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December 18, 2014 / 26 Kislev, 5775
 
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After Bin Laden: Assassination, Terrorism, War and International Law (Second of Two Parts)


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The following is based on a lecture presented by Dr. Beres at Case Western Reserve University School of Law on September 9, 2011.

“Everything in this world exudes crime,” says Baudelaire, “the newspapers, the walls, and the face of man.” But this “face” does not belong solely to what classic seventeenth-century international law scholar Hugo Grotius called “men of deplorable wickedness.” However counterintuitive, the core problem of international law enforcement is not hostes humani generic – “common enemies of mankind” – but rather the “normal” human being.

We know today, in part because of the early and controversial work of Hannah Arendt (Eichmann in Jerusalem), that it was generally this “normal” human being, not the expressly wicked monster of traditional world politics, who made possible the Holocaust; the Armenian genocide; the mass murders of the Khmer Rouge; the killings of the Hutu in Burundi; of the Tutsis by the Hutu in Rwanda; of the Ache Indians in Paraguay; the Buddhists in Tibet, the Muslims/Croats and Serbs in Bosnia, and on and on and on.

Yes, “bad people” do exist, and they do play a pivotal role in most international crimes. But before international law can truly work, it must first learn to look beyond “inhuman cruelties” to what Nietzsche called the “human, all-too-human.”

Here, the true problem is a delirious collectivism of thought that somehow identifies “success” with the perpetual slaughter of “others.” In the final analysis, the seriousness with which we approach international law “in crisis” will depend upon the extent to which we can change the “human, all- too-human.”

There is a related issue – the always-standard presumption of reason in legal analyses. Oddly enough, this ubiquitous presumption is fundamentally flawed. Any look at history reveals that the Greeks, and Cicero, and Grotius, and Vattel, and the American founding fathers, are trumped here by Nietzsche, Kierkegaard, Dostoyevsky and Freud.

In other words, from now on any progress we can expect in improving international law at the individual human level must begin by accepting the primacy of unreason in world affairs. Such an acceptance will muddy all of the usual analytic waters, because it will, by definition, make a reassuringly precise and broadly theoretical jurisprudence impossible. Still, we do need to fashion our international law reforms, the ones needed to counter current crises, upon accurate and truthful understandings of basic human behavior.

We can do nothing else. And the truth is that we are not generally a species that operates according to reason.

What can we do right away?

For now, for today, my proposed remedies for alleviating “crisis” must remain more narrowly jurisprudential and orthodox. For the immediate future, for example, we should refine our thinking about assassination (targeted killing) as (1) permissible counter-terrorism; (2) humanitarian intervention; and (3) even as anticipatory self-defense. Such notions of permissible violence as remediation must continue to be regarded as distasteful and bitterly ironic, but this is still not yet “the best of all possible worlds.”

In my written paper, I expand on certain ways in which permissible violence might be better regulated under international law, with reference to both jus ad bellum (justice of war) and jus in bello (justice in war) criteria. But, here, too, there will always be a problem of Realpolitik, or rather the always-overriding expectations of presumed national interest and power politics. Many of these pertinent issues of assassination, humanitarian intervention, preemption and anticipatory self-defense can be applied directly to our assigned areas of concern, Northern Africa and the Middle East.

To what extent shall we now act, unilaterally and/or multilaterally, on behalf of aggrieved human rights in Libya and Syria? To what extent should we now act with force, unilaterally and/or multilaterally, on behalf of non-proliferation goals in a still-nuclearizing Iran? Shall Israel and/or the US have the right to preemptively destroy Iranian nuclear infrastructures? If so, with what operational limits?) To what extent might we act correctly, unilaterally and/or multilaterally, to oppose terrorism with armed force in such places as Lebanon; Gaza; Yemen and Somalia? Gaza, of course, is part of an aspiring state, not an existing state. In exercising any such presumed rights to anticipatory self-defense, would international law be served better by selective assassinations than by more usual (and larger) forms of military action?

In assessing such choices, should we use solely utilitarian calculations, or are we obliged to also consider some underlying and unchanging and universal principles of justice? What are these principles? Is the right of international legal authority to use military force as remediation (for counter-terrorism, anticipatory self-defense or support of human rights) in any way contingent on the degree or urgency of expected harms? And on the time-urgency involved?

In other words, does this right expand when the “danger posed” involves threats of mega-destruction and/or is imminent? Do these considerations also allow international law greater latitude in the level or amount of armed force applied – that is, permit a “bending” of the usual engagement rules for discrimination; proportionality; and military necessity? And what if the delinquent state or insurgent group has resorted to “perfidy,” specific violations of the Law of War involving wrongful deceptions?

In my written paper, I take the position that “International law is not a suicide pact” and that resistance to all forms of perfidy could be indispensable and law enforcing. An example would be Israel’s “Cast Lead” operation, where IDF operations in Gaza should have been identified, understood, and appraised by all fair observers in the full context of antecedent Palestinian violations of humanitarian international law, that is, in the critical context of incessant Palestinian/Hamas perfidy. It should also be recalled, in all such assessments, that considerations of just means (jus in bello) are always logically distinct from considerations of just cause (jus ad bellum).

Palestinian perfidy remained a violation of the law of war even if there had been certain discoverable grounds for just cause in their (Hamas’s) insurgent war against Israel.

Under international law, the ends can never justify the means.

Under international law, the presumed legitimacy of a certain cause can never legitimize the use of certain forms of violence.

Article 38 of the Statute of the ICJ makes explicit reference to “general principles of law recognized by civilized nations.” This concept of “civilized nations” continues to make both legal and geopolitical sense in the present world legal order. Each civilized nation has both the right and the obligation under international law to protect its citizens from terrorism, war, human rights violations and genocide. Should these civilized nations ever surrender to perfidy, they would effectively undermine this peremptory right and obligation. The net effect of any such capitulation would be to make victors of the criminals and the terrorists, and to strengthen the resolve of all allied terrorist organizations.

In any democratic state, the obligation of citizens to their government is ultimately contingent upon that government’s assurance of protection. “Just wars,” says Grotius, “arise from our love of the innocent.” Now, “civilized nations” must continue to use all necessary and permissible means for self-defense and collective self-preservation. Although perfidious provocations by assorted terror groups and enemy states may elicit reprisals that bring harm to noncombatants, it is these perfidious provocations, not the needed defensive responses, that would be in violation of humanitarian international law.

International law is not a suicide pact.

Louis René Beres, strategic and military affairs columnist for The Jewish Press, is professor of political science at Purdue University. Educated at Princeton (Ph.D., 1971), he lectures and publishes widely on international relations and international law and is the author of ten major books in the field. In Israel, Professor Beres was chair of Project Daniel.

About the Author: Louis René Beres (Ph.D., Princeton, 1971) is professor of political science and international law at Purdue University and the author of many books and articles dealing with international relations and strategic studies.


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