THE LEGALITY OF ISRAEL’S TARGETED KILLINGS UNDER INTERNATIONAL

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THE LEGALITY OF ISRAEL’S TARGETED KILLINGS UNDER INTERNATIONAL

LAW

Exclusive SPME Op-Ed from Louis Rene Beres, Purdue University Louis Rene Beres Professor of International Law Department of Political Science Purdue University West Lafayette INÂ 47907 USA September 7, 2003

(The views expressed in this and other Op-Ed and Views pieces represent the views of the writer and not necessarily Scholars for Peace in the Middle East who publish them to expose our members and others to the many positions in need of discussion during the difficult struggle for peace in the Middle East. SPME welcomes Op-Ed Pieces from all segments of the academic spectrum who are dedicated to peace in the region and to advocated for Israel’s right to exist within safe and secure borders at peace with her neighbors and to address the rising number of incidents of anti-Semitic and anti-Israel teachings and behaviors on campus. To comment on this article or any other article, submit your thoughts to spme@yahoogroups.com where it will be evaluated for an Exclusive Op-Ed piece, Views or SPMEChat)

The scenario is now dreadfully familiar. Hamas suicide/homicide bombers attack a bus filled with Jewish children in Jerusalem; later, wildly enthusiastic celebrants in Gaza or Ramallah or Jenin mythologize the murderers and applaud the “heroic military operation.” Some time still later, specially-trained IDF units assassinate carefully­identified Palestinian masterminds of the Hamas terror. Inevitably, thousands of “ordinary” Palestinians then pour into the streets, vowing “revenge” while perversely affirming that “God Is Great.”

What conceivable right of “revenge” can be claimed by the world’s most barbarous terrorists? Terrorism is a codified crime under international law. Is there any society on earth which recognizes legal symmetry between those who commit egregious crimes against humanity and those who punish them?

If the international legal order were fully centralized; that is, if it maintained the central enforcement mechanisms of national governments, Israel could then call upon the relevant world authority to punish the terrorist leaderships and prevent future terrorist attacks. But the international legal system is not centralized. On the contrary, since the seventeenth century and the Peace of Westphalia which ended the Thirty Years War (1648), this system has relied always upon national self-help mechanisms of law enforcement. Recalling the binding Nuremberg Principle of “No crime without a punishment,” in the absence of such self-help remedies there would generally be no law-enforcement at all in current world politics.

In the manner of each and every state on this earth, Israel has not only the right, but the obligation, to provide safety for its citizens. Now faced with one of the most heinous terror movements in modern times, it has decided to confront terror in the most discriminate and lawful manner imaginable. Rather than unleash massive force against terror strongholds which might enlarge the number of collateral fatalities and injuries, it has settled for “targeted killings” of major Hamas criminals. In stunningly ironic contrast to the behavior of Palestinian terrorists, which is deliberately and determinably guided by the wilful murder of noncombatants, Israel willingly accepts a measure of reduced counterterrorist efficacy for the sake of compliance with humanitarian international law.

The “civilized” world sometimes refers to targeted killings as “extra-judicial executions.” In assessing this language, however, we must bear in mind that extra-judicial need not imply extra-legal. It means only that this harm-minimizing form of counterterrorism is not court­ordered (how could it be?). The truest form of injustice in such circumstances would obtain if the terrorist leadership were left unpunished; in essence, the only real alternative to targeted killings. Here, premeditated murder of Jewish children on buses, in schools, in ice-cream parlors would take place more frequently, hardly a condition that Israel could ever accept as “more lawful.”

here is, of course, no lack of precedent for targeted killing as an accepted means of international law enforcement regarding the crime of terrorism. The United States of America has made no secret of its vastly larger and more institutionalized system of terrorist assassination. Indeed, if Washington could have fashioned a decidedly more capable plan for assassinating Saddam Hussein and his cohorts six months ago, we might even have avoided a protracted and still inconclusive war -an ongoing war with substantially greater cumulative costs than would have been incurred by successful targeted killings. It must also be pointed out that the expanded right of preemptive action codified in President Bush’s NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA (September 2002) goes very far beyond Israel’s limited policy of targeted killings. It follows that the United States now has no conceivable legal right to identify Israel’s counterterrorism strategy as impermissible in any way.

In the past few weeks, Moshe Ya’alon, IDF Chief of General Staff, has made it plain that all Hamas leaders and operatives are now legitimate targets for Israeli assassination. Although it is unlikely that this communication will deter Hamas and its sister organizations from all future acts of deadly terror, it will likely have the effect of reducing the incidence of subsequent attacks by increments. And whatever the tactical outcome, Ya’alon is assuredly on firm international law foundations, both in terms of the universal right of states to resort to anticipatory self-defense and in terms of the previously-mentioned Great Power declaration on preemption issued by the President of the United States.

Punishment is always at the heart of justice. but we are presently concerned less with punishment of past terrorist crimes than with the prevention of future attacks. The imperative to seek such prevention is all the more considerable when such attacks are apt to employ weapons of mass destruction. Under settled international law, Israel has this obligation, and authority, under the customary right of anticipatory self-defense and according to the corollary treaty-based right of self-defense following an armed attack (Article 51 of the United Nations Charter). Indeed, following America’s NATIONAL SECURITY STRATEGY OF THE UNITED STATES, Israel’s right to undertake selected targeted killings could properly extend not only to the terrorists themselves, but also to leadership elites in other Arab/Islamic countries that support Palestinian terrorism.

 International law is not a suicide pact. Every state has the right and the obligation to protect its citizens. In certain circumstances, especially where the state is under persistent and possibly escalating forms of terror attack, this right and obligation may extend to targeted killing of wrongdoers. This point is well-known and well-taken in Washington, where every president since Eisenhower has given blessings and unambiguous approval to particular assasinations. To be sure, in the American case, such presidential approval has sometimes been inappropriate and unwise, but the underlying principles of anticipatory self-defense remain altogether necessary and proper.

Targeted killings, even of terrorists, 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, as we witness daily on the bloodied streets of Jerusalem, the civilizational promise of modernity is far from realized.

Israel must now confront clear choices between employing assassination as counterterrorism and anticipatory self-defense, or renouncing such employment at the cost of expanded murder and maiming of its most fragile citiziens. In facing these choices, Israelis will discover that all viable alternatives to targeted killing also include violence, and that these alternatives may often exact a much larger toll in human life and suffering.

THE LEGALITY OF ISRAEL’S TARGETED KILLINGS UNDER INTERNATIONAL

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