An airstrike is not a sentence

Sheikh Yassin’s death was, perhaps, a gain for humanity, and his killing was, perhaps, necessary (or, short of that, the least bad alternative in a bad situation). But it wasn’t justice.

Referring to the Israeli airstrike that killed Sheikh Ahmed Yassin, the “spiritual leader” of Hamas and several bystanders, Volokh Conspirator David Bernstein headlines: Yassin has been brought to Justice.

Ummm … No.

The Israeli action was either a military strike (the Israeli viewpoint) or a political assassination (the Hamas viewpoint, widely shared). I’d be inclined to call it an assassination, without prejudging the question of whether the killing was justified or not.

(I’ve never been persuaded by the common belief that warfare can be justfied but assassination can’t.)

Morally, from an Israeli viewpoint I wouldn’t lose any sleep over Yassin’s death, and perhaps the others could be written off as unavoidable collateral damage. Strategically, whether killing him makes the situation better or worse is surely more than I know, and possibly more than can be known other than by waiting to see what happens.

But the one thing that airstrike certainly wasn’t was an act of “justice,” in any but the poetic sense.

To “bring someone to justice” is to capture him and charge him with a crime before a competent tribunal. The Israeli government chose not to try to bring Yassin to justice, but to kill him outright.

If you believe in an afterlife, then Yassin was sent to Judgment, but that’s not the same thing.

One of the terrible things about terrorism is that it uproots the distinction between crime and warfare, tempting states that aspire to rule by law to use pure violence instead. Sometimes pure violence may indeed be the answer. “Inter arma silent leges.”

But that doesn’t make violence without trial another kind of justice. Violence remains the opposite of law, and every time a law-governed state is forced to resort to it that state becomes a little less itself.

Sheikh Yassin’s death was, perhaps, a gain for humanity, and his killing was, perhaps, necessary (or, short of that, the least bad alternative in a bad situation). But it wasn’t justice.

Update A reader asks why Israel didn’t literally bring Yassin to justice, by putting him on trial. The answer seems clear, even putting aside the question of how his complicity in murder was to be proven under courtroom conditions without revealing intelligence sources and methods: A trial, and everyone associated with it, would itself have been a terrorist target, and likely generated a major terrorist campaign aimed at freeing Yassin. Again, this isn’t to say that his killing was justified.

More on Yassin and Abdul Qadeer Khan here.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

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