Human Rights and International Law (17): License to Kill? The Morality and Legality of Targeted Killings of Terrorists

The Bush administration took the position that killing members of Al Qaeda, a terrorist group that has attacked the United States and stated that its goal is to attack again, is no different than shooting enemy soldiers on the battlefield. The Obama administration, which has continued to fire missiles from Predator drones on suspected Qaeda members in Pakistan, has taken the same view. (source)

Now it seems that the CIA went a step further and developed plans to dispatch small teams overseas to kill senior Qaeda terrorists (Predator strikes can be unreliable and tend to produce “collateral damage”). The plans remained vague and were never carried out, and Leon E. Panetta, the new C.I.A. director, canceled the program last month. Apparently, because it was too difficult to organize and probably also because no one has a clue where the terrorists really are.

In 1976, after the disclosure of C.I.A. assassination plots against Patrice Lumumba of the Congo, Fidel Castro in Cuba and other foreign politicians, President Gerald R. Ford issued an executive order banning assassinations. This ban, however, does not apply to the killing of enemies in a war (obviously, because that would make war impossible). Hence the utility of branding the fight against terrorists a “War on terror”. Convincing the world that you are “at war” with the terrorists, turns them into “simple soldiers” who can be killed at will, like all soldiers in a war (except when it comes to the Geneva conventions, they’re soldiers no more…).

My personal views on targeted killing are here. According to me, whether there’s a war going on or not, targeted killings are morally justified only in certain very specific circumstances. When there is an imminent threat and no other means to stop an attack from happening, targeted killings are justified, whether or not we are “officially” at war. That would not only be morally justified, but also a legal act of self-defense under national and international law (see here for instance). The sovereignty of the country where the killing occurs shouldn’t be an obstacle.

Counterterrorism, in civil democratic regimes, must be rooted in the rule of law, morality in armed conflict, and an analysis of policy effectiveness. Targeted killings are indeed legal, under certain conditions. The decision to use targeted killing of terrorists is based on an expansive articulation of the concept of pre-emptive self defense. … According to Article 51 of the U.N. Charter, a nation state can respond to an armed attack. Targeted killing, however, is somewhat different because the state acts before the attack occurs. In addition to self-defense principles, the four critical principles of international law – alternatives, military necessity, proportionality, and collateral damage – are critical to the decision-maker’s analysis. … Implementing [these] four international law principles … requires the commander to ascertain that the “hit” is essential to national security and therefore proportional to the risk the individual presents. Furthermore, the commander must determine that any alternatives, such as capturing and detaining the individual, are not operationally possible. The commander must also seek to minimize the collateral damage – harm to innocent civilians – that is all but inevitable in such attacks. Amos N. Guiora (source)

And of course the threat must be imminent.

What is not acceptable is targeted killing without any imminent threat, or in circumstances which allow for other types of “disablement”. And neither is targeted killing as a kind of popular and photogenic “poetic justice”, because that is justice without due process. And when we have the chance to apply due process, why not show the world that we don’t just destroy criminals, even less suspected criminals or potential criminals? Extrajudicial executions aren’t OK simply because the targets are more blameworthy than opposition figures in Latin-American dictatorships. It’s not because everyone hates Osama bin Laden that we can simply kill him at will.

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8 thoughts on “Human Rights and International Law (17): License to Kill? The Morality and Legality of Targeted Killings of Terrorists

  1. We can not effectively apply the standard of imminence to terrorist threats. What makes terrorist attacks effective, and even possible, is that their targets are not aware, or able to act to prevent them, ahead of time. There is rarely going to be a point in which a terrorist threat is clear and imminent, yet there is still enough time for a nation state to act.

    1. I agree that imminence isn’t always apparent, but often it is, contrary to what you claim. 9/11 sure wasn’t stoppable. But many suicide attacks in Israel for example are. Border guards or guards at checkpoints often detect a terrorist before he (or she) is able to carry out the attack.

  2. Filip,

    Stumbled upon your blog for the first time an hour ago and have enjoyed your posts.

    Disagree with you on imminence. If the opportunity presents itself to kill members of a terrorist organisation, that is actively planning and implementing acts of mass murder, then anybody who aligns themselves with that terror group is a legitimate target and should be killed, whenever the opportunity presents itself. The disruption and mistrust it can generate within an organisation is good enough reason alone, to justify this type of action.

    That said, clearly there are huge political and diplomatic pitfalls with implementing such a program, hence no action even under Bush. From memory it can be quite effective in some situations, it was certainly a useful tool for the UK in Northern Ireland.

    1. It’s a tough subject, I know. Would you also advocate killing them if capturing them and bringing them to justice is possible?

  3. Its a subject that to easily enables a drift towards verbalising right-wing James Bond fantasies, but as part of fighting a non-state war, yes.

    Killing the fundraisers and organisers in particular would be a preferred option to capture and trial. Negotiating extradition with a hostile government & media would be an exercise in futility….

    I always ask myself, what would Winston have done in this situation! I think the result would’ve been alot more islamists tucked away safely, six feet under.

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