Targeting Marwan Issa didn't break the law; it enforced it - opinion

Israel’s recent targeting of a senior Hamas commander was a law-enforcing action. Marwan Issa had been a principal planner of the October 7 rampage against defenseless Israeli civilians. Maj.-Gen. Tamir Hayman, former chief of Israeli military intelligence, correctly described the terrorist leader as Hamas’s “defense minister,” its deputy military commander, and its “strategic mind.”

Context is clarifying. The world legal system remains a “self-help” system of justice. It is within this background of global anarchy that terror-beleaguered states must shape and identify counter-terrorism options. 

Responding to intentionally indiscriminate Hamas violence, Israel’s precise airstrike was an act of international law enforcement that targeted Issa. Faced with a persistent threat of Palestinian terrorism that could, sometimes, escalate to mass destruction weapons, Israel has no choice but to eliminate Hamas leadership wherever possible.

Abandoning such a primary obligation would express even more than an existential threat to Israel. It would also represent a potentially devastating threat to regional and global security. An example of such a threat would be a direct Iranian attack on Israel that escalates into an unconventional war. Although Iran is pre-nuclear, any accelerating search for “escalation dominance” by Israel and Iran could still produce a nuclear conflict. Iran already has access to radiation-dispersal weapons and could launch a conventional attack against Israel’s Dimona nuclear reactor.

Under international law, terrorism represents a crime that must be prevented and punished. As we may learn from both Roman law and Jewish law (Halacha), a universal rule reigns. This rule affirms the immutable principle of “No crime without a punishment.” It can be discovered, among other valid sources, in the London Charter of August 8, 1945, the founding document of the Nuremberg Tribunal.

In law, terrorists are known as hostes humani generis or “common enemies of humankind.” While the world legal system allows certain insurgencies in matters of “self-determination,” there is nothing that can ever justify deliberate attacks on civilians. Here it is important to remember that an integral part of all criminal law is the underlying presence of mens rea or “criminal intent.”

In law, there can be no reasonable comparison of Marwan Issa’s deliberate mass murder of Israeli noncombatants and the unintended civilian harms now being suffered in Gaza. As a matter of humanitarian international law, responsibility for these Gaza harms falls entirely upon the “perfidious” behavior (i.e., using civilians as “human shields”) of Hamas and Iran, not on the Israeli forces acting to support legitimate and indispensable national self-defense. Under the law of war, even where an insurgent uses force with “just cause,” it is still required to fight with “just means.” 

The phrase “One man’s terrorist is another’s freedom fighter” is never more than an empty witticism.

Eliminating terrorist leaders is an exception under international law

Ordinarily, assassination, like terrorism, is a crime under international law. Under certain conditions, however, the targeted killing of terrorist leaders can represent a life-saving example of critical law enforcement. In our self-defense-oriented world legal system, the only alternative to states launching precise targeting actions against terrorists would be to allow incessant terror-violence against the innocent.

At first glance, to accept the targeted killings of terrorist leaders as law-enforcing remediation could seem to disregard the usual obligations of “due process.” Nonetheless, international legal relations are not overseen by the same civil protections offered by individual national governments, and terrorist leaders like Marwan Issa orchestrate barbarous attacks on men, women and children with manifest enthusiasm. 

Let no one forget the details. On October 7, 2023, Hamas attackers perpetrated the rape-mutilation of males as well as females; of children as well as adults. This assault was not about Palestinian “national self-determination” or “Palestinian statehood.” It was about the visceral “joys” of barbarism.

If Hamas and related groups are left immune by civilized states, terror attacks could come to exploit chemical, biological, or even nuclear elements. For the moment, a nuclear option would be limited to “only” a “dirty bomb” (radiation dispersal weapons), but this could change.

International law is not a suicide pact. As was learned yet again on October 7, 2023, jihadist attackers add gratuitously murderous effects to their primal or pre-civilizational ideologies. At the “bottom line,” jihadist belief systems gleefully embrace the sacrificial slaughter of “unbelievers.” While jihadists may call themselves “martyrs,” the personal death such terrorists are anxious to suffer is just a transient inconvenience on the path to immortality.

In essence, Hamas, Hezbollah, Palestinian Islamic Jihad, and other terror groups remain dedicated to the idea that any peace agreement with Israel would be an abomination to Islam. Facing such implacable enemies within a self-help system of international law, Israel always deserves the right to target refractory terrorist leaders in self-defense.

International law is not a suicide pact. It would be best if Israel didn’t have to resort to any targeted killing of terrorist adversaries, but in the present system of world law, a beleaguered country smaller than America’s Lake Michigan has no meaningful choice. Under authoritative international law principles governing insurgencies, the ends can never justify the means. There is never an excuse for premeditated violence against the innocent.

In the best of all possible worlds, targeted killing could expect no defensible place in law-based counterterrorism. But we do not yet live in the best of all possible worlds, and the negative aspects of any such action ought never to be evaluated apart from alternative policy outcomes. 

If Israel had chosen not to target Marwan Issa in order not to injure the sensibilities of “civilized nations” (a phrase codified in article 38 of the Statute of the International Court of Justice), it would have brought more extensive injury to a great many innocent human beings.

Targeted killings, even of Hamas leaders like Marwan Issa, will elicit indignation from across the world, including those who would find full-scale warfare acceptable. For now, the historic promise of centralized world law remains far from being realized and is continuously imperiled. 

States such as Israel will still need to consider difficult operational and ethical choices. In facing such choices, these states would inevitably discover that all viable alternatives to targeted-killing also include violence and that these alternatives would ultimately exact a much more grievous human toll.

The writer is an emeritus professor of international law at Purdue University and the author of many books and scholarly articles on international law, nuclear strategy, nuclear war, and terrorism. His 12th and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; second edition, 2018).