From the start of his presidency, President Donald Trump has made the defeat of ISIS an overriding foreign policy priority. Indeed, until the Syrian nerve gas attack on civilians of April 4, 2017, this priority was deemed so immutably urgent that it expressly promised American support for Bashar al-Assad. Now, however, following US military cruise missile response to the markedly egregious Syrian offense, Mr. Trump has had to reverse all such prior support, if not to prepare for President al-Assad’s actual departure from power.
At an absolute minimum, in this suddenly revised view, the American president will substantially oppose the Damascus regime’s crimes of war and crimes against humanity, including, if necessary, the prompt or eventual removal of al-Assad. Either way, whether opting for Syrian regime moderation or removal, Mr. Trump will also seek to proceed with a suitably muscular brand of regional counter-terrorism. To be sure, going after al-Assad would not likely be undertaken at the expense of President Trump’s long-promised American effort to defeat ISIS.
Inevitably, therefore, whatever else might be decided tactically vis-à-vis Bashar al-Assad, an integral part of this now twin-sided effort must be a stepped-up American campaign to target selected jihadist leaders and operatives. Here, among several related and intersecting concerns, Mr. Trump and his pertinent counselors will need to inquire as follows: Is it sufficiently legal to eliminate such terrorists if aptly precise linkages between the prospective targets and discernible attack intentions can be suitably documented?
To properly answer this core question, it will first be necessary for President Trump to ask whether any proposed terrorist killing plan would be gainfully preemptive, or just narrowly retributive. If exclusively the latter, a judgment wherein national self-defense were not in any way the underlying action rationale, rendering authoritative determinations of legality could readily become substantially more problematic.
There is more. Assassination is explicitly prohibited by US law. It is also generally a crime under international law, which, although not widely understood, is also a tangible part of American domestic or municipal law. Still, at least in certain more-or-less residual circumstances, the targeted killing of Jihadist terrorist leaders could correctly be excluded from ordinarily prohibited behaviors, and thereby still be defended as a fully permissible expression of indispensable law-enforcement.
A similar defense may sometimes be applied to the considered killing of terrorist “rank-and-file,” especially where such intentionally selective lethality had already become part of a wider and already-ongoing pattern of counter-terrorism. For example, the United States has lately been widening the scope of permissible terrorist targeting in certain parts of Iraq, Afghanistan and quite possibly Syria. In part, such a widened arc of permissibility – one which now modifies more stringent prior rules of engagement that had earlier required specific human target identifications – has represented an unavoidable by-product of developing technologies.
Most obvious, among these newer technologies, is growing US reliance upon drone-based assassinations, and also on certain other forms of longer-range or distance killing.
In the best of all possible worlds, there would be no need for any such decentralized or “vigilante” expressions of international justice, but, plainly, we don’t yet live in such an ideal world. Instead, enduring uneasily in our present and continuously anarchic global legal order – a context that we international law professors prefer to call “Westphalian” – the only real alternative to optimally precise self-defense actions directed against terrorists is likely to be steadily worsening in-theatre instabilities. Ultimately, such hyper-instabilities could include even more consequential and conspicuous escalations of jihadist terror-violence.
Further, at some point, such escalations could lead to wholly unprecedented instances of biological or nuclear attack. These attacks might be undertaken exclusively by assorted sub-state adversaries (e.g., ISIS), or instead, by certain “hybrid” combinations of both state and sub-state foes.
To be sure, the very idea of assassination as remediation seems paradoxical, almost as an oxymoron. At a minimum, this understandably objectionable idea must seemingly preclude the input of all usual due processes of law. Nonetheless, since the current state system’s original inception in the seventeenth century, following the Thirty Years’ War, and the Peace of Westphalia in 1648, international relations have never been governable by the same civil protections that are at least potentially available in democratic states.
In this persisting world legal system, one which still lacks any duly-constituted and effective supra-national authority, assorted jihadist leaders (ISIS, al-Qaeda, etc.) are already responsible for the mass killings of noncombatant men, women, and children of many nationalities. It follows that where such leaders are not suitably “terminated” by the United States, or by any of America’s key allies (e.g., Israel, in the tumultuous Middle East), egregious terror crimes will almost certainly continue, and then left unpunished. Any such predictable de facto impunity would be flagrantly inconsistent with the universal legal obligation to punish international crimes, a jus cogens or peremptory obligation reaffirmed at the original Nuremberg Tribunal, and subsequently, in the resultant Nuremberg Principles.
More formally, this lex talionis obligation, which comes to us from both ancient Roman law and the Hebrew Bible, is known correctly as Nullum crimen sine poena, or “No crime without a punishment.”
Significantly, considerations of law and tactics must inevitably inter-penetrate. In this connection, the glaring indiscriminacy of most jihadist operations is rarely if ever the result of enemy inadvertence. Rather, it is typically the distinctly intentional outcome of uniformly violent terrorist inclinations, unambiguously murderous ideals that lay deeply embedded in the terrorist leader’s operative view of jihad.
For jihadists, there can never be any meaningful distinction between civilians and non-civilians, between innocents and non-innocents. For these active or latent murderers, all that really matters are certain unassailably immutable distinctions made between Muslims, “apostates,” and “unbelievers.”
As for the apostates and unbelievers, it is all really quite simple. Their lives, believe the jihadists, simply have no value. That is, they have absolutely no immunizing sanctity.
In law, every government has both the right and the obligation to protect its citizens against external harms. In certain circumstances, moreover, this coincident right and obligation may extend derivatively to targeted killing. This point, of course, has long been understood in Washington, where every president in recent memory has given nodding or substantially more direct approval to “high-value” assassination operations.
To some extent, lower-value or more narrowly tactical assassination efforts in Syria may have already become a routine feature of US special operations, though this could quickly change if President Trump should begin to move more openly to dislodge Bashar al-Assad.
Generally, assassination is a definite crime under international law. Yet, in our essentially decentralized system of world law, self-help by individual states is still often necessary, and is occasionally the only real alternative to a passive suffering of potentially escalating terrorist crimes. In the absence of particular targeted killings, terrorists could continue to play havoc against fully defenseless civilians in Syria and elsewhere, and with utter impunity.
A basic difficulty here is that these criminals are usually immune to the more orthodox legal expectations of extradition and prosecution (Aut dedere, aut judicare). This is not to suggest that targeted assassination of terrorists will always “work” – there is nothing to necessarily support the logic of any such suggestion – but only that disallowing such targeted killing ex ante could never be operationally gainful or legally just.
If carried out with due regard for pertinent “rules,” assassinating terrorist leaders could remain entirely consistent with the ancient legal principle of Nullum crimen sine poena, “No crime without a punishment.” Earlier, this original principle of justice had been cited as a dominant rationale for both the Tokyo and Nuremberg war crime tribunals. Accordingly, it was subsequently incorporated into customary international law, an authoritative source of law identified at Article 38 of the Statute of the International Court of Justice.
By both the codified and customary standards of contemporary international law, terrorists are 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.” But choosing precisely which terrorists ought to be targeted remains a largely ideological rather than purely jurisprudential matter.
In this connection, it is plausible that the Trump administration will likely not want to expressly target Shiite Hezbollah terrorists, at least not in the vigorous and enthusiastic fashion increasingly employed in their hunt for Sunni ISIS operators. After all, should the US administration ever “succeed” in making such a primary bifurcation of jihadist targets, the expected net effect could be recognizably gainful for Syrian tyrant al-Assad, and potentially harmful for Israel, America’s loyal democratic ally in the area.
In current circumstances, tyrannicide can be seen as the logical “flip side” of American counter-terrorism. Historically, limited support for expressing assassination as tyrannicide is not hard to discover. It can be found, inter alia, in the classical writings of Aristotle, Plutarch, and Cicero. But if the United States should suddenly invoke a right of tyrannicide with specific regard to Bashar al-Assad, whether openly, or Sotto Voce, it would have to do so at the expense of its previously declared war against ISIS.
Overall, in his consideration of assassination as counter-terrorism, President Trump (or more realistically his counselors) should usefully consider the clarifying position of Swiss scholar Emmerich de Vattel, in his classic work, The Law of Nations, or the Principles of Natural Law (1758): “The safest plan is to prevent evil where that is possible. A Nation has the right to resist the injury another seeks to inflict upon it, and to use force and every other just means of resistance against the aggressor.”
Earlier, a similar view had been presented by Samuel Pufendorf, in his enduring text, On the Duty of Man and Citizen According to Natural Law (1682): “Where it is quite clear that he is engaged in planning violence against me, even though he has not fully revealed his design, I shall be justified in immediately initiating self-defence by force, and in seizing the initiative against him, while he is still making preparations… The aggressor will be taken to be the party which first conceived the intention to harm the other… To have the name of defender, it is not necessary to suffer the first blow, or merely to elude and repel the blows aimed at one.”
Even earlier, the right of self-defense by forestalling an attack had been established by the foundational Dutch scholar, Hugo Grotius, in Book II of The Law of War and Peace (1625). Recognizing the need for what later jurisprudence would reference as threatening international behavior that is “imminent in point of time” (See The Caroline Case, 1837), Grotius indicated that self-defense must be permitted not only after an attack has already been suffered, but also in advance, where “the deed may be anticipated.”
Further on, in the same chapter, Grotius summarized as follows: “It be lawful to kill him who is preparing to kill.”
Interestingly, Vattel, Pufendorf and Grotius were all taken into primary account by Thomas Jefferson, in his critical fashioning of the American Declaration of Independence.
In a far better world than this one, assassination could have no defensible place as counterterrorism, either as a preemptive measure, or ex post facto, that is, as a permissible retribution. But, as if anyone should still need a reminder, we do not yet live in the best of all possible worlds, and the obviously negative aspects of targeted killing should never be evaluated apart from the foreseeable costs of all other available options. More precisely, such aspects should always be closely compared to what could plausibly be expected of all alternative choices.
International law is not a suicide pact. Ubi cessat remedium ordinarium, ibi decurritur ad extraordinarium; “Where the ordinary remedy fails, recourse must be had to an extraordinary one.”
President Trump is correctly expected to comply with the rules and procedures of humanitarian international law, yet he must also continue to bear in mind that ISIS and our other jihadist enemies will remain entirely unaffected by these or any other jurisprudential expectations. Even assassination and other still broader forms of preemption may sometimes be not only allowable under binding international law, but also indispensable. Conversely, however, there are occasions when strategies of assassination could be determinedly legal, but still remain operationally ineffectual.
Going forward, the task for President Trump will now be to apply targeted strategies against ISIS without simultaneously strengthening Hezbollah and al-Assad. As for encouraging outright “tyrranicide” against al-Assad, this option would likely prove counter-productive to America’s more sensibly long-term interests against Sunni jihadists in Syria.
In the final analysis, President Trump will need to calculate how best to manage al-Assad’s potential for inflicting further harms on Syria’s noncombatant populations without reciprocally strengthening ISIS and related Sunni jihadist foes.
Recalling the close connections between international law and US law – connections that extend to direct and literal forms of “incorporation” – an American president can never choose to dismiss the law of war on grounds that is merely “international.”Always, President Trump should consider decipherable connections between assassination, counter-terrorism, and United States Constitutional Law. In late September, 2011, Anwar al-Awlaki, a US Citizen, was killed by an American CIA drone attack in Yemen. This targeted killing had been expressly approved by President Barack Obama, and by a still-secret committee of advisors based in the Department of Justice.
Under US law, we are always bound to inquire, should an American president ever be authorized to order the extra-judicial killing of a United States citizen, even one deemed to be an “enemy combatant,” without any perfunctory reference or visible recourse to “due process of law?” Prima facie, any affirmative response to this query would be difficult or impossible to defend under the US Constitution.
Also, of necessity, any such approval would need to be based upon presumed high urgency of a terror threat posed by the prospective victim. Any such allegedly “authorized” targeted killing of US citizens would express a potentially irremediable tension between theoretically indissoluble individual citizen rights, and the increasingly peremptory requirements of public safety.
In the end, US policy on assassination or targeted killing will have to reflect a very delicate balance. Similar emphases on “equilibrium” should now guide other democratic states which are warring against evident terror. Regarding Bashar al-Assad and America’s jurisprudential “responsibility to protect” Syrian civilian populations without simultaneously compromising parallel US obligations against ISIS, the immediate Trump objective should not be to force a seat-of-the-pants regime-change in Damascus.
Instead, in determinably suitable increments, the United States ought to apply appropriately collaborative sanctions against this blatantly criminal regime, while at the same time targeting now even more foreseeably viable Sunni jihadist leaders. Whether such a delicate and nuanced strategy ought sometime also to include the express targeting of Shiite as well as Sunni terrorists, must inevitably remain an ideological and operational question. It is by no means an essentially legal consideration.
Reprinted with author’s permission from Israel Defense
