Assassinating Terrorist
Leaders The American Imperative
By Louis Rene Beres
America is at war
with terrorism, and war requires certain forms of killing. Ironically, while
virtually all societies and civilizations accept the permissibility of certain
war with vast armies and large weapons, most also deny the legality and
decency of assassination, even as self-defense. Yet, used very selectively and
appropriately, assassination of terrorist leaders could save countless
American lives. There is no reason to believe that the blood of a small number
of terrorists is any redder than that of millions of our fellow citizens.
For many years I have argued for the limited legality and reasonableness of
assassination as counter-terrorism. The heart of my argument has always been
that the targeted killing of terrorists who plan large-scale or even
mass-destruction attacks could save the lives of intended victims. In this
connection, it is altogether likely that such preemptive killing of those
terrorist leaders responsible for the World Trade Center and Pentagon
abominations would have prevented these latest expressions of Arab/Islamic
barbarism.
Let the President of the United States take immediate notice. There ARE
certain instances where assassination can be authentically law- enforcing.
Among our most sacred American legal principles is the rule of "No Crime
Without A Punishment." Where perpetrators of egregious crimes like the huge
terrorist attack on America cannot be punished by normal judicial remedy, the
choice will be to leave these murderers unpunished or to punish them
extrajudicially. Moreover, where terrorist crimes are still ongoing or can
reasonably be expected, the permissibility of assassination is self-evidently
greater.
But we are here less concerned with punishment of terrorist crimes than we are
with prevention of future terrorist 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, the United
States has this obligation, and authority, under the customary right of
anticipatory self-defense and the codified right of self-defense following an
armed attack.
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 of wrongdoers. This point is already
well understood in Washington, where every president in recent memory has
given nodding approval to relevant killing operations. When, in the future,
American presidents resort to assassination of terrorists, they will be acting
to defend the survival of millions of citizens.
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 particular assassinations, terrorists — like
those Arab/Islamic elements who wreaked havoc against defenseless civilians in
New York, Washington and four separate airplanes — would remain free to
undertake future excursions into mass murder.
For now, our world legal order still lacks an international criminal court
with jurisdiction over individuals. Only the courts of individual countries
can provide the judicial context for trials of terrorists. Where states or
aspiring states harbor such criminals and refuse to honor extradition requests
(e.g., the Arab/Islamic states and the Palestinian Authority), the only decent
remedies for justice available to victim societies lie in unilateral
enforcement action.
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 the recent Arab/Islamic terrorist crimes were directed specifically at
this country assuredly removes any doubts about the reasonableness of
America'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, 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 the expense of
justice and safety. Lacking any central global institutions to interpret and
enforce the rules against terrorism, the existing law of nations must
sometimes continue to rely on even the most objectionable forms of self-help.
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 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 American 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, as we have just witnessed, the civilizational promise of modernity is far
from realized. The United States must now confront choices between employing
assassination as counter-terrorism or renouncing such employment at the
expense of justice and safety. In facing such choices, we Americans 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 work on counterterrorism and assassination is well-known to
American and Israeli military and intelligence communities.