Book Review – RISE AND KILL FIRST: The Secret History of Israel’s Targeted Assassinations, by Ronen Bergman, Random House, 2018, $35.00, 725 pages.
Assassinations … have an effect on morale, as well as a practical effect. I don’t think there were many who could have replaced Napoleon, or a president like Roosevelt or a prime minister like Churchill. The personal aspect certainly plays a role. It’s true that anyone can be replaced, but there’s a difference between a replacement with guts and some lifeless character.
Meir Dagan, Chief of the Israeli Mossad (p. xix)
The distinguishing mark of a manifestly illegal order … is that above such an order should fly, like a black flag, a warning saying: ‘Prohibited!’ Not merely formally illegal, not covered up or partly covered … but an illegality that stabs the eye and infuriates the heart, if the eye is not blind and the heart is not obtuse or corrupt.
Judge Benjamin Halevy (p. 274)
Targeted killings, assassinations, summary executions and reprisal killings; acts of assassination without parliamentary or public scrutiny; unrestrained killings and orders to down passenger airlines with innocent civilians; strikes against foreign diplomats; two separate legal systems – one for ordinary citizens and one for the intelligence community and defense establishment; bombings of hotels, buildings, and residences; preemptive strikes, kidnappings, and killings of political leaders; invoking “state security” to justify a large number of acts that could be subject to criminal prosecution and long prison sentences; massive amounts of unavoidable or unreasonable collateral deaths; deceptions, and lies to the Prime Ministers, including cover-ups and willful blindness by Prime Ministers themselves; killings of scientists, sympathizers, and poisonings; disregard for practice directives for state-sanctioned assassinations; manifestly unlawful orders and reprimanding those who refused to follow such orders; use of proxies to carry out assassinations, torture, and degrading interrogations; killings of unarmed prisoners, and much more.
-versus-
Indiscriminate attacks against innocent civilians; targeted killings; car bombings and using other explosives to cause maximum death of innocent civilians; suicide bombers and proxy fighters financed by antagonistic neighboring countries; acts causing maximum and sustained terror; provocations to draw military responses and loss of innocent civilian lives; rocketing of residential areas, use of civilians as human shields, building of nuclear reactors, and threats of annihilation; kidnappings of soldiers to torture and kill or to swap for hardened imprisoned militants whose aim upon release would be to continue their terrorist acts and killings, hijackings, car-bombings, senseless executions, deceptions, lies, broken promises, and blatant denials of knowing that some on their side committed atrocities while claiming to be pursing peace, and much more.
Both sides of the Israeli-Palestinian conflict have done some very bad things. There is no denying it. Some may have acted thinking that their cause was righteous and that their methods were justified – even when they are clearly illegal. Some may acknowledge that their acts are extreme and illegal, but consider them justified because they serve a moral purpose. Some may not have given either legality or morality a moment’s thought. It is about survival and self-defense – preemptively neutralizing threats, perceived threats, potential threats, retribution, punishment, reprisals, striking fear, and sending a message. And terror.
Depending on the circumstances, one side or the other may have legal and moral justifications to act in ways that normally fall outside the acceptable norms of civilized societies and progressive democracies. But for every action there is generally a reaction, and not necessarily a proportional or appropriate one. And of course, for every reaction there is a counter-reaction. Good guys occasionally behave badly, and bad guys invariably will behave even more badly. Figuring it all out is not as easy as it may appear. Instinctively, opinions and conclusions are often formed and reached based not on the facts, but on well-packaged half-truths or outright disinformation aimed at evoking, provoking, and inciting. Rarely, if ever, is anything black and white. The facts from which the truth may surface is generally shrouded in shades of gray.
Take for example the ongoing events in Gaza. There is international outcry mainly (if not exclusively) against Israel and the Israeli Defense Forces (IDF). The optics are bad. Very bad. The body count keeps growing. Divisive rhetoric flourishes. Everyone seems to have not just an opinion, but a claim as to what is true. Who honestly knows the unadulterated facts? Let’s not kid ourselves. Both sides to the conflict have been prone to embellishing and when convenient, confabulating. And yes, both sides (and their proxies) have and most likely will continue to commit acts that are inconsistent with the applicable law in Israel and the Palestinian Territories and recognized international norms. Neither side can claim to be as pure as the driven snow. Neither side can with absolute certainty lay claim to the moral high ground or moral imperative – though both sides have legitimate claims of injustices committed against them.
I don’t claim to know all the facts about the ongoing events in Israel and in the Palestinian Territories, not having access to all the relevant evidence that the insiders have. I follow the news, see things on the TV screen, and read reports by the various human rights observers. But having defended war crimes cases, I also know that even with the best intentions, the picture that is often painted is opaque, inexact, unreliable, even biased.
I may harbor suppositions on whether crimes may have been committed by one or both sides (as many keen observers instinctively would), but suppositions are no substitute for cold, hard, unadorned facts. Those who claim that one or the other side is exclusively at fault most likely have reflexively formed their conclusions based on ideological, visceral, or well-intentioned but uninformed viewpoints. The current events – just as past events that have caused the loss of life, injuries, and horrific consequences – are highly complex. Verifiable and reliable facts are in short supply. And context – which is often overlooked or ignored – matters.
In any event, affixing blame and criminality to those responsible for the ongoing (or past) tragic events is beyond the scope of this post. My intention in reviewing Rise and Kill First: The Secret History of Israel’s Targeted Assassinations has to do with my interest in state-sanctioned extrajudicial targeted assassinations in the broader context of legality versus morality dilemma. And when I say “broader context,” I mean not just Israel, but all States – especially those who champion the Rule of Law and place a premium on maintaining (or at least claiming to uphold) high moral standards. Recall that the US during the Obama Administration carried out 353 targeted killing operations. (p. xxii; For the Obama Administration’s criteria used for authorizing extrajudicial killings, see Presidential Policy Guidelines on Targeted Killing – Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities).
I recently saw Ronen Bergman give an interview wherein he discussed Rise and Kill First. I was impressed. He was articulate, forthright, and measured. What intrigued me, however, were not his nitty-gritty descriptions of how the Israeli intelligence services operate or their escapades. Rather, I was intrigued by a question that I have been pondering over for some time: how to reconcile morality with legality – particularly in instances where morality could be negatively impacted by not resorting to illegality. For instance, is it appropriate for a State (through its military or security services) to transgress its own laws or international norms where innocent lives of the opposing side will be lost, when the failure to act illegally will result in the loss of innocent lives of the State? Just how moral is it of a State to realistically expose and potentially sacrifice its own citizens to protect the “enemy’s” citizens in order to comply with international norms?
Since I was in the process of trying to make sense of this question in drafting my last post in the context of the use of state-sanctioned torture relevant to the now CIA Director Gina Haspel’s Senate Confirmation Hearing, I thought it may be good to give Bergman’s book a look. Perhaps he could shed a bit more light on this issue, though frankly, I was not entirely sure what to expect. Outsiders writing about security services tend to read more into the tea leaves rather than the insiders that have access to raw data and live subjects to interview. Insiders, however, can be self-serving, revisionists, agenda-driven, or tempered from writing what they learned during their years in service. Either way, you don’t get an objective picture. Not so from Bergman. He delivers: the good, the bad and the ugly.
In Rise and Kill First, Bergman wrote an eye-popping account of the Israeli intelligence community, defense forces, and politicians in their quest to establish and maintain the survival of the State of Israel against what can only be described as a sustained war of terror waged against it by its neighbors and Palestinian freedom-fighters / militants or terrorists – depending on one’s perspective. Irrespective of which side of the Israeli-Palestinian conflict you’re on or how you view either side, Rise and Kill First is an essential read for anyone seriously interested in the history and politics of this conflict. Indeed, I highly recommend Rise and Kill First to anyone interested in trying to grasp what is going on today in the region, why Israel acts as it does (whether you agree with its actions or not), why reaching a peace agreement on a two-state solution has been elusive, and why the cycle of violence (it matters not who is at fault) is unlikely to cease unless both sides do a major rethink, followed up by genuine efforts to abide by and build on whatever is agreed. You may not find the answers, and you may come away disillusioned, but your thinking will be challenged.
Bergman is not just a master narrator but also highly qualified and well-versed in the subjects he explores. Having studied law in Israel, Bergman went on to earn a Master’s Degree in International Affairs and a PhD in History from Cambridge University. He is a senior correspondent for military and intelligence affairs for Yedioth Ahronoth, Israel’s largest daily paid-for newspaper. He has also written the much acclaimed The Secret War with Iran: The 30-year Clandestine Struggle Against the World’s Most Dangerous Terrorist Power and five bestselling novels.
Bergman has obviously spent years developing contacts, pouring over archives, interviewing insiders, analyzing data, and connecting the dots. The access to documents and to the men and women who applied the shadowy craft of intelligence, high-level military personnel, politicians, ministers, Prime Ministers, diplomats, and heads of foreign intelligence agencies is as unprecedented as it is impressive. Frankly, I am amazed that much of the content of this book was allowed to be published. Aside from exposing all sorts of inside information, Rise and Kill First casts in a negative light many of the operatives, handlers, heads of various security apparatuses, generals, ministers, Prime Ministers, and above all, the State of Israel. Described in the book are dark and disturbing revelations, including what may seem to be crimes against humanity. Another moral dilemma arises: transparency versus national security. My only thought here is that only in a vibrant liberal democracy would a book, such a Rise and Kill First, be allowed to be printed and circulated. Perhaps there is a realization by those who wield the powers of censorship that it is time to have an open and frank discussion between the arm-chair philosophers, legalists, and human rights advocates with those who act behind the scenes, the military and political establishment who are called upon to make the hard decisions and, yes, occasionally, bend or break the rules to keep safe the civilians, including those most vocal against the methods used.
The dilemma
Should a State through its military or security services refrain from using all means and methods necessary to carry out a targeted assassination, if the targeted person is known to be planning or will assuredly plan in the future an act of terror that will inevitably result in the loss of multiple innocent civilian lives?
The answer to this question seems rather obvious: yes.
What if in responding to terrorist acts or threats of such acts, there is the likelihood of the loss of innocent civilians on the other side? Is there an acceptable limit on the collateral damage in such instances, and where do you draw the line?
What if the State’s failure to act in deference to those innocent victims results in the loss of its own civilians (regardless of their nationality, ethnicity, or faith), which it and its military and security services are required to protect?
What if the targeted assassination is likely to derail ongoing peace negotiations, or worse yet, stir up a hornet’s nest, causing more civilian deaths than what was predicted if the assassination was not carried out?
Once you go down the road of resorting to extrajudicial killings – whether sanctioned by the highest elected official or not – it is hard to resist the temptation to expand the limits of who or what constitutes a legitimate, imminent threat and to condone or accept killings of perceived “enemies” or “terrorists.” This is especially likely when the checks and balances are either not in place (in which case a culture of targeted assassinations and a disregard of legal constraints is fostered), ignored, or creatively circumvented.
Amazingly, though targeted assassinations have been routinely carried out even before the State of Israel was established (sometimes by future ministers and Prime Ministers) and continued over the decades by Israel’s intelligence community and the IDF, it was not until 2000 that the issue of legality was formally raised, prompting the drafting of a legal opinion outlining the law and Israel’s criteria and protocols for sanctioning targeted assassinations. This is not to say that some criteria were not in place or that legal advice on whether it was permissible to carry out a killing or an act that would result in large casualties of innocent bystanders had not been solicited prior to the issuance of this opinion. Genuine efforts were made under very challenging of circumstances to keep actions legal, to account for proportionality, and to limit collateral damage – much of which has gone unnoticed.
Focusing on the dilemma I raise, Bergman provides two interesting examples worth examining.
In 1976, Israeli Prime Minister Yitzhak Rabin sought legal advice on the legality of assassinating five prisoners who were sedated and tied to stretchers. The plan was to drop them into the Red Sea from a military plane. The legendary jurist, Aharon Barak, then serving as Israel’s Attorney-General, was called upon to give his blessing. The reason for taking such extreme measures, he was told, was to ensure the disappearance of the three Palestinian prisoners who were proven terrorists (the other two prisoners were German collaborators). Placing them in an Israeli prison seemed imprudent at that time, since the Popular Front for the Liberation of Palestine (PFLP) was hijacking planes and using the passengers as ransom to free its members held in Israeli prisons. Were these prisoners to disappear, they could not be traded or extradited and thus let loose to revert to terrorist activities that would invariably claim innocent Israeli lives. Those involved in coming up with this scheme saw it as a righteous and moral justification for killing these prisoners. Rabin seemed fine with the plan but nonetheless decided to seek legal advice. Having heard of the plan on how the five tied up and sedated prisoners were to be killed, Barak exploded:
Have you finished? That’s good, because I think you must be insane. These are two German citizens you want to kill while they are tied and sedated on an Israeli military plane. I cannot by any means approve of this. (p. 200)
Query whether Barak would have taken the same position if it were only the three Palestinians. This is an aside, but it may also be revealing. With Israel and the Israeli public being under concerted and sustained terroristic attack or threat of attack, assassinating Palestinian prisoners involved in terrorist activities (intentionally targeting civilians) may have been easier to justify and not as problematic, as say, assassinating foreign nationals from Western Europe engaged in the same conduct. It could also be that Barak knew his audience and he knew that he would be more convincing were he to highlight that the State of Israel was contemplating the killing of two citizens of a friendly European State.
Shortly thereafter, as predicted, another hijacking occurred which lead to the dramatic Israeli raid in Entebbe, Uganda. Rabin, it is claimed, came to regret his decision to follow Barak’s (implied) advice and not throw the five prisoners into the sea. (pp. 199-202) Who could fault Rabin for harboring second-thoughts? But, realistically, this or some other hijacking would have most likely occurred anyway, since the PFLP was hell-bent on carrying on with its agenda of waging terror against Israel, with hijackings, killings, and holding hostage Israeli passengers as an integral component of its appalling repertoire. Ridding the five sedated and tied up prisoners in the Red Sea may have been tactically convenient, but it would not have yielded the intended results – nor would it have been legally justified. As Prime Minister, Rabin was responsible for ensuring the safety and security of Israelis (including Muslim and Christian Arab citizens of Israel and Jewish Arabs who immigrated to Israel). But did this responsibility bestowed upon him by the Israeli electorate cloak him with legal power to kill prisoners who were not posing an imminent danger to Israel’s security, however moral he may have thought this action to be? If the answer is yes, then it logically flows that he also had the power to order the summary execution of all Palestinian prisoners held in Israeli prisons, since potentially all posed a future risk to Israel and to the Israelis (Jewish, Muslim, Christian, or otherwise) once released.
The second example comes 25 years later. In December 2000, IDF Chief of Staff Shaul Mofaz summoned the Chief of the Military Advocate General’s Corps, Major General Menachem Finkelstein, for a chat. The exchange is as astonishing as it is disquieting.
Mofaz: I assume that you know that Israel sometimes has a policy of “negative treatment.” In the current legal situation, is it permitted for Israel to openly kill defined individuals who are involved in terrorism? Is it legal or illegal?
Finkelstein: Do you realize what you are asking me, Chief of Staff? That the IDF’s advocate general will tell you when you can kill people without a trial? (p. 509)
Finkelstein understood that Mofaz was asking him whether it was legal to assassinate suspected Palestinian terrorists. After being asked again, Finkelstein demurred, quoting Cicero: inter arma enim silent leges – in times of war, the law falls silent.
One can debate the accuracy of this answer; i.e. whether there was a gaping lacuna in the law of war under the circumstances. But based on Bergman’s accounts, assassinations of suspected Palestinian terrorists (as defined and identified by the intelligence services and the IDF) had been ongoing for decades. This does not mean that all of these assassinations were per se unjustified or in breach of national laws or international norms. For more than 50 years, Israel and the Israelis (both Jews and non-Jews) have suffered terrorist attacks (killings of innocent civilians, car bombings, and rocketing of residential areas cannot be claimed to be anything other than acts of terror, whatever the justification for these acts is).1 I subscribe to Michael Walzer’s definition of terrorism: “the deliberate killing of innocent people, at random, in order to spread fear through a whole population and force the hand of its political leaders.” See Michael Walzer, Arguing about War 130 (Yale University Press 2004). Several of Israel’s neighbors waged war against Israel, and throughout the decades, used or financed proxies to carry out attacks against Israelis in and outside Israel. Several of its neighbors and nearby states (Iraq: see pp. 304, 346, 348-49, 352-56, 358-59, 684, 686; Iran: see pp. xix-xxi, 469, 576-80, 587, 607-9, 622-24, 626-29, 712-14; Libya: see p. 469; Syria: see pp. 589, 594-95, 709-12) were trying to develop nuclear weapons capabilities, while calling for the total elimination of the State of Israel – an existential threat however viewed.
That said, it is rather shocking that the legality of extrajudicial killings was formally raised for the first time in 2000. As described in Rise and Kill First, from the exchange between Mofaz and Finkelstein, which starts with “I assume you know,” it appears that the IDF’s highest Legal Officer was unaware that Israeli intelligence services and the IDF had carried out sanctioned and non-sanctioned, justified and unjustified, legal and illegal assassinations since the State of Israel had come into existence.
Maybe it is unfair to read too much into this opening predicate of this exchange. Maybe it was just an ice-breaker to what would likely be an awkward conversation. Considering Finkelstein’s answer, I doubt he was in the know. And this raises serious questions. As the Chief of the Military Advocate General’s Corps, would it not have been within Finkelstein’s mandate to know what the IDF had been up to? And if he was aware, given his position, wouldn’t he have had the responsibility to do something? But if in fact this was the first time that Finkelstein was hearing of the state-sponsored “negative treatment,” doesn’t it beg the question why the IDF or the intelligence services, the Defense Ministers, or the Prime Ministers – who were responsible for making the final decisions (assuming they were timely informed, which was not always the case) did not seek a legal opinion ex ante? And why was the Chief of Military Advocate General’s Corps excluded from the loop?
The fact that this question was posed and answered in 2000 is revealing.
Around this time, Israel was ramping-up its targeted killings program to deal with the Intifada that was claiming the lives of innocent Israeli civilians. Most of these assassinations would not be carried out in some remote State where deniability would be plausible, but rather in Israel’s own back yard – where the Israeli government’s (including its intelligence and defense services) handywork could (and eventually were) readily identified and exposed. Bad optics – however justified the assassinations may be.
Adopting euphemisms to cover-up what was actually going on may have been a useful public relations ploy, but as Bergman puts it: “it was not clear whether Israel’s new, open campaign of extrajudicial killings—be they ‘assassinations’ or ‘targeted preventive acts’—was legal.” (p. 506). Astutely, Bergman notes: “Though the Israelis might not have given full consideration to the moral implications of the new program, they were aware that they needed to provide legal cover for officers and subordinates who might later face prosecution, either in Israel or abroad.” (pp. 508-9)
Why the concern for the legality of extrajudicial killings by the IDF Chief of Staff, and why out of the blue in 2000?
Well, coincidentally, in 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 States in favor, seven against, and 21 abstaining. Of the seven States that voted against the adoption of the Rome Statute, Israel was one of them. It was only a matter of time that 60 ratifications would follow, triggering the Rome Statute’s entry into force and the establishment of the International Criminal Court (ICC) on 1 July 2002. Might the writing on the wall – that Israeli officers and subordinates could end up in the ICC dock for allegedly committing crimes falling under the ICC jurisdiction – have been the impetus for this momentous exchange between the IDF Chief of Staff and the Chief of the Military Advocate General’s Corps? Perhaps, but as I’ve noted, I am not privy to all the underlying information behind Israel’s acts.
This exchange between Mofaz and Finkelstein resulted in Finkelstein ordering his legal team in January 2001 to prepare a top-secret legal opinion – Striking at Persons Involved Directly in Attacks against Israelis, which Bergman has examined. Fittingly, he quotes the opening statement, which is also quite telling:
In the framework of this opinion, we have for the first time set out to analyze the question of the legality of the initiated interdiction [another euphemism according to Bergman] actions taken by the IDF…. We have been told by IDF and Shin Bet [the acronym for Israel’s General Security Service] that such actions are carried out in order to save the lives of Israeli civilians and members of the security forces. This is, therefore, in principle, an activity that leans on the moral basis of the rules concerning self-defense, a case of “He who comes to kill you, rise up early and kill him first.” (p. 509)
The opinion (as described by Bergman) seems quite detailed, laying out the criteria and parameters for state-sanctioned extrajudicial killings, the need to avoid harming innocent civilians, the definition of who constitutes an “unlawful combatant,” what does “direct participation in hostilities” entail, the duty of proportionality, and the requisite protocol for final authorization from the Prime Minister or Defense Minister. The essence of this top-secret opinion can be gleaned from the 2006 Israel Supreme Court Decision, The Public Committee against Torture in Israel v. The Government of Israel. See also the Israeli Ministry of Foreign Affairs’ cogent analysis of the Israeli Supreme Court Decision here.
This opinion and the protocols gave legal justification for carrying out extrajudicial killings under strict and controlled conditions. But it also hamstrung the operations. Concerns for the injuries and deaths of innocent Palestinian bystanders meant forgoing exquisite opportunities of sanctioned targeted killings of known “unlawful combatants” that had committed and would assuredly continue to commit atrocities against Israelis (again, of all ethnicities and faiths). Having to abort such killings in order to comply with the guidelines set out by the opinion came at a high price – a price that was likely to be paid with Israeli blood and loss of innocent lives.
Enormous amounts of resources were devoted to tracking targets, planning the details of the kill, and in assembling the team and coordinating with those involved in assisting and authorizing the final go-ahead for the kill. Once the target was locked into the government’s cross hairs, forgoing the opportunity to take out the target risked finding another opportunity for the kill to take place. And, as I noted, the other risk was that the target (based on his or her past conduct) would likely carry out further acts of violence, leading to more Israeli deaths. For instance, there were examples when orders were issued not to act on a kill-order of someone known to be responsible for organizing suicide bombings because at that given moment, the killing would also result in unacceptable collateral loss of Palestinian lives. And sure enough, more suicide bombings organized by the target predictably followed, as day follows night.
These constraints in getting on with the business of state-sanctioned targeted assassinations, in part, motivated some to look for ways to get around the strict criteria and protocols. But also, as Bergman shows, some in the intelligence community who were used to thinking and acting outside the box, found that strictly adhering to the set criteria and protocols simply cramped their ability (and occasional habit) to act independently with few constraints and minimal accountability for acts beyond the pale of legal acceptability. Unsurprisingly, it would not take long before creative thinking led to circumventions of the criteria and protocols set out by the opinion. Gabriella Blum, a Harvard law professor and former officer in the IDF Military Advocate General’s Corps, who participated in drafting the legal opinion observed: “I am deeply concerned that what was originally authorized as an exceptional act to be taken in exceptional cases became a regular practice.” (p. 564)
Bergman’s accounts from the time the State of Israel was established until say 2001, when the IDF decided it was time to figure out the law on extrajudicial killings – show that over the decades, a culture of virtual impunity and a tolerance of rogue behavior was fostered, and in some instances, condoned by the Israeli government.
When Israel came into existence, it immediately faced existential threats. Its citizens were subjected to acts of terror. Drastic measures had to be taken. Those who were responsible for making the decisions for Israel’s security and for the well-being of the Israelis, had neither the inclination nor luxury to engage in philosophic analysis-paralysis debates, such as the ones typically seen at academic colloquiums or diplomatic conferences.
The law often got in the way – as it was intended. But as we can see from the opinion, the “moral basis [not legal] of the rules concerning self-defense” is found in the Talmud: If someone comes to kill you, rise up and kill him first.2 Notably, a similar verse is found in the second chapter or “Sūrah” of the Quran, Sūrah Al- Baqarah (“The Cow”): “Fight in the cause of Allah those who fight you, but do not transgress limits; for Allah loves not transgressors.” See Abdullah Yusef Ali, the Meaning of the Holy Quran 24 (Reprinted and published by Sekretariat Dakwah Pulau Pinang). The Talmud is also copiously referenced in the Quran. For more on Judaism’s and Islam’s impact on each other, see here. However, as I have stressed, context matters. Bergman explains:
Israel’s reliance on assassination as a military tool did not happen by chance, but rather stems from the revolutionary and activist roots of the Zionist movement, from the trauma of the Holocaust, and from the sense among Israel’s leaders and citizens that the country and its people are perpetually in danger of annihilation and that, as in the Holocaust, no one will come to their aid when that happens. (pp. xxii-xxiii)
Bergman perceptively provides us with the reasoning for Israel’s usage of assassinations. But he also shows throughout his book, example after example, how this tool was occasionally wielded recklessly, even criminally. But when you are under siege or perceive yourself as being under siege (irrespective the cause), it becomes easy to resort to whatever means necessary to achieve the desired result – survival. In such circumstances, little consideration is given to the potential negative consequences. This seems to be even more so when there is a belief – a sense of purpose – that justifies acting outside legal norms because of a higher moral imperative.
My aim is not to pass judgment. I appreciate the difficulties in refraining from pushing the acceptable boundaries, especially when responding to senseless violence against civilians. When there is no end in sight to the violence, when it becomes difficult to distinguish civilians from terrorists, and unless there are strict rules of engagement that are strictly adhered to, lumping everyone on the other side (boys, girls, women, elderly) into the enemy category makes it easier to justify or disregard excesses; everyone becomes fair game because of who they are, and not because of what they are doing. While such excesses occur in any war or conflict, what I cannot understand – perhaps out of ignorance or bias – is the philosophical or theological (moral) underpinnings of taking young (and not so young) impressionable minds and weaponizing them into human grenades to kill ordinary civilians – indiscriminately.
The lesson I draw from Bergman’s accounts is that there are long-term gains in strictly adhering to the law when it is sufficiently clear and provides the requisite guidance on what may or may not be acceptable behavior in times of war or conflict against lawful or unlawful combatants. Naturally, morality is not to be ignored. Indeed, it has its place in directing one’s conduct, especially in circumstances where the law is insufficiently developed or unhelpful given the circumstances, or as Judge Halevy (second opening quote) puts it, “illegality that stabs the eye and infuriates the heart, if the eye is not blind and the heart is not obtuse or corrupt.”3 The quoted language comes from a decision in a case presided by Judge Havely. On 29 October 1956, an Israeli Border Police unit, in enforcing a curfew in the village of Kar Qasim, rounded up a group of residents as they were returning from work. Obeying an order to shoot curfew breakers, the policemen shot them, killing 43 people, of which nine were women and 17 children. See Rise and Kill First, p. 274.
What we see in Rise and Kill First is how disregarding the law to accommodate – circumstances considering – an actual or perceived moral imperative, can result in unintended consequences: fostering or tolerating rogue behavior, or engaging in unlawful conduct (such as killing prisoners) for the greater moral good of protecting Israelis from potential future terrorist or military threats, or acting with little regard to the excessive loss of life of innocent Palestinian bystanders whose only connection to the target for assignation was their serendipitous proximity or association – wrong place, wrong time, wrong friends, wrong family members.
Over time, the red lines are moved beyond acceptable legal limits or even extinguished. In the hunt to eliminate the terrorist, terrorist acts are used. One terrifying example is when Ariel Sharon, Israel’s 11th Prime Minister, was obsessing to assassinate Yasser Arafat, the head of the Palestine Liberation Organization (PLO). On one occasion, having been told that Arafat was in an airplane, he ordered it to be shot down in mid-air. There was some deliberate stalling on the order, which turned out to be fortuitous. In the airplane was Fathi Arafat, Arafat’s brother, a doctor, who was accompanying 30 wounded children, some of whom were victims of the Sabra and Shatila massacre, traveling to Cairo for medical treatment (pp. 269-71). According to Bergman, Sharon ordered no fewer than five times the downing of commercial airliners that were supposedly carrying Arafat. (p. 274) Thankfully, his orders were never carried out and were frustrated by cooler heads who appreciated the legal and moral implications of what they were being asked to do: to carry out a manifestly unlawful order, thus, making them physical perpetrators of international crimes.
Of course, this is an extreme example, but it serves the point. If there are no checks and balances, no set criteria, no protocols, no strict adherence to such criteria or protocols, and no severe consequences for derelictions, then rogue behavior is likely to follow with abandon.
All of this said, how do we resolve this dilemma?
Bergman’s artful restraint in offering doctrinaire answers to this dilemma is as appreciated as his uncanny skill in deftly presenting the story of the Israeli intelligence community without superimposing his views over any views the reader may arrive at from plowing through his dense tome of unprecedented detail, insider-interviews, and methodical analysis of archival material.
I have profited immensely from Rise and Kill First. I continue struggling to find the contours of when a legally impermissible killing may, in the broader context of the events, be morally correct and even necessary. However, I am convinced that acting for the sake of short-term tactical gains is likely to impede the search for long-term strategic solutions – which is why I am even more convinced that in solving this dilemma on a case-by-case basis, the point of departure must always start with what is legally permissible, not what is morally justifiable.
Morality cuts in different ways. That is why looking at the law should be the starting point. In theory, this should not cause a dilemma, since national laws and international norms effectively reflects general societal values and sense of morality. Borrowing from H. L. A. Hart: “Not only do law and morals share a vocabulary so that there are both legal and moral obligations, duties, and rights; but all municipal legal systems [and many international norms] reproduce the substance of certain fundamental moral requirements.”4 H.L.A. Hart, The Concept of Law 7 (Oxford 2012).
Resorting exclusively or primarily to what may be morally acceptable in deciding whether to sanction assassinations or targeted preventive acts – in the absence of a thorough and objective analysis of the applicable national law and international norms – is a slippery slope, fraught with legal land-mines that invariably will go off, potentially leading to acts of criminality, loss of innocent lives, and impairment to a State’s standing. It could also result in accountability before the ICC or some other international judicial institution.
An aside worth pondering
I have tried to stay clear of discussing Rise and Kill First in the context of the ongoing events in and around Israel. Bergman however gives us plenty to think about in looking at the present events by considering the past. Irrespective of where you fall in the Israeli-Palestinian divide, here are but two passages I found remarkably thought-provoking.
After enduring these aggravations, wretched conditions, and visible injustices for years, the West Bank and the Gaza Strip were on the verge of exploding. But this was something that Israeli intelligence either could not see or did not want to see. A longtime focus on pinpoint warfare against the PLO and its leaders had concealed a swelling rage of the Palestinian people form Israel’s intelligence community and its politicians. The Israelis’ tactical achievements and ability to locate and eliminate PLO leaders and militants nearly anywhere in the world had given them the sense that Israel could forever impose its rule over the millions of Palestinians in the occupied territories without consequence. (p. 309)
Toward the end of his life, Dagan [former Director of the Mossad], like Sharon, understood this [that with the long string of impressive tactical successes there were also disastrous strategic failures]. He came to the conclusion that only a political solution with the Palestinians–the two-state solution–could end the 150-year conflict, and that the result of Netanyahu’s policies would be a binational state with parity between Arabs and Jews and a concomitant danger of constant repression and internal strife, replacing the Zionist dream of a democratic Jewish state with a large Jewish majority. He was anxious that the calls for an economic and cultural boycott of Israel because of occupation would become bitter reality, “just like the boycott that was imposed against South Africa,” and even more anxious about the internal division in Israel and the threat to democracy and civil rights. (p. 630)
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Footnotes
“According to Bergman, Sharon ordered no fewer than five times the downing of commercial airliners that were supposedly carrying Arafat. (p. 274)”.
Lucky for Mr Bergman that one cannot defame the dead.