Summary: Since our side has initiated assassination of Iranian scientists, we have a guest article by Kevin Jon Heller discussing the status of these actions under international law. That is, under the global regime instituted by the US after WWII, one of the nation’s greatest contributions to the world. Not that we care if such actions are legal, whether done by directly by the US or by Israel with our knowledge and assistance (however indirect). We’re too locked into a comprehensive framework of lies to see, let alone understand, what we’re doing. A legal perspective helps to show us how far we have traveled since WWII on our journey into darkness, away from the goals and dreams of the Founders. This is chapter 14 in a series about our conflict with Iran; at the end are links to other chapters (and additional information).
Contents
- Is Killing Iranian Nuclear Scientists Terrorism?
- About the author
- For more information about assassination
- Other posts in this series about our conflict with Iran
(1) Is Killing Iranian Nuclear Scientists Terrorism?
This is guest post by Kevin Jon Heller, Senior Lecturer at Melbourne Law School. Originally published at Opinio Juris (discussing international law and international relations), and republished here with his generous permission.
There has been much debate the past couple of days about whether the bomb attacks that have killed at least three Iranian nuclear scientists since 2010 qualify as terrorism. Glenn Greenwald and Kevin Drum on the left and Andrew Sullivan on the right say “yes”; many of their readers (see Greenwald here) and the editor of Technology Review say “no.” Those in the “no” camp insist that the attacks were legitimate targeted killings and thus cannot qualify as terrorism.
I have no definitive position on who is responsible for the killings, although the available evidence seems to point to Israel and not, as widely suspected, to the United States. This Der Spiegel article, for example, says that Israeli intelligence sources have confirmed that the Mossad were responsible for the killing of Darioush Rezaei. Moreover, Mark Perry published a blockbuster article in Foreign Policy yesterday that claims, based on a series of classified CIA memos, that Mossad agents posed as CIA officers in order to recruit members of the Iranian terrorist group Jundallah, whom Israel believed would be useful in its covert war against the Iranian government.
Let’s assume for sake of argument — and only for the sake of argument — that the killings were carried out solely by the Mossad. Do those killings qualify as terrorism?
What is terrorism?
The first thing that needs to be said is that it is impossible to answer that question in the abstract. Despite decades of efforts — and contrary to the rightly-maligned recent decision by the Appeals Chamber of the Special Tribunal for Lebanon — the international community has yet to agree on a general definition of terrorism. The best we can do, then, is determine whether the killings qualify as terrorism under one or more of the specific anti-terrorism conventions that states have negotiated. The most relevant one is obvious: the International Convention for the Suppression of Terrorist Bombings (“Terrorist Bombing Convention”), which currently has 164 States Parties, including both Israel and the United States. Here is how Article 2 of the Terrorist Bombing Convention defines an act of terrorism:
1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:
(a) With the intent to cause death or serious bodily injury; or
(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.
There is little question that the killing of the Iranian nuclear scientists satisfies this definition of terrorism. The attacks involved “explosive devices,” and they were clearly intended to “cause death.” The attacks also all took place on public streets, which qualify as “place[s] of public use” under Article 1(5) of the Terrorist Bombing Convention. Article 1(5) defines a place of public use as “those parts of any building, land, street, waterway or other location that are accessible or open to members of the public, whether continuously, periodically or occasionally.”
Notice, by the way, how broadly the Terrorist Bombing Convention defines terrorism. Many anti-terrorism conventions require the violent act be intended “to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.” The International Convention for the Suppression of the Financing of Terrorism is an example. Moreover, many national definitions of terrorism, such as the UK’s Terrorism Act 2000 {Wikipedia, actual text} require the violent act be designed to advance “a political, religious or ideological cause.” The absence of those additional requirements — which many of those who insist that the attacking the scientists is simply targeted killing wrongly believe apply to all definitions of terrorism — indicates just how seriously the international community takes the use of explosive devices as weapons of terror.
About the exception for actions by armed forces
Article 2, however, does not end our inquiry. Justifiably or not, Article 19(2) of the Terrorist Bombing Convention specifically excludes at least some acts that would otherwise qualify as terrorism when they are committed by the military forces of a state:
2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.
Article 19(2)’s two clauses address different situations. The first clause clearly provides that a state’s armed forces can use an explosive device in a public place during an armed conflict without violating the Terrorist Bombing Convention. (In fact, that is true even if the use of the explosive device would qualify as a war crime.)
The second clause is more complicated — and led to significant debate during the drafting of the Convention. There is no question that the clause is designed to permit a state’s military forces to use explosive devices in public places even outside of armed conflict (i.e., during peacetime). The question is whether the Terrorist Bombing Convention excludes any use of an explosive device outside of armed conflict by the military, or only some uses. Many states, such as the U.S. and Turkey, wanted all peacetime military uses to be excluded, even those that violated international law. Other states, however, most notably New Zealand and Mexico, insisted that only peacetime military uses that were consistent with international law should be excluded. In the end, both sides and neither side won: the wording of Article 19(2) — “inasmuch as they are governed by other rules of international law” — was deliberately chosen because it could be interpreted either way.
Fortunately, that ambiguity does not affect our analysis. The Mossad is not part of Israel’s “military forces,” defined by Article 1(4) of the Terrorist Bombing Convention as “the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility.” The Mossad is a civilian agency that is under the authority of the Prime Minister’s Office; it is not part of Israel’s armed forces. Article 19(2)’s exclusions, therefore, simply do not apply to the Mossad.
Again, it is not yet clear that the Mossad are responsible for killing the Iranian nuclear scientists. If they are, though, the fact that they used explosive devices in public places means that the attacks qualify as terrorism under the Terrorist Bombing Convention.
About targeted killings
Finally, let me say a few words about targeted killing. As noted in the opening paragraph, Greenwald, Drum, and Sullivan’s critics insist that because the bomb attacks are targeted killings, they cannot be considered terrorism. The easy — and sufficient — response is the one mentioned above: under the Terrorist Bombing Convention, only a state’s armed forces have the right to carry out a targeted killing, whether during armed conflict or during peacetime. A civilian intelligence service such as the Mossad does not.
It is also worth noting, however, that the targeted killing of the Iranian nuclear scientists would not be legal under either international humanitarian law (during armed conflict) or international human rights law (during peacetime). During armed conflict, international humanitarian law prohibits the intentional attack of civilians — which these nuclear scientists clearly were — unless they are directly participating in hostilities. A complete analysis of what it means to directly participate in hostilities is beyond the scope of this post; suffice it to say here that working on a nuclear program that, according to military and scientific experts, is at least two years away from being able to produce a nuclear weapon cannot qualify as direct participation. Outside of armed conflict — during peacetime — international human rights law imposes even greater restrictions on targeted killing (although, contrary to popular belief, it by no means prohibits it). Under international human rights law, a targeted killing must be “strictly necessary,” understood to mean that killing the target was the only way to avoid an imminent attack. For the reasons just mentioned, it is impossible to claim that killing the nuclear scientists was necessary to prevent Iran from launching an imminent nuclear attack on Israel or on another country.
Conclusions
The bottom line: the attacks on the nuclear scientists were not, by any stretch of the imagination, legitimate targeted killings.
(2) About the author
From his profile at the Melbourne Law School website.
Kevin Jon Heller is currently a Senior Lecturer at Melbourne Law School, where he teaches international criminal law and criminal law. He holds a JD with distinction from Stanford Law School, an MA with honours in literature from Duke University, and an MA and BA, both with honours, in sociology from the New School for Social Research. He received his PhD in law from Leiden University in June 2011.
Kevin’s academic writing has appeared in a variety of journals, including the European Journal of International Law, the American Journal of International Law, the Journal of International Criminal Justice, the Harvard International Law Journal, the Michigan Law Review, the Leiden Journal of International Law, the Journal of Criminal Law & Criminology, Criminal Law Forum, and the Georgetown International Environmental Law Review.
His book The Nuremberg Military Tribunals and the Origins of International Criminal Law was published by Oxford University Press in June 2011, and Stanford University Press published his edited book (with Markus Dubber) The Handbook of Comparative Criminal Law in February 2011.
He writes at the international-law blog Opinio Juris.
On the practical side, Kevin has been involved in the International Criminal Court’s negotiations over the crime of aggression, served as Human Rights Watch’s external legal advisor on the trial of Saddam Hussein (whose lawyers cited his academic work in their appeals), and consulted with a number of defendants at the ICTY and ICTR. He served from December 2008 until February 2011 as one of Radovan Karadzic’s formally-appointed legal associates.
See his professional publications here.
(3) For more information about assassination
- James Bond is not just our hero, but the model for our geopolitical strategy, 18 May 2009
- Stratfor looks at “The Utility of Assassination”, 26 February 2010
- The biggest re-branding exercise in the history of the world, 21 August 2010 — A new image for America
- Killing the leaders of our enemy. Is this the fast track to victory – or disaster?, 25 October 2010
(4) Other posts in this series about our conflict with Iran
- Is the War on Terror over (because there are no longer two sides)?, 3 September 2008 — Rumors of covert ops by us against Iran, including aid to terrorists
- Iran’s getting the bomb, or so we’re told. Can they fool us twice?, 16 January 2009
- Iran will have the bomb in 5 years (again), 2 January 2010 — Forecasts of an Iranian bomb really soon, going back to 1984
- About the escalating conflict with Iran (not *yet* open war), 4 January 2012
- Have Iran’s leaders vowed to destroy Israel?, 5 January 2012 — No, but it’s established as fact by repetition
- What do we know about Iran’s nuclear ambitions?, 6 January 2012 — US intelligence officials are clear: not as much as the news media implies
- What does the IAEA know about Iran’s nuclear program?, 9 January 2012 — Their reports bear little resemblance to reports in the news media
- What happens when a nation gets nukes? Sixty years of history suggests an answer., 10 January 2012
- What happens if Iran gets nukes? Not what we’ve been told., 11 January 2012
- Status report on the already-hot conflict with Iran – and the looming war, 12 January 2012
- Continuity and dysfunctionality in US foreign policy (lessons for our conflict with Iran), 13 January 2012 — Insights about today from Cold War strategist Colin Grey
- What the conflict with Iran teaches us about modern State-to-State war, 16 January 2012
- Has Iran won a round vs. the US-Israel?, 17 January 2012
- Is Killing Iranian Nuclear Scientists Terrorism?, 19 January 2012 — By Kevin Jon Heller (Senior Lecturer at Melbourne Law School)