Targeting Abu Bakr al-Baghdadi: Pertinent Issues of Law and Strategy
Louis René Beres
"Each state is expected to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon the offenses against that universal law."
-- William Blackstone, Commentaries on the Law of England[i]
The US targeted killing of ISIS leader Abu Bakr al-Baghdadi on 26 October 2019 raises both tactical and legal questions. Although it is by no means certain that such "decapitation" tactics can tangibly diminish Jihadist terrorist threats to the United States,[ii] there is little reason to doubt their permissibility under pertinent international law. In the final analysis, such permissibility derives from our world's still-decentralized legal structure.
This is a structure founded upon the far-reaching absence of any central global authority. An anarchic structure, it has existed in essentially unmodified form since the seventeenth century Peace of Westphalia. That landmark treaty (1648) ended the Thirty Years' War and, correspondingly, created the modern state system.
Notwithstanding "collective security" processes and institutions established by the United Nations and (earlier) by the League of Nations, world authority remains a fundamentally "self-help" or vigilante legal system. It is within this more-or-less codified global anarchy that individual states must continually exercise and accept a wide latitude of reprisal or preemption options . Regarding the crime of terrorism, this is exactly what happened on 26 October, when US President Donald Trump ordered al-Baghdadi's tactical "removal."
About some legal matters, there can exist no plausible ambiguity. Accordingly, under authoritative international law, terrorism represents an egregious crime that must be punished. As we learn from both Roman and Jewish (Torah) law, the must be "no crime without a punishment," or Nullum crimen sine poena.[iii]
By definition, terrorists are known in formal jurisprudence as hostes humani generis or "common enemies of humankind." Although the world legal system allows or even encourages various insurgencies in particular matters of self-determination and/or human rights (a historically fortuitous allowance for Americans back in 1776), there is nothing about these matters that can ever justify any deliberate attacks on the innocent.
Under the comprehensive Law of War (aka the Law of Armed Conflict), even when an insurgent use of force has recognizably "just cause," it must nonetheless also express "just means."
Ordinarily, assassination, like terrorism itself, is an established crime under international law. Still, under certain well-established conditions, the targeted killing of terrorist leaders can represent a life-saving and/or acceptable example of proper law-enforcement.[iv] In a more perfect legal world, there could be no defensible justification for any such violent self-help expressions of international justice.
But this is not yet such a world.
In essence, in our self-defense oriented world legal order, the only real alternative to states launching certain periodic and precise actions against terrorists is to allow terror-violence against the innocent. Plainly, among other things, this is because terror-organizations like ISIS have nothing but contempt for the normally prescribed legal expectations' of "extradite or prosecute" (aut dedere, aut judicare).
On its face, accepting assassination or targeted killings as a law-enforcing remediation means to disregard ordinarily binding expectations of legal "due process." Still, international relations are not governable by the same civil protections offered by individual national societies, and Jihadist leaders are ceaselessly planning violent attacks against assorted men, women and children. In the future, it is even plausible that such attacks could make use of chemical, biological or nuclear elements (the last signifying a "dirty bomb" rather than a genuine "chain-reaction" nuclear explosive.[v]
Among other prominent derelictions, the presumptive indiscriminacy of Jihadist operations is well documented. Indeed, such intentional blurring of the lines between lawful and unlawful targets is ideologically rooted in the generic principles of "holy war." Several years ago, an open remark by Sheikh Omar Bakri Muhammad, a prominent Muslim cleric in London, had echoed this significant origin: "We don't make a distinction between civilians and non-civilians, innocents and non-innocents. Only between Muslims and unbelievers. And the life of an unbeliever (a Jew or Christian) has no value. It has no sanctity."
International law is not a suicide pact. Jihadist attackers regularly seek to add barbaric effects to their purely primal ideologies of sacrificial slaughter.[vi] For ISIS and certain related groups, conspicuous "military objectives" have sometimes included elementary schools, bomb shelters, ice-cream parlors, civilian buses and elderly pedestrians.
Jurisprudentially, therefore, these perpetrators are never just “militants.”
Rather, they are authentically and legally "terrorists."
Here, too, various clerical exonerations and promises apply to all "martyrs" who would eagerly drive their cars or trucks into assembled crowds of vulnerable pedestrians,. If shot by bystanders or police (not usually a negative outcome for the Jihadist perpetrator), these terrorists become shahids.
In the specific case of Israel, each pertinent Jihadist group – including Hamas, Islamic Jihad and even “moderate” Fatah - remains dedicated to the idea that any real peace agreement must represent an abomination to Islam. Facing such implacable enemies within a markedly self-help system of international law, Israel’s legitimate security options must always include the residual right of targeting terrorist leaders. Of course, determining whether or not any such last-resort self-help remedies are operationally sound and practically promising represents another question altogether. Always, this query must be kept logically distinct from any applicable considerations of law.
Once again, accordingly, it is by no means clear that the very recent US targeted killing of ISIS leader Baghdadi will prove net gainful for American national security.
In part, at least, what is most noteworthy about targeted killing as counterterrorism is not its residual permissibility, but rather the widespread unwillingness of the international community to more openly acknowledge this right.
International law is not a suicide pact.[vii]
Under international law, every state maintains the inherent and overriding right (and corollary obligation) to protect its citizens. In some residual circumstances, this dual responsibility can extend to the targeted killing of terrorist leaders. Otherwise, world law would plausibly need to declare itself a suicide pact.
Terrorism is always an insurgency, but never a permissible form of insurgency. On this core point, the law of armed conflict (aka humanitarian international law) is abundantly clear. This law makes it plain that the ends can never justify the means. A cause, even if it is seemingly legitimate - even if it is convincingly "sacred" - can never excuse premeditated violence against the innocent.
By the authoritative standards of contemporary international law, terrorists are known as hostes humani generis or "common enemies of humankind." In the fashion of pirates, who were to be hanged by the first persons into whose hands they fell, terrorists are acknowledged international outlaws who fall within the recognizable scope of "universal jurisdiction." This means that literally any state on earth could claim a valid right of arrest and prosecution, even where there exist no tangible geographic or citizen ties to the crime(s) in question.
There is more. Support for a limited right to assassination can be found in the classical writings of Aristotle, Plutarch and Cicero, and in Jewish history - ranging from the Sicarii (who flourished at the time of the destruction of the Second Temple) to Lehi (who fought the British mandatory authority). Should the civilized community of nations ever choose to reject this residual right altogether, it would then have to accept the reciprocally injurious effects heaped upon innocent human life. In the future, as we have already noted, these effects could present in chemical, biological or even nuclear forms.
International law is not a suicide pact. Targeted killings, subject to applicable legal rules of discrimination, proportionality, and military necessity, may sometimes offer the least unwelcome form of self-protection and punishment. Moreover, in those cases where additional terrorist crimes are still being planned, the acceptability of such violent self-help measures would evidently be much greater.
This vital point of law is simply incontestable. Our world legal system is designed to protect us from foreseeable and terrible infringements of fundamental human rights. Yet, this same anarchic system still has no independent or centralized means to suitably meet this primary and peremptory obligation.
In the best of all possible worlds, targeted killing could expect no defensible place in lawful counterterrorism. But we do not yet live in the best of all possible worlds, and the starkly negative aspects of any such assassination should never be evaluated apart from available alternative options. In other words, such regrettable aspects must always be compared to what could reasonably be expected from these other conceivable options.
If the expected costs of a targeted assassination should appear lower than the expected costs of alternative counterterrorist options, such assassination would emerge as the indisputable rational choice. However odious it might appear in isolation, targeted killing in such still foreseeable circumstances may understandably represent the least injurious path to improved national and personal safety from terrorism.
Always, targeted assassinations, even of ISIS leaders like Abu Bakr al-Baghdadi, will elicit "civilized" indignation from certain quarters, even from those who might still find full-scale warfare reasonable or appropriate. For now, the civilizational promise of centralized world law remains very far from being realized, and major states such as the United States, however reluctantly, must continue to confront starkly difficult operational choices. In facing such problematic choices, these states will inevitably discover that the available tactical alternatives to targeted-killing options must also include violence, and that these alternatives (whether immediately or eventually) could even exact a much larger human toll.
International law is never a suicide pact.
[i] Blackstone's Commentaries represent the literal and historical foundation of United States law. No single document is comparably important to the original development of American jurisprudence.
[ii] On the contrary, there may be good reason to argue that the killing of al-Baghdadi will result in substantially more violent and dangerous ISIS commanders.
[iii] This core principle was expressly reaffirmed (inter alia) at the London Charter of August 8, 1945, establishing the post-War Nuremberg Tribunal.
[iv] See by this author: https://www.tandfonline.com/doi/full/10.1080/08850600802046962?scroll=top&needAccess=true See also: https://scholarlycommons.law.hofstra.edu/hlr/vol20/iss2/2/ and also: http://bjwa.brown.edu/uncategorized/assassination-and-targeted-killing-a-timely-jurisprudential-brief/
[v] In strictly scientific or mathematical terms, however, there is no valid way to assign meaningful probabilities to any such expressly nuclear prospects. This is because (1) true probabilities must always be based upon the determinable frequency of relevant past events; and (2) in this case, there are no relevant past events.
[vi] For the most part, Jihadist terrorism is always an expression of religious sacrifice.
[vii] In law, this ancient principle still obtains: Ubi cessat remedium ordinarium, ibi decurritur ad extraordinarium; "Where the ordinary remedy fails, recourse must be had to an extraordinary one."