Israel is now battling three terrorist groups: Hezbollah, Hamas and the Houthis. The U.S. continues to fight against ISIS and related terrorists in several parts of the world. It is important therefore to understand the status of terrorists under the laws of war. Terrorists are not regarded either as civilians or as legitimate combatants.
Under the laws of war, civilians are entitled to certain protections from belligerency. They cannot be explicitly targeted during attacks on combatants, though they may become collateral victims of such legitimate attacks. They may be detained as suspected terrorists, but once their status as civilians is confirmed, they are entitled to due process and other rights.
Legitimate combatants also have certain rights, especially after they are captured. They must be treated as prisoners of war and not as ordinary criminals. They may not be tried as criminals for their legitimate military actions.
What about terrorists? They can be detained without due process and without being treated as prisoners of war. The law is unclear as to their long-term status, but certain factors are beyond dispute. Once they are in captivity they cannot be tortured or killed, but they can be subject to extensive interrogations and have no right to consult counsel or to contact relatives. They can be held until the belligerency is over, and even then, they can be tried under the laws of the country holding them.
Most importantly, a terrorist who kills a combatant can be found guilty of murder. That would not be true of a legitimate combatant who killed another combatant in the course of a war. A terrorist does not have the same rights as legitimate combatants, even during a war. After being captured, they need not be given the rights of an ordinary civilian to counsel or due process. They can be tried by court martial or other military procedures. The specifics are determined by the domestic laws of the country holding them, not by international law.
To put it bluntly, a terrorist is an “outlaw” in the literal sense of that term, unprotected by the ordinary rules of international law, because terrorists don’t abide by these rules themselves.
The killing of Osama bin Laden illustrates the tactics that can be employed against terrorists, even “retired” ones.
During belligerency, terrorists are appropriate targets regardless of whether they are actually engaged in terrorism at the time of targeting. Thus the Hezbollah members who were given communication devices by Hezbollah commanders were appropriately blown up by Israel, even while they were engaged in civilian activities. The only issue there was collateral damage: Was the risk to non-terrorists proportionate to the military benefits in killing and disabling terrorists? The answer to that was clearly yes in the context of the use of explosive devices in Lebanon.
In general, the law of war is not crystal clear in regards to terrorists and terrorism. Most of these laws were written, largely by academics, before terrorism became as prominent as it is today and when the division between combatants and terrorists was far clearer than it is now. Most terrorists live among civilians and interact with members of their families, friends and associates. But they continue to engage in terrorism on an ongoing basis.
It would be useful for new laws to be enacted that clarify the legal status of terrorists. It is doubtful that such laws could be written neutrally and objectively today, because so many academics tend to lean left and be more sympathetic to terrorists and terrorism than is the general public.
The “laws” being selectively applied by the International Criminal Court and the International Court of Justice demonstrate the bias of contemporary “courts.” In the absence of fair laws, deference should be paid to legitimate armies that are battling illegitimate terrorists. This is especially so with regard to nations like Israel and the U.S., which have stringent domestic laws governing the treatment of terrorists.
Targeting of civilians by terrorists has become a primary tool of anti-Israel and anti-American warfare. Yet the rules governing such warfare — especially the vague laws regarding the rights and powers of democracies confronting lawless terrorism — often require such democracies to fight their enemy with “one hand tied behind their back” (to quote an Israeli Supreme Court justice.)
The time has come to clarify the laws of war, to empower democracies to have the upper hand in the growing war against lawless terrorism. If this appropriate balance cannot be achieved by international bodies, then democracies should rely on their own laws to strike the balance in favor of legitimate armies and against illegitimate terrorists.
Alan Dershowitz, professor emeritus at Harvard Law School, is the author of numerous books, including “War Against the Jews: How to End Hamas Barbarism.” He is also the host of The Dershow on Rumble.
