Special to Israel National News
Israel’s targeted killings of jihadist terror leaders represent defensive acts of law enforcement. Under binding international law, terrorism is an egregious crime that should best be prevented and always be punished. All pertinent rules affirm the core principle of "no crime without a punishment.” These principles can be found at the London Charter of August 8, 1945, founding document of the post-World War II Nuremberg Tribunal.
In its most recent act of targeted killing, Israel eliminated Hamas terrorist mastermind Yahya Sinwar. Under both customary and conventional law, terrorists like Sinwar are always hostes humani generis or "common enemies of humankind." While the world legal system allows or even encourages insurgencies on plausible claims of “self-determination,” there is nothing about these claims that can ever justify deliberate attacks on civilians. To wit, an integral part of all criminal law, national and international, is the presence of mens rea or “criminal intent.”
In law, there can be no reasonable comparisons of jihadist terror leaders’ willful mass murder of Israeli noncombatants and the unintended harms to Palestinian Arabs suffered in Gaza. Legally, responsibility for such harms falls directly on the “perfidious” behavior (i.e., “human shields”) of Hamas and terror-patron state Iran. Under the authoritative law of war, also called humanitarian international law, even where insurgent use of force draws upon a supportable "just cause," insurgents must fight with "just means." There are no exceptions.
Ordinarily, assassination, like terrorism, is a crime under international law. Under certain conditions, however, the targeted killings of terrorist leaders represent life-saving expressions of “decentralized” law-enforcement. Because the world legal system lacks a central government enforcement provision (this system exists in what the legal philosophers call a “state of nature”), “self-help” often represents an injured state’s only credible remedy.
In essence, for Israel, the only alternative to launching precise targeting actions against key terrorist leaders like Sinwar would be to allow expanding terror-violence against the innocent. Prima facie, after the barbarous terror events of October 7, 2023, any such alternative would be a further defilement.
There are assorted nuances. To accept the targeted killing of terrorist leaders as law-enforcing remediation could seem to disregard the usual obligations of "due process." But international legal relations are never driven by the same civil protections offered (more or less) by individual national governments. Any Israeli hopes that terrorist offenders could be brought to justice within the formal parameters of international criminal law would almost always be shattered.
On October 7, 2023, Palestinian Arab Hamas attackers coordinated the mass rape-mutilation of males as well as females, of children as well as adults. Ipso facto, this rabid criminality was not oriented to any legal goals of national self-determination. To the contrary, it was conspicuously visceral and manifestly primal.
In the future, with continued sponsorship from Iran, jihadist terror attacks could exploit chemical, biological, electromagnetic pulse (EMP) or radiation dispersal (quasi nuclear) weapons. What could then be concluded about the rights of due process versus the rights of freedom from terrorist-directed mass murder?
International law is not a suicide pact. As should have been learned on October 7, 2023, jihadist attackers add gratuitously corrosive effects to their murderous ideologies. At “bottom line,” these “sacred” ideologies embrace the sacrificial slaughter of “unbelievers.”
There is more.
What is most noteworthy about Israel’s targeted killing of terrorist leaders is not its permissibility in law. It is the global community’s widespread indifference to a beleaguered mini-state’s most elementary right to survive.
Israel, it is seldom realized, is less than half the size of America’s Lake Michigan. As for the jihadist terrorists who so gleefully inflict indiscriminate harms, their ritualistic violence is an intended form of religious sacrifice, one designed to turn wanton criminals into “martyrs.”
By longstanding standards of international law, terrorists resemble pirates, “common enemies of humankind,” subject to punishment by the first persons into whose hands they fall. Accordingly, Hamas terrorists remain international outlaws whose defilements lie within the scope of "universal jurisdiction." This means that any law-based country can reasonably claim a valid right to arrest, prosecute or target terrorists, even where there exist no geographic or citizenship ties to the terror-criminals.
There is a pertinent history. Early support for the right to target “common enemies of humankind” can be found in canonic writings of Aristotle, Plutarch and Cicero. If the worldwide community of states should ever choose to reject this right altogether, it would then have to accept responsibility for any reciprocally injurious effects on innocents. Sometimes, targeted killings, subject to applicable legal rules of distinction, proportionality, and military necessity, could offer the least unwelcome form of national self-defense.
In the best of all possible worlds, targeted killing could expect no defensible place in law-based counterterrorism. But we do not yet live in the best of all possible worlds, and the negative aspects of such killing ought never to be evaluated apart from alternative policy outcomes.
If Israel had chosen not to target jihadist terror group leaders like Sinwar so as not to disturb the sensibilities of “civilized nations,” it would have sealed the fate of many innocent human beings.
Though indispensable, counterterrorism should always be governed by rational and justice-oriented decision-making processes. If the cumulative costs of a particular targeted killing appear lower than the presumptive costs of all other self-defense options, such killing action would then emerge as the rational choice. However odious it might appear in vacuo, targeted killing in these circumstances could offer the least injurious path to human security from potentially unbounded terror-criminality.
Inevitably, targeted assassinations, even of patently barbarous jihadist leaders, will elicit screams of indignation from “civilized” quarters. Nonetheless, at least for now, the historic promise of centralized world legal order remains far from any tangible realization. In assessing operational choices, all law-supporting states, not just Israel, would discover that the identifiable alternatives to targeted-killing also include violence and that these alternatives could ultimately exact a much larger toll in human suffering.
Though possibly counter-intuitive, Israel’s targeted killing of jihadist murderers like Sinwar is indispensable to justice. Rather than express any whimsical or disingenuous condemnation, national leaders across the world ought finally to understand that Israel’s fight against terror crimes is also a fight on behalf of all civilized nations. For the foreseeable future, international criminal law will still need to rely on the residual dynamics of self-help.
With its law-enforcing removal of arch-terrorist Yahya Sinwar, Israel has again demonstrated that justice without courage is a contradiction in terms.
LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and scholarly articles dealing with international law, nuclear strategy, nuclear war, and terrorism. In Israel, Professor Beres was Chair of Project Daniel. His twelfth and latest book is titled Surviving Amid Chaos: Israel's Nuclear Strategy (Rowman & Littlefield, 2016; 2nd ed., 2018).
Some of Dr. Beres' publications have appeared in The New York Times; The Atlantic; Israel National News; Yale Global; The Daily Princetonian; Harvard National Security Journal (Harvard Law School); The Hill; International Journal of Intelligence and Counterintelligence; Jurist; Modern Diplomacy; The Jerusalem Post; International Security (Harvard); Middle East Review of International Affairs (Israel); Infinity Journal (Israel); BESA Perspectives (Israel); INSS Strategic Assessment (Tel-Aviv); Modern War Institute (Pentagon); Small Wars Journal; The War Room (Pentagon); The Strategy Bridge; Oxford University Press Yearbook of International Law and the Bulletin of the Atomic Scientists. He is a former recipient of the Bulletin’s Rabinowitch prize. Dr. Louis René Beres was born in Zürich at the end of World War II.