by Louis Rene Beres
Hat tip: Dr. Carolyn Tal
In assessing operational choices, all law-supporting states, not just Israel, would eventually discover that the identifiable alternatives to targeted-killing also include violence.
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Israel’s targeted killings of jihadist terror leaders represent necessary acts of law enforcement. Under binding international law, terrorism is an egregious crime that should best be prevented and always be punished. Pertinent rules affirm the core principle of “no crime without a punishment.” They can be discovered at the London Charter of August 8, 1945, founding document of the post-World War II Nuremberg Tribunal, signed 79 years ago today.
Among its most recent acts of national self-defense, Israel eliminated Hamas terrorist mastermind Ismail Haniyeh. In customary and conventional law, terrorists like Haniyeh are known as hostes humani generis or “common enemies of humankind.” While the world legal system allows or even encourages insurgencies on certain 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 between jihadist terror leaders’ willful mass murder of Israeli noncombatants and unintended harm suffered by Palestinians in Gaza. Legally, responsibility for such harms falls directly on the “perfidious” behavior (i.e., “human shields”) of Hamas, Hezbollah, Fatah, Houthis, etc., and their terror-patron Iran. Under the specific law of war – sometimes called humanitarian international law – even where insurgent use of force draws upon a supportable “just cause,” insurgents must still fight with “just means.”
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 philosophers call a “state of nature”), “self-help” is often an injured state’s only plausible remedy. For Israel today, the only alternative to launching precise targeting actions against key terrorist leaders would be to allow terror-violence against the innocent to expand.
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. Ipso facto, 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 Hamas attackers took part in the mass rape-mutilation of males as well as females, of children as well as adults. 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?
Widespread indifference among international community
International law is not a suicide pact. As should have understood on October 7, 2023, jihadist attackers generally add gratuitously corrosive effects to their murderous ideologies. At “bottom line,” these defiling 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 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 a form of religious sacrifice, one designed to turn openly wanton criminals into “martyrs.”
By longstanding standards of authoritative international law, terrorists resemble pirates, “common enemies of humankind” subject to punishment by the first persons into whose hands they fall. Accordingly, jihadist 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 to this. Early support for the right to target “common enemies of humankind” can be found in the canonical 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 Haniyeh so as not to disturb the sensibilities of “civilized nations,” it would also have sealed the fate of many innocent human beings.
THOUGH IT is 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 plainly 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. “The safety of the people,” declares Cicero in The Laws, “shall be the highest law.”
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 tangible realization. In assessing operational choices, all law-supporting states, not just Israel, would eventually discover that the identifiable alternatives to targeted-killing also include violence, and that these alternatives could rapidly exact a much larger toll of human suffering.
Though possibly counter-intuitive, Israel’s targeted killing of jihadist murderers 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 a fight on behalf of all nations. For the foreseeable future, however regrettable, international criminal law will still need to rely on the troubling dynamics of national self-help.
Louis Rene Beres is an emeritus professor of international law at Purdue University and the author of many books and scholarly articles on international law, nuclear strategy, nuclear war, and terrorism. His 12th and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; second edition, 2018).
Source: https://www.jpost.com/opinion/article-813758
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