Louis Rene Beres
In the aftermath of the embassy bombings in Tanzania and Kenya, renewed discussions will now arise concerning the prevention and punishment of terrorism. One such discussion will surely center on the notion of assassination as a remedy. Paradoxically, in certain circumstances, such an assassination could even be judged law-enforcing according to international law.
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 those who bombed the American embassies 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.
For the moment, 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. 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.
Assassination is not always a crime. Rather, it can be 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.
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."
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.
According to Cicero:
"Grecian nations give the honors of the gods to those men who have slain tyrants. What have I not seen at Athens? What in the other cities of Greece?
Assassination is not always a crime. Extrajudicial execution may be essential to justice.
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.
Nullum crimen sine poena, "No crime without a punishment," is a "sacred" principle of international law. Where crimes are especially egregious, as in the case
(Continued on p.4)
September 1998 - 3 - Outpost