One commentator13
is of the view that the words clear and present danger have come to mean that arguably, in times of emergency, usually operative legal norms may be disregarded. Implicit in this statement is the axiom Necessitat non habet legem (necessity has no law). The moral foundation of Justice Holmes’ statement brings to bear the philosophical discourse of justi.cation in responding to threats. This in turn revolves round the basic consideration as to what the greater harm is: application of the legal principles to the letter; or suspending them to prevent an evil greater than the disregard of the law.
II. Reacting to Probability
In every instance of terrorism the focus revolves round those who are harmed by such acts. Therefore, it is dif.cult not to discuss the merits and demerits of strategy that would bring about the least damage based on a balance of probability. At one of my classes on international law I asked the students “suppose you are law enforcers and you have clear evidence that a certain person will plan and carryout a bomb attack that would kill an entire village in your jurisdiction, and suppose you know that if you apprehend him, there is a danger of many innocent bystanders being killed, would you go ahead and apprehend him?”
We were in the process of discussing the right of a country to exercise self defence against a possible armed attack. In particular, my class was discussing the fact that international law allows, by virtue of Article 51 of the United Nations Charter, a State to defend itself against an armed attack that occurs against its territory and people, while the attack occurs. This prohibition implicitly precludes pre-emptive or preven-tive attacks on an aggressor based on evidence gathered beforehand.
The United Nations High Level Panel on Threat, Challenges and Change, issued in December 2004 a report which acknowledged that a threatened State can take necessary action as long as the threatened attack is imminent, no other means would de.ect it and the action taken to respond to the threat is proportionate. This statement recognizes that the right of self defence extends beyond an actual attack to an imminently threatened one, provided there is credible evidence of such a threat and the threatened State has no obviously alternative recourse available.
12249 US 47 (1919), 54. 13Keith (2005, pp. 185–196).
C. Emerging Threats 11
Built into my question was the issue of collateral damage, or as we lawyers call it the lawofunidenti.ed consequences. A case in point is the 2002 targeted killing of a military wing leader of Hamas who was known to be planning and ordering numerous successful bombings against civilians. He was also known to have been planning attacks that were unprecedented in size and consequences. In the process, he was using young children as human shields to carry out suicide attacks against Israel. The Israelis believed that killing the Hamas military leader would thwart the planned attacks and save hundreds of innocent lives. The dif.culty in killing this terrorist was that he was constantly changing his living quarters. Often his wife slept beside him, exposing herself, an “uninvolved” person, to the possibility of being killed in an attack against the terrorist. The decision was therefore taken to order a hit only when the terrorist was alone. In one instance, a strike was called off when it was discovered he was with family members. However, when the strike was eventually carried out, the rocket killed not only the terrorist but also his wife, 14-year-old daughter and several others. Israel later issued a statement saying that if they had known the strike action would have resulted in collateral damage the attack would never have taken place.
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