Regulating Anti-Terror Warfare Through the Individual Dangerousness Doctrine: Theory and the Israeli Supreme Court Jurisprudence

Abstract

Is it permissible to extra-judicially detain a person or even intentionally kill him, based on information that he is a “member” of a terror organization? The prevailing approach calls for applying the international laws of war, where the answer is based on determining the “status” of the targeted-person. Once it is established that a person’s involvement in the hostilities meets some threshold, he loses the protection afforded to civilians and may thus be targeted or detained.This Article questions this approach. It suggests that the unique characteristics of the fight on terror require imposing a duty to justify, on an individualized basis, targeting and detaining persons. Anti-terror warfare is an armed conflict of a special type in two main aspects: the terrorists often disguise themselves among civilians, thus creating an enhanced risk that anti-terror warfare will result in mistakenly targeting innocent people; and the terrorists are not acting as part of a political entity, which may be reasonably held responsible for the terrorists’ choice to employ this practice of blurring the distinction between combatants and civilians. Consequently, a state that fights terror is required to further mitigate the risk of targeting or detaining innocent people. For this purpose, the power to target or detain suspected terrorists should be subject to the constraints that result from human rights law. The Article presents the conditions of the permissibility of employing anti-terror measures: The purpose of the action must be preemption rather than retribution or deterrence, the risk posed by the targeted person should be sufficiently high, in terms of the probability that he will be involved in a terror attack if not thwarted, and the measure taken should be the least harmful alternative to achieve its aim. The Article discusses this doctrine of “individual dangerousness,” and presents the plausibility of its implementation through a discussion of the Israeli Supreme Court anti-terror jurisprudence, which already applies, to some extent, this doctrine.