EDITOR'S NOTES ON THE
ASSASSINATION OF TERRORISTS

1. The Israeli government has the right and duty to eliminate individuals actively engaged in either the planning or execution of terrorist acts against Israelis and Jews.

2. Terrorism knows no national boundaries and therefore counter-terrorism must recognize no borders.

3. The left-wing (Labor & Meretz) leaders and media in Israel are demonstrating their total disregard for Israeli security by launching an orgasm of criticism of Israeli Prime Minister Benjamin Netanyahu over this issue. We saw this happen during the Lebanese war. The suicidal Oslo agreements they made with Arafat greatly undermined Israeli security and, in fact, led to more terrorism. For them to attack Bibi now is totally irresponsible. Have they forgotten the hit teams of Labor leaders like Golda Meir and Yitzhak Rabin?

4. Bibi has shown unfortunate weakness in the face of pressure from Jordan, Canada and the US. I will say more about this later.

5. I have one plea to all Israelis: Join ranks and fight terrorism together. When a bomb goes off in Jerusalem, the terrorist does not check first to see if the victims voted Labor or Likud......Bernard J. Shapiro, Editor


ASSASSINATION OF TERRORISTS
MAY BE LAW-ENFORCING

A Brief According To International Law

By Louis Rene Beres

Israel reportedly sought recently to assassinate Hamas leader Khaled Meshal in Jordan. Whether or not the assassination of terrorists makes long-term tactical sense for the Jewish State in its ongoing war against radical Islamic murderers remains to be seen. What is clear, however, is that such a measure may be judged law-enforcing according to international law.

Normally, assassination is a crime under international law, in both times of war and in times of peace. Yet, punishment of violent crime is always at the very heart of justice, and in our decentralized system of world law, self-help by individual nations is often the only available path. In the absence of assassinations, terrorists like Meshal would remain altogether free. Immune to the proper expectations of extradition and prosecution - the preferred mechanism of enforcement under international law - these terrorists would continue to bomb and maim innocent men, women and children without interference. 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 generation of additional terrorism.

Our world legal order lacks an international criminal court with jurisdiction over individuals. Only the courts of individual countries can provide the judicial context for trials of terrorists. It follows that where nations harbor such criminals (as does the Kingdom of Jordan) and refuse to honor extradition requests, the only decent remedies for justice available to victim societies may lie in unilateral enforcement action. Here, extrajudicial execution may actually be essential to justice.

In a leaflet distributed in Gaza shortly after the successful assassination of another terrorist in Malta last year - Fathi Shiqaqi, whose favorite symbol was an exploding Israeli passenger bus - Islamic Holy War declared: "This ugly crime will make every Zionist, wherever he may be on the face of the earth, a target for our amazing blows and our bodies exploding in anger." But the assassination was anything but a crime. Rather, it was an effort on behalf of the entire community of civilized nations to compensate for the absence of strong central world authority with essential self-help. When, in domestic law, a policeman shoots a fleeing felon after witnessing a violent crime, society distinguishes between that crime and the policeman's use of force. Legally and morally, they are assuredly not on the same plane.

Was Meshal a terrorist and a leader of terrorists? It seems the decision to assassinate him was made only after Israeli intelligence officials determined, beyond a reasonable doubt, that both recent Jerusalem bombings had been planned and ordered by him. Moreover, these same officials had received information that Meshal was also the mastermind of future terrorist attacks upon Israeli men, women and children.

Khaled Meshal, like Fathi Shiqaqi (who was less fortunate) certainly thought himself to be fighting for Palestinian "self-determination." But even if this objective can be accepted under pertinent international law (and this is highly controversial in this case), the means used by Hamas and Islamic Holy War can never be lawful. The law of armed conflict, which applies to insurgents as well as to regular military forces, makes perfectly clear that the ends never justify the means. A cause, however legitimate, never excuses the application of violence against the innocent.

By the standards of contemporary international law, terrorists are known as hostes humani generis common enemies of humankind. In the fashion of pirates, who were "to be hanged by the first persons into whose hands they fall" (from the distinguished 18th century legal scholar Emmerich de Vattel), terrorists are international outlaws who fall within the scope of "universal jurisdiction." That Meshal's crimes had been directed specifically at Israel removes any doubts about that country's particular jurisdiction in the matter.

In his 1758 classic, THE LAW OF NATIONS, Vattel stated: "Men who are by profession poisoners or incendiaries may be exterminated wherever they are caught; for they direct their disastrous attacks against all nations, by destroying the foundations of their common safety." Later, when the Nuremberg Tribunal was established in 1945, the court ruled that in certain exceptional circumstances, literal adherence to due process of law (the Tribunal was referring to the question of retroactivity and crimes against humanity ) could represent the greatest injustice. Concluding that retroactivity need not always be unjust, the Tribunal affirmed: "So far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished."

Assassination, like retroactivity, is normally an illegal remedy under international law. Yet, support for a limited right to assassination can be found in Aristotle's POLITICS, Plutarch's LIVES and Cicero's DE OFFICIIS. According to Cicero:

"Grecian nations give the honors of the gods to those men who have slain tyrants. What have I not seen at Athens? What in the other cities of Greece? What divine honors have I not seen paid to such men? What odes, what songs have I not heard in their praise? They are almost consecrated to immortality in the memories and worship of men. And will you not only abstain from conferring any honors on the saviour of so great a people, and the avenger of such enormous wickedness, but will you even allow him to be borne off for punishment? He would confess - I say, if he had done it, he would confess with a high and willing spirit that he had done it for the sake of the general liberty; a thing which would certainly deserve not only to be confessed by him, but even to be boasted of."

Should the civilized community of nations ever reject this right altogether, it will have to recognize that it would be at the expense of justice and, quite possibly, effective counterterrorism. Lacking any central institutions of global authority to interpret and enforce the rules against terrorism, the existing law of nations must continue to rely on even the most objectionable forms of self-help.

Nullum crimen sine poena, "No crime without a punishment," is a "sacred" principle of international law. Where crimes are especially egregious, as in the case of terrorism, this principle is absolutely overriding. This means that where known perpetrators of such crimes cannot be punished by "normal" judicial remedy, i.e., extradition and prosecution, the effective choice must be to leave the perpetrators unpunished or to punish them extrajudicially. Here, assassination, subject of course to the applicable constraints of discrimination, proportionality and military necessity, may be the least costly form of extrajudicial punishment. Moreover, where crimes are still ongoing, as in the case of Hamas activities against Israel, the permissibility of assassination may even be greater. This is the case because our post-Nuremberg world legal order is obligated to protect human beings from clear and terrible infringements of their irreducible and immutable rights. International law is not a suicide pact!

The State of Israel, in the fashion of every other state in world politics, has not only the authority, but the obligation to protect its citizens' most basic human right - the right to live. In this connection, Israel maintains not only the generic post-attack right of self-defense now codified at Article 51 of the U.N. Charter, but also the customary right of anticipatory self-defense, a preemptive right that applies to attacks by terrorists as well as by enemy states. As an expression of such anticipatory self-defense, assassination - to the extent that it fulfils the rules of the law of armed conflict - may be distinctly law-enforcing for yet another reason.

In the best of all possible worlds, states could dispense with violence altogether, choosing instead to rely upon reason to settle disagreements. But we do not live in this best of all possible worlds, and the disutilities of assassination should not be evaluated apart from alternative options. Rather, such disutilities must always be compared to those expected of these other options. If the prospective costs of assassination appear less than the costs of the alternative options (for example, war or military intervention), then, in a utilitarian sense, assassination would emerge as the rational choice. However odious it might appear in isolation, assassination, in such circumstances, would represent the least injurious path to improved safety from terrorism.

The utilitarian view is that human actions should always be evaluated in light of their expected consequences, and that only this consequentialist approach will enable us to deal with complex moral and legal issues in a rational manner. The principle of utility, which has its origins with Jeremy Bentham, is "that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question...to promote or to oppose that happiness." This principle offers a sound argument against those who would claim that assassination is impermissible because it is somehow, by its very nature, uniquely revolting. Bentham rejects all claims which "approve or disapprove of certain actions, not on account of their tending to augment the happiness of the party whose interest is in question, but merely because a man finds himself disposed to approve or disapprove of them; holding up that approbation or disapprobation as a sufficient reason for itself, and disclaiming the necessity of looking out for any extrinsic ground."

Further, Bentham continues in a fashion that would be perfectly supportive of assassination as both punishment and as anticipatory self-defense:

"If we could consider an offense which has been committed as an isolated fact, the like of which would never recur, punishment would be useless. It would only be adding one evil to another. But when we consider that an unpunished crime leaves the path open, not only to the same delinquent, but also to all those who may have the same motives and opportunities for entering upon it, we perceive that the punishment inflicted on the individual becomes a source of security to all. That punishment which, considered in itself, appeared base and repugnant to all generous sentiments, is elevated to the first rank of benefits, when it is regarded not as an act of wrath or of vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the common safety."

Whether as an expression of pure punishment (fulfilling the expectations of Nullum crimen sine poena) or of anticipatory self-defense, Israel's assassination of a Hamas terrorist leader will likely elicit considerable worldwide 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 and/or deterrence? 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, including especially the State of Israel, will discover that all viable alternatives to the assassination option also include violence and that these alternatives may, in fact, exact a much larger toll in human life and suffering.

[Editor's Note: Professor Beres has prepared extensive notes and legal references for this article that are available to the scholar upon request.]

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LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) 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.
E-MAIl: BERES@POLSCI.PURDUE.EDU