A Legal Analysis of Suicide Bombing: Blowing Up the Law of War?
Tansey, Roger, Kennedy School Review
The various Palestinian resistance groups that sponsor suicide bomb attacks, such as Hamas or Islamic Jihad, have long claimed that such attacks comport with the laws of war. This article analyzes these claims and finds that these attacks against civilians, even against settlers in the occupied territories, violate international customary law, the Geneva Conventions, and other treaties. As such, these violations constitute war crimes. But surprisingly, not all suicide attacks are unlawful. Suicide attacks against exclusively military targets may be lawful, and the fact that the bomber chose to commit suicide in the course of the attack is of no legal import. International law does provide a remedy for suicide attacks against non-military targets in that the Geneva Conventions allow and, it can be argued, even require all states to seek out and prosecute prospective suicide bombers and those who support them. The failure of countries to do so is not a failure of the law; it is a failure of political will.
Not all of the power of a suicide attack comes from the bomb. The very idea of a person willing to blow himself to bits is a powerful statement in itself, beyond the understanding of most. Aside from the destruction of those around him, a suicide bomber also causes a less obvious, but no less corrosive erosion of the rule of law. Those promoting suicide attacks have claimed that those acts are sanctioned by the laws of war. It is therefore surprising that a review of the published literature shows no works discussing the legal claims made by suicide bombers or the organizations which sponsor them. This article will therefore review such attacks from the perspective of the law of war, also known as international humanitarian law (IHL), (1) and assess their legality under those laws. Because they have been studied the most, suicide bombers in the context of the Palestinian-Israeli conflict will be the focus of this article although the legal conclusions contained herein are equally applicable to attacks elsewhere.
This article has seven sections. The first section discusses the nature of suicide attacks; the second section discusses the relevant international law and its applicability to Israel and the Palestinians; (2) the third section discusses the legality of suicide attacks against civilians; the fourth section covers suicide attacks against the military; the fifth section discusses other violations of the law of war; the sixth section discusses various defenses claimed by the supporters of suicide terrorists; and the final section concludes with several observations.
The Nature of Suicide Attacks
Definition and Description
Although suicide attackers have existed throughout history, (3) the first suicide bomber from a Palestinian group struck on 16 April 1993 at a restaurant in the Jordan Valley. (4) Since that time, there have been 209 attacks in Israel, and such attacks have become ubiquitous, appearing almost daily in conflicts involving Sri Lanka, Israel, Afghanistan, Chechnya, or Iraq. While their motivations may vary, the attackers' goal does not: to kill, maim, or terrorize a population, usually composed of civilians.
With the rise of the intifada in Israel in 2001, the number of suicide attacks has grown dramatically. Between 1993 to 2000, there were an average of only 5.8 suicide attacks per year in Israel and the occupied territories. In 2000, there were five attacks; when the intifada began in 2001, that number rose to 52; and in 2002, there were 68. (5) The preferred method of attack is to carry bombs on the body (77 percent) or packed into cars (23 percent). (6) Suicide bombers are also the most lethal form of terrorism: while accounting for only 3 percent of terrorist attacks from 1980 to 2001, they caused almost half the casualties. (7)
Suicide attacks may be defined simply as attacks in an armed conflict, either internal or international, during which the attacker intentionally dies. …