Article in sais review · January 005 doi: 10. 1353/sais. 2005. 0011 citations 49 reads 3,483 authors

Part (d) of the principle introduces a general norm that takes the form
of a set of priorities that govern plans and performance of acts and activi-
ties against terror. Some of the priorities are obvious: the heaviest package
is that of the citizens and the lightest one covers those who are neither citi-
zens nor under the effective control of the state and are directly involved
in terror.
A highly important and sensitive issue is what priority should be given
to the duty to minimize casualties among the combatants of the state when
they are engaged in combat acts against terror.
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Usually, the duty to mini-
mize casualties among combatants during combat is last on the list of pri-
orities, or next to last, if terrorists are excluded from the category of non-
combatants. We firmly reject such a conception because it is immoral. A
combatant is a citizen in uniform. In Israel, quite often, he is a conscript

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A
SSASSINATION
AND
P
REVENTIVE
K
ILLING
or on reserve duty. His state ought to have a compelling reason for jeopar-
dizing his life. The fact that persons involved in terror are depicted as non-
combatants and that they reside and act in the vicinity of persons not in-
volved in terror is not a reason for jeopardizing the combatant’s life in their
pursuit. He has to fight against terrorists because they are involved in ter-
ror, and he has to defend the citizens of his state. The terrorists shoulder
the responsibility for their encounter with the combatant and should there-
fore bear the consequences.
Accordingly, we put the package of the state duty with respect to com-
batants under combat between two different packages of the state duties
to minimize injury to persons not involved in terror, between (d.2) and
(d.4). The package of the state duty to minimize injury to persons under
its effective control is heavier than the package of the state duty to mini-
mize combatant casualties during combat since it is the responsibility of
the state to protect the life of a person under its effective control. The com-
batant is expected to fight terror without injuring citizens of the state. Simi-
larly, he is expected to fight terror without injuring other persons whose
protection is a responsibility shouldered by the state. Therefore, the pack-
age related to combatants under combat (d.3) appears on the list of priori-
ties after (d.2).
In order to see why (d.3) appears before (d.4) and not after it, con-
sider the situation in which persons directly involved in terror are pursued
or targeted by combatants in the vicinity of persons not involved in terror.
Where the state does not have effective control of the vicinity, it does not
have to shoulder responsibility for the fact that persons who are involved
in terror operate in the vicinity of persons who are not. Injury to bystand-
ers is not intended and attempts are made to minimize it. However, jeop-
ardizing combatants rather than bystanders during a military act against
a terrorist would mean shouldering responsibility for the mixed nature of
the vicinity for no reason at all. Accordingly, (d.3) appears on the list of
priorities before (d.4).
A certain consequence of the norm of priorities on grounds of differ-
ent duties of the state is highly pertinent to our present discussion of as-
sassination: under certain circumstances a military act of targeted preven-
tion of terror that involves killing terrorists is justified even if it is expected
to produce collateral damage. We thus reject the view that all acts of tar-
geted prevention that involve killing the terrorist are morally wrong.
If there is a way to capture and arrest a person who is crucially par-
ticipating in carrying out an act of terror, without jeopardizing the life of
combatants, he or she ought to be captured rather than killed. This norm
follows from our Principle of Military Necessity (B.1) and the present prin-
ciple (B.2(d)). However, when there is no effective way to capture the ter-
rorist in time, killing him is morally justified as a military act of self-de-
fense and as a last resort. The demand that under such conditions a military
force treat the terrorist in the same way that a police squad treats an armed
criminal rests on a grave confusion. The moral, ethical and legal ingredi-
ents of the normative framework of police activity do not apply to territo-
ries that are not under the effective control of the state.

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