AFTER NETANYA

SHOULD TERRORIST MASTERMINDS
BE ASSASSINATED?

By Louis Rene Beres

18 May 2001

For a time, Israel has used assassination (more or less successfully) to deal with terrorist masterminds. Is such Israeli military action permissible under international law? Indeed, is assassination ever permissible as a form of counter terrorism?

Whether or not such a controversial remedy could ever make long-term tactical sense for Israel remains to be seen. What is clear, however, is that such assassinations could - in certain very limited circumstances - be judged law-enforcing according to international law. Matters might be different if we lived in a world legal order with effective and competent central authority structures, but we do not yet live in such a world.

Normally, 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 - like those Palestinian elements who ceaselessly wreak havoc against defenseless civilians in Israel - could remain altogether free. Immune to the proper expectations of extradition and prosecution, these terrorists would continue to murder Jewish men, women and children who are shopping for Shabbat. And while it is true that custody over terrorists may be achieved by forcible abduction and subsequent trial in domestic courts, this remedy inevitably costs a great many more innocent lives, both in the operation itself and in the form of additional terrorism.

For now, our world legal order still lacks an international criminal court with jurisdiction over individuals. Only the courts of individual countries can provide the judicial context for trials of terrorists. Where states or aspiring states harbor such criminals and refuse to honor extradition requests (e.g., the Arab/Islamic states and the Palestinian Authority), the only decent remedies for justice available to victim societies lie in unilateral enforcement action.

What if the terrorists should have "just cause?" Palestinian bombers who indiscriminately maim and kill Israelis certainly think themselves to be fighting for decent objectives. But even if these objectives could be accepted under pertinent international law (and they can not be so accepted) the barbarous means used in their murderous 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 were legitimate, can never excuse the use of violence against the innocent.

By the standards of contemporary international law, terrorists are known as "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 bombers' 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 the expense of justice. Lacking any central global institutions to interpret and enforce the rules against terrorism, the existing law of nations must sometimes 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. Moreover, where additional terrorist crimes are still being planned, as is certainly the case today among PA/Fatah, the permissibility of assassination may even be greater. This is the case because our world legal system is obligated to protect us all from clear and terrible infringements of our human rights.

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 counter terrorist options, then assassination could emerge as the rational choice. However odious it might appear in isolation (because it is GOAL NEFESH, meaning, in Hebrew, "disgusting") 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 comity 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 imperilled 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.

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LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is Professor of International Law, Department of Political Science, Purdue University and is the author of many books and scholarly articles dealing with international law and terrorism. His work on counterterrorism is well-known to American and Israeli intelligence communities.



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