Targeting terrorist leaders in Gaza and international law

“Each state is expected to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon the offenses against that universal law.” – William Blackstone, Commentaries on the Law of England[1]

Sometime before the so-called ceasefire, Israel’s cabinet had given an apparent go ahead for IDF targeting of specific terrorist  (Hamas/Islamic Jihad)  leaders in Gaza. Although it is by no means certain that such “decapitation” tactics can tangibly diminish Palestinian terror attacks, there is little reason to doubt their permissibility under international law. In the final analysis, such permissibility is a consequence of our decentralized world legal structure.

This anarchic structure has existed essentially unmodified since the seventeenth century Peace of Westphalia, the landmark treaty that ended the Thirty Years’ War back in 1648 and created the modern state system.

Notwithstanding “collective security” established by the United Nations and by the prior League of Nations, world authority remains a fundamentally “self-help” or vigilante legal system. It is within this codified global anarchy that individual states must exercise and accept a wide latitude of reprisal or preemption options concerning terrorism.

Always. .Under authoritative international law, terrorism is an egregious crime. Derivatively,  by definition,  terrorists are known in formal jurisprudence as hostes humani generis or “common enemies of humankind.” There is nothing that can ever justify deliberate attacks upon the innocent.

Never. Ordinarily, assassination, like terrorism, is an established crime under international law. Yet, under certain well-established conditions, the targeted killing of terrorist leaders can represent both a life-saving and permissible example of law-enforcement.[2] In a more perfect legal world, of course, there could never be any defensible justification for such violent self-help expressions of international justice.

But this is not yet such a world.

In our present and still self-defense oriented world legal order, the only real alternative to victim states launching periodic and precise actions against terrorists is to effectively allow terror-violence against the innocent. Terror-organizations like Hamas and Islamic Jihad have nothing but contempt for normally prescribed legal expectations’ of “extradite or prosecute” (aut dedere, aut judicare), for example.

On its face, accepting assassination or targeted killings as law-enforcing remediation means to disregard the ordinarily binding expectations of “due process.” Still, international relations are not governable by the same civil protections offered by individual national societies, and Hamas/Islamic Jihad terrorist leaders are ceaselessly planning violent attacks against Israeli men, women and children. In the future, it is likely that such attacks would make use of chemical, biological or even nuclear elements.

Just a few days ago, on May 4, 2019, Islamic Jihad threatened to attack Israel’s Dimona nuclear reactor in the Negev and Ben-Gurion Airport.

Earlier, in July 2014, Hamas actually fired three rockets at Dimona. These rockets were intercepted or not on target.

The casual indiscriminacy of Hamas and Islamic Jihad operations is well documented. Such intentional blurring of the lines between lawful and unlawful targets is firmly rooted in certain generic principles of Jihad. Several years ago, an open remark of Sheikh Omar Bakri Muhammad, a prominent Muslim cleric in London, echoed this significant origin: “We don’t make a distinction between civilians and non-civilians, innocents and non-innocents. Only between Muslims and unbelievers. And the life of an unbeliever (a Jew or Christian) has no value. It has no sanctity.”

International law is not a suicide pact. Jihadist attackers regularly seek to add barbaric effects to their primal ideologies of sacrificial slaughter.  For both Hamas and Islamic Jihad, “military objectives” have included elementary schools, bomb shelters, ice-cream parlors, civilian buses and elderly pedestrians. Jurisprudentially, therefore, these perpetrators are never “militants.” They are simply and legally “terrorists.”

The latest news from Jewish border areas near Gaza is unambiguous. Israel, a country half the size of Lake Michigan, still lives under the constant shadow of Jihadist terrorism. Even while they fire rocket clusters at Jewish civilian neighborhoods within southern Israel, Palestinian Arab terrorists continue to display an operational preference for more intimate incendiaries. The “liberation” weapon of choice  remains a custom-made bomb filled with screws, nails and razor blades. Typically, these flesh-slicing projectiles are first dipped meticulously in some sort of rat poison.

Even when the victims of Palestinian terror include fellow Arabs – which is more frequent than one might suppose – there are never any public statements of regret. And why should there be? After all, the appropriate clerical authorities have ruled repeatedly that “collateral” Arab victims are now “martyrs.” Unlike the Jews and Christians whose lives are judged “without value,” these vastly more fortunate shahids can expect to be propelled by their homicidal blasts directly into Paradise.

What could possibly be better?

Identical clerical exonerations and promises apply to “heroes” who eagerly drive their cars or trucks into crowds of vulnerable pedestrians,. If shot by bystanders or police, these terrorists immediately become shahids

Even today, even after it has become obvious that they can never “win,” not a single Arab/Islamist terror organization recognizes the basic right of Israel to remain “alive.”  Each group – including “moderate” Fatah – remains dedicated to the immutable idea that any real peace with Israel is an intolerable abomination to Islam. Facing such implacable enemies within our self-help system of international law, Israel’s security options must always include the residual right of targeting  identifiable terrorist leaders.

Again, determining whether or not such last-resort self-help remedies are operationally sound represents another question altogether. This query is best asked the military and must always be kept logically distinct from any considerations of law.

What is most noteworthy about targeted killing as counter-terrorism is not its permissibility, but the general unwillingness of our international community to acknowledge this right. When British or  French newspapers and magazines discuss Palestinian Arab violence against Israeli noncombatants, they normally speak only of “militants.” But when the subject becomes Jihadist bombings or attacks in London and Paris, they speak only of “terrorists.”

Israel’s more-or-less continuous policy of going after terrorist leaders has been undertaken with reluctance. For years, first under “Oslo” and later under the “Road Map,” Israel has given its self-declared Palestinian foes every opportunity for compromise, always in the vain hope that with such accommodations, the country would no longer need to turn to these remedies of self-protection. Most recognizable, in this connection, are the several mass terrorist releases undertaken by Jerusalem. These unreciprocated gestures continue to have sad and murderous outcomes.

Understandably, as the country soon celebrates another Independence Day, Israel is still hoping for peace. Hoping against hope, Jerusalem has remained steadfastly determined to show “good faith,” even though this stance has always meant “Land For Nothing” and a corresponding loss of Israeli lives. The Jihadist path remains thoroughly planned, unhidden and indifferent to international law. It is a twisted path of  insidious bombings, shootings and vehicular homicides.

Under international law, every state maintains the right and the obligation to protect its citizens. In some residual circumstances, this dual responsibility can extend to targeted killing of terrorist leaders. This responsibility is as well understood in Washington as in Jerusalem, where every president in recent memory has given either nodding or direct approval to terrorist “removal” operations. Moreover, whenever American presidents resort visibly to assassination (which is expressly forbidden by U.S. law) they are acting to defend the presumed interests of the strongest state on Earth.

Israel, on the other hand, is half the size of an American lake (as written above, Lake Michigan) and, given its size, substantially less durable.

More than any other state on earth, Israel faces a persistent threat of national extermination. The Arab world, which generally excludes Israel from its official maps, sometimes expressly applies the term “liquidation” in reference to “The Zionist Entity.” According to the still-unamended Charter of Hamas, which had been embraced by terrorist Mazen Faqha, a previous major Israeli target: “There is no solution to the Palestinian problem except by Jihad…I swear by that (sic) 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.”

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 acknowledged international outlaws who fall  within the recognizable scope of “universal jurisdiction.” That Hamas/Islamic Jihad terror-crimes are directed specifically at Israel should remove any lingering doubts about the specific permissibility of Jerusalem’s juridical jurisdiction.

There is also pertinent intellectual history. Support for a limited right to assassination can be found in the classical writings of Aristotle, Plutarch and Cicero, and 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 choose to reject this residual right altogether, it would then have to accept the reciprocally injurious effects heaped upon innocent human life. In the future, as we have already noted, these effects could present in chemical, biological or menacingly nuclear forms.

And, as noted, international law is not a suicide pact. Targeted killings, subject to applicable legal rules of discrimination, proportionality, and military necessity, may sometimes offer the least unwelcome form of self-protection and punishment. In those cases where additional terrorist crimes are still being planned, the acceptability of such violent self-help would evidently be much greater.

This vital point of law is incontestable.

In the best of all possible worlds, targeted killing could expect no defensible place in lawful counterterrorism. But we do not yet live in the best of all possible worlds, and the starkly negative aspects of any such assassination should never be evaluated apart from alternative options. In other words, such aspects must always be compared to what could reasonably be expected from these other options.

If the expected costs of targeted assassination appear lower than the expected costs of alternative counterterrorist options, such assassination will emerge as the indisputable rational choice.  However odious it might appear in isolation, targeted killing in such still foreseeable circumstances may represent the least injurious path to improved national and personal safety from terrorism.

Targeted assassinations, even of  Hamas/Islamic Jihad terrorist leaders, will inevitably elicit “civilized” indignation,  even from those who might find full-scale warfare reasonable or appropriate. In essence, the civilizational promise of universal brotherhood remains far from being realized, and  imperiled states such as Israel must reluctantly continue to confront difficult operational choices.  In facing such painful choices, these exposed states will discover that tactical alternatives to a targeted-killing option must also include violence, and that these alternatives could (immediately or eventually) exact a much larger human toll.

LOUIS RENÉ BERES was born in Switzerland, educated at Princeton (Ph.D., 1971) and is the author of many books and scholarly articles dealing with nuclear strategy, nuclear war, international law and terrorism.  His almost fifty-years work on counterterrorism is familiar to both American and Israeli military/intelligence communities.  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). 

http://www.israeldefense.co.il/en/content/surviving-amid-chaos-israels-nuclear-strategy (2nd ed., 2018) In December 2016, Professor Beres co-authored a widely circulated monograph (published in Israel) with General (USA/ret.) Barry R. McCaffrey:   https://sectech.tau.ac.il/sites/sectech.tau.ac.il/files/PalmBeachBook.pdf

Dr. Beres’ other recent publications have been in Israel Defense (Tel Aviv); The Atlantic; The National Interest; YaleGlobal Online; The Daily Princetonian; Harvard National Security Journal (Harvard Law School); The Hill; International Journal of Intelligence and Counterintelligence; Jurist; 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.