Targeted Killing in International Law

International law is not a suicide pact. Israel, a country that is half the size of Lake Michigan, now lives under the constant shadow of Hamas, Hezbollah and several other related Arab/Islamic groups who deliberately target Jewish civilians, primarily young children.

Prof. Louis René Beres

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Now that Israel has eliminated Hamas terrorist mastermind Sheik Ahmed Yassin, Prime Minister Sharon is likely to target Yasser Arafat and Hezbollah's Sheik Hassan Nasrallah. Together, Arafat and Nasrallah are indisputably responsible for the callous and cruel murder of many Israeli men, women and children - usually with nail or razor-blade-filled explosives designed to mutilate, poison and burn restaurant patrons, bus passengers and students. Although conventional wisdom would have us believe that assassination must always be a crime under international law, this is surely not the case. If it were, the United States would not now be openly placing "dead or alive" bounties on the heads of various Al-Qaeda leaders, most notably Osama Bin Laden.

International law is not a suicide pact. Israel, a country that is half the size of Lake Michigan, now lives under the constant shadow of Hamas, Hezbollah and several other related Arab/Islamic groups who deliberately target Jewish civilians, primarily young children. The preferred weapon of the terrorist who attacks nursery schools and ice cream parlors is a bomb filled with sharp projectiles that have been dipped in rat poison. Not a single Arab/Islamic terror group recognizes the right of Israel merely to remain "alive", and each terror group is explicitly dedicated to the proposition that any sort of peace with Israel is an intolerable abomination to Islam. With these facts in mind, what can we now say about the status of Israel's openly expressed and unfairly criticized policy of assassination under international law?

First, we must understand that Israel's current policy is being undertaken with great sadness, resignation and reluctance. For years, Israel had routinely capitulated to virtually every enemy demand, hoping - desperately - to secure thereby a serious peace. The Arab/Islamic response has been a steady and planned escalation of frenzied and indiscriminate bombings, lynchings and shootings. The cry "Slaughter the Jews" is still heard loudly in every corner of the Arab world, even after former Prime Minister Barak offered Arafat virtually every concession imaginable.

What is Israel to do?

Every state has the right and the obligation to protect its citizens. In certain circumstances, this right and obligation extends even to assassination. This point is especially well understood in Washington, where every president in recent memory has given nodding or even direct approval to relevant "removal" operations, and where current assassination efforts in Iraq and Afghanistan are hardly a secret. Moreover, when American presidents resort to assassination (which is, ironically, expressly forbidden by U.S. law) they are acting to defend the interests of the strongest state on Earth. Israel, half the size of an American lake, is not quite as strong.

More than any other state in the world, Israel faces a real daily threat of national extermination. The Arab world, which even excludes Israel from all its maps, openly prefers the term "liquidation" whenever it speaks of "the Zionist Entity". According to the Charter of Hamas, the terror group founded by the late Sheik Yassin, "There is no solution to the Palestinian problem except by Jihad... I swear by [he] who holds in His hands the Soul of Muhammad: I indeed wish to go to war for the sake of Allah! I promise to assault and kill, assault and kill, assault and kill." Soon, very soon, Hamas and its sister terror groups will have access to chemical, biological and perhaps even "dirty bomb" nuclear weapons.

It is generally true that assassination is a crime under international law. Yet, in our decentralized system of world law, self-help by individual states is often necessary. In the absence of particular assassinations, terrorists would ceaselessly continue to wreak havoc against defenseless civilians in Israel, and would do so with utter impunity. Effectively immune to the proper legal expectations of extradition and prosecution (because the United Nations is manifestly disinterested in justice for Israelis), these terrorists would continue to murder Jews with great passion and ecstatic joy.

Ignoring the ancient legal principle of nullum crimen sine poene, "no crime without a punishment," the UN now worries assiduously about Israel's security fence, but does not even whisper a condemnation when Palestinian terrorists literally wash their hands in the blood of their victims (a scene filmed by a courageous Italian TV crew after the lynching of two Israelis in Ramallah several years ago). And while it is true that custody over terrorists may be achieved by forcible abduction and subsequent trial in domestic courts - an option recognized in United States law and exercised by Israel in its capture of mass-killer Marwan Barghouti - this remedy may cost a great many more innocent lives in the form of consequent terrorism. For now, the world still denies Israel access to wanted terrorists. Notwithstanding longstanding international legal obligations to extradite terrorists, few if any countries on our civilized planet would ever honor any proper Israeli requests for extradition. It follows that sometimes the only available remedy for justice available to Israel in its life or death struggle against terrorism lies in unilateral enforcement action.

What if the terrorists should have "just cause?" Palestinian bombers and shooters who indiscriminately maim and burn Israelis think themselves to be fighting for decent objectives. But even if these objectives could be accepted under pertinent international law, the barbarous means used in their "military" operations can never be taken as lawful. The law of armed conflict makes perfectly clear that the ends can never justify the means.

A cause, even if it is legitimate, can never excuse the use of premeditated violence against the innocent. Never. By the standards of contemporary international law, terrorists are known as hostes humani generis, or "common enemies of humankind." In the fashion of pirates, who were to be hanged by the first persons into whose hands they fell, terrorists are international outlaws who fall within the scope of "universal jurisdiction." That Arab/Islamic terror-crimes are always directed specifically at Israel assuredly removes any doubts about the reasonableness of Jerusalem's particular jurisdiction.

No doubt, assassination is normally an illegal remedy under international law. Yet, support for a limited right to assassination can be found in the classical writings of Aristotle, Plutarch and Cicero and even in Jewish history - ranging from the Sicarii (who flourished at the time of the destruction of the Second Temple) to Lehi (who fought the British mandatory authority). Should the "civilized" community of nations ever reject this right altogether, it will have to recognize that it would, in certain instances, be at an egregious expense of innocent human life. Still lacking any effective central global institutions to interpret and enforce the rules against terrorism, the existing law of nations must on occasion continue to rely on even the most objectionable forms of self-help.

Assassination, subject to the applicable rules of law, may be the least injurious form of available punishment. Where additional terrorist crimes are still being planned, as is certainly the case today among PLO/Fatah/Hamas/Hezbollah/Islamic Jihad, the permissibility of assassination is even greater. This is the case because our world legal system is obligated to protect us all from clear and terrible infringements of our fundamental human rights, and because this system still has no independent centralized means to meet this obligation. With respect to Israel's rights in particular, international law enforcement is shaped not by general considerations of justice, but rather by specific and continuous bias against the Jewish State.

In the best of all possible worlds, assassination would have no defensible place as counterterrorism. But we do not yet live in the best of all possible worlds, and the negative aspects of assassination should not be evaluated apart from all alternative options. Rather, such aspects should always be compared to those expected of these other options. If the expected costs of assassination appear lower than the costs of alternative counterterrorist options, then assassination must emerge as the rational choice. However odious it might appear in isolation, assassination in such circumstances could represent the least injurious path to improved safety from terrorism.

Assassination, even of a terrorist, will almost always elicit indignation. After all, living, as we do, in the "modern" age of civilization and culture, how else should decent people react to the idea of killing as remediation? Yet, the civilizational promise of modernity is far from realized, and imperiled states must inevitably confront choices between employing assassination in very residual circumstances, or renouncing such employment at the expense of justice and safety. In facing such choices, these states, especially Israel, will discover that all viable alternatives to the assassination option also include violence, and that these alternatives may often exact a much larger toll in human life and suffering.