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Victimized daily by Palestinian terrorist murderers of women and young children, Israel is now responding with targeted killings of those who direct such crimes. Is such carefully limited Israeli military action permissible under international law? Indeed, is assassination ever permissible as a form of counterterrorism?
Israel's current actions against the "head of the snake" are being undertaken with great sadness, resignation and reluctance. For years, Israel has routinely capitulated to virtually every PLO 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 "Slaughter the Jews" is heard loudly in every corner of the Arab world, irrespective of Israeli territorial concessions and surrenders. 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 approval to relevant operations. 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. More often than not, U.S. resort to assassination as foreign policy has absolutely nothing to do with America's safety.
Israel is just a bit less secure and more vulnerable than the United States of America. 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 prefers the term "liquidation" whenever it speaks of "The Zionist Entity.") Correspondingly, Israel's right to defend itself should not be dismissed cavalierly by those who live in more comfortable neighborhoods. Although many would disagree, even Jews have the right to live.
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 Palestinian elements who ceaselessly wreak havoc against defenseless civilians in Israel - could remain altogether free. Immune to the proper expectations of extradition and prosecution, these terrorists would continue to murder with great passion and joy, literally washing their hands (as they did in Ramallah) 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, this remedy inevitably costs a great many more innocent lives, both in the operation itself and in the form of consequent terrorism.
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.
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 (and they can not be so accepted) the barbarous means used in their "military" operations can never be taken as lawful. The law of armed conflict makes perfectly clear that the ends can never justify the means. A cause, even if it were legitimate, can never excuse the use of violence against the innocent. 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 Arab/Islamic bombers' 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 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. 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.
Assassination, subject to the applicable rules of law, may be the least injurious form of available punishment. Moreover, 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 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 (because it is GOAL NEFESH, meaning, in Hebrew, "disgusting") 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.
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