It seems that the international community has decided that Israel violated international law by committing an "extrajudicial killing" of Rantisi. I'm glad that they, for once, were specific about their allegations. So let's see if there's anything to this allegation.
Senator Leahy (D-VT) writes in a press release concerning the Anti-Atrocity Alien Deportation Act, that "extrajudicial killing" is defined as
"a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. This term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation."
Amnesty International is particularly concerned with "extrajudicial executions" and has developed a 14-point program to prevent their occurrence.
TheFreeDictionary.com describes "extrajudicial execution" this way:
However, in order to minimise the chance of public criticism of a decision to kill someone, some governments use their security forces to kill people without going through any legal procedure, generally in a secretive way. Such a killing is termed an extrajudicial execution.
One way to define extrajudicial executions is to say that they are killings committed by governments that are not legal by any other standard.
In most cases, "extrajudicial killings/executions" are grouped with "arbitrary" and "summary" executions or killings. They are typically associated with disappearances, illegal detention, and torture. They occur in countries where regimes have a tendency to suppress political opposition with force, or less often when they wish to eradicate organized crime. They almost always occur in secrecy. The typical scenario is that police or military arrest a political dissident, detain him without any legal process, kill him, and dispose of his body so that it will never be recovered.
Clearly, the killings of Yassin and Rantisi don't fall into this pattern. They were killed because arresting them would be difficult or impossible; it was out in the open, leaving no question who was responsible. The remains were made available for burial. On the other hand, they were committed by a government outside the due process of the justice system.
For the sake of illustration, let's take killings that clearly do not amount to extrajudicial executions. Three examples come to mind.
First, when suspects in crimes are shot by law enforcement when they are a threat to others. Nobody would say that shooting a hostage-taker as he's pointing a gun to a hostage amounts to extrajudicial execution. Nor is there anything illegal in shooting a suspect who points a gun at an officer.
Second, in war it is completely legal to kill an enemy combatant unless he/she through his/her actions has made himself/herself a protected individual, e.g., by surrendering or being a prisoner of war. Still, there are exceptions - combatants who are dressed in their enemy's uniform, spies, saboteurs, etc., can legally be summarily executed.
Third, law enforcement and military are sometimes authorized to kill people on sight if they violate certain rules, e.g., if they are poaching in African wildlife reserves, looting in sites of natural disasters, or violate curfew in areas where martial law prevails.
The key point in determining whether a killing is extrajudicial, is what alternatives were available to those who do the killing. Extrajudicial executions - as they are described by Amnesty International, Human Rights Watch, and others - are an illegal alternative to lawful means. Killing political opponents makes murder a political method; killing criminals without trial circumvents the judicial process that is supposed to put such criminals out of commission.
Both sides on the issue of Rantisi and Yassin have to make their case:
To defend the killing of Yassin and Rantisi, Israel has to prove a) that there was a valid reason why Yassin and Rantisi were stopped, with deadly force if necessary; and b) no other means were available to stop them beside killing them. They must also explain the legal basis for these killings, whether these are to be found in international laws of war or in Israeli domestic law. (It's worth pointing out that Israel can - like all other countries - make laws that apply to conduct anywhere in the world.)
Those who would charge Israel with an extrajudicial killing must prove the opposite. In other words, they must a) make the case that Yassin and/or Rantisi weren't a threat to anyone else; b) and even if they were, Israel had other options to stopping them besides killing them.
Let's look at each of these:
a) There have been attempts to make Yassin into a mere "spiritual leader" who led Hamas's "non-militant" wing that built schools, clinics, etc. Although noone has defended Rantisi this way, there are those who believe that Hamas was just about to make peace with Israel.
Both the EU and the US have designated Hamas a terrorist organization, explicitly rejecting any distinction between its "militant" and "non-militant" branches. Certainly, Yassin incited and praised terrorist attacks, saying (among other things) that all Israelis - whether inside or outside the green line - were legitimate targets. Hamas did speak of a truce from time to time, but never wavered from its position that Israel must be brought down as a matter of "religious" principle.
In summary, there is a much stronger case to made that Yassin and Rantisi were direct threats to the safety of Israelis, and indirect threats to Palestinians.
b) I'm not aware of any critics making the case for an alternative approach to stopping Yassin and Rantisi. Arresting them in Gaza would have required either a massive military incursion that would have resulted in an indeterminate number of deaths on both sides; or a specops snatch that also would have involved use of deadly force against anyone who was in the way.
Maybe there was a way to arrest Yassin and Rantisi and put them on trial, but I can't think of one.
I also want to point out that Yassin and Rantisi, unlike most victims of extrajudicial executions, had a choice: they could have surrendered to Israeli authorities and defended themselves in an Israeli court of law. Israeli courts have proven that they demand an exceptional burden of proof from prosecutors. It's safe to assume that Yassin and Rantisi only would have been convicted if the evidence against them were strong, and acquittals for either one of them would have been a huge political victory.
Israel does need to state for the record what legal basis they had for killing them, and they have a couple of options that are mutually exclusive in principle but not for the sake of argument.
One is to say that the laws of war justify killing the leader of enemy forces even outside a combat situation. While such wartime killings generally apply to officers in the field, this is not a strict limitation. The criteria appears to be that non-military individuals can be strategic targets to the extent that their elimination reduces the enemy's ability to wage war.
The objection to this is to say that no state of war exists between Hamas and Israel, because Hamas is not a sovereign state. But this argument cuts both ways: Hamas can't claim protection under the Geneva conventions as long as they operate outside of it. And there is no question that Hamas conceives of its actions against Israel as a war.
The other is for Israel to say that this was a law enforcement action, that killing Yassin and Rantisi was equivalent to shooting a suspect in order to prevent him from committing a deadly crime. This is a stronger moral than a legal argument. Most such killings are based on an imminent danger, e.g., "he was going to pull the trigger if I hadn't shot him." There was nothing to indicate that Yassin or Rantisi were minutes away from sending off a suicide bomber, nor that killing them put an immediate stop to such attacks.
The third is to simply say that the killings were an internal matter and not under the jurisdiction of international law. This is by far the weakest argument, since a) prohibitions against extrajudicial executions are universal and apply to any country that has ratified the relevant UN conventions; and b) begs the question of the status of Gaza.
Israel could effectively argue that the killing was legal under either the laws of war or as a law enforcement action. The objections to one effectively make the case for the other, and Israel should tell its critics that they can't have it both ways.
However, this does highlight the need for international treaties on dealing with non-governmental organizations that wage war against sovereign states. Such treaties can not be developed in the context of the UN, but must be developed, signed and ratified among those nations that are unequivocally opposed to terrorism as a political means. It seems to me that the US, UK, and Israel should start drafting such laws and shame other European countries, Australia, New Zealand, Japan, South Korea, and others into participating. But that's another discussion.
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