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Targeted Killing

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The killing of Osama bin Laden is an instance of a much more general policy pursued by the United States and its allies – the targeted killing of named individuals in the war against terrorism and against various insurgencies in Iraq and Afghanistan. In the midst of American celebration of the fact that al-Qaida has lost its charismatic leader, it is worth getting clear about targeted killing in general, i.e. about the legality and the desirability of a policy of this kind. Targeted killings are of two kinds. The first involves killing people who are actually engaged in carrying out terrorist acts – planting a bomb or preparing someone for a suicide bombing. The second involves the elimination of high-profile individuals whose names appear on a special list of active commanders and participants in terrorism or insurgency. These killings are part of a strategy of disruption and decapitation directed against terrorist organisations.

Killings of either kind can be problematic from a legal point of view (the more so if they involve the violation of another country’s sovereignty). But they may be lawful depending on the circumstances. What is certainly forbidden is targeted killing for the sake of justice or vengeance, both of which have been cited by American authorities as justifications in this case. Calling the killing of Osama bin Laden ‘justice’ summons up very primitive notions of retribution, utterly dislocated from the rule-of-law processes that the civilised world prides itself on. If justice in the strict sense had really been in question, an attempt would have to have been made to capture the man alive. Despite some initial equivocation, it is plain that no such attempt was contemplated.

I think the only possible justification for the shooting of bin Laden was as a legitimate act of war. A White House spokesman has said the killing was a legitimate act of self-defence. I assume this wasn’t intended as an analogy with self-defence as that term is understood in criminal law, for we do not allow the shooting of people in their beds on the grounds that they have been dangerous in the past or may be in the future. Nothing but an immediate threat, an imminent threat, will do. Talk of national self-defence can only refer to the conduct of defensive war under the auspices of Article 51 of the United Nations Charter. That is where the justificatory debate should be focused.

Many people – most prominently the Archbishop of Canterbury – have said that the bin Laden killing leaves them with ‘a very uncomfortable feeling’. Here are some questions designed to identify possible sources for this discomfort.

First, are we happy to have the principle on which this killing was conducted made available in the world for use by any government against those it can plausibly describe as threats to its security or its national interest? Think of Russia in the Caucasus or China in its restive western provinces.

Second, who would have been a likely target if a policy like this had been adopted by Britain or by any number of countries against other kinds of enemy in (say) the last 50 years. We defend targeted killing when the targets are terrorists, but the term ‘terrorist’ was used almost reflexively by colonial or repressive governments to apply to insurgents or enemies of the regime. South Africa called Nelson Mandela a terrorist and attempted the targeted assassination of various members of the ANC including Albie Sachs (who later sat, maimed by the attempt, on the South African Supreme Court). For that matter, think of the British government’s fondness for describing virtually every active opponent against colonial rule in the 1950s and 1960s as a terrorist, including many who later became respected statesmen. Or think of the harm that might have been done to peace prospects in Northern Ireland if a shoot-to-kill policy had been used more widely against IRA commanders than in fact it was. Sometimes one has to refrain from ‘decapitating’ an organisation so that there is somebody left to talk to.

People may say it is wrong to condemn a practice simply on the grounds that it might be abused (or on the ground that it has been abused in the past). But everything depends on how we propose to guard against abuses. Governments tend to lie reflexively when killings of this kind come to light, and both the British and the American government long ago squandered the trust that would be necessary to assure us that the power to mobilise death squads – units specially trained for targeted killing – will not be abused.

It is sometimes said that hard cases make bad law. The same might be said about cases where the justification is reasonably clear. Osama bin Laden was at the head of an organisation that posed a deadly threat and, as I said, his killing is probably justified as an act of defensive war. But preoccupation with the striking facts of this case – and the special feelings of exhilaration it seems to have engendered – should not blind us to the dangers and temptations of targeted killing in general.

In politics and the pursuit of national security, the stakes sometimes seem very high. The viability of national policy may be at stake, or innocent lives, or the survival in office of not so innocent politicians. And it may sometimes seem that it would be easier simply to ‘eliminate’ some of those who are leading the insurgency – posing this threat to the life of the nation – than to continue risking the values that the government stands for. Certainly that might seem easier than what can be achieved through the uncertain and drawn-out procedures of ordinary law enforcement and less costly (from a political point of view) than what can be purchased in the uncertain currency of negotiation and the addressing of grievances. Assassinating those who can be designated plausibly as ‘enemies of society’ has always been one of the standing temptations of government. It would be unfortunate if this killing meant that we were embarking now on a phase of national security policy in which death squads were preferred to political solutions or conventional law-enforcement.

Comments on “Targeted Killing”

  1. pinhut says:

    There is also the case of the US targeting scientists in Iran’s nuclear program. It does seem to boil down to nothing less than ‘might is right’, rather than to be a legal question. After all, considering that the US poses a danger to the national security of many nations, where is the principle of reciprocity in all of this?

  2. Max.Grotius says:

    While very much appreciating Professor Waldron’s comment and agreeing with the observation that the killing can only be open to justification as “a legitimate act of war” and should be assessed in that light, the remainder of this comment seems – with very great respect to a leading scholar – to fall into the error of then looking to assess it in other and quite different contexts, such as silencing by assassination of one’s political opponents.

    If it is accepted for the purpose of justification that (i) the United States, having been attacked, was engaged in a war against Al Qaeda; and (ii) the United States could properly invoke law of war principles in dealing with Al Qaeda, then – and separating the issue of the killing from any complaint (or not) that Pakistan may have about violation of its territorial sovereignty – then the question really becomes whether bin Laden was properly a combatant, including as a commander of armed operations, and so a legitimate military target. While there might be some marginal doubt about whether bin Laden was doing so at any given time, it seems at least reasonably open to conclude that he was an operational commander in this sense. Under such circumstances – and perhaps as an illustration of the relative clarity and lack of nicety in the law of war – the only obligation would have been to accept a surrender, and even then only if considered sincere.

    It also does not seem incongruous, given the United States’ reliance on the previous attacks and on the right of self-defence as a basis for this and many other military operations, for the killing to have been described as “just”, in the sense that this was – or at least could plausibly be claimed to be – a lawful and, particularly, relatively well-targeted defensive act.

    It follows that while Prof Waldron’s comment that this killing was “probably justified” is probably right, it seems unsound to leap from that line of reasoning to the separate issue of assassination.

    If one’s political opponents happen to be combatants on the other side of a war, then the law of war allows their targeting – though one might prudently not do so in order to preserve the possibility of a negotiated peace or to preclude outright chaos; if they are engaged in life-threatening criminal acts that can only be prevented by the use of force, that will be lawful too; but these are – provided that the relevant law is applied and, astonishingly enough, it often is – narrow and qualified grounds of lawfulness, deviation from which can lead to grave individual and state repercussions. That they don’t always is a valid – but different – point.

  3. bullsballs says:

    Sorry to say, but Obama gets no points here.
    Osama should have been brought in alive to stand trial.
    Since he died, his body should have been brought to America for display.
    The “burial at sea” will be a new conspiracy theory for the tinfoil hat types.
    Now there is no proof he is dead, DNA and photos will never do.
    Knowing our troops wear all kinds of tech when in operations, the video must turn up, or it has been wiped, and if it has been wiped, so will the evidence of the operation.
    Obama has lost the war on terror because of his sensitivities to the enemy…
    Already, we are ramping up security in America because we know the enemy is very entrenched here, and are ready to continue the terror.
    Proof the President does not know his enemy…

  4. IanGFraser says:

    Actually the criminal law in some jurisdictions allows a kind of exception to that ‘imminent threat’ rule — the ‘battered woman syndrome’. The spouse of an abusive man may raise the defence by showing that her perception of her own situation and the ways out of it has been disturbed by the abuse, to the point where what would seem possible to the reasonable person seems impossible to her — so she sees only the killing of her abuser as a solution.
    The trance America has been in since 2001 is not a million miles away from analogous.

  5. kundune says:

    Watching President Obama watching his soldiers kill bin Laden, I detected a sense of shame. As it turns out, and as he knew at the time, bin Laden was immobile and unarmed.

    President Obama had ordered bin Laden’s execution.

    The shame was his knowledge that he, a former law professor, was violating the rule of law for the sake of expedience; crossing a line drawn in the sand at the edge of a cliff.

  6. davyh says:

    I’m not sure what jurisdiction IanGFraser is referring to, but I don’t believe that the “battered spouse syndrome” would provide a complete defense to murder anywhere in the US, at least under the circumstances he describes: where the battered spouse has come to see killing as the only solution. Here, the law would permit a jury to convict the spouse of manslaughter rather than murder, but could only acquit if the spouse had actually been rendered insane.

    • IanGFraser says:

      Quite right davyh, in most places a drop to manslaughter is the way this is treated (i.e. as provocation), but self-defence is accepted in Canada and, I think, in a couple of Australian States.
      Whether as that explicitly special kind of self-defence, or as provocation (again on special rules), or indeed in the plainest form, diminished responsibility, as available in England, the point for here is that interesting though the discussion might be, there was never any chance of a law-based debate determining the US decision of what to with Bin Laden once they had him. Like the battered woman, albeit with far less excuse, they simply cannot see an alternative; and as with her, we are speaking of excuse rather than justification.

  7. mirel says:

    What is the alternative to targeted killing? Undiscriminated war?
    More then 2000 US soldiers died in Afghanistan; more than 20000 civilians; if it was possible to choose who’ll choose war over targeted execution where drones and highly specialised teams are working in chirurgical operations?How many innocents die in a war?
    IMO this is the true dilemma…and not a moral one,,,and for sure not a legal one and never was…
    Cheap(for sure!) clean (not with Osama, but who counts women?) and quick (!2 years is quick?)the targeted execution is much more moral and legal than a war.
    And of course that is legal; I’ll quote:
    Said the
    mouse to the
    cur, “Such
    a trial,
    dear Sir,
    With
    no jury
    or judge,
    would be
    wasting
    our
    breath.”
    “I’ll be
    judge, I’ll
    be jury,”
    Said
    cunning
    old Fury:
    “I’ll
    try the
    whole
    cause,
    and
    condemn
    you
    to
    death.”

    L.Carroll

  8. lateral says:

    The whole thing stinks: killing an unarmed man in front of his wife and 12-year old daughter then dumping his body at sea soon after allegedly doing DNA tests (which would have taken days to prove identity anyway).
    The point is that Bin Laden was named as responsible for the 9/11 ‘attacks’ after one of the fastest criminal investigations in recent history ie. a few hours. Even the FBI admitted it didn’t have any ‘hard evidence’ to link him to the crime, yet most people believe he was the mastermind because they have been told that in numerous emotive and manipulative news items.
    I haven’t yet read Tariq Ali’s post here but Noam Chomsky seems to hit the nail on the head:
    http://www.guernicamag.com/blog/2652/noam_chomsky_my_reaction_to_os/

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