On Assassination, Preemption, and Counterterrorism: The View from International Law

January 4, 2018

24 min read

Louis Rene Beres

International Journal of Intelligence and CounterIntelligence, Volume 21, Issue 4 December 2008, pages 694 – 725

The United States and a few of its more-or-less reluctant allies are presently engaged in an inconclusive “war”[1] with terrorism. [2] By definition, war requires killing as remediation. Yet, while virtually all societies and civilizations accept the permissibility of warfare involving vast armies and powerful armaments in particular circumstances (to wit, the long tradition of a just war doctrine [3] in philosophy, theology, and jurisprudence), most would nonetheless deny the legality and ethical correctness of targeted killings, such as assassinations. These denials sometimes accompany even fully incontestable expressions of anticipatory self-defense.[4] A similarly far-reaching rejection of preemptive strikes[5]that involve larger-scale military force also prevails.

For more than a quarter-century I have argued openly, in various lectures and numerous law journals, for the limited legality and pragmatic reasonableness[6] of assassination as an element of counterterrorism.[7] The core of my argument has always been a utilitarian calculation in preserving innocent human lives. Specifically, I have maintained that the preemptive elimination of terrorists who plan large-scale, or even unconventional, mass casualty attacks against Americans and others could ultimately save the lives of a great many intended terrorist victims. Of course, such targeted killing would always require maximal attention to the long-standing rules of war[8] concerning discrimination,[9] proportionality,[10] and military necessity.

Also present is the question of justice.[11] Among the most sacred American ideals is the rule of Nullum crimen sine poena, “No crime without a punishment.” This principle, drawn from the worlds of ancient Israel[12] and ancient Greece, is explicitly codified in the binding Nuremberg[13] Principles of International Law.[14] Where planners of egregious crimes[15] such as the 11 September 2001 terrorist attacks on the United States cannot be punished by any normal judicial remedy (for example, very little international compliance with the codified and customary norm of aut dedere, aut punire (“extradite or prosecute”) can be expected),[16] the choice must be to leave these murderers unpunished, or to punish them extra-judicially.[17]

Punishment[18] is always at the heart of justice,[19] but intelligence professionals and police officials are understandably less concerned with the punishment of past terrorist crimes than with the prevention of future terrorist attacks.[20] The imperative to seek prevention is all the more considerable when future attacks are more apt to employ weapons of mass destruction.[21] Under the settled international law,[22] the United States has this defensive obligation, and corollary authority, under the customary right of anticipatory self-defense and also the treaty-based right of self-defense following an armed attack at Article 51 of the United Nations Charter.[23] Acknowledging this obligation and authority, President George W. Bush, on 20 September 2002, issued The National Security Strategy of the United States.[24] Unilaterally extending America’s right of preemption in foreign affairs, the “Bush Doctrine”-drawing upon antecedent principles of law and justice-asserts that traditional concepts of deterrence will not work against an enemy “whose avowed tactics are wanton destruction and the targeting of innocents….”[25] It continues: “We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.” This “adaptation,” of course, means nothing less than striking first where an emergent threat to the United States is presumed to be unacceptable.

Might the broadened right of preemption asserted by President Bush include assassination? Normally, preemptive strikes are thought of in terms of much larger-scale military operations directed against enemy forces and/or infrastructures. Moreover, substantial prohibitions of assassination in domestic and international law would seem to prima facie rule out this use of force as an expression of anticipatory self-defense. Yet, when the issues are examined purposefully and dispassionately, assassination will sometimes turn out to clearly be the most humane and useful form of preemption. Getting beyond any deep-seated visceral objections that are detached from the rational jurisprudential calculation is necessary in order to very carefully compare targeted killing with all other available preemption options. To be sure, assassination is not “nice,” but neither is full-scale war.

International law is not a suicide pact.[26] The right of self-defense by forestalling an attack was already established by Hugo Grotius in Book II of The Law of War and Peace in 1625.[27] Recognizing the need for “present danger” and threatening behavior that is “imminent in a point of time,”[28] Grotius indicated that self-defense is to be permitted, not only after an attack has already been suffered, but also in advance, where “the deed may be anticipated.”[29] “It be lawful to kill him,” wrote Grotius, “who is preparing to kill….”[30]

What particular strategies and tactics may be implemented as appropriate instances of anticipatory self-defense? Might they even include assassination?[31] Understood as tyrannicide,[32] assassination has sometimes been acceptable under international law (e.g., Aristotle’s Politics; Plutarch’s Lives and Cicero’s De Officiis).[33] But the primary concern here is not with the international law of human rights,[34] but rather with those equally peremptory rights[35] of legitimate self-defense[36] and national self-protection.

ASSASSINATION DURING A STATE OF PEACE

Normally, of course, the assassination of officials in other states represents a clear violation of international law. Where no state of war exists, such assassination would likely constitute a crime of aggression and/or the crime of terrorism.[37] Regarding aggression, Article 1 of the Resolution on the Definition of Aggression, adopted by the United Nations General Assembly in December 1974, defines this crime, inter alia, as: “… the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.”[38]

In view of the jus cogens norm of nonintervention[39] codified in the UN Charter that would ordinarily be violated by transnational assassination, such killing would generally qualify as aggression. Assuming that transnational assassination constitutes an example of “armed force,” the criminalization, as aggression, of such activity, may also be extrapolated from Article 2 of the Definition of Aggression: “The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances.”[40]

In the absence of belligerency, the assassination of officials in one state upon the orders of another state might also be considered as terrorism.[41] Although it never entered into force, the League of Nations’ Convention for the Prevention and Punishment of Terrorism[42] warrants consideration and consultation.[43] Inasmuch as the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, is normally taken as a convention on terrorism, its particular prohibitions on assassination are also relevant here. After defining “internationally protected person” at Article 1 of the Convention, Article 1 identifies as a crime, inter alia, “The intentional commission of (a) a murder, kidnapping or other attacks upon the person or liberty of an internationally protected person.”[44]

The European Convention on the Suppression of Terrorism reinforced the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons. According to Article 1(c) of this Convention, one of the constituent crimes of terror violence is “a serious offense involving an attack against the life, physical integrity or liberty of internationally protected persons, including diplomatic agents.” And, according to Article 1(e), another constituent terrorist crime is “an offense involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if this use endangers persons.”[45]

ASSASSINATION DURING A STATE OF WAR

When a condition of war exists between states, transnational assassination is normally considered a war crime under international law. According to Article 23(b) of the regulations annexed to Hague Convention IV of 18 October 1907, respecting the laws and customs of war on land: “It is especially forbidden … to kill or wound treacherously, individuals belonging to the hostile nation or army.” U.S. Army Field Manual 27-10, The Law of Land Warfare (1956), which has incorporated this prohibition, authoritatively links Hague Article 23(b) to assassination at Paragraph 31: “This article is construed as prohibiting assassination, proscription or outlawry of an enemy, or putting a price upon an enemy’s head, as well as offering a reward for an enemy ‘dead or alive.’”[46] Whether or not a particular state has followed a comparable form of incorporation, it is certainly bound by the Hague codification and by the 1945 Nuremberg judgment that the rules found in the Hague regulations had entered into customary international law as of 1939.[47]

A contrary argument exists, however. Here the position is offered that enemy officials, as long as they are operating within the military chain of command[48] are combatants and not enemies hors de combat. By this reasoning (reasoning, incidentally, which was accepted widely with reference to the question of assassinating Saddam Hussein during Operation Desert Storm and Operation Iraqi Freedom), certain enemy officials are lawful targets, and the assassination of enemy leaders is permissible, so long as it displays respect for the laws of war. As for the position codified at Article 23(b) of Hague Convention IV, which is also part of the customary international law, this contrary argument, in practice, has simply paid it no attention.

In principle, adherents of the argument that assassination of enemy officials in wartime may be permissible could offer two possible bases of jurisprudential support: they could argue that such assassination does not evidence behavior designed “to kill or wound treacherously” (emphasis added) as defined at Hague Article 23(b); and/or they could argue that a “higher” or jus cogens obligation to assassinate in particular circumstances transcends and overrides pertinent treaty prohibitions. To argue the first position would focus primarily on a “linguistic” solution; to argue the second would be to return to the historic natural law origins of international law.[49]

But even if one or both of these positions could be argued persuasively, the conclusion would, by definition, have nothing to do with anticipatory self-defense. Because assassination during wartime cannot be a measure of self-help short of war, its legality must be appraised solely according to the settled laws of war. It follows that any assassination of enemy officials in another state may be a lawful instance of anticipatory self-defense only in those cases wherein the target person(s) represents states with which there is no recognized belligerency.[50]

ASSASSINATION AS LAW ENFORCEMENT AMONG STATES NOT AT WAR

The customary right of anticipatory self-defense has its modern origins in the Caroline incident, which concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule (a rebellion that aroused sympathy and support in the American border states).[51] Following this case, the serious threat of armed attack has generally been taken to justify militarily defensive action. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then-U.S. Secretary of State Daniel Webster outlined a framework for self-defense, which did not require an actual attack. Here, military response to a threat was judged permissible, so long as the danger posed was “instant, [and] overwhelming, leaving no choice of means and no moment for deliberation.”[52]

Today, some scholars argue that the customary right of anticipatory self-defense articulated by the Caroline has been overridden by the specific language of Article 51 of the UN Charter. In this view, Article 51 fashions a new, and far more restrictive, statement of self-defense, one that relies on the literal qualification contained at Article 51 “if an armed attack occurs.” This interpretation ignores the reality that international law cannot compel a state to wait until it absorbs a devastating or even lethal first strike before acting to protect itself. The argument against the restrictive view of self-defense is reinforced by the apparent weaknesses of the UN Security Council in offering collective security against an aggressor, and, of course, by the 20 September 2002 National Security Strategy of the United States of America.

Whether or not assassination would qualify as law-enforcing anticipatory self-defense in a particular instance could be a largely subjective judgment, and may also be affected by the municipal law.[53] Before any state could persuasively argue any future instances of anticipatory self-defense under international law, including assassination, a strong case would have to be made that it had first sought to exhaust peaceful means of settlement. Even a broad view of the doctrine of anticipatory self-defense does not relieve a state of the obligations codified at Article 1 and at Article 2 of the UN Charter.

These obligations notwithstanding, the primary understanding that international law is not a suicide pact, especially in an age of uniquely destructive weaponry, must be understood. The advent of the nuclear age has probably made it a form of suicide for a state to wait for an actual act of aggression to occur. Recognizing this, Wolfgang Friedmann argued as follows long before today’s growing threat of “rogue states” and weapons of mass destruction (WMD):

The judgment as to when to resort to such [preemptive] measures now places an almost unimaginable burden of responsibility upon the major Powers. But while this immensely increases the necessity for a reliable international detection organization and mechanism, in the absence of effective international machinery the right of self-defense must probably now be extended to the defense against a clearly imminent aggression, despite the apparently contrary language of Article 51 of the Charter.[54]

In rather similar fashion, Myres McDougal argued:

The more important limitations imposed by the general community upon the customary right of self-defense have been, in conformity with the overriding policy it serves of minimizing coercion and violence across states lines, those of necessity and proportionality. The conditions of necessity required to be shown by the target state have never, however, been restricted to “actual armed attack”; imminence of attack of such high degree as to preclude effective resort by the intended victim to non-violent modalities of response has always been regarded as sufficient justification, and it is now generally recognized that a determination of imminence requires an appraisal of the total impact of an initiating state’s coercive activities upon the target state’s expectations about the costs of preserving its territorial integrity and political independence. Even the highly restrictive language of Secretary of State Webster in the Carolinecase, specifying a “necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation,” did not require “actual armed attack,” and the understanding is now widespread that a test formulated in the previous century for a controversy between two friendly states is hardly relevant to contemporary controversies, involving high expectations of violence, between nuclear-armed protagonists.[55]

Still remaining, though, is the problem of demonstrating that assassination can be construed, at least under certain very limited circumstances, as an appropriate instance of anticipatory self-defense. The enhanced permissibility of anticipatory self-defense that follows generally from the growing destructiveness of current weapons technologies falling into rogue hands may be paralleled by the enhanced permissibility of assassination as a particular preemptive strategy. Indeed, where assassination as anticipatory self-defense may actually prevent a nuclear or other highly destructive forms of warfare, reasonableness dictates that it would represent distinctly, or even especially, law-enforcing behavior.

For this to be the case, several particular conditions would need to be satisfied. First, the assassination itself would have to be limited, to the greatest extent possible, to those authoritative persons in the prospective attacking state. Second, the assassination would have to conform to all of the settled rules of warfare as they concern discrimination, proportionality, and military necessity. Third, the assassination would need to follow intelligence assessments that point, beyond a reasonable doubt, to preparations for unconventional or other forms of highly destructive warfare within the intended victim’s state. Fourth, the assassination would need to be founded upon carefully calculated judgments that it would, in fact, prevent the intended aggression and that it would do so with substantially less harm to civilian populations than would the alternative forms of anticipatory self-defense.

This argument may appear both manipulative and dangerous, permitting states to engage in what is normally illegal behavior under the pretext of anticipatory self-defense. Yet, a blanket prohibition of assassination under international law could produce even greater harm, compelling states to resort to large-scale warfare that could otherwise be avoided. Although the best of all possible worlds might result if international legal norms could always be upheld without resort to assassination as anticipatory self-defense, the dynamics of a decentralized system of international law may sometimes require such extraordinary methods of law enforcement.[56]

For example, supposing that a particular state determines that another state is planning a nuclear or chemical surprise attack upon its population centers. Suppose also, that carefully constructed intelligence assessments reveal that the assassination of selected key figures (or perhaps just one leadership figure) would prevent such an attack altogether. Balancing the expected harms of the principal alternative courses of action (assassination/no surprise attack vs. no assassination/surprise attack), the selection of preemptive assassination could prove manifestly reasonable, life-saving, and cost-effective.

What of another, more common form of anticipatory self-defense? Might a conventional military strike against the prospective attacker’s nuclear, biological or chemical weapons launchers and/or storage sites prove even more reasonable and cost-effective? An answer is inevitably contingent upon the particular tactical and strategic circumstances of the moment and the precise way in which these circumstances are configured. But conventional military forms of preemption could conceivably generate far greater harms than assassination, and possibly with no greater defensive benefit. This suggests that assassination should not be dismissed out of hand in all circumstances as a permissible form of anticipatory self-defense under international law.

What of circumstances where the threat to particular states does not involve higher-order WMD[57] military attacks? Could assassination represent a permissible form of anticipatory self-defense under these circumstances? Subject to the above-stated conditions, the answer might still be “yes.” The threat of the chemical, biological, or nuclear attack may surely enhance the legality of assassination as preemption but is by no means an essential precondition. A conventional military attack might still, after all, be enormously (even existentially) destructive[58] It could be followed, in certain circumstances, by follow-on unconventional attacks.

ASSASSINATION AS ANTICIPATORY SELF-DEFENSE AGAINST TERRORISM

The principal threat to be considered within this argument is terrorism. More precisely: “To what extent, if any, might assassination represent a permissible form of anticipatory self-defense as a strategy of counter-terrorism”?[59] Here, the answer may be contingent, inter alia, upon whether the intended victim represents leaders of a state that sponsors or supports terrorism against the state considering assassination; and/or a terrorist group directly.

Before any answer can be offered, however, an antecedent question must be an addressed a question that still baffles and confuses students and practitioners of international relations and international law: “When is the ‘private’ use of force lawful, and when is it terrorism”?

International law has consistently proscribed particular acts of international terrorism.[60] At the same time, however, it codifies the right of insurgents to use certain levels and types of force whenever fundamental human rights are being repressed, and where nonviolent methods of redress are unavailable.[61] Inhabiting a sovereignty-centered system, wherein the normative rules of the human rights regime are normally not enforceable by central global institutions,[62]the individual victims of human rights abuse must obtain relief in appropriate forms of humanitarian assistance or intervention by sympathetic states, and/or in approved forms of rebellion. Indeed, without such self-help remedies, the extent protection of human rights in a decentralized legal setting would be entirely a fiction, assuring little more than the primacy of Realpolitik.[63]

The origins of the current human rights regime-highlighted by the UN Charter; the UN Universal Declaration of Human Rights (1948); the International Covenant on Civil and Political Rights (1976); and the International Covenant on Economic, Social and Cultural Rights (1976)-lie in ancient Greece and Rome. From Greek Stoicism and Roman law to the present, the jus gentium (law of nations) and modern international law have accepted the right of individuals to overthrow tyrants and to oppose, forcefully if necessary, tyrannical regimes. This acceptance can be found primarily in international custom, the general principles of law recognized by nations, UN General Assembly resolutions, various judicial decisions, specific compacts and documents (e.g., the Magna Carta,[64] 1215; the Petition of Right,[65] 1628; the English Bill of Rights,[66] 1689; the Declaration of Independence, 1776; the Declaration of the Rights of Man and of the Citizen,[67] 1789), the writings of highly-qualified publicists (e.g., Cicero, Francisco de Vitoria, Hugo Grotius, and Emmerich de Vattel[68] ) and, by extrapolation, from the convergence of human rights law with the absence of effective, authoritative institutions in world politics.

This leads to the first authoritative jurisprudential standard for differentiating between lawful insurgency and terrorism, one commonly known as “just cause.”[69] Where individual states prevent the exercise of human rights, the insurgency may express law-enforcing reactions under international law. For this to be the case, however, the means used in that insurgency must be consistent with the second authoritative jurisprudential standard, commonly known as “just means.”[70]

Therefore, in deciding whether a particular insurgency is an instance of terrorism or law-enforcement, states must base their evaluations, in part, on judgments concerning discrimination, proportionality, and military necessity. Once the force is applied broadly to any segment of the human population, intentionally blurring the distinction between combatants and noncombatants, terrorism is taking place. Similarly, once the force is applied to the fullest possible extent, restrained only by the limits of available weaponry, terrorism is underway. The consistently indiscriminate use of force by Palestinian insurgents against Israeli noncombatants is incontestably terroristic. However a defense of the justness of the Palestinian cause may be attempted, simply no cause can ever justify the fully premeditated murder of innocent men, women, and children.

The legitimacy of a certain cause can never legitimize the use of certain forms of violence. Under international law, the ends do not justify the means. As in the case of war between states, every use of force by insurgents must be judged twice: once with regard to the justness of the objective, and once with regard to the justness of the means used in pursuit of that objective.

The explicit application of codified restrictions of the laws of war to non-international armed conflicts dates back only as far as the four Geneva Conventions of 1949. However, recalling that the laws of war, like the whole of international law, are comprised of more than treaties and conventions, the obligations of jus in bello (justice in war) are clearly part of the general principles of law recognized by civilized nations and are binding upon all categories of belligerents. Indeed, the Hague Convention No. IV of 1907 declares in broad terms that in the absence of a precisely published set of guidelines in the humanitarian international law concerning “unforeseen cases,” all belligerency is governed by the pre-conventional sources of international law:

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.[71]

This “more complete code” did become available with the adoption of the four 1949 Geneva Conventions. These agreements contained a common article, No. 3, under which the convention provisions would be applicable in non-international armed conflicts. Nevertheless, the 1949 Geneva Diplomatic Conference rejected the idea that all of the laws of war should apply to internal conflicts, and in 1970, UN Secretary General U Thant of Burma requested that additional rules relating to non-international armed conflicts be adopted in the form of a protocol or a separate convention.

In 1974, the Swiss government convened in Geneva the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. On 8 June 1977, the Conference formally adopted two protocols additional to the Geneva Conventions of 12 August 1949. Protocol II relates “to the Protection of Victims of Non-International Armed Conflicts,” and develops and supplements common Article 3 of the 1949 Conventions. Although in the fashion of common Article 3 and Article 19 of the 1954 Hague Cultural Property Convention, Protocol II does not apply to situations of internal disturbances and tensions such as riots or isolated and sporadic acts of violence, it does apply to all armed conflicts…

… which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Geneva Protocol 1 also constrains the insurgent uses of force in “armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.” Thus, even where the peremptory rights to self-determination are being exercised, insurgent forces must resort to lawful means of combat. According to Article 35, which reaffirms longstanding norms of international law: “In any armed conflict, the rights of the Parties to the conflict to choose methods or means of warfare is not unlimited.”

States also have an obligation to treat captured insurgents in conformity with the basic dictates of international law. Although this obligation does not normally interfere with a state’s right to regard as common or ordinary criminals those persons not engaged in armed conflict (that is, persons involved in merely internal disturbances, riots, isolated and specific acts of violence, or other acts of a similar nature), it does mean that all other captives remain under the protection and authority of international law.

In cases where captive persons are engaged in armed conflict, states may have an additional obligation to extend the privileged status of prisoner of war (POW) to such persons. This additional obligation is unaffected by the level of insurgent respect for the laws of war of international law. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violation of these rules does not automatically deprive an insurgent combatant of the right to protection equivalent in all respects to that accorded to prisoners of war. This right, codified by the Geneva Conventions, is now complemented and enlarged by the two protocols to those conventions.[72]

Weighing the Options

These norms notwithstanding, the essential principle remains that international law is not a suicide pact and that the jus cogens right to ward off annihilation may countenance assassination in certain residual instances as permissible anticipatory self-defense against terrorism. Just as states may have the right to resort to assassination as a method of preempting overwhelming harm threatened by other states, so may they reserve this right when confronted with the serious threat of international terrorism. Of course, such reservation will become even more reasonable to the extent that the expected threat of terrorism is of a WMD (e.g., chemical/nuclear/biological) nature. Recognizing this, The National Security Strategy of The United States of America affirms clearly: “Our priority will be first to disrupt and destroy terrorist organizations of global reach and attack their leadership; command, control, and communications; material support; and finances.”

Assessing assassination as a permissible form of preemption against terrorism requires the recognition that the prospective targets of assassination may be not only terrorists themselves, but also the officials of states that support terrorism. From the point of view of international law, the question must now be asked, “Is there a difference?” Are individual officials of states that sponsor or sustain terrorism against other states legitimate objects of transnational assassination?

This question is, of course, exceedingly complex, involving, among other difficult issues, the matter of the lawfulness of the particular insurgency. Although state sponsorship of insurgencies in other states may be lawful as an indispensable corrective to gross violations of human rights, such sponsorship is patently unlawful whenever its rationale lies in presumptions of geopolitical advantage. Today, the long-standing customary prohibition against foreign support for lawless insurgencies is codified in the UN Charter and in the authoritative interpretation of that multilateral treaty at Article 1 and Article 3(g) of the General Assembly’s 1974 Definition of Aggression.

The legal systems embodied in the constitutions of individual states universally provide that they must normally be defended against aggression.[73] Legal scholar Hersch Lauterpacht more than three decades ago expressed this peremptory principle. According to Lauterpacht, the following rule concerns the scope of state responsibility for preventing acts of insurgency or terrorism against other states:

International law imposes upon the State the duty of restraining persons within its territory from engaging in such revolutionary activities against friendly States as the amount to organized acts of force in the form of hostile expeditions against the territory of those States. It also obliges the States to repress and discourage activities in which attempts against the life of political opponents are regarded as a proper means of revolutionary action.[74]

Lauterpacht’s rule reaffirms the Resolution on the Rights and Duties of Foreign Powers as Regards the Established and Recognized Governments in Case of Insurrection adopted by the Institute of International Law in 1900. His rule, however, stops short of the prescription offered by Emmerich de Vattel.[75] According to Vattel’s The Law of Nations, states that support terrorism directed at other states become the lawful prey of the world community: “If there should be found a restless and unprincipled nation, ever ready to do harm to others, to thwart their purposes, and to stir up civil strife among their citizens, there is no doubt that all others would have the right to united together to subdue such a nation, to discipline it, and even to disable it from doing further harm.”[76]

Vattel extends the principle of Hostes humani generis[77] from individuals to states (“nations”), even insisting that collective wrongdoers be dealt with just as harshly as singular criminals:

Nations which are always ready to take up arms, when they hope to gain something thereby, are unjust plunderers; but those who appear to relish the horrors of war, who wage it on all sides without reason or pretext, and even without other motives than their savage inclinations, are monsters, and unworthy of the name of men. They should be regarded as enemies of the human race, just as in civil society persons who follow murder and arson as a profession commit a crime not only against the individuals who are victims of their lawlessness but against the State of which they are the declared enemies. Other Nations are justified in uniting together as a body, with the object of punishing, and even of exterminating, such savage peoples.[78]

But what, precisely, are the proper jurisprudential boundaries of this “right?” Do they include assassination? And if they do, would the resort to assassination be a permissible instance of anticipatory self-defense?

Significantly, as already noted, the right of tyrannicide is well established in political philosophy and international law. Indeed, this right may extend even to state-sponsored tyrannicide or transnational assassination as a form of humanitarian intervention. This is the case, for example, where such use of force is not directed against the territorial integrity or political independence of another state, but rather to assure peremptory human rights and/or self-determination within such a state.

Recalling that an individual state’s right to self-defense is also peremptory under international law, the assassination that is not undertaken against the territorial integrity or political independence of another state, but only to further its own self-defense, may perhaps be permissible. Of course, where the concern is with anticipatory self-defense, in particular, assassination would have to be consistent, in part, with the tests set forth by the Caroline and in part by the broadened criteria identified in 2002 by The National Security Strategy of the United States of America. Moreover, it would have to follow a determination that assassination was the least generally injurious form of anticipatory self-defense and the exhaustion of all possible peaceful means of settlement.

THE PREEMPTION PROBLEM OF A NUCLEAR IRAN

Arguably, no more serious ongoing security problem exists for America and the West than Iran.[79] With its steady and illegal march toward full nuclear capacity-a march entirely unhindered by United Nations sanctions-this Islamic state sponsor of terrorism represents genuinely existential threats on several fronts. For Israel, in particular, a nuclear Iran portends nuclear-armed proxies in both Lebanon and Gaza,[80] and/or direct missile attacks upon population centers in Tel-Aviv and Haifa.[81]

With primarily the “Iranian nuclear problem” in mind, I created “Project Daniel” in 2002. A private group comprised of four Israelis and two Americans,[82] Project Daniel presented its final report to then-Israeli Prime Minister Ariel Sharon on 16 January 2003. After a period of confidentiality, this report, Israel’s Strategic Future, was published by the Ariel Center for Policy Research in May 2004.[83]

From the standpoint of a particular concern with counterterrorism, the Iran problem necessarily brings to mind far broader issues of preemption. With regard to the growing prospect of a fully nuclear Iran, the assassination remedy would inevitably be inadequate. In this connection, Project Daniel acknowledged the stark limitations for Israel of ballistic missile defense (the “Arrow”), even where such measures continue to produce successful test results. Though necessary for Israeli security and survival, the Arrow is not sufficient. To achieve a maximum level of security, Israel must now also take appropriate and coordinated preparations for preemption and deterrence. Moreover, ballistic missile defense will do nothing to thwart terrorist surrogates of Iran who could utilize ordinary ships, cars, or trucks as nuclear delivery vehicles.

International law is not a suicide pact.[84] Together with the United States and other Western countries, Israel now exists in the crosshairs of Jihad[85] and will not conform to the normal civilizational expectations of peace and justice. Left alone to complete its planned nuclearization, Iran would likely share certain of its atomic munitions with assorted terrorist proxies in Lebanon, Syria, Pakistan, Gaza, Saudi Arabia, and Iraq. Ballistic missile defense is indispensable for Israel (primarily as a form of “hard target” protection), but it is also critical for both Jerusalem and Washington that Iran’s nuclear infrastructures be destroyed at their source.[86]

International law is not a suicide pact. The observance of justice between and among nations should always be the goal,[87] but at the same time we need to remain mindful of the clear disregard for such observance among its many civilizational enemies. “The blood-dimmed tide is loosed,” observed the poet Yeats, “and everywhere, the ceremony of innocence is drowned.”[88]

The military war in Iraq and the global war on terror are not narrowly tactical conflicts. Neither will ultimately yield to operational solutions. Rather, America and the West are embroiled in a genuine clash of civilizations, and to actually prevail in such a contest will require much more far-reaching kinds of understanding. The West is certainly bound to take seriously the rules and procedures of international law, including the law of armed conflict, but it must also bear in mind that its enemies are generally unmindful of these same obligations. It follows that assassination and other broader forms of preemption may sometimes be, not only permissible under international law, but also altogether indispensable.[89]

Deception can be an essential and acceptable virtue in warfare, but a jurisprudentially meaningful distinction between deception or ruses (stratagems or Kriegslist) and “perfidy is always present.”[90] The Hague Regulations in the Laws of War allow “ruses,”[91] but disallow “treachery.” Permissible ruses include such practices as the use of camouflage, decoys, mock operations, and ambush. False signals, too, are allowed-as an example, the jamming of communications. Perfidy, on the other hand, includes such treacherous practices as the improper use of the white flag, feigned surrender, or pretending to have civilian status.

The Western system of international law remains founded upon the curious assumption of a ubiquitous human Reason, and that this Reason will inevitably guide our confused species toward correct behavior and a rejection of violent solutions.[92]

WESTERN “REALISM” AND ITS DANGERS

The reason, therefore, lies at the very heart of the international law, yet it is almost nowhere to be found-certainly not among the West’s current civilizational enemies operating within the framework of Jihad. Satisfying the universal wish to remain unaware of one’s own subconscious, seekers of a viable system of international law enforcement are still too often imprisoned by assumptions of an idealized humanity. Before this difficulty can be overcome, international law must be understood in very different terms. At a minimum, the time has come to recognize that international law operates within a world in which reason often submits to pure irrationality and barbarism, and where visions of human oneness or cosmopolis are now routinely overwhelmed by sustained eruptions of fragmentation, killing, and disunity.

All international law must now move in the midst of death,[93] and visions of death are absolutely central to the lives of the West’s civilizational enemies. For these enemies, such animating visions of Jihad are the beginning of individual and collective martyrdom and point conclusively toward the inevitable triumph of Islam’s “one true faith” over all others. Once this view is finally understood, the West’s genocidal[94] enemies can be confronted with far more than narrowly military responses,[95] and its altogether defensible policies of preemption and anticipatory self-defense[96] can then be oriented toward more comprehensive and promising new directions.

Article 38 of the UN Statute of the International Court of Justice makes explicit reference to “general principles of law recognized by civilized nations.”[97] The concept of “civilized nations” continues to make legal and geopolitical sense in the present world order. Each “civilized nation” has both the right and the obligation under international law to protect its citizens from terrorism, war, and genocide. Should these nations ever surrender to perfidy in the current “Clash of Civilizations,” they would undermine this basic right and obligation? The net civilizational effect of such capitulation would be to make absolute victors of the criminals, a result that would doubtlessly increase rather than diminish the overall number of noncombatant victims. It would also strengthen the resolve of all allied terrorist organizations in their interrelated and expanding war of chaos against the West.

In any democratic state, the obligation of citizens to their government is contingent upon that government’s assurance of protection. [98] Many major legal theorists throughout history, especially Jean Bodin, Gottfried Leibniz, and Thomas Hobbes, understood that the provision of security is always the first obligation of the state: “The obligation of subjects to the sovereign,” writes Hobbes in Chapter XXI of Leviathan, “is understood to last as long, and no longer, than the power lasteth by which he is able to protect them.” It follows that our civilization’s obligation to oppose perfidy at every level (terrorism, war, and genocide) now derives not only from the international law but also from each constituent state’s more general requirement to protect its own citizens.[99]

“Just wars arise from our love of the innocent.”[100] Now in the midst of a stark civilizational struggle, the United States and its allies must continue to use all necessary and permissible means for self-defense and self-preservation. Although perfidious provocations by various terror groups and enemy states may elicit reprisals that bring assorted harms to noncombatants, these provocations, not the West’s required defensive responses, violate the humanitarian international law.

Again, with greater emphasis, international law is not a suicide pact. In the fashion of United States law,[101] it is based fundamentally and immutably, upon Natural Law.[102] And Natural Law makes it plain that states have a peremptory (jus cogens) obligation to protect their citizens and to resist crime. In his Opinion on the French Treaties,[103] written on 28 April 1793, Thomas Jefferson stated that when performance in international agreements “becomes impossible, nonperformance is not immoral. So if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others.”[104] In that same document, Jefferson wrote: “The nation itself, bound necessarily to whatever its preservation and safety require, cannot enter into engagements contrary to its indispensable obligations.”[105] None of this is to suggest that the United States and its allies are unsupported by pertinent elements of codified and customary international law in their essential policies of preemption and anticipatory self-defense, but only to underscore that these norms of positive jurisprudence are reinforced by Natural Law.[106]

In 442 B.C.E., Sophocles articulated the idea of true law as an act of discovery, challenging the superiority of human rule-making in Antigone.[107] Exploring the conflict between claims of the state and the claims of an individual conscience, this drama has since been taken to represent the incontestable supremacy of Natural Law over the human-made law. Later, in the nineteenth century, Henry David Thoreau, noting that men live with “too passive a regard for the moral laws,”[108] cited Antigone as a stirring example of civil disobedience.

The Natural Law foundations of international law are indisputably the legal foundations of the United States of America. When Jefferson wrote the Declaration of Independence, he consulted extensively the writings of Aristotle, Cicero,[109] Grotius, Vattel, Pufendorf, Burlamaqui, and especially Locke.[110] The Declaration posits a natural order in the world whose laws are external to all human will, and which are discoverable through human reason. Although, by the eighteenth century, God had been judged to have withdrawn from any immediate or direct contact with humankind-having been transformed into a Prime Mover of the universe-“Nature” provided an apt substitute. Reflecting the decisive influence of Isaac Newton, whose Principia was first published in 1686, all of creation was now taken as an expression of divine will.[111] It follows that the only way to know God’s will was then to discover the Law of Nature. Jefferson, via Locke, had deified Nature and denatured God.

A SECULAR AND STILL DANGEROUS WORLD

Today, we live in a secular system of international law and international relations-a society of states originally bequeathed to all after the Thirty Years War and the Peace of Westphalia (1648)-but the present civilizational challenge of mega-violence comes against us from those who still refuse to accept a modern jurisprudential theory of enmity and war.[112] This refusal by Jihadist enemies[113] to accept the basic world order norms of comity most likely cannot be changed, [114] certainly, at least, not in the foreseeable future. Therefore, the West must be prepared to sustain a protracted struggle for its own civilization’s survival. The individual and collective rights of individuals to endure are thoroughly grounded in both natural and positive law,[115] and corollary to these jus cogens[116] norms is the right of preemption and anticipatory self-defense. Should the West fail to heed these rights,[117] it would hasten the arrival of a world prophesied by the poet Yeats, a world in which “There is no longer a virtuous nation, and the best of us live by candlelight.”[118]

Reprinted with author’s permission from Scholars for Peace in the Middle East

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