After Osama Bin Laden: assassination, terrorism, war, and international law.

• Author: Beres, Louis Rene
• Position: International Law in Crisis

International law, always confronting multiple crises, is now in a protracted crisis itself Regarding the struggle against terrorism, especially mass-casualty terrorism, states will increasingly require unorthodox means. In principle, at least, these means may sometimes include defensive first strikes that are known, jurisprudentially, as "anticipatory self-defense." Such preemptive measures could range from individual "targeted killings," (1) or assassinations, (2) to assorted expressions of cyber-war, to more-or-less far-reaching military strikes. In all of these cases, the determinable lawfulness of preemption will ultimately depend, inter alia, upon the imminence and urgency of the particular danger posed. Although it can never be jurisprudentially correct to willfully disregard the requirements of humanitarian international law, the law of armed conflict, there are occasions when ordinary legal expectations will need to be suitably adapted to extraordinary circumstances. Ubi cessat remedium ordinarium, ibi decurritur ad extraordinarium, "Where the ordinary remedy fails, recourse must be had to an extraordinary one." Presently, even after the killing of Osama bin Laden, counter-terror operators, confronted with adversarial groups that may still act as capable proxies for certain enemy states, will need to capably resist all forms of "perfidy," and also to understand that such resistance can be both indispensable, and law-enforcing. This paper will examine pertinent strategic options from an informed jurisprudential perspective, conceptually, but also with particular, or at least deducible, reference to Northern Africa and the Middle East. Moreover, there will be broader and timely excursions into the often related and interpenetrating legal issues of "humanitarian intervention," (3) or the "duty to protect."

1. INTRODUCTION II. ASSASSINATION DURING A CONDITION OF PEACE III. ASSASSINATION DURING A CONDITION OF WAR IV ASSASSINATION AS LAW ENFORCEMENT AMONG STATES NOT AT WAR V. ASSASSINATION AS ANTICIPATORY SELF-DEFENSE AGAINST TERRORISM VI. THE PREEMPTION PROBLEM WITH REGARD TO A NUCLEARIZNG IRAN VII. GETTING BACK TO BASICS: THE NEED FOR HUMAN TRANSFORMATIONS I. INTRODUCTION

   However reluctantly, even after the successful American assassination (4) of Osama bin Laden on May 1, 2011, (5) the United States and its allies remain engaged in an inherently inconclusive (6) "war" (7) on terrorism. (8) On its face, this engagement is readily comprehensible. All war, after all, accepts the idea of killing as remediation.

   At the same time, ironically, while virtually all societies and civilizations routinely accept the permissibility of warfare with vast armies and armaments in particular circumstances (to wit, the long tradition of a just war doctrine (9) in philosophy, theology and jurisprudence), most would nonetheless still question the presumed legality and ethical correctness of assassination and targeted killing. (10)

   These denials could sometimes accompany even the most incontestable expressions of anticipatory self-defense. (11) We might also discover similarly far-reaching rejections of preemptive strikes (12) that would involve larger-scale expressions of military force.

   For many years, I have argued, albeit reluctantly, for the residual legality and pragmatic reasonableness (13) of assassination as counterterrorism. (14) The core of my sometimes (seemingly) paradoxical argument has been a distinctly utilitarian and humanitarian calculation: Simply stated, at least on occasion, such expressions of violence can best preserve innocent human lives. (15)

   Over this extended period, I have maintained that the preemptive assassination of terrorists who plan large-scale or unconventional mass casualty attacks against Americans and others could ultimately save the lives of a great many intended terrorist victims. As an indispensable legal corollary, any such targeted killing should nonetheless adhere to the applicable long-standing customary and codified rules of war, (16) limitations that concern standards of discrimination, (17) proportionality (18) and military necessity. (19) Logically speaking, there is no reason why any such expectations should be considered unreasonable.

   Legal and operational issues can be intertwined in very complex synergies. Terror crimes are not necessarily singular acts of violence. Rather, they can figure as a part of a much larger strategy of warfare. Terrorist harms may be inflicted as part of a broader strategy of attrition.

   In the strict military sense, a war of attrition represents a condition of belligerency that is designed to "wear down" an enemy, by constant pressure, in order to weaken, exhaust or destroy that enemy's forces. The key word, attrition, derives from the Latin word attire, to weaken, which itself stems from terrere, to rub. In these times, even after Osama bin Laden, (20) a war of attrition (21) may be fought, in whole or in part, via carefully constructed acts of terror.

   In considering assassination or targeted killing as counter-terrorism, there is also a core question of justice. (22) Among the most sacred of American ideals is the non-derogatable rule of nullum crimen sine poena, "No crime without a punishment." This fully peremptory principle is originally drawn from ancient Israel, and from ancient Greece. (23) Significantly, it is explicitly codified in the always-binding Nuremberg (24) Principles of international law. (25)

   Where planners of such plainly egregious crimes (26) as the September 11th terrorist attacks on the United States could not be punished by any normal judicial remedy (we could not, for example, in the matter of Osama bin Laden, have ever expected sufficient international compliance with the codified and customary norm of aut dedere, aut punire, "extradite or prosecute"), (27) the predictably effective choice was to leave the unrepentant murderer unpunished, (28) or to punish him extra-judicially. (29) Pursuant to orders from U.S. President Barack Obama, the correct decision was carried out by U.S. Special Forces on May 1, 2011. (30)

   Punishment (31) is always at the heart of justice, (32) but those who are responsible for our national security must be less concerned with the punishment of past terrorist crimes, or pure retributivism, (33) than with the prevention of future crimes. (34) The imperative to seek such prevention is all the more considerable when such attacks are apt to employ weapons of mass destruction. (35) Referencing settled international law, (36) the U.S. has this defensive obligation, and a corresponding authority, under the customary right of anticipatory self-defense, and also under the treaty (37)-based right of self-defense "following an armed attack," found at article 51 of the U.N. Charter.

   Acknowledging this obligation and authority, former U.S. President George W. Bush, on September 20, 2002, issued The National Security Strategy of the United States. (38) Unilaterally extending the U.S.'s right of preemption in foreign affairs, this Bush Doctrine, (39) drawing upon antecedent principles of law and justice, asserted that traditional concepts of deterrence will not work against an enemy "whose avowed tactics are wanton destruction and the targeting of innocents...." It continued: "We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries." This "adaptation," of course, meant nothing less than striking first wherever an emergent threat to the United States was presumed to be unacceptable.

   Might the broadened right of preemption asserted by the former president have included assassination? Should it have included assassination? We know, of course, that the current administration essentially continues to quietly support certain core principles of assassination and targeted killing, at least in particular reference to Osama bin Laden, but is this support jurisprudentially correct? Did President Barack Obama authorize the targeted killing of bin Laden primarily as an expression of anticipatory self-defense, or as pure punishment? (40)

   Normally, we think of preemptive strikes in terms of much largerscale military operations directed against enemy forces and/or infrastructures. Moreover, there are substantial prohibitions of assassination in domestic and international law that would seem, prima facie, to rule out this particular use of force as a proper expression of anticipatory self-defense. Yet, when we examine the issues purposefully and dispassionately, and without any regard to specific prohibitions in law, it will sometimes turn out that assassination is clearly the most humane and simultaneously useful form of preemption. We must, therefore, get consciously beyond any deep-seated visceral objections that may be detached from rational jurisprudential calculations, to a measured and careful legal comparison of targeted killing with all other available preemption options. To be sure, assassination is not a "nice" instrument of justice or security, but neither is full-scale war.

   International law is not a suicide pact. (41) The right of self-defense by forestalling an attack was already established by Hugo Grotius in Book II of The Law of War and Peace in 1625. (42) Recognizing the need for "present danger," and threatening behavior that is "imminent in a point of time," (43) Grotius indicates that self-defense is to be permitted not only after an attack has already been suffered, but also in advance, where "the deed may be anticipated." (44) "It be lawful to kill him," says Grotius, "who is preparing to kill ...." (45)

   What particular strategies and tactics may be implemented as appropriate instances of anticipatory self-defense? Might they even include assassination? (46) Understood as tyrannicide, (47) assassination has sometimes been acceptable under international law (e.g., Aristotle's Politics; Plutarch's Lives, and Cicero's De Officiis). (48) Our...