Monday, May 2, 2011

Assassination under International & Domestic Law

The killing of Osama bin Laden and the attack on Col. Muammar el-Qaddafi's compound in Tripoli over the weekend both raise the question of when the killing of an identified individual is lawful under international law and particularly international humanitarian and human rights law. Indeed, Libyan government officials have, according to the New York Times, accused NATO coalition powers of launching "a direct operation to assassinate the leader" of Libya in violation of international law. Russian Prime Minister Vladimir Putin seems to agree.

The United States has banned assassination as a matter of national policy through a series of executive orders, the last of which remains extant. In the wake of potential assassination plots against foreign leaders, U.S. Presidents Gerald Ford, Jimmy Carter, and Ronald Reagan issued executive orders (E.O. 11905 (1976), E.O. 12036 (1978), and E.O. 12333 (1981), respectively) banning assassination. E.O. 12333, for example, provides:

No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.

None of the E.O.s actually defines assassination, although colloquially the concept encompasses the killing of a particular individual, often for political purposes. Legislation has been introduced to revoke the express prohibition against assassination in these executive orders (in, for example, the immediate -post-9/11 period), but nothing has been adopted to date.

The ban on assassination must be squared with the legality of attacks on military objectives and enemy combatants with the intent to kill in the context of armed conflicts or counterinsurgency operations and with certain counter-terrorism measures taken in self-defense.
To this end, these Orders have been interpreted to embody implicit exceptions in conventional military, counterinsurgency, and counter-terrorism operations. Col. W. Hays Parks (right), when he was Special Assistant for Law of War Matters to the Judge Advocate General of the Army, provided this analysis in connection with his long-awaited preparation of a new joint services Law of War Manual for the Department of Defense that will replace the still extant Field Manual 27-10 (1956). See Memorandum on Executive Order 12233 and Assassination (Nov. 2, 1989). In his memorandum, Col. Parks concludes that

clandestine, low visibility or overt use of military force against legitimate targets in time of war, or against similar targets in time of peace where such individuals or groups pose an immediate threat to United States citizens or the national security of the United States, as determined by competent authority, does not constitute assassination or conspiracy to engage in assassination, and would not be prohibited by the proscription in EO 12333 or by international law.

As one of the examples of a lawful killing, Parks lists the downing of the aircraft carrying Japanese Admiral Yamamoto Isoroku in 1943, the subject of a more equivocal prior post by Diane Marie Amann.

To be sure, targeted killings of particular individuals in armed conflict situations present the least difficulty. In an armed conflict, attacks in lieu of capture are lawful so long as targets are given the opportunity to surrender when circumstances permit (the rule against ordering that no quarter be given) and neither treachery nor perfidy is employed. Combatants remain lawful targets even when not actively engaged in hostilities. The Geneva Conventions also provide that civilians, who are normally immune from direct attack, can be targeted when and for such time as they take a direct part in hostilities. ICRC expert guidance has expanded this concept to also allow for the targeting of individuals who are members of organized armed groups belonging to non-state parties, in that they are engaged in a continuous combat function, even when they are not directly participating in hostilities.

As the commander-in-chief of the Libyan armed forces, Col. Qaddafi was a lawful target as were elements of his command-and-control apparatus (compound at left, photo credit). To be sure, jus-ad-bellum questions may remain as to whether NATO forces had authorization from the Security Council to undertake such a mission. S.C. Res. 1973 (prior IntLawGrrls posts on this resolution here and here) empowers member states

to take all necessary measures ... to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory.

That said, it seems fairly obvious that eliminating Qaddafi will go far toward bringing attacks on civilians to an end. From a jus in bello perspective, using continuous surveillance and precision-guided missiles respects the principle of proportionality so long as the object of the attack is a lawful one.

While legally sound, the operation has been controversial. Killing Qaddafi may give the impression that the West has toppled a leader, undercutting a more compelling narrative that a genuine opposition movement ousted him. In IHL, the "should we" question is often as compelling as the "can we" question.

Counter-terrorism operations present a more difficult question, as they often implicate both the jus ad bellum and the jus in bello. Hays in his memo cites several historical examples of the use of military force to kill individuals whose "peacetime" actions constituted a direct threat to U.S. citizens or national security. Indeed, in a footnote, Hays notes:

In the employment of military force, the phrase “capture or kill” carries the same meaning or connotation in peacetime as it does in wartime. There is no obligation to capture rather than attack an enemy. In some cases, it may be preferable to utilize ground forces to capture (e.g.) a known terrorist. However, where the risk to U.S. forces is deemed too great, if the President has determined that the individual(s) pose such a threat to U.S. citizens as to require the use of military force, it would be legally permissible to employ (e.g.) an air strike against that individual or group rather than attempt his, her, or their capture, and would not constitute assassination.

For more on this topic, see Elizabeth B. Bazan, Assassination Ban and E.O. 12333: A Brief Summary, Congressional Research Service RS21037 (Jan. 2002).

From a jus ad bellum perspective, the attack on bin Laden had clear authorization under U.S. law (in the form of the 2001 Authorization to Use Military Force (AUMF)) and arguably under international law as well (by virtue of Article 51 of the U.N. Charter (acknowledging all states' inherent right to self-defense)). The AUMF, as we've noted, authorized the President to

use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001...

It seems doubtful in any case that Pakistan consented to this operation. (Indeed, one wonders how bin Laden's whereabouts for the past 5 years could possibly have been unknown to elements of the Pakistani government. It may be the case that bin Laden was under some sort of luxurious house arrest in a militarized compound in a highly militarized part of Pakistan (at right)).

From a jus in bello perspective, assuming the existence of a non-international armed conflict that includes part of the territory of Pakistan, bin Laden would arguably be a lawful target as the head of an armed group involved in the conflict. Of course, it is fair to query whether he exercised any operational leadership function at this point or if his role was purely symbolic. If IHL is not applicable, then other bodies of law apply including U.S. domestic law and international human rights law (presuming their extraterritorial application) alongside Pakistani domestic law.

Bin Laden's death has been portrayed as a killing in the context of resisting capture--analogous to law enforcement scenarios in which a criminal suspect engages in a firefight to resist arrest. Indeed, by some accounts, he was using one of his many wives as a human shield. Other accounts, however, suggest that the order was made to kill not capture--not surprising given the fact that the U.S. has no express law-of-war domestic detention authority beyond what may be implicit in the AUMF as we've discussed here, here, and here.

Ironically, without a more express law-of-war detention regime, it may be easier to kill dangerous individuals than to capture them.

1 comment:

Anonymous said...

Would the POTUS have to sign or give an explicit order for the operation against OBL or is that power already in the hands of the CIA or DOD as a result of the AUMF or an EO from the Bush era?