The Targeting of Terrorist Leaders under International Law

April 4, 2017

7 min read

Louis Rene Beres

“The safety of the People shall be the highest law.” (Cicero, De Legibus)

Senior Hamas figure Mazen Faqha was shot dead recently. Although Israel declined to comment on the killing, which took place in the Tell al-Hama neighborhood of Gaza, the official Hamas response was predictably pointed: “Hamas and its military wing hold Israel and its collaborators responsible for this despicable crime…”

But leaving aside the question of pertinent responsibility, is targeting a terrorist leader ever really a “crime”? Wouldn’t it be more jurisprudentially correct to acknowledge that terrorists, by definition, are “common enemies of humankind” (that is, hostes humani generis, under traditional international law) and therefore properly subject to all such conspicuously indispensable self-help remedies?

While assassination is ordinarily a crime under international law, the targeted killing of terrorist leaders can represent a permissible and life-saving example of genuine law-enforcement. Of course, in a perfect legal world, there could never be any defensible need for decentralized or vigilante expressions of international justice, but this is not yet such a world. For the most part, in our present and still anarchic global legal order, the only real alternative to launching necessary self-defense actions against terrorists is to allow prospectively escalating terror-violence against the innocent. In calculably large measure, this is because terror-organizations like Hamas have nothing but contempt for the normally prescribed legal requirements of “extradite or prosecute” (Aut dedere, aut judicare).

By definition, accepting assassination or targeted killings as remediation means to disregard the ordinary due processes of law. Nonetheless, international relations are not governable by the same civil protections as individual democratic societies, and Hamas terrorist Faqha had already served time in Israeli jails for planning violent attacks against Jewish men, women, and children.

The well-documented indiscriminacy of planned Hamas operations under Mazen Faqha was never in question. Indeed, it was the expressly intentional conclusion of certain generic principles embedded in the ideology of Jihad. The broadly-encompassing remark of Sheikh Omar Bakri Muhammad, a prominent Muslim cleric in London, mirror this same very basic conclusion: “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 grotesque effect to their unheroic and primal ideologies of sacrificial slaughter. As an example, for Hamas, over the years, the standard “military objectives” have been schools, shelters, ice-cream parlors, buses, and the most vulnerable pedestrians. In law, it follows, Hamas perpetrators are never simply “militants.” Rather, they are incontestably terrorists.

Israel, a country half the size of Lake Michigan, still lives under the constant shadow of Islamist terrorism. More specifically, even while they continue to fire assorted rockets at Jewish civilian areas within Israel, Hamas terrorists sometimes display a clear operational preference for more intimate incendiaries. In such cases, their weapon of choice remains a custom-made bomb filled with screws, nails and razor blades. Almost always, moreover, the flesh-slicing projectiles are first dipped “lovingly” in some sort of rat poison.

Even when the victims of Hamas terror include fellow Arabs, there are never any apologies, or statements of regret. Why should there be? After all, appropriate clerical authorities have repeatedly ruled that these collateral Arab victims are “martyrs.” Unlike the Jews and Christians whose lives have “no value,” such fortunate shahids can expect to be propelled by their homicidal blasts directly into Paradise. Altogether similar clerical judgments apply to those “heroes” who drive cars or trucks directly into crowds of vulnerable pedestrians and are then shot by bystanders or police.

Even today, not a single Arab/Islamist terror group recognizes the right of Israel to simply remain “alive.” Each such group – even the “moderate” Fatah – remains fully dedicated to the idea that any real peace with Israel represents an intolerable abomination to Islam. Facing such implacable enemies within a self-help system of international law, Israel’s effective alternatives to surrendering must include the carefully-targeted elimination of terrorist leaders.

Whether or not such self-help remedies are actually operationally sound and well-planned is another question, a query that must always be kept logically separate from all applicable considerations of law.

What is most noteworthy is not the residual permissibility of targeted killing as counter-terrorism, but rather the general unwillingness of the international community to suitably acknowledge this particular right. For example, when British or French newspapers and magazines discuss Palestinian violence against Israeli noncombatants, they normally speak dispassionately of “militants.” But when the subject is Arab/Islamist bombings or car-attacks in London or Paris, they speak unhesitatingly and bitterly of “terrorists.”

International law is not a suicide pact. Whether or not the Jewish State actually eliminated Hamas leader Faqha, Israel’s general policy of going after terrorist leaders has always been undertaken with discernible resignation and grave reluctance. For years, first under “Oslo,” and later under the “Road Map,” Israel has given its self-declared Palestinian foes every opportunity and every quarter, always in the vain hope that with such palpable accommodations, the country would no longer need to turn to assorted violent remedies of self-protection.

Most recognizable, in this connection, are the several mass terrorist releases mistakenly undertaken by Jerusalem, repeatedly unreciprocated gestures that continue to have very sad and incessantly murderous outcomes. In just the past week (last week of March 2017), convicted Arab lynch murderer Haitham Muari was suddenly freed by Israel. Muari was one of several (“moderate”) Palestinian Authority figures who had literally mutilated (ripping out eyes and internal organs) Israelis Yosef Avrahami and Vadim Nurzhits, seventeen years ago in Ramallah.

Israel is always hoping for peace. Hoping against hope, Jerusalem has remained determined to show “good faith,” even though it has always meant “Land for Nothing,” and further loss of Israeli lives to terror attacks. The Jihadist response remains unhidden: a steady and insidiously planned escalation of bombings, shootings, and intentional vehicular homicides.

Every state has both the right and the obligation to protect its citizens. In some circumstances, this dual responsibility can extend to assassination. This point is surely well understood in Washington, where every president in recent memory has given nodding or direct approval of certain relevant “removal” operations, and where current US assassination efforts in Iraq, Syria, Afghanistan and Yemen are anything but an inaccessible secret. Moreover, when American presidents resort to assassination (which is expressly forbidden by US law) they are acting to defend the interests of the strongest state on Earth. Israel, on the other hand, half the size of an American lake, is substantially less durable.

More than any other state in the world, Israel faces a daily threat of national extermination. The Arab world, which excludes Israel from all its official maps, openly applies the term “liquidation” when it speaks of “The Zionist Entity.” According to the still-unamended Charter of Hamas, which had been embraced by Mazen Faqha: “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, especially if Iran is effectively allowed to “go nuclear,” Hamas and its sister terror groups (Shia as well as Sunni) may gain operational access to “dirty bombs,” or even to authentic (chain reaction) nuclear weapons. At that point, critics should inquire: Would it somehow be “more legal” for Israel to rely on the inchoate international community than upon continued self-help?

It is plainly true that assassination is generally a crime under both conventional and customary international law. Yet, in our decentralized system of world law, self-help by individual states is often unavoidable, and typically the only viable alternative to suffering crimes against humanity. In the absence of particular assassinations, therefore, terrorists could continue to wreak genuine havoc against defenseless civilians in Israel and elsewhere, and to do so with considerable impunity.

Effectively immune to all proper legal expectations of extradition and prosecution (Hamas authorities would never have agreed to extradite Faqha to Israel), these terrorists would continue to murder innocents with absolute impunity.

What if certain terrorists would have “just cause?” Bombers, rocketers, and shooters who indiscriminately maim and burn Israeli civilians do think they are fighting for decent objectives. Still, even if these particular objectives could somehow be judged acceptable under authoritative international law, the actual means used in the terrorists’ so-called “military” operations can never be taken as lawful.

The law of armed conflict is unambiguous. This “law of war” makes it perfectly clear that the ends can never justify the means. In essence, a cause, even if it is plausibly legitimate, can never excuse the application of premeditated violence against the innocent.

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 generally fall well within the scope of “universal jurisdiction.” That Hamas terror-crimes are directed very specifically at Israel removes any lingering doubts about the particular permissibility of Jerusalem’s authoritative jurisdiction.

There is more. Support for a limited right to assassination can be found in the classical writings of Aristotle, Plutarch, and Cicero, and also 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 also have to accept the reciprocally injurious effects upon innocent human life.

International law is not a suicide pact. Assassination, subject to the applicable legal rules of discrimination, proportionality, and military necessity in humanitarian international law may sometimes offer the least unwelcome form of available self-protection and punishment. Moreover, where additional terrorist crimes are still being carefully planned, as was certainly the case with regard to targeted Hamas leader Mazen Faqha, the acceptability of assassination is evidently still greater.

This vital point of law is incontestable. After all, our world legal system is fully designed to protect us from clear and terrible infringements of our most fundamental human rights. Yet, this very same system still has no independent or centralized means to meet such a primary obligation.

In the best of all possible worlds, assassination could expect no defensible place in counterterrorism. But we do not live in the best of all possible worlds, and the starkly negative aspects of assassination should never be evaluated apart from all alternative options. Such aspects should always be compared to what would be expected of these other options.

If the expected costs of assassination appear lower than the expected costs of alternative counterterrorist options, then assassination must emerge as the plainly rational choice. However odious it might appear in isolation, assassination in any such foreseeable circumstances may still represent the least injurious path to improved national safety from terrorism.

Assassination, even of a Hamas terrorist leader like Mazen Faqha, will almost always elicit indignation, ironically, even from those who might find full-scale warfare appropriate. Still, the civilizational promise of universal brotherhood is stunningly far from being realized, and seriously imperiled states must continue to confront difficult choices between employing assassination in limited circumstances, or smugly renouncing such self-defense tactics at the intolerable expense of both justice and security. In facing such painful choices, these exposed states, especially Israel, will discover that all operational alternatives to the targeted-killing option must also include violence, and that these alternatives could quickly exact a far larger toll in human life and community suffering.

Reprinted with author’s permission from Israel Defense

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