Exacting Revenge

On the night of May 1–2, 2011, four helicopters took off from an American base in Afghanistan and touched down in Abbottabad, a Pakistani city in the foothills of the Himalayas. The US special forces entered the building where Osama bin Laden had been hiding for several years.  The operation lasted just thirty-eight minutes, with the special forces killing the al-Qaeda leader.

The days that followed saw a wave of controversy over the circumstances of bin Laden’s killing. According to initial information provided by Obama administration, there was an exchange of fire between the US forces and the building’s occupants. Bin Laden himself was said to have been about to pick up a weapon — but it soon became clear that only one shot was fired by his courier, who was immediately shot dead.

The debate on the legality of the operation only grew as time went on, specifically with regards to its conformity with international law and the laws of war. And if the operation counted as an extrajudicial execution, it really amounted to an application of the death penalty — dealt out on the spot, without the rights of defense and due process.

What’s most revealing is the account of the operation and the self-congratulatory speech made by Barack Obama himself. On May 2, 2011, he made a brief statement, which most memorably included the following four words: “Justice has been done.” The desire to exact punishment runs throughout what the White House referred to as the president’s “remarks.” Obama pointed to the existence of a crime: September 11, 2001. He briefly summarized the results of an investigation: the attacks were carried out by al-Qaeda, of which bin Laden was leader. Obama recalled his own role — the order given to the CIA to capture or kill bin Laden — and restated the objective: bring him to justice.

A crime, an investigation, a judicial procedure, a sentence: what was presented as one of the successes of the global war on terrorism launched ten years earlier by George W. Bush can in fact be understood as a legal process aimed at punishing a guilty party. And if Obama repeatedly alludes to the idea of justice to justify bin Laden’s death, it’s surely a euphemism for the desire to exact revenge — in this case, one might also add, a desire for revenge that was fully and wholly satisfied.

Anti-terrorist justice as state vengeance: the question I want to explore here goes far beyond the description — and critique — of the exceptional laws and procedures used to respond to terrorism within our democracies. To deal with terrorist enemies beyond our borders, we identify, target, and incriminate without any judicial procedure or due process whatsoever. We condemn a person to death and execute them. From Obama and the Israeli officers in charge of selecting bombing targets in the Gaza Strip, to former French president François Hollande and his policy of targeted assassinations in the fight against ISIS, each have taken on the combined role of investigator, police officer, prosecutor, grand jury, and executioner.

We have made the terrorist enemy into a figure against whom anything is permitted, whether those actions are entirely outside the law, or whether this means changing the law to make the judicial attack against this enemy formally legal. To play on Carl von Clausewitz’s adage, we might even say that justice has become the continuation of war by other means. Are those means any less barbaric and therefore more democratic and acceptable? Is there a difference in kind, or simply in degree, between so-called targeted assassinations, the bombing of terrorist enemies, or their pursuit before judges and defended by lawyers in a court of law according to the rules of due process?

War By Other Means

Since October 7, 2023, the Israeli army has waged war against Gaza and its population. This war is justified in the name of Israel’s “natural right to defend itself,” as the country’s lawyers wrote in their briefs for the International Court of Justice case brought by South Africa, which accused Israel of genocide. As defined in Article 51 of the United Nations Charter, however, self-defense is in fact a very fragile legal basis for justifying retaliatory measures against Hamas’s crimes. But my purpose here is not to reopen this legal debate but to examine the discourse on this war constructed by the Israeli side.

On April 3, the journalist Yuval Abraham published a remarkable investigation for the online magazine +972 revealing the use of artificial intelligence (AI) by the Israeli army in the war on Gaza. Its findings are chilling. We learn that decisions to bomb buildings, and thereby decimate entire families, are taken in a matter of seconds thanks to the results of an algorithm that determines a suspect’s proximity to Hamas. We also learn that the software’s margin of error — acknowledged and accepted by the army — is 10 percent. We know as well that the tolerated rate of civilian casualties is a function of the value of the targeted person: the army is authorized to kill fifteen or twenty civilians to execute a low-ranking Hamas militant, whereas the killing of several hundred civilians is authorized if the target is a Hamas commander.

Abraham’s investigation was based on anonymous statements from six Israeli soldiers involved in developing and using the AI software, called Lavender. Two words stand out from their testimony: “accusation” and “revenge.” To carry out a targeted assassination, the soldiers use terms like “process of incrimination.” This would imply the examination of evidence, verifying that the target is indeed a member of the military wing of Hamas, where he lives and when he is at home. The sources explain that such a procedure would take too long to implement in a wartime situation:

In war, there is no time to incriminate every target. So, you’re willing to take the margin of error of using artificial intelligence, risking collateral damage and civilians dying, and risking attacking by mistake, and to live with it.

In its official statements to Abraham, the army denied using AI, only acknowledging the use of “auxiliary tools” to facilitate the officers’ “incrimination” procedure.

In their statements, soldiers likewise referred to the unspoken orders created by the prevailing climate within the Israeli army in its war on Gaza. One of them explained to Abraham that he was not expressly told that the army’s aim was revenge, before adding: “As soon as every target connected to Hamas becomes legitimate, and with almost any collateral damage being approved, it is clear to you that thousands of people are going to be killed.”

Another officer uses the word “revenge” to describe the climate within the army since October 7. We recall the now well-known statements by senior Israeli officials, cited for example by UN Special Rapporteur Francesca Albanese: take, for example, President Isaac Herzog’s explanation that “it’s an entire nation out there that is responsible” for the attacks of October 7, or Israeli defense minister Yoav Gallant’s description of Palestinians as “human animals.”

Let’s leave aside the question of the appropriate legal characterization of the war waged against Gaza, be it war crimes, crimes against humanity, or genocide. What interests me is that Israel, too, is employing the language of law and justice. We hear talk about responsibility for attacks, “incrimination” procedures, but also vengeance and, therefore, punishment. All these terms show that the war in Gaza is also a punitive operation in retaliation to the crimes of October 7. Carrying out this retaliation thereby takes on the extremely pernicious form of collective punishment. All Palestinians in Gaza have become legitimate targets in the eyes of the Israeli army, seeing as everyone may be in the vicinity of a military target.

In Absentia, and Dead

In the late afternoon on June 29, 2022, I found myself in the old Paris courthouse on the Île de la Cité. The Grand Courtroom was again buzzing with lawyers, journalists, gendarmes, victims, writers, and researchers — all waiting for the special tribunal to deliver its verdict after ten months of proceedings in the trial of the November 13, 2015, Paris terrorist attacks. With the timing of the verdict repeatedly postponed, there we were, waiting.

This court was biding its time, as is often the case. After the final statements given by the defendants in the late morning two days earlier, hearings were adjourned and the magistrates retired for deliberation. When Judge Jean-Louis Périès announced the verdict, it took only a few words from him — (almost) all the questions before the court had been answered in the affirmative — for me to realize that the man I’d been defending for four years had been found guilty. I was overwhelmed by a feeling of dejection, failure, and disgust.

But I don’t want to talk about my client right away. Rather, I’d like to start with another defendant, one of the twenty individuals on trial: Oussama Atar. He was considered by the court to be the mastermind behind the November 13 attacks, the person who initiated the plan and ordered them to be carried out. He was sentenced to the harshest penalty in French law: life imprisonment without parole, with, seeing as he is a Belgian national, a permanent ban from French territory. Spelled out in 126 pages, written and deliberated in forty-eight hours, the court’s argument reads as follows:

Seeing as Oussama ATAR did not appear before the court, no element can be taken into account that might possibly mitigate the sentence to be pronounced against him, which must therefore be particularly severe.

He didn’t show up for the trial. He didn’t explain or defend himself. He didn’t benefit from any of his rights. No lawyer spoke up for him. And for good reason: he had already been killed. The court also wrote:

According to a [Belgian] intelligence note dated January 16, 2018, Oussama ATAR died in November-December 2017 in the frontier zone between Iraq and Syria. In the absence of objective confirmation, he will be found guilty.

Information leaked to the press from intelligence sources was more precise, however, revealing that Oussama Atar had been killed by international coalition bombing in Syria on November 17, 2017. Unlike with bin Laden, there was no talk of victory, revenge, or justice, with France being relatively more discreet in tracking down and assassinating terrorists. If his execution went unnoticed, it’s because Oussama Atar doesn’t have the same stature as bin Laden. In fact, France has developed a habit of trying and convicting dead terrorists. Just in case. . . . If they come back, they’ll serve their sentence immediately. This is an absurdity of course because in that highly unlikely event, they would be entitled to a retrial.

“V13,” as the November 2015 trial is often called, has been held up as a model of extraordinary yet law-abiding justice, democracy’s response to barbarism. Nevertheless, it ended with the curious act of sentencing to life in prison a man who had already been killed four years earlier. Procedure, words, arguments, evidence, and legal trappings were rolled out, all to better conceal the morally and legally shaky act of executing — by targeted bombing no less — a man who was unable to defend himself. In this case, again, justice was an extension of the military operation, one might even say a supplement to it, symbolically executing a man who had already been killed.

The participants in these trials were serious, sometimes funny, and came well-armed with arguments and evidence. Judges, prosecutors, and lawyers cordially, at times firmly, debated with each other. And we went away with the impression of an open, democratic debate. Upon closer inspection, however, it’s clear that what was really at stake was upholding the spectacle of justice. All these words and notions, which were hardly followed to the letter, allowed everyone to proclaim loud and clear on the evening of the verdict, like Obama on May 2, 2011: “Justice has been done.” And as we often like to add, “Our democracy is stronger than the terrorists’ barbarism.”

Apology for Terrorism?

I have defended Yassine Atar, Oussama’s younger brother, since August 2018. He sent a letter to my office from Fresnes Prison, telling me he was under investigation for the November 2015 attacks and that he was innocent. He was first arrested in Belgium in March 2016, just after the subway and airport attacks in Brussels. Charged and detained in Belgium in various terrorist cases, he was gradually cleared of any involvement in them. That is until one day Belgian investigators discovered that one of the keys they had seized during the search of his home opened the door to the lobby of the building — but not to the upstairs apartment — where the terrorists who planned the November 2015 attacks had gathered.

Like a gift from on high, this key was the link between Yassine Atar and the Paris attacks. His status as Oussama’s younger brother was initially insufficient to implicate him.

In June 2018, Yassine Atar was transferred to the French prison in Fresnes, at which point his case would soon take on an enormous place in my life, work, and practice. From then on, my routine included going to Fresnes on an almost weekly basis. We all know the horror that are French prisons. The disrepair and indignity of the Fresnes prison is a mystery to no one. Add to that the inhumanity of solitary confinement.

If we found ourselves dealing with an examining magistrate in Paris who specialized in terrorism, that was not because of the particular complexity of this case. Any trial, even those treated under the normal criminal code, can raise extremely complex legal, social, and human questions. Rather, this centralization in Paris is due to a 1986 law, France’s first anti-terrorism law, which created a special procedure for trying so-called terrorist cases. The gradual effect of this law has been to remove legal reflection on terrorism from the oversight of nonspecialized magistrates, as well as from popular scrutiny.

One of its effects has also been to extend the possible application of the term “terrorism” to cases that should never have been considered “terrorist” at all. The Tarnac fiasco of 2008, which targeted so-called ultra-left militants, is the most flagrant example. But we could also point to the French state’s criminalization of Kurdish militants as terrorists. In French criminal law, terrorism is a political characterization that makes it possible to designate an enemy through the deployment of an array of exceptional legal procedures.

It was, therefore, in front of a specialized anti-terrorist magistrate in Paris that Yassine Atar was called to answer endless questions about his life around November 13, 2015, or about his views on religion and his relationship with his brother and cousins, who have been shown to have organized and planned the Paris attacks and committed the Brussels attacks of March 2016. In these hearings, it’s the accused who must demonstrate their innocence if they want to walk away free — and not the other way around.

In 1999, the International Federation for Human Rights sent observers to France to examine the way its anti-terrorist justice system functioned. Two lawyers — one English, the other Italian — produced a report after their investigations in France. It included the following observation:

It is clear that the central figures in the investigation of alleged terrorist offences,the juges d’instruction [examining magistrate], tend from the outset to assume the worst of those mis en examen [under investigation]. . .

The questioner reads out his prepared question, always extremely lengthy, full of references to other documents and far from simply constructed. In fact, we have not come across a question which does not contain at least another two or three or more. The detainee replies, briefly, and the questioner puts his next lengthy prepared question. And so it goes on. It strikes us as extraordinary that this kind of procedure should be regarded as conducive to the search for the truth. It reminds us of nothing so much as an inquisition in the more restricted, medieval sense of the word.

At the time, an anti-terrorist prosecutor described this report as providing an apology for terrorism. Such is the situation we now face.