There is little
doubt that jihadi terrorism will continue to accelerate
in 2025. For the United States and Israel, this means, inter
alia, an accelerated reliance on targeted killings
of terrorist leaders. Such anticipated reliance would not
be unlawful. On the contrary, by reaffirming basic principles
of national self-defense in an anarchic world, it would
be distinctly law-enforcing.
Still, there
will be codified and customary legal guidelines. To meaningfully
proceed on this task, it will first be necessary for American
and Israeli decision-makers to inquire whether a terrorist-killing
plan would be gainfully pre-emptive or narrowly retributive.
Additionally, all judgments concerning targeted killing
as counterterrorism would have to meet tactical and legal
goals. It would not be sensible, after all, to launch risky
defensive actions against murderous terrorist adversaries
solely because these actions could satisfy pertinent legal
standards.
It will get
even more complicated. Assassination is expressly prohibited
by United States law. It is also generally a crime under
international law, which is a part of American domestic
law. Nonetheless, in defensive circumstances, the targeted
killing of jihadi terrorist leaders would be excluded from
ordinarily prohibited behaviors. A similar argument could
be applied to considered killings of terrorists “rank-and-file,”
especially where selective lethality is already part of
an ongoing pattern of essential counterterrorism.
In the best
of all possible worlds, there would be no need for any “vigilante”
forms of justice. However, we don’t yet live in such
a world. If left to their own consistently criminal intentions,
jihadi terrorists could ultimately invoke the use of weapons
of mass destruction.
In principle,
the idea of assassination or targeted killing as remediation
is paradoxical. Since the current state system’s inception
in the 17th century, international relations have never
been governed by the civil protections available in democratic
states. It follows that when such countries as the United
States and Israel are confronted with potentially existential
threats, they have a natural right to extreme self-defense.
Moreover, under rules that come originally from ancient
Jewish law and the later (1946) Nuremberg Principles, there
should be “no crime without a punishment.”
For the United
States and Israel, variously complex considerations of law
and tactics will intersect. The indiscriminacy of jihadist
operations is rarely the result of adversarial inadvertence.
Rather, it is the intentional outcome of violent terrorist
inclinations and murderous ideals that lie embedded in a
jihadist terrorist leader’s operative views of insurgency.
For jihadists,
there are no meaningful distinctions between civilians and
non-civilians, innocents and non-innocents. For these active
or latent terrorist murderers, all that matters are the
unassailably immutable distinctions between Muslims, “apostates”
and “unbelievers.”
As for the apostates
and unbelievers, it is quite simple. Their lives, the jihadists
believe, have no value. Prima facie, they have
no immunizing sanctity. In law, both international and national,
every government has the right and obligation to protect
its citizens against external harm. In certain derivative
circumstances, this coincident right and obligation may
extend to targeted killing.
Usually, assassination
is a crime under international law. Yet, in our decentralized
system of world law, extraordinary self-help by individual
states is often necessary. In the absence of particular,
targeted killings, terrorists would continue to create havoc
against defenseless civilians almost anywhere of their choosing
and with unjust impunity.
A basic difficulty
for imperiled states is that jihadi criminals are indifferent
to orthodox legal expectations of extradition and prosecution.
This is not to suggest that the targeted killing of terrorists
will always “work,” but only that disallowing
such killing ex-ante would not be operationally gainful
or legally just.
By the authoritative
standards of contemporary international law, all terrorists
are hostes humani generis, or “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.”
Said Swiss scholar Emmerich de Vattel in The Law of
Nations (1758), “The safest plan is to prevent
evil where that is possible. A nation has the right to resist
the injury another seeks to inflict upon it and to use force
and every other just means of resistance against the aggressor.”
Even earlier,
the right of self-defense by forestalling an attack was
asserted by foundational Dutch scholar, Hugo Grotius, in
book II of On The Law of War and Peace (1625).
Recognizing the need for what later jurisprudence would
reference as threatening behavior that is “imminent,”
Grotius indicated that self-defense is permitted not only
after an attack has already been suffered, but also where
“the deed may be anticipated.” In the same chapter,
he summarized, “It be lawful to kill him who is preparing
to kill.”
In a better
world than the one we inhabit, targeted killings could have
no defensible place as counterterrorism, either as a pre-emptive
measure or a permissible retribution. But, as if anyone
should still need a reminder, we do not yet live in the
“best of all possible worlds,” and the negative
aspects of such killings ought never to be evaluated apart
from the foreseeable costs of other available options. Such
aspects should be closely compared to what could be expected
of plausible alternatives.
International
law is not a suicide pact. Ubi cessat remedium ordinarium,
ibi decurritur ad extraordinarium, “Where the
ordinary remedy fails, recourse must be had to an extraordinary
one.”
Israel and the
United States are obligated to comply with the rules and
procedures of humanitarian international law; however, both
must also bear in mind that jihadist enemies will remain
unaffected by these expectations. Targeted killings and
broader forms of pre-emption are sometimes not only allowable
under binding international law but also required. Conversely,
there are occasions when assassination could be determinedly
legal but still be operationally ineffectual.
Under U.S. law,
we are bound to inquire, should an American president ever
be authorized to order the extra-judicial killing of a United
States citizen, even one deemed an “enemy combatant”
without reference to due process of law? Any affirmative
response to this query would be difficult to defend under
the U.S. Constitution. Operational approval would need to
be based upon a reasonably presumed high urgency of a terror
threat. Any such “authorized” targeted killing
of a U.S. citizen would express potentially irremediable
tension between fundamental citizen rights and indispensable
requirements of public safety.
The United States
and Israeli policy on targeted killing of terrorists will
have to reflect a delicate balance. Most important, in any
such calculation, will be the protection of civilian populations
from jihadist terror-inflicted harms. In those circumstances
where harms would involve unconventional weapons of any
sort—chemical, biological or nuclear—the legal
propriety of targeting jihadists could be patently obvious
and lie “beyond any reasonable doubt.”
For both Washington
and Jerusalem, legal assessments of targeted killing ought
never to be undertaken apart from operational expectations.
This means that before any “extraordinary remedies”
are applied, these measures would be not just legally correct
but tactically gainful. Looking ahead, there could be no
more important calculations.
