions reflect the gravity accorded to laws pertaining to international terrorism, which they continue to treat with the same degree of compliance as they would an international fishery management treaty.

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In pre-revolutionary Russia, the first theorists of terrorism spoke openly of themselves as such and of their systemic application of terror (Boris Savinkov, the head of one terror group, entitled his autobiography, Memoirs of a Terrorist). And some, like Sheikh Abdullah Azzam, a Palestinian from Jenin who became bin Laden's mentor, continue to do so: "We are terrorists, and terrorism is our friend and companion. Let the West and East know what we are terrorists and that we are terrifying as well. We shall do our best to terrorize Allah's enemies and our own." How forthcoming of him.

But now, by and large, terrorists don't like being called terrorists; it has an unpleasant connotation, suggesting that what they do is wrong, when, after all, it is righteous and overflowing with justice. The BBC, Reuters, New York Times, inter alia, submit to the fallacy -- both out of pretensions at impartiality and out of concerns for the safety of their reporters in Gaza and Ramallah -- and so call them "militants" and "activists" (of course, our media always refers to al Qaeda as terrorists, never as militants). It amounts to a coy semantic obfuscation that whitewashes the real, horrifying nature of their crimes.

But while we're at it, maybe we can start calling Jack the Ripper an "amateur abdominal surgeon," and Timothy McVeigh a "person who left volatile cargo in a non-parking zone." Then, we can revise the legacy of Pol Pot as a "recruiter for farming work," while Stalin will be an "activist demographer." One man's terrorist is another man's freedom fighter? Well, naturally: rarely do criminals and victims agree about the nature of crime. But, pace Syria and the media, an "activist" organizes labor rallies; a "terrorist" kills civilians deliberately. Maybe in the interest of peace we should find some middle ground, being sensitive to Hamas' reservations about being called "terrorists"? How about this: "prayerful people who tend to explode woman and babies"?

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Resistance against brutal governments in situations where no other means of redress exists is not condemnable. But Palestinian resistance is outside of this realm of justification, because:

1) Israel is open democracy which as made it clear again and again that if terrorism stops, Palestine will exist. At the end of 2000, former Israeli Prime Minster Ehud Barak offered the Palestinians a state on 95% of the West Bank, 100% of the Gaza Strip, a shared capital in Jerusalem, and removal of most settlements, among other things. Israel has blessed Israeli-Arabs with full civil and political rights, allows Israeli Arabs to become members of its Knesset and Supreme Court, and possesses a large and active peace movement. Palestinians have recourse for peace and statehood through negotiations, which have been ongoing for the last decade and more. Israel has already made peace with Egyptians and Jordanians, and will do so with Palestinians.

2) Israel does not respond to Palestinian violence with disproportionate brutality. It behavior exemplifies some of the highest standards of wartime probity known to history -- especially in light of what it faces -- making every effort to minimize civilian injury and damage. I wish I could go into more detail here, but, briefly, compare Israeli counterterrorism with the Chinese, Russian, Saudi, Jordanian, or Syrian variants. (Quick note on Syrian counterterrorism: if you have time, look up Hama, a city in western Syria. You'll find that in response to an Islamist attack on Ba'ath party officials in February 1982, Assad the Elder lay siege to the city for 27 days, literally bulldozing it, killing an estimated 10,000 or more).

3) Palestinians do not attack the government or soldiers, but deliberately target civilians with the intent of maximizing suffering, damage, and psychological impact. For instance, Palestinian terrorists choose buses for good reason: the enclosed area creates shock waves that tear lungs and crumple internal organs; the ricocheting shrapnel includes infectious rusty nails, sometimes coated in rat poison; when the bus's fuel tank explodes, it creates a fireball, burning the survivors to death or causing respiratory damage by smoke inhalation. This costs Syria and Islamic Jihad about $100. But who said terrorism wasn't savage?

Human Rights Watch, the world's most respected human rights organization, published last year a 160-page report on suicide bombings against Israel. I quote: "Palestinian armed groups have sought to justify suicide bombing attacks on civilians by point to Israeli military actions that have killed numerous Palestinians civilians during current clashes. Such excuses are completely without merit. International humanitarian law leaves absolutely no doubt that attacks targeting civilians constitute war crimes when committed in situations of armed conflict, and cross the threshold to become crimes against humanity when conducted systematically, whether in peace or war. As the latter terms denotes, there are among the worst crimes that can be committed, crimes of universal jurisdiction that the international community as a while has an obligation to punish and prevent." The Palestinian campaign of suicide bombing, going on for years now -- the one last Friday was the 104th since 2000 -- constitutes crimes against humanity. (The Human Rights Watch report also has statistics: Islamic Jihad has the highest percentage of attacks within Israel proper.)

We recognize that they aren't any objective standards by which to judge the rightness or wrongness of much behavior, and many in Santa Barbara and elsewhere argue about how much Israel is to blame for Palestinian behavior because of its occupation. But the fact remains that, at bottom, Palestinians are freethinking human beings who, on a daily basis, make rational decisions; they don't have to suicide bomb. The essence of morality is that human beings make their own decisions, for which they are responsible.

Because of the terrible history of terrorism's criminal and deliberate murders of civilians, the world has said, "This is not acceptable," and understands that it is in every nation's interest to uphold these norms. Imagine if the murder of civilians were accepted if one felt his cause were just enough. Here in peaceful America, extremist anti-abortion activists regard abortion as murder, and to them the thousands and thousands of unborn fetuses that are destroyed yearly amounts to a large-scale but hideously tolerated genocide. Some of them have taken it upon themselves to prevent these crimes from happening by bombing abortion clinics or shooting doctors. Yet, however self-assured they may be of the justice of their cause, when they cross the line into willful property destruction and murder, they are punished. Because we have standards for behavior, which are codified into laws that aren't subject to individual interpretation, including (or is that especially) when the personal opinion happens to be that of a blood-soaked Syrian dictator or a fanatical Islamist.

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Some people with whom I've spoken seem to be concerned with the prospect of Syrian-Israeli war, pointing to Syria's threats. This is highly unlikely. Making threats is the business of nearly every opaque dictatorship, for after all, the Syrian dictatorship came to power by violence, sustains its tyranny by violence, and uses violence as an instrument of foreign policy; its just how they do business. Their threats against Israel are pure bluster: they wouldn't dare challenge Israel -- who is generations ahead of Syria militarily, economically, and politically ˆ on the open battlefield. Even their defiant, honor-protecting swagger seems comically hesitant: someone asked a Syrian foreign ministry spokeswoman if her talk of self-defense meant military action: "I am talking about self-defense and self-defense has its meaning so I don't have to clarify its meaning." Right.

We will continue our examination of terrorism in a second part. But in the meantime, to our students: don't ever let anyone tell you that the intentional and calculated murder of innocent civilians is not terrorism, because it is. And do not let them tell you it is justified, because that constitutes a direct challenge to the legal and moral order toward which much of humanity has strived in the last half-century since World War II.

P.S. There are some practicing lawyers who subscribe to our list. If any of them wish to contribute something, I will happily forward their comments out.


Read, "Self-Defense Sans Frontières: By backing terrorists, Syria defies even the U.N.," by Ruth Wedgwood in The Wall Street Journal, October 8, 2003. Wedgwood is a professor of international law and diplomacy at Johns Hopkins and a senior fellow at the Council on Foreign Relations.

Read "A war of words and the law" by Ed Morgan in The National Post, October 7, 2003.