Extra-territorial, extra-judicial killings: Enough is enough

The assassination of top Iranian nuclear scientist Mohsen Fakhrizadeh on Nov 27 near the resort town of Absard which is some 35 miles east of Tehran as reported by Iran’s Fars News Agency raises the issue of extra-judicial killings on an extra-territorial basis with far-reaching ramifications. All eyes are on Israel (in the form of Mossad, no less) as the mastermind and main culprit behind this dastardly act which not only violates national sovereignty but breaches international law (written/codified and unwritten/norms).

There have been conflicting accounts of how the assassination was carried out. One report by UPI has it that Fakhrizadeh was killed when a suicide attacker confronted him and his bodyguard. But Iranian state television as quoted by Sky News (UK) reported that a truck with explosives blew up near a car that was carrying that top nuclear scientist. The final official narrative by Iran’s Supreme National Security Council is that Fakhrizadeh was killed by a satellite-based remote-controlled weapon – meaning that there was no physical presence of the assassins.

Israel/Mossad is the usual suspect and has so far neither confirmed nor denied its involvement. Be that as it may, whether directly or through intermediaries of which the Mojahedin-e Khalq Organization (MEK/MKO) would be the lead internal actor, Israel can’t and shouldn’t escape responsibility or culpability since the country has a history and track record of carrying out unilateral and rogue (i.e. by international legal and moral standards) acts without the sanction and approval of the international community and not least the US as the principal sponsor.

For example, a string of killings dating back to 2010 that have seen the deaths of Iranian nuclear scientists based on an established pattern whereby explosives would be attached to the car by a motorcyclist were all traced back to Israeli planning and involvement. The hall of Iranian nuclear science luminaries that were killed in this manner included Massoud Ali Mohammadi (2010), Majid Shahriari (2011) and Mostafa Ahmadi Roshan (2012).

It’s indisputable that the one and only country that will openly benefit from the deaths of Iranian nuclear scientists and hence the disruption and hopefully halt to the latter’s nuclear programme is Israel.

And Israel has had a history and track record of other extra-judicial acts on an extra-territorial basis, namely kidnappings of ex-Nazi officials involved in the Holocaust, most notably of Adolf Eichmann from Argentina in 1960. Without in any way diminishing or disrespecting the reality of the Holocaust which saw the genocide of some six million Jews, it’s still questionable if the kidnapping of Eichmann would have been sanctioned under international law.

After all, there’s the law of extradition treaty and even in its absence, there’s always the forum of the international court (be it the International Court of Justice/ICJ or the International Criminal Court/ICC; and even the European Court of Justice/ECJ and the European Court of Human Rights/ECHR for good measure).

Moving on, with such a history of extra-judicial/legal acts that’s also extra-territorial, it’s high time that the international community stand up to the state of Israel and demand a complete and final cessation of its rogue behaviour abroad. The US under the Biden administration should provide the fullest cooperation by handing over evidence (obtained directly or indirectly) of Israel’s complicity in the extra-judicial acts focusing on assassinations over a period of three decades or more, if relevant, to a UN task force or committee set up to investigate such contraventions of international norms and conventions. The end result is to secure a United Nations Security Council (UNSC) resolution condemning Israel and putting pressure on the country to permanently desist altogether.

A Biden administration would be well poised to demonstrate a firm and sustained commitment to multilateralism as opposed to the immature unilateralism under Trump that in principle gives a carte blanche (blank cheque) to Israel to do whatever it pleases while also providing strong moral and ideological backing even if it’s as ever implicit.

Imagine the consequences if other countries were to engage in extra-judicial killings on an extra-territorial basis too. Where would it stop? Better still, what if the situation was reversed, namely that Iran’s external security apparatus was the one engaging in covert operations to assassinate Israeli officials for planning to destroy the nuclear sites of the former? Is there a moral equivalence here?

But surely the point is that extra-judicial killings are simply not justifiable at all, legally or morally. After all, there’s never been an acceptable or reasonable argument to the effect that there’s a difference between extra-judicial killing done domestically on the one hand and externally on the other. Not even the government of the state of Israel has ever stepped forward to proffer such argument.

At the same time, the international community should work with like-minded Israelis to pursue, build and develop a case – both on the basis of judicial review as well as law of tort – against extra-judicial killings on an extra-territorial basis before the Supreme Court of Israel, which has never been embarked upon before. The purpose is to obtain a constitutional and legal ruling against the government, principally the prime minister, minister of defence, minister of foreign affairs and Mossad.

If the state of Israel really feels threatened by the nuclear ambitions of Iran, why not reach out to the country even if ever so covertly? And keep working with the US and the International Nuclear Energy Agency (IAEA) to ensure that Iran doesn’t transform its nuclear programme which it has declared is purely for civilian use into destructive purpose.

In 2018 and 2019, Prime Minister Benjamin Netanyahu claimed to have presented evidence of the existence of nuclear facilities in Iran for the purpose of conducting experimentation on developing nuclear bomb. It’s noteworthy, however, that the IAEA responded by reaffirming its 2015 assessment that there was no evidence of Iran carrying out any activity related to the development of nuclear weapons after 2009. If not satisfied, then the best “pre-emptive strike” option for Israel is to present the evidence to the ICJ and argue its case from there.

In conclusion, it’s highly regrettable that such extra-judicial killing has happened yet again and for now it’d seem not be the last. The Islamic Republic of Iran must be pro-active in compiling all proofs and prosecute its case before the court of the international community – across the full spectrum of legal, diplomatic and political forums.

Jason Loh Seong Wei is head of social, law and human rights at independent think tank Emir Research.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.