Israel, a country that is half the size of Lake Michigan, now lives under the murderous shadow of Hamas and other groups which deliberately target Jewish civilians, primarily children. The preferred weapon of the Palestinian suicide bomber who attacks nursery schools and ice cream parlors is an explosive filled with nails, screws, and razor blades – sharp projectiles that have been meticulously dipped in rat poison.
Not a single Palestinian terror group recognizes Israel’s right to exist, and each Palestinian terror group is explicitly 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 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 great sadness, resignation and reluctance. For years, Israel had routinely capitulated to virtually every Palestinian demand, hoping – desperately – to secure thereby a serious peace. The Arab response has been a steady and planned escalation of frenzied and indiscriminate bombings, lynchings and shootings. The cry “Itbach Yahud!” (Slaughter the Jews!) is still heard loudly in every corner of the Arab world, even after former Prime Minister Barak offered Arafat virtually every concession imaginable. What is Israel to do?
International law is not a suicide pact. 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 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 is not quite as strong.
More than any other state in the world, Israel – less than half the size of San Bernardino County in California – faces a real daily threat of national extermination. The Arab world, which excludes Israel from ALL its maps, prefers the term “liquidation” whenever it speaks of “The Zionist Entity.” According to the Charter of Hamas, the terror group founded by 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.”
Normally, 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 targeted assassinations, terrorists – like Yassin and those other Palestinian elements who ceaselessly wreak havoc against defenseless civilians in Israel – could remain altogether free. Effectively immune to the proper legal expectations of extradition and prosecution, these terrorists would continue to murder with great passion and joy, literally washing their hands (as they did at the Ramallah lynchings) in the blood of their victims.
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 recently by Israel in its capture of 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 longstanding 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 terrorism 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 barbarous
means used in their “military” operations can never be accepted 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 violence against the innocent. Never.
By the standards of contemporary international law, terrorists are known as “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 Palestinian terror-crimes are always directed specifically at Israel assuredly removes any doubts about the reasonableness of Jerusalem’s particular 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 the Lechi group (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 rules of law, may 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/Islamic Jihad, the permissibility of assassination is even greater. This is the case because our world legal system is obligated to protect us all from clear and terrible infringements of our human rights.
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 could 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. After all, living, as we do in the “modern” age of civilization and culture, how else should decent people react to the idea of killing as remediation? 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 (c) 2004 The Jewish Press. 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 work on counter-terrorism is well-known to American and Israeli military/intelligence communities.