On the Offensive

Originally promulgated in the time of kings when wars of aggression were the sovereign’s prerogative, international custom and later treaties prohibiting attacks on the leader arose from kings’ mutual desire to protect themselves. In the post-League of Nations and UN Charter era, aggressive war is illegal under international law, but many dictatorial rulers and non-state commanders have continued to benefit from the prohibition on assassination traditionally afforded to kings.

Black’s Law Dictionary defines assassination as “the act of deliberately killing someone especially a public figure, usually for hire or for political reasons.” If termed “assassination,” then attacks on leaders have been construed as prohibited by Article 23b of the Hague Convention of 1899, which outlaws “treacherous” attacks on adversaries, and by the Protocol Addition to the Geneva Convention of 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I), which prohibits attacks that rely on “perfidy.” But in recent years, and especially since the September 11, 2001, terrorist attacks, Israel and the United States have reframed such actions as “targeted killings,” defining the victims as “enemy combatants” who are therefore legitimate targets wherever they are found. This redefinition has relied on and benefited from the work of some in the international law community who have long argued that in some instances, targeted attacks on leaders are not prohibited by international law. This reinterpretation of law is not a radical shift; the radical shift is US and Israeli willingness to engage in attacks openly, whatever may have occurred covertly in the past decades. Strong pragmatic reasons, such as sparing the lives of troops who would be killed in a large scale assault, justify targeting leaders if possible, but such a policy opens the employing country to reciprocal attacks, justified or not, on its own leaders. In some cases, killing militant leaders may do more harm than good by further inflaming an already tense situation and causing retributory attacks. Killing adversary leaders can fall within the bounds of international law and can provide enormous gains, but in employing this strategy, the United States and countries that follow its example must be prepared to accept the exploitation of the new policy by adversaries who will not abide by the standards of proof or evidential certainty adhered to by Western democracies.

Pliant Prohibition

As with many areas of international law, the status of assassinations is relatively ambiguous. The clauses that traditionally have been construed as prohibiting “targeted killings” are far from clear prohibitions. In the Hague Convention (II) with Respect to the Laws and Customs of War on Land (29 July 1899), Article 23b states that it is prohibited “to kill or wound treacherously individuals belonging to the hostile nation or army.” Treachery is not explicitly defined, and it can be argued that using missiles to attack a car in which a target is traveling, while brutal and having a high probability of injuring bystanders, does not fall within the purview of treachery. Similarly, targeted killings can be argued to fall outside the Protocol I Article 37 prohibition on killing, injuring, or capturing “an adversary by resort to perfidy”—described as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Article 37 gives examples of perfidy including “the feigning of an intent to negotiate under a flag of truce or surrender” and “the feigning of civilian, non-combatant status.” The manner in which Israel and the United States have engaged in targeted killings does not meet this definition of perfidy because neither state leads targets to believe that they are protected by international law.

In addition to the international law governance of assassinations, US policy—not law—has prohibited their use since 1976 when US President Gerald Ford signed Executive Order 11905, which states, “No employee of the United States Government shall engage in, or conspire to engage in, political assassination.” US Presidents Carter and Reagan renewed the prohibition in Executive Orders 12036 and 12333 respectively. In Executive Order 12333, Reagan even expanded the prohibition slightly: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” The prohibition remains in effect because no subsequent president has revoked it. However, just as Executive Orders are signed as policy by the president, the president may also circumvent or nullify them, which is the course current US President George Bush has chosen.

According to an October 2001 story broken by Washington Post writer Bob Woodward, Bush issued an “intelligence finding”—a presidential directive—that authorizes the US Central Intelligence Agency (CIA) to use broad and previously prohibited means to attack Osama Bin Laden and Al Qaeda. Government lawyers have argued that the Executive Order ban on assassinations does not apply during wartime, thereby leaving the method available for use, but the intelligence finding leaves little doubt that assassinations are sanctioned from the highest level of the US government.

Deadly Employment

Israel has sanctioned targeted killings for decades. Writing in The Middle East Quarterly, Gal Luft argues that the policy was originally adopted because the militant groups attacking Israel operated out of Arab states hostile to Israel, rendering arrest and extradition impossible. Prime Minister Golda Meir ordered hit squads to kill the members of the militant group Black September who gave authorization for the murder of Israeli athletes at the Munich Olympic Games. In 1973, eventual Prime Minister Ehud Barak lead a group of commandos into Lebanon to kill three high-ranking Palestine Liberation Organization officials. Another important assassination occurred in Tunis in 1988 when Israeli commandos killed Khalil al-Wazir, known as Abu Jihad, who was second in command to Yasser Arafat.

Israeli reliance on targeted killings has increased dramatically since the beginning of the intifada in September 2000. The first known targeted killing of the current intifada was that of Hussein Abayat, a Fatah member who was killed when the Israelis fired anti-tank missiles at his car in November 2000. According to a June 2003 report in The Washington Post, there were 249 victims of targeted attacks by Israel—149 targets and 100 bystanders, body guards, and family members—between September 2000 and the publishing of the report. The same report claims that Israel increased its number of targets from 35 in 2001 to 72 in 2002.

Prior to the September 11 attacks and the subsequent “war on terrorism,” the United States, particularly the Department of State, routinely criticized Israeli use of targeted killings and stated its opposition to the policy. These criticisms have been much muted since the United States began employing targeted killing for its own ends. In November 2002, CIA operatives in Djibouti used a remote-controlled Predator drone to fire a missile at the car in which Qa’id Sinan al-Harithi, a suspected member of Al Qaeda and planner of the 2000 USS Cole bombing, was traveling in the Yemeni desert. Al-Harithi and the five other passengers were killed. After this much publicized attack, US criticism of Israeli policy became muted, and US officials relied on claims that their condemnation of the policy in Israel’s case did not mean that it was prohibited in all instances, presumably not those involving the United States.

As targeted killings became more acceptable as judged by official US government rhetoric, interest in supporting them also grew in the US Congress. On January 3, 2001, Representative Bob Barr (Republican-Georgia) introduced a bill entitled the “Terrorist Elimination Act of 2001.” Barr’s bill sought to nullify the provisions of the standing executive orders prohibiting assassination because “[they] limit the swift, sure, and precise action needed by the United States to protect [its] national security” and furthermore, “present strategy allows the military forces to bomb large targets hoping to eliminate a terrorist leader, but prevents [the United States] from designing a limited action which would specifically accomplish that purpose.” Before the September 11 attacks, Barr had no co-sponsors for the bill; in the weeks immediately following the tragedy, 14 representatives signed on as co-sponsors. Representative Terry Everett (Republican-Alabama) introduced a virtually identical bill entitled the “Terrorist Elimination Act of 2003″ in January 2003, and thus far he has two co-sponsors.

Support for targeted killings by the US public also surged in the months following the attacks. According to a December 2001 poll by Newsweek, 65 percent of those surveyed favored allowing US military and intelligence agencies the discretion to assassinate leaders of Al Qaeda and other terrorist groups in the Middle East. Over 57 percent believe that the targeted killings may occur in Africa and Asia, and 54 percent extend the same belief to Europe.

Ranking Targets

Government leaders and some in the international law community offer both pragmatic and legal arguments for employing targeted killings. The pragmatic reasons alone are perhaps compelling enough to justify revisiting the legal interpretation, but the law can be reinterpreted independent of attempts to justify desired policy. Legal scholars rely on the supremacy of the UN Charter’s call for removal of threats to the peace. Article I of the Charter lists the purpose of the United Nation as being “to maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.” Scholars argue that the most effective way to eliminate threats to the peace is to remove those leaders who cause them, by apprehending them if possible, but if not, then by targeted killings.

Scholars have also reconstituted the classification of leaders subject to targeted killings. They assert that the targets can be defined as “enemy combatants,” even if only a de facto war and not a traditional declared war exists. As “enemy combatants,” the targets are subject to attack wherever they may be found, such as Al-Harithi in Yemen, and their killing is akin to any other battlefield death, not “assassination.” Professor Robert Turner, Associate Director of the Center for National Security Law at the University of Virginia, notes that the UN Security Council in Resolutions 1368 and 1373 reinforced the right of victims of terror attacks to use lethal force in self-defense. Both US and Israeli citizens claim the status of victims and thereby the right to use deadly force in dealing with the perpetrators. Turner therefore argues that the use of lethal force in dealing with terrorists does not violate international law or US Executive Orders.

Targeted killings offer many pragmatic advantages over traditional methods of large-scale attack. The most obvious and often cited benefit is preventing the death of the hundreds or thousands of soldiers on both sides who would be killed in the course of an invasion or ground assault aimed at capturing a leader, destroying his government, or taking power of his country. Especially with the current technology, such as the unmanned Predator drone that was used in the attack on Al-Harithi, the threat to troops is minimized.

When given the choice of attacking a leader or a low-level follower, soldiers have long been trained to attack adversaries of higher rank. Destroying an adversary’s chain of command causes confusion in the ranks and weakens the enemy’s decision-making ability; targeting a leader in a high-tech attack is designed to accomplish the same end. Turner points out the possible deterrence value of announcing a policy of targeting leaders. He argues, “Wars tend to result when non-democratic tyrants perceive that they can internalize profits and externalize costs,” and informing leaders that they, not their foot soldiers, will be the first targets forces them to internalize costs of their choices, hopefully causing a recalculation of interests in favor of non-aggression.

Calculated Risk

Despite the advantages targeted killings offer and the ability to justify them as legal, there are severe downsides to their employment. By engaging in attacks on leaders, even ones such as Saddam Hussein and high-ranking members of Al Qaeda, states lose the moral high ground they had been able to claim, at least publicly. In the case of the United States, some areas of the world are unsympathetic to US claims to be fighting terror, and to these people, targeted killings by the United States appear indistinguishable from assassinations. As is evidenced by US government rhetoric, it becomes difficult to condemn use of targeted killing by other actors once the United States has employed it. While this may not make terrorists who would have targeted US leaders any more or less likely to do so, it does make world opinion of the United States even less favorable and provides terrorists with the opportunity to justify their attacks by claiming that the United States uses the same tactic.

Georgetown University Law Center Professor Gary Solis writes, “Having engaged in targeted killing, even once, it would be difficult to cry foul, were we subjected to the same tactic.” US authorities would argue that US officials are not reasonable targets because they do not commit brutal attacks as do US enemies, but terrorist adversaries and those sympathetic to them make their own evaluations of US actions. Solis also writes, “Merely being “commander-in-chief” is insufficient to transform [the US] president into a combatant and a lawful target,” but many unsympathetic to the United States would disagree. Having opened the Pandora’s box and begun down the slippery slope of targeted killings, the United States cannot hope to control other parties’ employment of the policy, and there is a grave danger that other states, even Western democracies that could be expected to adhere to a more stringent level of proof before attacking adversaries, will employ targeted killings for their own political ends.

A Costly Remedy

Often targeted killings are not as surgical and free from collateral damage as they are in theory. The US strike on Al Harithi was cleaner than most, and particularly in the case of Israeli employment of targeted killings, collateral damage has been quite high. A particularly egregious instance occurred in July 2002 with the targeting of Salah Shehada, a Hamas leader in the Gaza Strip. In the attack, Israeli forces dropped a one-ton bomb on his house, killing 14 others in addition to Shehada and drawing worldwide condemnation. Aside from direct civilian casualties in the course of attacks, deaths resulting from retaliatory attacks can also be quite high, as is evidenced by the frequent occurrence of cyclical violence in the Israeli-Palestinian conflict.

In all cases where targeted killings are considered, there must be investigation into the ramifications of their use. University of Haifa Professor Michael Gross argues that in addition to the frequent retaliatory strikes, Israeli employment of targeted killings harms Palestinian society and weakens long-term prospects for peace by relying on a system of Palestinian collaborators. Collaborators are subject to vigilante justice within their own community, which undermines general respect for the rule of law, and the constant threat of betrayal by a member of one’s own community undermines the trust and social cohesion that would been needed to build a viable Palestinian state should the peace process advance to that stage. Gross also points out that in removing some leaders through targeted killings, the Israelis risk having the leaders’ replacements be even more radical.

Publicized US employment of targeted killings in the war on terror made a return to the previous era of credible moral superiority in rhetoric impossible. The preferable alternative to targeted killing of enemies should always be arrest and trial, but in cases where those alternative measures are not available, targeted killing may be the next best alternative. However, careful calculation of the risks and benefits of employing the policy must be weighed before it is implemented. The threat of reciprocity and repercussions for society are serious considerations that are often not given enough weight, and the policy should be re-examined continually to evaluate its effectiveness in decreasing the threat to the employing state’s citizens. In some instances, targeted killings are both legal and effective, but for societies founded on principles of human rights, they should never be the first choice.

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Kristen Eichensehr

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