“The safety of the people shall be the highest law.”
Cicero, The Laws
During the coming year, the United States, in occasional concert with Israel, must confront expanding terrorist threats. Topping pertinent concerns in Washington and Jerusalem will be a sordid assortment of jihadi groups, some spawned by the al-Assad regime collapse in Syria [1] and some by coinciding reconfigurations of Hamas, Hezbollah, Islamic Jihad and Houthi criminals. [2] Also predictable are (1) strengthened and dispersed Fatah units beyond Judea/Samaria (West Bank); and (2) variously lethal synergies between criminal terrorist organizations that include al-Qaeda and ISIS remnants.
To clarify, a synergistic interaction is one in which the “whole” calculable effect is greater than the sum of its parts. In military parlance, such an interaction would be “force-multiplying.” All assessment matters would be complicated by sanitizing jihadi identifications of terror-violence with religious sacrifice. [3]
Under the protective tutelage of an American president, “We the People” are entitled to expect basic safety in world politics. At a minimum, we should all be able to assume that wider and consistently capable circles of public authority remain poised to thwart terror attacks. Ipso facto, such entitlement includes the planned avoidance of mega-attacks that would involve chemical, biological or nuclear harms.
In terms of United States law, the authoritative roots of core security assurances go back to seventeenth century English philosopher Thomas Hobbes. Though likely unfamiliar to America’s current president and his senior defense advisors, Hobbes’ Leviathan was integral to the political thought of Thomas Jefferson. The erudite author of the Declaration was widely read by all categories of educated persons. And America’s third president cared a great deal about human-centered learning in particular. Facing urgent policy issues, Thomas Jefferson believed in the primacy of intellectual “preparation,” not a cosmetic “attitude.”
Regarding US counterterrorist preparation, America’s national security establishment must get ready for all contingencies, most plainly jihadi terrorists who seek “martyrdom.” This includes fashioning conceptual foundations for future Osama Bin-Laden “elimination-type” operations. [4] During the Obama years, one conspicuously major targeted killing of a jihadi terrorist was the September 2011 US drone-assassination of Anwar al-Awlaki in Yemen. [5] That case was notably “special” in one generally overlooked or underestimated aspect: Jihadi al-Alwaki was born in New Mexico, and was therefore a US citizen. At the same time, despite the US Constitution’s Fifth Amendment protections regarding “due process,” it represented a tactical option that could sometime need to be repeated. Here, a presumptively effective tactic would simultaneously undermine American law and justice.
What should be decided in Washington? Each and every trade-off option would be injurious. Even if we take with utmost seriousness Cicero’s reasonable injunction (“The safety of the people shall be the highest law”), it’s not clear which operational choices would best serve such indispensable “safety?”
What precise legal guidelines should Americans follow in these settings? To respond properly, Mr. Trump and his designated counselors will need to inquire: “Is it sufficiently legal to target and kill jihadi terrorists if precise linkages between prospective targets and discernible attack intentions can be documented?”
To meaningfully answer this critical question, it will first be necessary for Mr. Trump’s national security officials to ask whether a proposed terrorist killing plan would be gainfully preemptive or just narrowly retributive. If the latter, a judgment wherein national self-defense was not in any way the underlying operational rationale, authoritative determinations of legality could become more problematic. Additionally, all judgments concerning targeted killing as counter-terrorism would have to meet tactical as well as legal goals. It would not be sensible to launch risky defensive actions against terrorist adversaries solely because these actions could meet jurisprudential standards.
It gets even more complicated. Assassination is explicitly prohibited by US law. (See Exec. Order No. 12333, 3 C.F.R. 200 (1988), reprinted in 50 U.S.C. Sec. 401 (1988)). Generally, it is also a crime under international law, which, though not widely understood, [6] is part of American domestic law. [7] Still, at least in certain more-or-less residual circumstances, the targeted killing of jihadi terrorist leaders could be correctly excluded from ordinarily prohibited behaviors. Accordingly, such peremptorily protective actions could still be defended as permissible expressions of national law-enforcement.
A similar defense could sometimes be applied to the considered killing of terrorist “rank-and-file,” especially where such selective lethality had become part of an already-ongoing pattern of US counter-terrorism. Earlier, for example, the United States widened the scope of its permissible terrorist targeting in parts of Iraq, Afghanistan and Syria. This widened arc of permissibility – one which now modifies more stringent rules of engagement concerning human target identification – represented a byproduct of continuously developing drone technologies.
In the best of all possible worlds, there would be no need for any decentralized or “vigilante” expressions of international justice. Obviously, we don’t yet live in such an ideal world. Instead, enduring uneasily in an historically anarchic world order – a context that international law professors prefer to call “Westphalian” [8] – the only purposeful alternative to precise self-defense actions against terrorists is likely to invite further deteriorations of “in-theatre” instabilities. Ultimately, such hyper-instabilities could include more flagrant, frequent and consequential escalations of jihadist terror-violence.
At some still-indeterminable point, such escalations could lead to instances of chemical, biological or nuclear attack. These unprecedented attacks (ones that are sui generis in law) might be undertaken by assorted sub-state adversaries or by certain “hybrid” combinations of state and sub-state foes. Ironically, in the policies of US ally Israel, dominant concerns have centered on Iran-Hezbollah and Iran/Hamas combinations. Here, an evident irony stems from the fact that one Iranian surrogate (Hezbollah) is Shiite while the other (Hamas) is Sunni.
At the most basic level of such issues and calculations, the relevant idea of assassination or targeted killing as remediation seems paradoxical. This understandably objectionable idea must preclude the input of more usual “due process.” Yet, since the current or “Westphalian” state system’s original inception in the seventeenth century, international relations have never been governable by the same civil protections potentially available within democratic states.
In this persistently anarchic and prospectively chaotic world legal system, one which still lacks any duly-constituted and effective supra-national authority, assorted jihadi leaders are already responsible for the mass killing of noncombatant men, women, and children of many different nationalities. It follows that wherever such leaders are not suitably “terminated” by the United States or Israel [9] in the tumultuous Middle East, egregious terror crimes will almost certainly continue and be left unpunished. Any such de facto impunity would be inconsistent with the universal legal obligation to punish international crimes, a jus cogens or peremptory obligation reaffirmed at the original Nuremberg Tribunal and in the subsequent Nuremberg Principles. More formally, this lex talionis obligation, which comes to us from both ancient Roman law and the Hebrew Bible, is known correctly as Nullum crimen sine poena, or “No crime without a punishment.” [10]
Inevitably, complex considerations of law and tactics will intersect and inter-penetrate. In this connection, the glaring indiscriminacy of most jihadist operations is rarely if ever the result of adversarial inadvertence. Typically, it is the intentional outcome of violent terrorist inclinations, unambiguously murderous ideals that lay embedded in the jihadist terrorist leader’s operative views of insurgency.
For jihadists, there can never be meaningful distinctions between civilians and non-civilians, between innocents and non-innocents. For these active or latent terrorist murderers, all that really matters are unassailably immutable distinctions between Muslims, “apostates” and “unbelievers.”
As for the apostates and unbelievers, it’s quite simple. Their lives, believe the jihadists, 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 harms. [11] In certain derivative circumstances, moreover, this coincident right and obligation may extend to targeted killing. This point has long been understood in Washington, where every president in recent memory has given nodding or direct approval to “high value” assassination operations, and in Jerusalem, where law-violating terrorist adversaries [12] make such self-defense killing unavoidable.
Usually, assassination is a certifiable crime under international law. Yet, in our essentially decentralized system of world law, extraordinary self-help by individual states is often necessary, [13] and more-then-occasionally the only real alternative to passively sufferance of terror crimes. 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 is that jihadi terror criminals are usually immune to the more orthodox legal expectations of extradition and prosecution (aut dedere, aut judicare). [14] This is not to suggest that the targeted killing of terrorists will always “work” – there is literally nothing to support the logic of any such suggestion – but only that disallowing such killing ex ante might not be operationally gainful or legally just.
If carried out with aptly due regard for pertinent “rules,” targeting terrorist leaders could remain consistent with the ancient legal principle of Nullum crimen sine poena, “No crime without a punishment.” Earlier, this original principle of justice had been cited as a dominant rationale for both the Tokyo and Nuremberg war crime tribunals. Subsequently, it was incorporated into customary international law, an authoritative source of law identified inter alia at Article 38 of the Statute of the International Court of Justice. [15]
By both the codified and customary standards of contemporary international law, all terrorists are hostes humani generis, or “common enemies of humankind.” [16] 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.” Still, choosing precisely which terrorists ought to be targeted remains a largely ideological rather than jurisprudential matter.
In some current circumstances, at least in principle, tyrannicide could be seen as an expression of American or Israeli counter-terrorism. Historically, limited support for expressing assassination as a form of tyrannicide is not hard to discover. It can be found, for example, in classical writings of Aristotle, Plutarch and (again) Cicero.
Overall, in his consideration of assassination or targeted-killing as counter-terrorism, US President Trump should consider the clarifying position of 18th century Swiss scholar Emmerich de Vattel in his most famous work, The Law of Nations, or the Principles of Natural Law (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.”
Earlier, a similar view had been presented by Samuel Pufendorf in his text, On the Duty of Man and Citizen According to Natural Law (1682): “Where it is quite clear that he is engaged in planning violence against me, even though he has not fully revealed his design, I shall be justified in immediately initiating self-defence by force, and in seizing the initiative against him, while he is still making preparations…..The aggressor will be taken to be the party which first conceived the intention to harm the other….To have the name of defender, it is not necessary to suffer the first blow, or merely to elude and repel the blows aimed at one.”
Even earlier, the right of self-defense by forestalling an attack had been asserted by the foundational Dutch scholar, Hugo Grotius, in Book II of The Law of War and Peace (1625). Recognizing the need for what later jurisprudence would reference as threatening international behavior that is “imminent in point of time” (See The Caroline Case, 1837), Grotius indicated that self-defense must be permitted not only after an attack has already been suffered, but also in advance, where “the deed may be anticipated.” [17]
Further on, in the same chapter, Grotius summarized: “It be lawful to kill him who is preparing to kill.” Interestingly, Vattel, Pufendorf and Grotius were all taken into primary account by Thomas Jefferson in the American Declaration of Independence.
In a far better world than the one we presently inhabit, targeted killings could have no defensible place as counterterrorism, either as a preemptive measure or permissible retribution. But, as if anyone should still need a reminder, we do not yet live in the “best of all possible worlds,” [18] and the negative aspects of such killings ought never to be evaluated apart from foreseeable costs of other available options. Such aspects should always be closely compared to what could be expected of plausible alternative choices.
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.”
US President Donald Trump is obligated to comply with the rules and procedures of humanitarian international law, yet he must also bear in mind that jihadist enemies will remain unaffected by these or any other jurisprudential expectations. Assassination and broader forms of preemption may sometimes be not only allowable under binding international law, but indispensable. Conversely, there are occasions when strategies of assassination could be determinedly legal but be operationally ineffectual.
Recalling the close connections between international law and US law – connections that extend to direct and literal forms of “incorporation” – an American president can never choose to dismiss the law of war on grounds that it is “merely international.”Always, President Trump should consider decipherable connections between targeted killings, counter-terrorism and United States Constitutional Law.
Under US 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 meaningful reference to “due process of law?” On its face, any affirmative response to this query would be difficult to defend under the US Constitution.
Operational approval would need to be based upon a reasonably presumed high urgency of terror threat. Any such allegedly “authorized” targeted killing of US citizens would express potentially irremediable tension between indissoluble citizen rights and peremptory requirements of public safety. Going forward with obligatory counter terrorist preparations, the US president will need to keep this firmly in mind.
US policy on assassination or targeted killing will have to reflect a very 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 (per Cicero, above) and “beyond reasonable doubt.”
In sum, for both the United States and Israel, legal assessments of targeted killing ought never be undertaken apart from correlative operational expectations. This means that before any “extraordinary remedies” should be applied, these measures would be not only legally correct, but tactically cost-effective. In the end, as we may finally be reminded by Cicero in The Laws, “The safety of the people shall be the highest law.”
Notes
[1] See by this writer, Louis René Beres, at JURIST: https://www.jurist.org/commentary/2024/12/dialectics-of-a-different-war-how-syrias-collapse-could-impact-israels-nuclear-deterrence-against-iran/
[2] Under international law, terrorist groups are criminal per se. This does not mean that sub-state fighting organizations are inherently criminal, but that even if there exist legitimate grounds for “self-determination,” legitimacy terminates whenever unjust means are employed during conflict. Terrorist movements are always hostes humani generis, or “common enemies of mankind.” See: Research in International Law: Draft Convention on Jurisdiction with Respect to Crime, 29 AM J. INT’L L. (Supp. 1935) 435, 566 (quoting King versus Marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est Hostes humani generis”)).
[3] In the Middle East, where theological doctrine divides into the dar al-Islam (world of Islam) and the dar al-harb (world of war), acts of terror against “unbelievers” have generally been accepted as expressions of sacredness. In turn, individual Islamist sacrifice derives in significant measure from an expressly hoped-for power over death. In brief, by adopting atavistic practice, the jihadi terrorist expects to realize an otherwise unattainable immortality. For multiple groups that openly seek secular power in the shape of “Palestine,” certain obligatory aspects of sacrificial terror need further clarification. These aspects underscore the two-sided nature of terror/sacrifice – that is, the sacrifice of the “unbeliever” or “apostate” and the reciprocal sacrifice of the “martyr.” The Charter of Hamas refers to Zionism as a “religious” problem.” For authoritative details of the Hamas Charter, see: Louis René Beres: https://scholarlycommons.law.case.edu/jil/vol39/iss3/2/ Often overlooked is that Hamas, the Islamic Resistance Movement, is essentially the Palestinian branch of Egypt’s jihadi Muslim Brotherhood.
[4] See Louis René Beres, “The Killing of Osama Bin Laden,” Crimes of War, Crimes of War Project, August 2011, http://www.crimesofwar.org/commentary/the-killing-of-osama-bin-laden/; Louis René Beres, “Assassinating Terrorist Leaders: A Matter of International Law,” OUP Blog, Oxford University Press, May 4, 2011; and Louis René Beres, “After Osama Bin Laden: Assassination, Terrorism, War, and International Law,” Case Western Reserve Journal of International Law, 44 Case W. Res, J. Int’l 93 (2011).
[5] Although “assassination” and “targeted killing” are often used interchangeably, there are meaningfully core distinctions to be made. Using precise scholarly criteria offered by Amos Guiora, an assassination is always an expressly political killing that involves treachery or perfidy, and that is not directed toward any suspected terrorist. A targeted killing, on the other hand, is a violent and person-specific expression of preemptive self-defense, and is always oriented to preventing some future act of terrorism. Always, inter alia, the targeted individual must be presumptively involved in the planning and execution of new terrorist assaults. See Amos. Guiora, Legitimate Target: A Criteria-Based Approach to Targeted Killing (New York, Oxford University Press, 2013).
[6] The authoritative sources of international law are listed comprehensively (and can be most conveniently found) at art. 38 of the Statute of the International Court of Justice.
[7] In the words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.” See The Paquete Habana, 175 U.S. 677, 678-79 (1900). See also: The Lola, 175 U.S. 677 (1900); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781, 788 (D.C. Cir. 1984) (per curiam) (Edwards, J. concurring) (dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied, 470 U.S. 1003 (1985) (“concept of extraordinary judicial jurisdiction over acts in violation of significant international standards…embodied in the principle of `universal violations of international law.'”).
[8] After the seventeenth century (1648) Peace of Westphalia, which ended the Thirty Years’ War and created the present conflictual system of independent and interdependent states.
[9] Israel’s principal terrorist foes will continue to seek a Palestinian state. Nonetheless, contending terror groups will remain unable to meet certain codified expectations of statehood identified at the 1934 Convention on the Rights and Duties of States. The “Montevideo Convention” is the treaty governing statehood in applicable international law. Jurisprudentially, Palestine still represents a “Non-Member Observer State.”
[10] Nullum crimen sine poena is the principle that distinguishes between criminal and civil law. Without punishment there can be no distinction between a penal statute and any other statute. (See Redding v. State, 85 N.W. 2d 647, 652; Neb. 1957) (concluding that a criminal statute without a penalty clause is of no force and effect). The earliest statements of Nullum crimen sine poena can be found in the Code of Hammurabi (c. 1728-1686 B.C.); the Laws of Eshnunna (c. 2000 B.C.); the even-earlier Code of Ur-Nammu (c. 2100 B.C.) and of course the Lex Talionis or law of exact retaliation presented in three separate passages of the Jewish Torah or biblical Pentateuch. At Nuremberg, the words used by the Court, “So far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished,” represented an unambiguous reaffirmation of Nullum crimen sine poena. For the Court statement, see: A.P. d’Entreves, NATURAL LAW (London: Hutchinson University Library, 1964), p. 110.
[11] This obligation may extend to citizens of other states; i.e., to the world as a whole. United States law, founded in part upon the learned jurisprudence of Sir William Blackstone, acknowledges the ubiquitous obligation of all states to help one another. More precisely, according to Blackstone, each state is expected “to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law….” See: 2 William Blackstone, Commentaries on the Laws of England, Book 4, “Of Public Wrongs.” Lest anyone ask about the significance of Blackstone for current US national security decision-making, one need only remind that the Commentaries were an original and core foundation of the laws of American law. To be sure, Donald J. Trump’s force-based policies of “America First” are illustrative of the fallacy known in logic as argumentum ad bacculum, and represent the diametric opposite of what Blackstone would have expected.
[12] In the current Gaza War, wide spread Hamas, Islamic Jihad and Fatah violations include the prohibited practice of “human shields” or “perfidy.” Says Geneva Convention No. IV and Additional Protocol: “The presence of a protected person may not be used to render certain points or areas immune from military operations.” Also: “The presence or movements of the civilian population or individual citizens shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations.” (Protocol Additional (No.1) to the Geneva Convention, Art. 51 (1977)).
[13] Israel’s lawful use of targeted killing as counter-terrorism is supported by the absence of any “criminal intent” or mens rea, and qualifies such defensive action as “military necessity.” The principle of military necessity is defined authoritatively as follows: “Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources may be applied.” See: United States, Department of the Navy, jointly with Headquarters, U.S. Marine Corps; and Department of Transportation, U.S. Coast Guard, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M, Norfolk, Virginia, October 1995, p. 5-1. Reprinted in Adam Roberts and Richard Guelff, Documents on the Laws of War, Third Edition, Oxford, UK: Oxford University Press, 2000, p. 10. The term “military necessity” is discoverable, inter alia, in the 1946 Judgment of the International Military Tribunal at Nuremberg, Extracts on Crimes Against International Law, referring to Art. 6(b) of the London Charter, August 8, 1945: “War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment, or deportation to slave labor, or for any other purpose of civilian populations, of or in occupied territory, murder of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.” See: Roberts and Guelff, supra., p. 177. Text reprinted from Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, Vol. XXII, IMT, Secretariat, Nuremberg, 1948, pp. 413-14, and 497.
[14] The extradite or prosecute formula of international criminal law is deducible from nullum crimen sine poena. Existing since antiquity, it is an expectation with roots in both natural law (especially Jean Bodin, Hugo Grotius, and Emmerich de Vattel) and positive law.
[15] Article 38(1)(b) of the Statute of the International Court of Justice describes international custom as “evidence of a general practice accepted as law.” 59 Stat. 1031, T.S. No. 993 (June 26, 1945). Norms of customary international law bind all states irrespective of whether a State has ratified the pertinent codifying instrument or convention. International law compartmentalizes apparently identical rights and obligations arising both out of customary law and treaty law. “Even if two norms belonging to two sources of international law appear identical in content, and even if the states in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.” See Military and Paramilitary Activities (Nicaragua v. U.S.), 1986 I.C.J. Rep. 14, para. 178 (June 27).
[16] .On the concept of “common enemy of mankind,” see: Robert Alfert Jr., “Hostes Humani Generis: An Expanded Notion of U.S. Counterterrorist Legislation,” EMORY INTERNATIONAL LAW REVIEW, Vol. 6, No. 1, Spring 1992, pp. 171-214.
[17] From its modern beginning in 1948, Israel has anticipated a genocidal “deed” from multiple enemies. From the start, Arab states generally regarded Israel as the institutionalized manifestation of multiple crimes, particularly colonialism, imperialism and aggression. Often denounced as “an instrument of evil” constructed “on a foundation of evil,” Israel was taken to represent immutably criminal, irremediable, fit only for liquidation/extermination. (See, for example, the discussion of “The External Aspect: Aggression, Intrigues, Exploitation,” in Yehoshafat Harkabi, ARAB ATTITUDES TO ISRAEL, Jerusalem: Keter Publishing House Ltd., 1972, pp. 307-310). Today, the existential threat to Israel lies primarily with non-Arab Iran. The net effect of the Trump-brokered Abraham Accords on Israel’s security was to “make peace” with states that were never active enemies (i.e., Bahrain, UAE, Sudan, Morocco) while further encouraging war preparations by Tehran. Inter alia, by lining up certain Sunni Arab states as prospective “allies” against Shiite Iran, these Accords could ultimately make an Egyptian, Turkish and/or Saudi nuclear capability plausible.
[18] A Leibnizian phrase made famous by Voltaire in Candide.
Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of many books, monographs, and scholarly articles dealing with international law and terrorism. His almost fifty years’ work on assassination, targeted killing and counterterrorism issues is known to American and Israeli military/ intelligence communities. His twelfth book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published by Rowman & Littlefield in 2016: http://www.israeldefense.co.il/en/content/surviving-amid-chaos-israels-nuclear-strategy (2nd ed., 2018) Professor Beres is a seven-times contributor to Oxford University Press, Oxford Yearbook on International Law and Jurisprudence, and a frequent contributor to the Harvard National Security Journal (Harvard Law School) and BESA (Israel). His work has also appeared in The Atlantic; The New York Times; World Politics (Princeton); Yale Global; and the Bulletin of the Atomic Scientists.
Professor Louis René Beres was born in Zürich at the end of World War II.
