- The Washington Times - Monday, August 7, 2006

The theme of Emanuel Gross’ “The Struggle of Democracy Against Terrorism” is that international laws of war were designed primarily to govern the conduct of warfare between sovereign states, but not between democratic states and terrorist groups. As Mr. Gross writes, the struggle between terrorist groups and states “differs fundamentally from traditional armed conflicts because of the terrorists’ disregard for the laws of war.”

For terrorists, he continues, “the individual rights and freedom of the citizens against whom they fight, and to a certain extent even the rights and freedoms of their own people ‘for’ whom they fight, are not sacrosanct values worthy of protection.”

Terrorists have no compunction about compromising the human rights of their adversaries by deliberately attacking innocent civilians or, as currently being demonstrated by Hezbollah, carrying out their attacks from the heart of Lebanese population centers, which serve as “human shields,” hoping that the state fighting them — in this case Israel — will not target these population centers.

As a result, terrorists (and guerrilla armies that engage in such practice), according to Mr. Gross, must be granted the status of “unlawful combatants, who are neither lawful combatants nor freedom fighters and are certainly not mere civilians.”

In the absence of up-to-date international law to govern counterterrorism, Mr. Gross’ important book fills the vacuum about what is permitted and what is forbidden in applying international laws of war to the response by democratic states to terrorist warfare. Mr. Gross is uniquely qualified to discuss such legal issues, drawing on his 25-year experience as military attorney and military judge in the Israeli Defense Forces, and his current position as professor of criminal law at Haifa University.

To analyze the legal challenges and moral dilemmas faced by democracies in balancing security against civil liberties, human rights and the rule of law in countering the threats posed by terrorists, Mr. Gross covers the spectrum of relevant topics.

These include defining terrorism, the laws of war in countering terrorism, interrogating terrorists, the powers of military commanders in administering areas where terrorists operate (such as in Iraq or the West Bank), administrative detention, the right to privacy by citizens during emergency periods, the use of civilians by terrorists or armies as human shields and thwarting terrorist acts through targeted killings of terrorist leaders and operatives.

The legal systems used by Israel, the United Kingdom and the United States — nations which are in the front line of the war on terrorism — are analyzed in light of counterterrorism measures taken. At issue is how well these nations have sustained through constitutional measures public security and civil liberties.

Mr. Gross’ overall conclusion is that Britain and America have both enacted tough counterterrorism measures in response to recent terrorist attacks that are well within constitutional definitions of what is legally supportable, while in Israel the High Court of Justice has overseen and plays a strong role in delineating the boundaries of what is permissible or forbidden by the country’s security services in countering terrorism.

However, while it is true that Israel’s High Court of Justice deserves much credit for its efforts to preserve the country’s democratic character (Aharon Barak, the chief justice, wrote the book’s foreword), there are certain problematic aspects to Israel’s counterterrorism policy vis-a-vis the Palestinians that Mr. Gross glosses over.

For example, despite the merits of constructing a security fence to start delineating Israel’s final boundaries, the state still tolerates settlement blocs by Jewish extremists in the heart of Palestinian lands, which complicate the military’s dealings with the Palestinians and do not provide the country with strategic military depth.

I also disagree with Mr. Gross’ assertion that “For terrorists, the battleground is the civilian hinterland and not the military front. Civilians and not the army are the immediate target of the hostile activities.”

This is disproved by numerous attacks by terrorists against armed forces, with the latest occurring in June/July when operatives belonging to Hamas and Hezbollah separately attacked Israeli military units and kidnapped several of its soldiers, although their strategic objectives in attacking Israel’s military are as yet unclear.

These criticisms aside, there could not be a better time than now to consider how to pursue effective counterterrorism measures that respect and advance democracy. Mr. Gross’ valuable book should be essential reading for all communities involved in countering the threat from contemporary terrorism.

Joshua Sinai is program manager for counterterrorism studies at the Analysis Corp.

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