Date: Tue, 31 Oct 95 19:02:03 PST From:imra@netvision.net.il To: imra@netvision.net.il Subject: ASSASSINATION OF TERRORISTS MAY BE LAW-ENFORCING
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Normally, assassination is a crime under international law, in both times of war and in times of peace. Yet, punishment of violent crime is always at the very heart of justice, and in our decentralized system of world law, self-help by individual nations is often the only available path. In the absence of assassinations, terrorists like Shiqaqi would remain altogether free. Immune to the proper expectations of extradition and prosecution - the preferred mechanism of enforcement under international law - these terrorists would continue to murder innocent men, women and children without interference. 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 generation of additional terrorism.
Our world legal order lacks an international criminal court with jurisdiction over individuals. Only the courts of individual countries can provide the judicial context for trials of terrorists. It follows that where nations harbor such criminals and refuse to honor extradition requests, the only decent remedies for justice available to victim societies may lie in unilateral enforcement action. Here, extrajudicial execution may be essential to justice.
In a leaflet distributed in Gaza shortly after the assassination, Islamic Holy War declared: ``This ugly crime will make every Zionist, wherever he may be on the face of the earth, a target for our amazing blows and our bodies exploding in anger.'' But the assassination was anything but a crime. Rather, it was an effort on behalf of the entire community of civilized nations to compensate for the absence of strong central world authority with essential self-help. When, in domestic law, a policeman shoots a fleeing felon after witnessing a violent crime, society distinguishes between that crime and the policeman's use of force. Legally and morally, they are assuredly not on the same plane.
Was Shiqaqi a terrorist? Surely Israeli Foreign Minister Shimon Peres was not off the mark when he called the physician ``an arch-murderer,'' adding: ``Someone who deals in murder runs the risk of being murdered himself.'' Heading a group dedicated solely to mass killing of Israelis, his most recent ``credits'' include bombing of a bus terminal near the Israeli town of Netanya that killed 21 persons in January, and the April car bombing of a bus in Gaza that killed eight, including an American college student. Not surprisingly, the post-assassination symbol of support adopted by Islamic Holy War has been a boldly-colored poster, showing an Israeli bus exploding.
Dr. Shiqaqi was born in the Shati refugee camp near Gaza, and certainly thought himself to be fighting for Palestinian ``self- determination.'' But even if this objective can be accepted under pertinent international law (and this is highly controversial), the means used by Islamic Holy War can never be lawful. The law of armed conflict, which applies to insurgents as well as to regular military forces, makes perfectly clear that the ends never justify the means. A cause, however legitimate, never excuses the application of violence against the innocent.
By the standards of contemporary international law, terrorists are known as hostes humani generis, common enemies of humankind. In the fashion of pirates, who were ``to be hanged by the first persons into whose hands they fall'' (from the distinguished 18th century legal scholar Emmerich de Vattel), terrorists are international outlaws who fall within the scope of ``universal jurisdiction.'' That Shiqaqi's crimes had been directed specifically at Israel removes any doubts about that country's particular jurisdiction in the matter.
In his 1758 classic, THE LAW OF NATIONS, Vattel stated: ``Men who are by profession poisoners or incendiaries may be exterminated wherever they are caught; for they direct their disastrous attacks against all nations, by destroying the foundations of their common safety.'' Later, when the Nuremberg Tribunal was established in 1945, the court ruled that in certain exceptional circumstances, literal adherence to due process of law (the Tribunal was referring to the question of retroactivity and crimes against humanity) could represent the greatest injustice. Concluding that retroactivity need not always be unjust, the Tribunal affirmed: ``So far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished.''
Assassination, like retroactivity, is normally an illegal remedy under international law. Yet, support for a limited right to assassination can be found in Aristotle's POLITICS, Plutarch's LIVES and Cicero's DE OFFICIIS. Should the civilized community of nations ever reject this right altogether, it will have to recognize that it would be at the expense of justice and, quite possibly, effective counterterrorism. Lacking any central institutions of global authority to interpret and enforce the rules against terrorism, the existing law of nations must continue to rely on even the most objectionable forms of self-help.