17 July 2005

Louis Rene Beres
Professor of International Law
Department of Political Science
Purdue University
West Lafayette IN 47907

TEL 765 494-4189
FAX 765 494-0833
Following the latest deadly wave of Palestinian suicide bombings and
multiple Kassam rocket attacks, Israel successfully assassinated several
senior local leaders of the armed wing of Hamas - the Ezzedin al-Qassam
Brigade. According to Deputy Minister of Defense Zeev Boim, Israel will not
hesitate to maintain its counter-terrorism policy of targeted killings so
long as Hamas and its sister organizations insist upon maiming and
murdering Jewish civilians. In response, much of the "civilized" world will
likely argue self-righteously that Israel's resort to assassination as
self-defense is "illegal." Indeed, even after the London bombings earlier
this month by al-Qaeda elements that are allied with Hamas, and even after
official American reliance upon assassination continues to expand, few
world leaders will openly recognize the permissibility of targeted killings
in protecting Israel against terror-violence. Scoffing at any notion of
killing as remediation, these leaders will refuse to acknowledge that all
available alternatives to assassination in fighting terrorism must surely
involve much greater harms to innocent populations. 
The IDF-targeted Hamas terrorists were indisputably responsible for
the callous and cowardly killings of many Israeli men, women and children.
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. Rather,
it is the result of a profoundly hateful principle now embedded in the
advancing view of JIHAD. In the 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 terorrists
regularly give bloody effect to their flagrantly unheroic ideology of
indiscriminate slaughter. Usually preferring the mutilation and burning of
young Jewish children to any other targets, their primary "military
objectives" have been greenhouses, malls, ice-cream parlors, buses and
nursery schools.
Israel, a country that is half the size of Lake Michigan, still lives
under the constant shadow of several Arab/Islamic groups who deliberately
target Jewish civilians. The preferred weapon of Palestinian terrorists is
still a bomb filled with razor blades that have been lovingly dipped in rat
poison. Even when the victims include Arabs, there are no apologies or
regrets. Why should there be, as the Islamic authorites have ruled
repeatedly 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 and even after Prime Minister
Sharon proceeds with "disengagement." What is Israel to do?
Every state has the right and the OBLIGATION to protect its citizens.
In certain circumstances, this right and obligation extend 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, "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, 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 thereby 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 tiny Israel, what would you want your government to
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 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 punushment," 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 counterterrorism. 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 counterterrorist 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 imperiled 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.


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 counterterrorism is
well-known to American and Israeli military/intelligence communities.

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