Now that Israel has eliminated Hamas terrorist masterminds Sheik Ahmed Yassin and pediatrician child killer Abdel Aziz al-Rantisi, Prime Minister Sharon may soon strike at certain other lead murderers who relentlessly plot suicide-bombings against Israelis. In response, most of the “civilized” world will likely argue self-righteously that Israel’s resort to assassination as self-defense is “illegal.” As with Israel’s security-fence, which has been far more commonly attacked in the United Nations than the Palestinian terrorists whose assaults actually make the fence necessary, the international community will steadfastly refuse to recognize the permissibility of certain targeted killings in contemporary counter-terrorism. And while most decent people will surely scoff loudly at any notion of killing as remediation, all of the available alternatives to assassination in these circumstances would surely involve substantially greater harms to innocent populations.
Yassin and Rantisi were indisputably responsible for the callous and cruel murder of many Israeli men, women and children – usually with nail or razor-blade-filled explosives designed to dismember, poison and char restaurant patrons, bus passengers and students. The absolute indiscriminacy of Palestinian terrorism – which IS an authentic violation of humanitarian
international law – is never the product of inadvertence; nor is it even a purely tactical judgment. It is, rather, the result of a deeply embedded principle in the increasingly-fashionable Islamic view of JIHAD.
In the very recent words of Sheikh Omar Bakri Muhammad, a prominent Muslim cleric in London: “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. Palestinian terrorists regularly give bloody effect to their flagrantly perverse ideology of indiscriminate slaughter. Usually preferring the mutilation and burning of young Jewish children to any other targets, their primary “military objectives” have been ice-cream parlors, buses and nursery schools.
Israel, a country that is half the size of Lake Michigan, now lives under the constant shadow of Hamas, Hezbollah and several other related Arab/Islamic groups who deliberately target Jewish civilians. The preferred weapon is a bomb filled with sharp projectiles that have been carefully dipped in rat poison. When the victims include Arabs, there are no apologies or regrets. Why should there be, as the Islamic authorities have ruled that these “believers” are “martyrs” and (unlike the Jews and Christians whose lives have “no value”) will be propelled by the blast straight into Heaven.
Not a single Arab/Islamic terror group recognizes the right of Israel merely to remain “alive,” and each terror group remains fully dedicated to the proposition that any sort of peace with Israel is an intolerable abomination to Islam. With these facts in mind, what can we now say more precisely about the status of Israel’s openly expressed policy of assassination under international law?
First, we must understand that Israel’s current policy is being undertaken with determinable resignation and reluctance. For years, Israel had routinely capitulated to virtually every Palestinian demand and overlooked every blatant Palestinian violation, hoping thereby to secure a serious peace. The Arab/Islamic response had been a steady and planned escalation of frenzied bombings, lynchings and shootings. The cry “Slaughter the Jews” is still heard loudly in every corner of the Arab world, even after former Prime Minister Barak offered Arafat virtually every territorial concession imaginable. What was Israel to do?
Every state has the right and the obligation to protect its citizens. In certain circumstances, this right and obligation extend even to assassination. This point is especially well understood in Washington, where every president in recent memory has given nodding or even direct approval to relevant “removal” operations, and where current assassination efforts in Iraq and Afghanistan are hardly a secret. Moreover, when American presidents resort to assassination (which is, ironically, expressly forbidden by U.S. law) they are acting to defend the interests of the strongest state on Earth. Israel, half the size of an American lake, is not quite as strong.
More than any other state in the world, Israel faces a real daily threat of national extermination. The Arab world, which even excludes Israel from ALL its maps, openly prefers the term “liquidation” whenever it speaks of “The Zionist Entity.” According to the unamended Charter of Hamas, the terror group founded by the late Sheik Yassin, “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.”
Soon, very soon, Hamas and its sister terror groups will have access to chemical, biological and perhaps even “dirty bomb” nuclear weapons. Will it then be more legal for Israel to rely upon the tender mercies of the United Nations and permit such an attack, or to exercise the life-saving option of assassination as anticipatory self-defense? If YOU, the reader, were a citizen of Israel, what would YOU want your government to decide?
To be sure, it is generally true that assassination is a crime under international law. Yet, in our decentralized system of world law, self-help by individual states is often necessary. In the absence of particular assassinations, terrorists would ceaselessly continue to wreak havoc against defenseless civilians in Israel, and would do so with utter impunity. Effectively immune to the proper legal expectations of extradition and prosecution (because the United Nations is always disinterested in justice for Israelis), these terrorists would continue to murder Jews with religiously-approved passion and incomparably ecstatic joy.
Ignoring the ancient legal principle of Nullum Crimen Sine Poene, “No crime without a punishment,” the UN now worries assiduously about Israel’s security fence, but does not even whisper a condemnation when Palestinian terrorists literally wash their hands in the blood of their victims (a scene filmed by a courageous Italian TV crew after the lynching of two Israelis in Ramallah several years ago). And while it is true that custody over terrorists may be achieved by forcible abduction and subsequent trial in domestic courts – an option recognized in United States law and exercised by Israel in its capture of mass-killer Marwan Barghouti – this remedy may cost a great many more innocent lives in the form of consequent terrorism.
For now, the world still denies Israel access to wanted terrorists. Notwithstanding binding international legal obligations to extradite terrorists, few if any countries on our civilized planet would ever honor any proper Israeli requests for extradition. It follows that sometimes the only available remedy for justice available to Israel in its life or death struggle against barbarism lies in unilateral enforcement action.
What if the terrorists should have “just cause?” Palestinian bombers and shooters who indiscriminately maim and burn Israelis think themselves to be fighting for decent objectives. But even if these objectives could be accepted under pertinent international law, the fiendish means used in their “military” operations can never be taken as lawful. The law of armed conflict makes it perfectly clear that the ends can never justify the means. A cause, even if it is legitimate, can never excuse the use of premeditated violence against the innocent. Never.
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 international outlaws who fall within the scope of “universal jurisdiction.” That Arab/Islamic terror-crimes are always directed specifically at Israel assuredly removes any doubts about the reasonableness of Jerusalem’s authoritative jurisdiction.
No doubt, assassination is normally an illegal remedy under international law. Yet, support for a limited right to assassination can be found in the classical writings of Aristotle, Plutarch and Cicero and even 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 reject this right altogether, it will have to recognize that it would, in certain instances, be at an egregious expense of innocent human life. Still lacking any effective central global institutions to interpret and enforce the rules against terrorism, the existing law of nations must on occasion continue to rely on even the most objectionable forms of self-help.
Assassination, subject to the applicable legal rules of discrimination, proportionality and military necessity, may sometimes be the least injurious form of available punishment. Where additional terrorist crimes are still being planned, as is certainly the case today among PLO, Fatah, Hamas, Hezbollah, Islamic Jihad, the permissibility of assassination is incontestably greater. This is the case because our world legal system is obligated to protect us all from clear and terrible infringements of our fundamental human rights, and because this system still has no independent centralized means to meet this obligation.
With particular respect to Israel’s rights, international law enforcement is shaped not by general considerations of justice, but rather by specific and irrefutably continuous bias against the Jewish state.
In the best of all possible worlds, assassination would have no defensible place as counter-terrorism. But we do not yet live in the best of all possible worlds, and the negative aspects of assassination should not be evaluated apart from all alternative options. Rather, such aspects should always be compared to those expected of these other options. If the expected costs of
assassination appear lower than the costs of alternative counter-terrorist options, then assassination must emerge as the rational choice. However odious it might appear in isolation, assassination in such circumstances could represent the least injurious path to improved safety from terrorism.
Assassination, even of a terrorist, will almost always elicit indignation, ironically, even by those who would find full-scale warfare unobjectionable. 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, especially Israel, will discover that all viable alternatives to the assassination option also include violence, and that these alternatives may often exact a much larger toll in human life and suffering.
Copyright, The Jewish Press 2004. All rights reserved.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and scholarly articles dealing with international law and terrorism. His more than a quarter-century work on counter-terrorism is well-known to American and Israeli military/intelligence communities.