The Targeted Killing of Hamas Leader Yahya Sinwar Was Completely Legal

In assessing Israel’s targeted killing of Hamas leader Yahya Sinwar, two separate but overlapping standards should be applied: legal and operational. Though these kinds of operations may not necessarily diminish long-term terror threats, the argument favoring their lawfulness is unassailable. This argument stems from the anarchic structure of world politics and the corresponding right of states to protect their citizens from criminal slaughter.

World legal authority remains a “self-help” system of justice. Accordingly, it was an act of law-enforcement that successfully eliminated Hamas mastermind Yahya Sinwar. “The safety of the people,” we may learn from Roman philosopher Cicero, “shall be the highest law.”

Under international law, which is binding on all sovereign states, terrorism represents a crime that should be prevented and must be punished. Rooted in ancient Jewish law (the Torah) as well as Roman law, a universal rule now prevails: “No crime without a punishment.” It can be verified, among other sources, at the London Charter (Nuremberg Tribunal) of August 8, 1945.

In formal jurisprudence, terrorists are known as hostes humani generis or “common enemies of humankind.” While the world legal system allows or even encourages certain insurgencies on matters of “self-determination,” there is nothing about these matters that can ever justify deliberate attacks on civilians. An integral part of all criminal law is the relevance of mens rea or “criminal intent.”

There can be no reasonable comparisons of Sinwar’s deliberate mass murder of Israeli noncombatants and the unintended civilian harms suffered by Palestinians in Gaza.

As a matter of law, responsibility for such ongoing harms falls on the “perfidious” behavior (i.e., “human shields”) of Hamas, not on Israeli forces acting on behalf of legitimate self-defense. Under the law of war, even where an insurgent use of force has supportable “just cause,” it must still fight with “just means.” In the case of jihadist terror crimes against Israel, there is further reason for legitimate doubt about a “just” Palestinian cause.

At first, to accept the targeted killings of terrorist leaders as law-enforcement could appear to disregard the usual legal obligations of “due process.” But world politics are not overseen by the same civil protections offered by national governments. Left unchallenged as individuals, terrorist criminals like Sinwar would launch persistent attacks on men, women, and children with a law-mocking impunity.

The willfully indiscriminate nature of Hamas terrorist operations is well documented. Such intentional blurring of lines between lawful and unlawful targets is rooted in the generic principles of “holy war.” An oft-repeated remark by Sheikh Omar Bakri Muhammad, a formerly prominent Muslim cleric, explained core doctrinal linkages between Islamist terror and jihad. Said the Sheikh without apology: “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. As was clarified on October 7, 2023, jihadist attackers add gratuitously barbarous effects to primal ideologies. At “bottom line,” their belief systems gleefully embrace the slaughter of “unbelievers.” Though chest-thumping Hamas criminals call themselves “martyrs,” the death they seem anxious to suffer is just a transient inconvenience on the “sacred path” to eternality.

There is more. Hamas and other terror groups remain dedicated to the idea that any peace agreement with Israel represents an intolerable abomination to Islam. Facing such implacable enemies within a self-help system of international law, Israel deserves the self-defending right to target refractory terrorist leaders.  Determining whether such self-help remedies are militarily sound, however, raises another question altogether. What is most noteworthy about the targeted killing of terrorist leaders like Sinwar is not its inherent permissibility in law, but a widespread unwillingness to acknowledge this critical right of self-defense.

Under the international law principles governing insurgencies, ends can never justify the means. A cause, even if it is arguably just, can never excuse unjust means against the innocent.

By the authoritative standards of contemporary jurisprudence, terrorists are comparable to pirates, subject to punishment (originally, hanging) by the first persons into whose hands they fall. Presently, terrorists remain international outlaws who fall within the operational scope of “universal jurisdiction.” This means that any state can reasonably claim a valid right to arrest, prosecute and target the offenders.

In this connection, even if the IDF fighters who killed Sinwar were unaware that he was the actual target of their “in progress” operation,  the fact that the operation was part of a broader and ongoing military attempt to remove him signals a law-enforcing killing. Prima facie, Israel’s entire “Swords of Iron” war centers on terrorist “decapitation.” Unambiguously, Sinwar was “head of the snake.”

History warrants some additional pride of place. Support for a limited right to the targeted killing of “common enemies of humankind” can be found in classical writings of Aristotle, Plutarch, and Cicero — and specifically in Jewish philosophy. This philosophy ranges from the Sicarii (who flourished at the time of destruction of the Second Temple) to Lehi (who fought the British mandatory authority after World War II).

Sometimes, targeted killings, subject to applicable legal rules, could offer the least injurious form of national self-protection. In cases where mass-destruction terror-crimes might be contemplated, the legal acceptability of violent self-help measures would be far greater ipso facto. In our continuously anarchic system of international law, this proposition assuredly lies “beyond any reasonable doubt.”

Counterterrorism should always be governed by rational and justice-oriented decision-making processes. If the expected costs of a targeted assassination appear lower than the expected costs of all other plausible self-defense options, such an operation must emerge as the patently correct choice. However odious it might first appear in vacuo, targeted killing in such circumstances would offer a beleaguered state like Israel the most discriminate path to security from terrorist criminality.

Sir William Blackstone’s 18th century Commentaries (the founding document of United States law) explain that because international law is an integral part of each individual state’s “common law,” all states are “expected to aid and enforce the law of nations.” This obligation should be accomplished “by inflicting an adequate punishment upon the offenses against that universal law.” Derivatively, therefore, by its removal of Hamas terrorist leader Yahya Sinwar, Israel acted not in violation of the law of nations, but in its indispensable enforcement.

Recalling Cicero in The Laws: “The safety of the people shall be the highest law.”

Prof. Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and scholarly articles dealing with international law, nuclear strategy, nuclear war, and terrorism. In Israel, Prof. Beres was Chair of Project Daniel (PM Sharon). His 12th and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd ed., 2018). 

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