(Continued from p.3)
of terrorism, this principle is absolutely overriding. This means that where known perpetrators of such crimes cannot be punished by "normal" judicial remedy, i.e., extradition and prosecution, the effective choice must be to leave the perpetrators unpunished or to punish them extrajudicially. Here, assassination, subject of course to the applicable constraints of discrimination, proportionality and military necessity, may be the least costly form of extrajudicial punishment. Moreover, where crimes are still ongoing, the permissibility of assassination may even be greater. This is the case because our post-Nuremberg world legal order is obligated to protect human beings from clear and terrible infringements of their irreducible and immutable rights.
International law is not a suicide pact! The United States, in the fashion of every other state in world politics, has not only the authority, but the obligation, to protect its citizens' most basic human right, the right to
All viable alternatives to the assassination option also include violence.
In the best of all possible worlds, states could dispense with violence altogether, choosing instead to rely upon reason to settle disagreements. But we do not live in this best of all possible worlds, and the disutilities of assassination should not be evaluated apart from alternative options. Rather, such disutilities must always be compared to those expected of these other options. If the prospective costs of assassination appear less than the costs of the alternative options (for example, war or military intervention), then, in a utilitarian sense, assassination would emerge as the rational choice. However odious it might appear in isolation, assassination, in such circumstances, would represent the least injurious path to improved safety from terrorism.
The utilitarian view is that human actions
should always be evaluated in light of their expected
consequences, and that only this consequentialist approach
will enable us to deal with complex moral and legal
issues in a rational manner. The principle of utility,
which has its origins with Jeremy Bentham, is "that
principle which approves or disapproves of every action
whatsoever, according to the tendency which it appears to
have to augment or diminish the happiness of the party
whose interest is in question...to promote or to oppose that
happiness." This principle offers a sound argument
against those who would claim that assassination is
impermissible because it is somehow, by its very nature,
uniquely revolting. Bentham rejects all claims which "approve
or disapprove of certain actions, not on account of
their tending to augment the happiness of the party
whose interest is in question, but merely because a man
finds himself disposed to approve or disapprove of
them; holding up that approbation or disapprobation as a
sufficient reason for itself, and disclaiming the necessity
of looking out for any extrinsic ground."
Further, Bentham continues in a fashion that would be perfectly supportive of assassination as both punishment and as anticipatory self-defense:
" If we could consider an offense which has been committed as an isolated fact, the like of which would never recur, punishment would be useless. It would only be adding one evil to another. But when we consider that an unpunished crime leaves the path open, not only to the same delinquent, but also to all those who may have the same motives and opportunities for entering upon it, we perceive that the punishment inflicted on the individual becomes a source of security to all. That punishment which, considered in itself, appeared base and repugnant to all generous sentiments, is elevated to the first rank of benefits, when it is regarded not as an act of wrath or of vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the common safety."
Whether as an expression of pure punishment (fulfilling the expectations of Nullum crimen sine poena) or of anticipatory self-defense, American assassination of terrorists would likely elicit considerable worldwide indignation. After all, living, as we do, in the "modern" age of comity and culture, how else should decent people react to the idea of killing as remediation and/or deterrence? Yet, the civilizational promise of modernity is far from realized and imperilled states must inevitably confront choices between employing assassination in very residual circumstances or renouncing such employment at the expense of justice and safety. In facing such choices, these states, including the United States, will discover that all viable alternatives to the assassination option also include violence and that these alternatives may, in fact, exact a much larger toll in human life and suffering.
Louis Rene Beres is Professor of International Law in the Department of Political Science at Purdue University.
Outpost - 4 - September 1998