Forty years ago this month, in July 1968, Israel suffered the first attack-for-trade that forced it to release prisoners in exchange for its citizens: the hijacking of an El Al aircraft to Algeria. Now, four decades later, the bulldozer attack in Jerusalem yesterday highlighted the degree to which the states under assault by Islamic terrorism are ill-prepared for the security realities of the 21st century.
Armies are built to confront each other and find it difficult to adjust to combat with organizations operating from territories where the obligations of sovereignty do not apply. Despite the difficulties terrorists pose to intelligence services, organizations with chains of command, armaments networks and communications are still relatively easy to monitor and uncover when compared to sole individuals who decide to carry out an attack. Each such individual is like an organization. He gets up each morning to go to work, passes through sophisticated security detection and can carry out a terror act, whether long-planned or on a whim.
Whoever annexed the Arab neighborhoods of East Jerusalem dreamed that he was annexing territory and woke to find that he also annexed people. The area's citizens are the center of gravity in the struggle against terrorism. For the defenders, they are the target - for killing, for being terrorized and for indirect pressure on the government. For the attackers, they constitute the work environment of terrorism, and as a result they also force those fighting against it to sharply divide the two groups so the numbers of activists who support or assist terrorism can be contained.
In the traditional division in the laws of war, which also obligate Israel, there used to be only "combatants" and "non-combatants." By default, anyone not in an army was considered an innocent civilian. The emergence of terrorist organizations created a new kind - "illegal combatants." They take part in the fighting, in one fashion or another, but they do not wear uniforms. They shed their civilian form and take on that of a terrorist, and if they are not caught, or shot by a policeman or a soldier (who may also be dressed as a civilian), the story repeats itself.
Until a few years ago, Israel allowed itself to kidnap and hold, or to try and jail, those it defined as illegal combatants - as opposed to prisoners of war. The main justification for this was that they were seen as human tokens, bargaining chips, who could be tossed on the bargaining table in exchange for Israeli prisoners held by hostile groups.
Since 2002, there has been no law allowing this conduct, and on June 11 the Supreme Court blocked this practice. The court's president, Justice Dorit Beinisch, along with Justices Ayala Procaccia and Edmond Levy, deliberated the case of "two senior [members] of the Hezbollah terrorist infrastructure in the Gaza Strip" and established standards for requiring the imprisonment of illegal combatants - Lebanese civilians, Palestinians (resident of the Gaza Strip but not the West Bank) or others who contributed substantively to fighting against Israel, or who are members of an organization carrying out hostile acts against it. Beinisch and her colleagues demanded that the state must henceforth prove the degree of future "individual threat" posed by an illegal combatant being held in prison.
These are two ends of the same stick: on the one hand, there is the two "senior terrorist figures from the Gaza Strip" whose "individual threat" remains and who have close ties to Hezbollah, according to the evidence, and, on the other hand, there is the bulldozer attacker who belongs to no organization and has no suspicious background - there was no reason to attribute to him any degree of threat. Had he surrendered, he would have been charged with a triple murder and would have certainly been sentenced to life imprisonment. With the passing of the years he would have appeared on the list of prisoners whose release would become one of the conditions for releasing Israeli prisoners.
The Supreme Court accepted the argument that the two Gazans "with high probability, will resume terrorist activities if they are released at this time," and that their release may undermine state security, because "they will improve the capabilities of the Hezbollah infrastructure in the Gaza Strip and the threats to the security of the State of Israel and its citizens will intensify," especially following the Hamas takeover in the Strip. The two expressed their wish to resume terrorist activities if released.
But, if this is the case, then the text of the ruling by Beinisch and her colleagues invites petitions in the opposite cases - when the request for a release is made by the state as part of an exchange of prisoners with Hezbollah and Hamas. The opponents of release may force the state to declare that the period of "individual threat" posed by each one of the prisoners to be released, has ended. How, suddenly, will the same person who forbade, now allow? Who will presume to determine the degree of threat when the difference between a bulldozer and a terrorist threat is hidden in the depths of the mind?
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