The Hague, Netherlands – On March 30, 2016 the Centre for Information & Documentation on Israel (CIDI), a politically independent organization that serves as the Netherland’s prime source of information on Israel and the Jewish people, hosted an international symposium on Terrorism, Israel & International Law. More than 300 laymen, journalists, policy makers, and politicians, gathered at the auditorium of literary society De Witte in The Hague to hear an interesting array of national and international experts on terrorism, security, and international law. The Symposium had been planned before the unforeseen suicide bombings in Brussels on March 22, in which 32 civilians and 3 terrorists were killed, and more than 300 people were injured. The increased threat of terrorism in Europe made the discussions all the more timely.
Jan Jambon (b. 1960), Belgium’s Deputy Prime Minister and Minister of Security and Internal Affairs, was expected to cancel his speaking engagement due to the recent attacks at Brussels and his meeting with Barack Obama scheduled the next day, but was present after all. He spoke as representative of a “tormented nation” and addressed the current state of affairs in Belgium and the future of Europe. The bombs exploding at a stone’s throw from his cabinet were the most disturbing thing he had ever experienced in life, he said. Terrorists are playing “cat and mouse games with our security services and police,” like those in Brussels’ Molenbeek district, but they will not be able to destroy “our society.” He made a clear distinction between “we,” who hold democratic values, and “they,” the terrorists that seek to destroy these values.
“Nobody desires a real police state,” according to Jambon, but we will all feel the consequences of the attacks in our personal liberties. These terrorists are highly trained professionals that know how to circumvent surveillance and it is the government’s responsibility to protect its citizens against them. The fight against terrorism will have to be waged on all levels. Absolute respect for the privacy of individuals will have to be yielded for the sake of society’s well-being. Belgium has already taken 30 measures to confront the issue. For example, job applicants will have to be screened more thoroughly before being permitted to fulfil certain positions. Suspects might even have to be arrested before actual transgression of the law, for the sake of public safety. Jambon also stressed the need for international cooperation. “Society has lost its innocence,” he said. Procedures and structures will need to be adapted to meet contemporary challenges, which entrenched government structures presently fail to meet adequately. Security must become a constituent part of “the new social contract” between the community and its government. He also stressed the need for unity and social cohesion in the face of difficult times ahead.
The second speaker was Alan Baker (b. 1947), a British-born Israeli expert in international law and Israel’s former ambassador to Canada. He currently serves as Director of the Institute for Contemporary Affairs at the Jerusalem Center and is the head of the Global Law Forum. His speech centred on the necessity of criminalising incitement to terrorism to prevent the spread of extremist ideology. At present international law does not yet recognize incitement to terror as criminal, so that radical Islamic preachers and media outlets like Al Jazeera are not held responsible for the acts of violence, which their ideology inspires. Baker encouraged the audience to take up this cause, which he has been advocating for several years now. He was the principal author of the Draft International Convention for the Prevention of Incitement to Terror and Violence, which was presented at the “Conference on Incitement to Terror and Violence – New Challenges, New Responses” held at the United Nations Headquarters, New York, February 28, 2013. Baker said that “hateful speech” does not necessarily constitute incitement to terrorism unless it actually results in acts of violence. The element of persuasion to violence has to be there.
James Woolsey (b. 1941), a national security expert and former director of the CIA, began his speech in typical American fashion and compared the “central problem” in the world today to the plot of the American Western movie High Noon (1952). It tells the story of a newly wedded town marshal who has just turned in his badge and is about to leave town with his lovely bride, when he receives word that the local gang is about to return with the intention to kill him. Since there is no new marshal in town, he decides to stay and takes on the gang himself. Woolsey said that this situation reminds him of the world today: We are trying to get a lawful society, but there is no marshal, no sheriff. There is no one to enforce international law and bring these criminals to justice. He criticised the idea of political correctness as “an insidious doctrine” used to avoid responsibility and emphasized the need of addressing the problems frankly. He said that while America and its allies had done a great job in the 20th century by bringing down Nazism and Communism, the problem confronting the West in the 21st century is greater due to its religious roots. He emphasized, however, that religious extremism has always had the support of a minority of the community: Just as the Salem witch trials were conducted by a minority of the Puritans of New England, and the inquisition in the Middle Ages by a minority of the Catholics, so terrorism is conducted today by a minority of the Muslim population.
Woolsey further discussed the threat posed by North Korea’s potential use of an Electromagnetic Pulse weapon that might set us back to pre-electric conditions, like those of agrarian society in the nineteenth century. Not only would it take years to replace the infrastructure, Woolsey also feared that two-thirds to ninety percent of the American population might die within the next few years, due to the chaos resulting from a lack of basic commodities like food and water. He also said that Obama’s nuclear deal with Iran did not alter the fact that Americans, Europeans, and Israel are still facing a “major terror challenge.” “I tend to think that Iran may already have a nuclear weapon,” he said, but added that even if they don’t, it is almost certain that they will have one in the next few years. Woolsey criticised Obama’s agreement with Iran because it makes it easier for Iran to obtain a nuclear weapon. He said that the next President will have to acknowledge the deal to be “premature at best and fraudulent at worst.”
Alan Dershowitz (b. 1938), an American legal expert and prominent author, could not be present at the meeting in person, but addressed the audience from his apartment in New York, via a Skype connection set up for the occasion. He reminded the audience of the fact that “rights come from wrongs:” the great number of civilian deaths in World War I and II led to the formulation of human rights to prevent genocide and other atrocities. One of the outcomes of post-war legislation was the legal distinction made between civilians and combatants, known in international law as the principle of distinction. It is closely connected to the principle of proportionality, which weighs the military necessity of an attack against the number of civilian casualties involved. The bombing of Nagasaki and Hiroshima, for example, was completely unnecessary because Japan was already defeated and American citizens were not at risk. But suppose a terrorist organization in Iran threatens to launch a nuclear missile from a hospital compound? In such a case, a preventive attack might be a military necessity, from the perspective of the nation under threat, to save the lives of its own citizens. A preventive attack might involve the deaths of civilians that are used by terrorists as human shield, while saving the lives of people that might otherwise be killed by the bomb. The principle of proportionality deals with the legitimacy of an attack in terms of lives saved versus civilians killed.
Dershowitz pointed out that terrorist organizations like Hamas and Hezbollah often hide behind human shields and fire missiles from schools and hospitals. What if a country like Israel strikes back to prevent its citizens from being killed by those terrorists, but also causes the death of civilians in the attack? Dershowitz emphasized that in dealing with such cases, the International Criminal Court in The Hague should adopt and maintain a universal standard of justice that equally applies to all nations. This requires a proper definition of the terms “combatant” and “non-combatant.” Since terrorists usually operate in secret and don’t wear uniforms, nor carry their weapons visibly – perhaps even working a regular job during daytime and fixing bombs at night – the current law of distinction fails to adequately define a “non-combatant.” Who is a terrorist? When is he a terrorist? Where is he a terrorist? Does a village baker qualify as a civilian during the daytime, when he runs his shop, and becomes a combatant only after nightfall, when he engages in terrorist activities? When would it be legitimate, from a legal and military point of view, to attack and kill him? What about people that store weapons in their basement or finance terrorist activities? Are they civilians or combatants? Because the term “civilian casualty” is such a gray area, the current law offers more protection to terrorists in the garb of civilians than it does to regular soldiers. An intentional attack on a civilian is regarded as a crime, whereas killing a soldier in his sleep is not regarded as such, because he is officially engaged in military conflict, even if that soldier is but the army’s cook or musician. To correct this unbalanced state of affairs, Dershowitz has for many years advocated a principle which he calls the “continuum of civilianity,” which basically holds that a civilian must be such at all times and places in order to be protected as “non-combatant” by international law. A proper definition of the term “non-combatant,” recognized by the International Criminal Court and equally applying to all nations, would foster the cause of justice.
Alexander van Dam, deputy head prosecutor of the Dutch Public Prosecution Service, and his colleague Bart den Hartigh, national prosecutor responsible for counter terrorism, discussed the history of terrorism in the Netherlands and spoke about the difficulties and responsibilities involved in tracing, arresting and prosecuting terrorists. Van Dam had personally led the case against the Amsterdam-based terrorist organisation Hofstadgroep and its leader Mohammed Bouyerie, the murderer of Dutch filmmaker Theo van Gogh. He said that since March 2013 the risk of an attack in the Netherlands is substantial, not least because the Dutch government belongs to the anti-IS-coalition. To date 230 people with Dutch passports have joined the war in Syria and Iraq, 40 have returned and a little over 40 have been killed. The Public Prosecution Service seeks to prevent such departures, not only because their return, after being trained as jihadists, poses a risk to the Netherlands, but also because the Dutch government seeks to protect its youth against themselves, besides preventing its citizens from committing crimes abroad.
The speech of Edwin Bakker, Professor of Terrorism and Contra-Terrorism at the University of Leiden, focused on the war in Syria and Iraq and noted that the scope and complexity of the problems involved is much greater than most of us realize. He pointed out that home-grown terrorism has evolved over the years into a movement of jihadists going to war abroad. 5.000 foreign fighters with European passports, in addition to 20,000 from other Islamic countries, like Jordan and Saudi Arabia, have already joined the ranks of ISIS or their opponents. Where will these men go when the war is over, seeing they are no longer welcome in their own countries? Bakker warned that their illegal alien status could easily expose them to the influence of criminals. He also addressed the psychological impact on the lives of young people, whose romanticised picture of the war is likely to be distorted, and some of them may return traumatized. Others might radicalize still further and return to Europe, after being trained for combat abroad, to commit attacks on European soil or to spread propaganda and recruit jihadists. Bakker stressed the necessity of a “broad approach” to tackle these and other issues involved. “There is a kind of global war going on,” he said, “I don’t think this genie can be put back into its bottle.”
Eli Bahar, former head of the legal department of the Israeli internal security service Shin-Bet, noted the difference between classic warfare and the modern threat of terrorism. “The days in which wars were fought on the battlefield between two armies are over,” he said. The frontline is now in the cities. The current crisis requires changing “legal infrastructure” and “surveillance capabilities” to enable governments and intelligence services to share information quickly. To attain this end, Bahar stressed the need of international cooperation. He suggested the creation of “one database” to make “big data” readily accessible for global intelligence.
The security experts that spoke at the CIDI symposium seemed to agree that the threat of terrorism is here to stay, so that further international cooperation, greater surveillance, more anti-terror laws and stricter enforcement are forthcoming. As Jan Jambom pointed out at the beginning of the meeting, we will be required to sacrifice more liberties in the name of public safety.