16 Jan Is Killing Iranian Nuclear Scientists Terrorism?
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?
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, 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 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.
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.
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.
The bottom line: the attacks on the nuclear scientists were not, by any stretch of the imagination, legitimate targeted killings.
Greenwald, Drum, and Sullivan — 1. Their critics — 0.
I’m no expert on international law, but it seems to me that this post exemplifies why many view international law as irrelevant at best and a tool for the wicked at worst. Consider the following observations: 1. There is no logical reason to define an act as terrorism based on whether the agency committing the act is civilian or military. 2. There is no logic to defining an act as terrorism solely based on the fact that an explosive was used. Had the scientists been shot from long range, there would clearly be no terrorism here. What if the scientists were killed from above by a CIA or Mossad drone? 3. Waiting until these scientists were months or weeks away from completing a functioning weapon makes no sense. At that point, assassinations would be mostly useless in stopping an Iranian bomb. 4. Intelligence can be off in either direction by many years. Moreover, Israeli intelligence may disagree with other estimates. It makes no sense to force sovereign states to wait before acting in their legitimate national interests for international agreement that their proposed course of action is legal. 5. These assassinations could possibly push off military conflict or make such conflict unnecessary. We should all agree that international law should… Read more »
Interesting. But why the following qualification: “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?” Would your conclusion be different if the CIA carried out these killings?
CG, about point 6: It seems your argument would also hold for university professors teaching nuclear science to young kids. They train young kids, who then go and work in nuclear program which eventually leads to nuclear weapons, which finally lead to “pain and suffering”. Presto, we have a winner of an argument to blow up young kids learning nuclear science, along with their professors.
Let me modify the last scenario you mentioned a little bit – you already have a dozen guns pointed at your neighbor. You have been blocking his doorway and in other ways threatening him all the year. Now, the neighbor seems to have smoke coming from his chimney. You now decide that you can take out your neighbor because he is building a fire bomb to throw at you.
I think you should try making that case to the police when they come and get you.
The only reason you are even talking this scenario is because the only poilceman in the neighborhood is in your pocket.
[…] law professor Kevin Jon Heller weighed in on the question in a blog post today at Opinio Juris, arguing that under the International Convention for the Suppression of Terrorist Bombings, last […]
Article 1 Paragraph 4: “Military forces of a State” means 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.
Thus “military forces” does not necessarily mean lawful belligerents in the sense of Article 4 of the Third Geneva Convention. Mossad (and the CIA) may be “military forces” in the sense of the convention even if they are civilians in the sense of IHL, and killing Iranian nuclear weapons makers may be “activities undertaken by military forces of a State in the exercise of their official duties”.
CG provides a wonderful set of rationalizations in confirmation of Chomsky’s principle of Terrorism: when our guys do it, it’s not terrorism. When “they” do it, it’s terrorism.
Also a demonstration of the value of a legal education. Law is not about logic or best outcomes. The question is rather, what is the law.
The United States is party to a law under which this is clearly terrorism.
Whether the United States observes its own laws- which was once beyond question- is now very much in question.
When Israel’s IAF bombed Iraq’s reactor at Osirak, there were Iraqi military casualties and one civilian casualty. Iraq was not at war with Israel. This would seem to indicate that Israel committed what today is considered an act of terrorism, since the Iraqi personnel were not participating in any overtly hostile activities. Certainly Israel was condemned for the attack at the time.
Perhaps some would argue that Israel is still culpable for the bombing of Osirak, but I think most would say no. Perhaps as CG says, international law is still in an undeveloped state and cannot always come to intelligent conclusions.
Hi, CG. You’re not seeing international law on it’s best day, I’m afraid. Terrorism is a thorny issue in particular, due largely to the fact that international law is formed from the consent of states: both in the form of treaties and customary international law. The Terrorist Bombing Convention (TBC) is reflective of the problems that terrorism poses for international lawyers. In the mid-20th century, following the wave of terrorist activity that accompanied the decolonization movement, the international community got together and attempted to develop a convention dealing comprehensively with the issue of terrorism. It failed to do so, due to several definitional sticking points (Ben Saul is very good on describing the problem). One of these was in relation to whether acts conducted in support of movements of self-determination could be considered ‘terrorism’ (the old ‘one man’s freedom fighter’ chestnut). Another was the civilian/military division. In any case, the international community decided that rather than attempt to develop a comprehensive definition, they would conclude several ‘sectorial’ agreements focused on the particular behaviours that terrorists tend to engage in. The TBC is one of these (we’re up to more than 12 now), as are conventions targeting hijacking planes and ships,… Read more »
Response…
It depends on one’s definition of “terrorism.” For example, if one uses an objective definition of terrorism (like many dictionaries) one can recognize that one element involves the intent to produce terror and another element involves the outcome of terror (unless we are discussing attempted terrorism). A mere elimination targeting would not fit.
See http://ssrn.com/abstract=1583437
And under the laws of war, a scientist as such would not be a targetable DPH (direct participant in hostilities). Further, the targeting of a scientist as such does not seem to fit necessity and proportionality standards for lawful acts of self-defense when, as the U.N. Charter expressly states, there is an “armed attack.”
@Edward Byrnes – why would “most” say Israel is not culpable in the Osirak bombing?
CM: I agree that Iran, or Iraq under Saddam, could make such claims. But making such a claim does not make it right. But much more importantly, sinking an American carrier would start a war that they would lose. No law can prevent wars and no law can prevent terrorism. Rather, each state has a moral obligation to defend its own citizens from foreign attack as best as practicable and as best it could. That said, I agree that states also have a moral obligation not to cause unneccessary harm.
I agree that this makes for a very dangerous world, but it is the world we live in and we cannot surrender our moral obligations to ourselves and each other for the sake of half-baked international norms and irrational expectations that tyrants will also comply. Obviously, diplomacy and the like can be useful in defusing misunderstandings, but ultimately each nation has to act in its own self-interest.
CG; the entire project of international law (at least post WWII) has been directed towards preventing precisely this kind of outcome. These norms are not, as you say, ‘half-baked’: they have been in existence since 1945. This is not some kind of new age doveish fantasy: it is a system which has been carefully developed over a lengthy period of time and which every state – including the US and Israel – has agreed to participate in. Such a dilution of sovereignty does not occur lightly and was entered into precisely because states agreed that they had a moral duty to ensure that something like WWII could not occur again. It is very easy to look down on this when one’s own side is in a position of strength.
The UN Charter is a device that gives the Security Council a monopoly on the use of force (save Art 51). We may query whether this was a good idea: certainly politics often seem to get in the way of a just outcome (just look at what’s happening in Syria, shielded in the SC by China and Russia), but it’s better than the alternative free for all.
CM: You may be right that my view of the world is what international law intends to avoid. But I think that my view of the world is more realistic and that international norms and laws lack moral and legal significance. And, as you mention, many of those controlling the legal levers of power in international law are unsavory actors. In my view, we all (state and individual alike) have to always try to do what is morally right. There is no substitute for living a moral life.
CG; it is very easy to be sceptical of the claims of international law, given the considerable power disparities evident in the system. But it is also facile. Obviously, some questions are more welcoming of scepticism than others, but that does not diminish the overall fact that in a community of over 200 sovereign states, some things may only be done by collective action. For example, the hole in the ozone layer: solved because all states agreed to stop using CFCs. The process of decolonization, completed relatively quickly though not entirely bloodlessly via the use of the international law of the creation of states. Whaling, brought nearly to a halt and allowing the saving of several species from extinction. Multiple wars, halted or prevented entirely through the orderly intervention of collective forces and UN peacekeepers. The introduction of a peaceful and stable system of third party dispute resolution for general matters, the law of the sea, and trade, amongst other examples. The examples are manifold. Clearly this is a system of great moral and legal significance. At present, it is under considerable pressure. It may eventually collapse. But that is not an outcome conducive to the maintenance of law and order on the… Read more »
@Ramiah Ariya:
Very good re-wording of CG’s point #6. Not to mention that Leon Panetta admitted that Iran is not trying to develop a nuclear weapon:
So it would be like trying to kill our neighbor while simultaneously admitting that they weren’t doing anything wrong.
“states agreed that they had a moral duty to ensure that something like WWII could not occur again” — CM
I have noticed that people who spit in the eye of international law and norms always forget this.
To: CG
Actually international law makes numerous important distinctions between the rights and obligations of civilians versus military forces in respect of the use of force. It makes some sense that a treaty on terrorism would consider the two seperately, even if in many cases the outcome in terms of who gets bombed or shot might be the same in practice (though not always).
There’s a number of reasons the CIA is a civilian agency (and should remain so, IMO). The militarization of the CIA lately (running the drones, having a serving General as agency head) is quite alarming, really.
So, would it be terrorism for a foreign intelligence service to plant a bomb on a bus carrying CIA operatives who were being trained to use drones?
The three “scientists” who were killed in the Haaretz news story Heller cites seem to me to have been working more in an engineering capacity, i.e., in uranium enrichment or developing high voltage switches for nuclear warhead triggers. Therefore their work was weapons related.
I think anyone who pays any attention to the stream of belligerent statements coming from the Iranian military can’t help but suspect Iranian intentions. Panetta is of course well-known for his very public demand that Israel “get to the goddamn table” in connection with negotiations with the PA, which doesn’t make sense given that it is the PA that is refusing and demanding preconditions while not allowing Israel to set any preconditions of its own. He is an Obama administration loyalist. Perhaps I can harbor a few doubts about what he says concerning what Iran is doing.
Was it right of Israel to bomb Osirak or not? Looking back, it seems right — even if does appear as terrorism.
Response…CG: was there a terror purpose or merely a targeting? Was there a terror outcome? If not, how can it (objectively) be terrorism?
Same Qs re: taking out a nuclear reactor.
I’d like to note that over at EJIL:Talk!, Sahib Singh has posted an excellent piece on countermeasures by the West against Iran, and that I have posted some comments in response to his piece regarding the possibility that Iran may have a legitimate claim of its own to countermeasures in response to internationally wrongful acts committed against it by the US and Israel.
You can see Sahib’s piece and my comments at:
http://www.ejiltalk.org/iran-the-nuclear-issue-countermeasures/
FWIW, at least one U.S. court has found that targeted killing (by shooting, in this case) amounts to “extrajudicial killing” and therefore, terrorism (under relvant statutory definition), at least when Iran is behind it. See https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2003cv1197-48 .
Edward Brynes:
“Was it right of Israel to bomb Osirak or not? Looking back, it seems right”
Well, only to people who don’t know anything about it at all. Even before the invasion of Iraq in 2003 it was pretty clear that Iraq had no real nuclear weapons program before Israel bombed Osirak. And after the invasion made it possible for Iraqi nuclear scientists to speak freely, this was confirmed. Moreover, not only did Iraq not have a real nuclear weapons program before the bombing, it was the bombing itself that caused the Iraqi regime to decide to institute a push for nukes.
Anyway, I know reality doesn’t matter to people who just love killing foreigners on principle, but I just thought I’d mention it.
Further to Jeroen at 11:47 am:
Why identify any suspect perpetrator? And why select Mossad? Why not identify as Culprit A? Or does it make a difference if Israel is under threat? If so, and that is the acknowledgement, then can a country defend itself other than declaring war which would probably kill more persons than a targeted killing?
It’s pretty obvious this sort of thing is illegal whatever paradigm you use: – If it’s peacetime, this is obviously in contravention of the non-derogable right to life, since it doesn’t come close to meeting the immediacy requirement of self-defense. Additionally, it may be banned under one of several conventions (although personally I would consider the terrorism conventions hopelessly overbroad, in that an assassination of a single person is more properly classified as murder rather than terrorism) – If it’s armed conflict, Mossad agents are not lawful combatants in that they do not carry their arms openly, do not wear a uniform or other distinctive emblem, and do not even purport to comply with LOAC. Additionally, this is a perfidious killing in that the agents were presumably not in uniform; and if they purported to be CIA, that would double the perfidy because they’re impersonating a neutral power’s people too. Bombs used in public places are probably inherently indiscriminate too. As for whether a civilian weapons scientist is directly participating in hostilities, I’d say it’s closer than what you suggest. While a munitions factory worker is the classic example of a person who is not DPH (although by working… Read more »
@CG: CIA agents using drones are clearly civilians directly participating in hostilities and therefore lawful targets in armed conflict. Yoram Dinstein specifically cites UAV operators as an example of DPH. However, planting a bomb would probably involve perfidy, in that the bomber probably would be in civilian dress while carrying out the operation. Also, an Al-Qaeda operative does not meet the requirements for lawful combatancy, and therefore has no immunity from prosecution if caught, and bombing a bus full of CIA agents would be murder and half a dozen other crimes under the domestic law of any state.
If the US went to war with Iran, however, an Iranian soldier in uniform could go up to a CIA drone operator anywhere in the world, kill him, and would still be entitled to PoW status. Like the Nazi saboteurs in WWII, however, if he did it out of uniform, he would be guilty of several international and domestic crimes.
@Yisrael Medad: I am keen on Israel defending itself, and lawful targeted killings are a useful way of doing that. However, international law does take the view that killing while disguised as a civilian is too damaging in that it prevents civilians being protected from hostilities because no-one can tell who is Mossad and who is just a civilian. That’s why covert assassination is almost never a lawful targeted killing.
But as I said a couple of posts ago, technically-illegal assassination by covert operatives has a long history, and the practice tends to be that only the operatives get punished, and then only if caught. As long as assassinations remain sporadic, that’s a pretty good compromise.
I am not an expert on international law, but I do have some common sense, which this writer seems to be trying to aovid in an effort (shrouded in legal and scholarly verbiage) to accuse Israel of terorrism. He write: 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 expert s <http://www.bbc.co.uk/news/world-middle-east-11709428>, is *at least* two years away from being able to produce a nuclear weapon cannot qualify as direct participation. Are we to understand from this that all weapons research (think of the Manhattan Project) is not considered a military target until some magic lead time, say one week, or one month? Developing a weaponsis civilian activity until the projects reaches a certain point, at which it suddenly become military? What weaposn reasearch in the 21st century is conducting in small timeframes like that? And for what prupiose would itnernational law make this distinction? I… Read more »
James:
There is nothing in the Wiki article on the Osirak attack (Operation Opera) to confirm what you say. In fact it states just the opposite. Nor is there anything confirming you in the Talk Page. I suppose we’re all hopelessly ignorant.
I reject the assumption of many that *if* Iran has an active nuclear weapons program, Israel is justified in waging war on Iran to prevent its completion. I see no solid grounds for casus belli. No, that contested translation of the President of Iran probably misquoting the former Supreme Leader is not casus belli anymore than Kruschev saying ‘we will bury you’ would have been legitimate grounds for a US first strike on the USSR. Actually it is much less so, as at least Kruschev was actually running Soviet foreign policy, whereas Ahmedinejad is more like the interior minister of Iran in terms of actual powers and responsibilities. The real guy in charge of Iran’s military and foreign policy has issued a fatwa that among other things prohibits observant muslims (like him one assumes) from using nuclear weapons.
If Israel were not a nuclear power, it would be grounds for Israel to develop its own nuclear weapons but since Israel already is one, and further maintains covert 2nd strike capability (ballistic subs at sea continuously), MAD is operational and I see no evidence that the Iranians are insane.
Response…”… if that person unlawfully and intentionally delivers …” (emphasis added) I agree the perpetrators of the killings intentionally delivered explosives. Depending on who they are, and from what country, it seems at least in theory possible that they may have done so “lawfully”, at least under the laws of their own nation. It strikes me as possible that some obscure clause in some law may, in fact, render such action lawful, even if not carried out by a nation’s military. Indeed, according to Wikipedia, the AUMF authorizes the U.S. president “… to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism …”. Suppose that there were some link between Iran and the 9/11 attacks: if so, then AUMF might render such a bombing legal. Indeed if the law grants the president power to determine whom he believe committed, aided, or authorized the attacks, then a dishonest president might determine there was Iranian involvement even in the absence of any evidence to support that. Given such a… Read more »
Response…
The problem with the AUMF language quoted is that it is not consistent with international law in all respects. For example, it is well known after Nicaragua v. United States, ICJ, that the mere supply of arms or training or “aiding” is not sufficient for attribution or imputation for purposes of self-defense military responses.
[…] a related note, International Law Professor Kevin Jon Heller reviews the debate raised here and elsewhere last week about the murder of Iranian scientists and argues […]
[…] 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 […]
Kevin Heller is doing the hard work for those of us without the legal training who just feel that the current policies of targeted killing goes against our common humanity. I’m very glad he’s doing this work.
Thank you, Carl. That means a great deal to me.
P.S. Your paintings are stunning.
[…] sabotage and targeted assassination of nuclear scientists, the last of which is arguably an act of terrorism. The ostensible casus belli is Iran’s nuclear programme, but Iran has consistently denied […]