On Assassination, Preemption, And Counter-Terrorism: The View From International Law

By: Louis Rene Beres

Published: March 21st, 2007
Latest update: January 10th, 2013

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Delivered As The Keynote Address To The Intelligence Summit, March 5, 2007, Hilton Hotel, St. Petersburg, Florida

Good morning. Thank you, John (Loftus) and Bob [Dr. Robert Katz). The conference main theme is in essence: Our individual and collective survival amidst growing global chaos. With this in mind, the Irish poet Yeats reminds us: “The blood-dimmed tide is loosed, and everywhere the ceremony of innocence is drowned.” But chaos, war, terror and genocide are not really new. Human nature has always tilted toward catastrophic destruction (think, for example, of Freud, Dostoyevsky, William Golding, etc.). What is new is the fusion of seemingly permanent human inclinations to do harm with the implements − the weapons − of mass destruction.

So, our principal task over the next several days is to figure out more precisely how to respond to this dreadful fusion. And we want to do this, of course, within the operational parameters of the now-prevailing global clash of civilizations − a clash between the more-or-less civilized West and Jihadi elements within the Arab/Islamic world. In our upcoming speeches and in our important discussions, let me urge us all to be a bit conceptual − to look substantially behind the news.

All of us know that it is easy to get passionate and blinded by the sheer horror of these complex issues, and therefore to be distracted from the primary task of theoretic and intellectual understanding. But nothing is more practical than good theory. If we focus too heavily on the shallow polemics and the immediate politics of the “Clash of Civilizations,” we will fail to understand the underlying anthropology and psychology of our enemies’ behavior. Such a failure would be counter-productive.

For example, the best way to fathom Arab/Islamic suicide-bombing terrorism is to understand that it is, in essence, a form of religious sacrifice. Here it is also vital to understand that the suicide bomber is not fearless at all, but rather that he is extraordinarily afraid of death. It is his death fear − not his fearlessness − that causes him to commit both suicide and homicide. The explanation for this paradox is that in the mind of the suicide bomber, a fiery death on earth (a so-called martyr’s death) is merely a momentary inconvenience on the path to immortality.

What about a suicide-bomber in macrocosm − an entire state willing to “die” in order to fulfill a presumed religious “obligation?” Think Iran. What would this do to the logic of deterrence? How would we have to respond if we were to suddenly recognize a fusion of nuclear capacity with irrationality?

One obvious consideration: A heightened reasonableness of preemption. But more on this in a later panel that I will chair, on Project Daniel.

International law is not a suicide pact. Normally, assassination is illegal (in time of war and in time of peace). But there are times when it has been considered not only lawful, but also distinctly law enforcing. There is a need here for a straightforwardly utilitarian calculation: The preemptive elimination of terrorists – especially those terrorists who plan mass casualty attacks – could save many innocent lives. This point should be easy to understand.

Assassination or “targeted killings” must always be attentive to the law of armed conflict − to the long-established criteria of discrimination, proportionality and military necessity – but this law must also take into account enemy perfidy (for example, “human shields”). The legal effect of perfidy is always to place responsibility for noncombatant deaths and injuries upon the perfidious party. Always.

Let me return specifically to preemption – in counter-terrorism and in self-defense against existential threats from other states. There are two basic issues before us here at the conference: Legal and Operational. Whether or not we can argue persuasively for preemption in Operational terms (and that will depend upon the great complexities of each pertinent theatre of conflict), there is an indisputable right under international law called “Anticipatory Self-Defense.” The so-called “international community” typically frowns upon such ideas as defensive first strikes (and they are ideas that can be abused), but no government is obliged to compel its citizens to simply sit back and await annihilation. Moreover, the risks in certain circumstances of not striking first are today far greater than ever before. This, too, should be quite obvious.

Anticipatory Self-Defense is an expression of customary international law. The sources of International Law are found at Article 38 of the Statute of the International Court of Justice. “International Custom” is identified there as a fully authoritative source.

Now, back to Iran. We already know that Iran today is not Iraq on June 7, 1981 (the day of Israel’s “Operation Opera” strike against the Osiraq nuclear reactor near Baghdad). We already know, operationally, that any act of anticipatory self-defense against hardened/dispersed/multiplied Iranian nuclear infrastructures and command control facilities would entail huge strategic, political and human costs. But we must compare these costs, always, to the expected costs of not preempting. Also, recalling the issue of perfidy under the law of war, a great many expected Iranian civilian casualties would be the indisputable legal responsibility of Iran.

International law is not a suicide pact. We are not obligated to sit back and try to coexist with a fully nuclearized Iran − especially an Iran that is openly genocidal. The inherent limits of defensive posture, articulated most famously by Sun-Tzu, were recalled last week in an article I did together with Major-General Paul Vallely.

Let me conclude with some specific recommendations of Project Daniel (completed in mid-January 2003, several months before the start of Operation Iraqi Freedom). We (The Project Daniel Group) linked anticipatory self-defense to various preemption scenarios and to the National Security Strategy of the United States of America (September 20, 2002). We also examined and endorsed expanded strategic cooperation between Washington and Jerusalem, with particular reference to maintaining Israel’s “qualitative edge.” Project Daniel looked very closely at a recommended “paradigm shift” to deal with ascending low-intensity and long-range WMD threats to Israel. We also considered the specific circumstances under which Israel should purposefully end its current posture of “deliberate nuclear ambiguity.”

The Project Daniel Group urged continuance of constructive support to the US-led War On Terror. We stipulated that Israel should combine a strengthening of multilayered active defenses with a credible, secure and decisive nuclear deterrent. The shortfalls of too great a reliance on the Arrow ABM are detailed in another recent article I co-authored with Lt. General Tom McInerney.

Israel’s recognizable retaliatory force should be fashioned with the capacity to destroy some 10 to 20 high-value targets scattered widely over pertinent enemy states in the Middle East. The Project Daniel Group recognized a very basic asymmetry between Israel and large portions of the Arab/Iranian world concerning the desirability of peace, the absence of democracy, the acceptability of terror as a legitimate weapon and the overwhelming demographic advantage of the Arab/Islamic world. The Project Daniel Group concluded that non-conventional exchanges between Israel and its enemies must always be avoided. Most importantly, we argued that Israel must never allow a nuclear Iran, and that it absolutely must prepare for lawful preemptive strategies even if the United States and the “international community” reject the indispensable preemption option.International law is not a suicide pact!

LOUIS RENE BERES (Ph.D., Princeton, 1971) was the keynote speaker at this year’s Intelligence Summit in St. Petersburg. He is Strategic and Military Affairs columnist for The Jewish Press.

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About the Author: 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.

On Assassination, Preemption, And Counter-Terrorism: The View From International Law

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