Is Killing Iran’s Nuclear Scientists a War Crime?

A view shows the scene of the attack that killed prominent Iranian scientist Mohsen Fakhrizadeh, outside Tehran, Iran, November 27, 2020. Photo: WANA (West Asia News Agency) via REUTERS.

The European Union this weekend condemned as a “criminal act” Friday’s killing of top Iranian nuclear scientist Mohsen Fakhrizadeh. In a possible foreshadowing of how a prospective Biden administration might have reacted, former Obama CIA chief John O. Brennan posted a similar statement to Twitter, alluding to “international law” and even using the phrase “state-sponsored terrorism.”

The targeted killing of Iranian nuclear scientists dates back to at least 2010. Jerusalem has officially maintained a “no comment policy” on the matter, even though in many cases — including the most recent one — security insiders have leaked  hints to journalists of Israeli and/or US involvement.

If the timeframe is believed to be years, then diplomacy coupled with sanctions could potentially place enough pressure on Iran to stop its nuclear activities. If the period is reduced to only months, various world powers might see no other option than to launch a military strike to forcibly set back Tehran’s ambitions. And if the breakout time is in the weeks or days, there may be nothing that can be done to prevent Iran from going nuclear.

Moreover, the moment the Islamic Republic achieves atomic capability, most forms of engagement — military or otherwise — become prohibitively risky, as the mullahs would have the capacity to retaliate with a nuclear strike.

Accordingly, there are a number of ways to increase Iran’s breakout time, including sabotage, international financial sanctions, and assassinating nuclear scientists.

Jerusalem Post analyst Yonah Jeremy Bob writes:

Paradoxically, the assassination of Iran nuclear program “father” Mohsen Fakhrizadeh was probably undertaken to avoid war with Iran. The scenario which Jerusalem wants to avoid is where it feels … a need for a broad aerial attack on multiple Iranian nuclear facilities, with an unresolved debate as to whether its capabilities would be enough to hit the underground Fordow nuclear facility and the new Natanz underground facility currently being built. … Jerusalem hopes that its periodic signals to Supreme Leader Ayatollah Ali Khamenei will discourage him from getting too close to that explosive point.

What does international law say?

International “law” is not a compilation of legislation in the classical sense, but largely a collection of treaties according to which sovereign states have agreed to abide. The relevant treaty in this case is Additional Protocol I to Geneva Convention IV, which states:

The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of  violence the primary purpose of which is to spread terror among the civilian population are prohibited.

However, the Protocol goes on to clarify:

Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.

Finally, the Protocol prohibits “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”

In short, civilian targets are off limits and when a country is prompted to attack a military asset, it must do so in a manner that minimizes the loss of innocent life.

Is a targeted assassination a violation of international law?

This comes down to three legal questions related to Geneva Convention IV:

  1. Do “hostilities” exist? (General Provisions, Geneva Convention IV)
  2. Is the individual in question (i.e. an Iranian nuclear scientist) considered a civilian? (Additional Protocol I, §51(3))
  3. Has the perpetrator acted in a manner that minimizes harm to civilians? (Additional Protocol I, §57(2))

With respect to the first question, the answer is yes: hostilities exist. Since at least 2005, Iranian leaders have been calling to “wipe Israel off the map” while simultaneously waging multiple proxy wars with a view to accomplishing that very purpose. In September 2019, for example, Maj. Gen. Hossein Salami, the head of Iran’s Islamic Revolutionary Guard Corps (IRGC), boasted: “We have managed to obtain the capacity to destroy the impostor Zionist regime.”

With respect to the second question, the answer in this case is clearly no: the head Iranian nuclear scientist is not a civilian. Although media commonly refer to Mohsen Fakhrizadeh as a “scientist” and “professor,” they typically omit his other titles: Brigadier General in the IRGC and the “father” of Iran’s nuclear weapons project. In reality, Fakhrizadeh was a military officer spearheading a military nuclear weapons program — often on military bases — for a regime engaged in widespread military hostilities.

In every respect, then, Fakhrizadeh was the exact opposite of a “civilian.”

Regarding the third question, it is tempting, but incorrect, to compare a targeted killing to the alternative of taking no action. Clearly, the latter would preclude causing casualties, but countries such as Israel and the United States also have a duty to protect their own civilians.

Thus, for a country that would be existentially threatened by a nuclear-armed Iran, non-action is not a viable option. This is consistent with the Geneva Conventions, which do not speak of nations being required to passively accept having their civilians harmed or destroyed. Therefore, it is more appropriate to compare targeted killings to a far worse option: namely, a broad military confrontation.

When properly analyzed within this framework, the assassination of a brigadier general that resulted in no civilian casualties was, from a moral perspective, clearly the correct and most prudent course of action, and from a legal perspective, it was the action that minimized civilian casualties.

In fact, this dynamic has played out over and over again, including in Israel’s ongoing fight against Hamas terrorism; targeted strikes by a 70-plus-member coalition against ISIS leaders in Iraq and Syria; and the US mission that killed Osama Bin Laden in Pakistan.

In the case of Brig. Gen. Mohsen Fakhrizadeh, his assassination was clearly permitted under international laws, norms, and treaties.

It is perfectly legitimate for news outlets to report the dubious claims about international law by the EU and other bodies or individuals. However, HonestReporting’s longstanding position is that such reporting must be balanced with factual, legal expertise, so that readers are able to develop fully-informed opinions based on all of the relevant information.

Daniel Pomerantz is the CEO of HonestReporting, where this article first appeared.

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