Assassination and the Law of Armed Conflict

• Author: Lieutenant Commander Patricia Zengel
• Pages: 04

This article examines the development of the customary prohibition of assassination during time of war and concludes that there 1s no longer any convincing justification for retaining a unique rule of international law that treats assassination apart from other uses of force. It then examines assassination as a domestic political issue and concludes that it is better addressed in the context of the use of force generally by the United States against foreign nations.

1. Introduction

The availability of assassination of foreign leaders as a means of achieving United States foreign policy objectives is an issue that has proven in recent years to be a recurring one. It does not, however, arise in isolation; instead it is almost always part of a larger political controversy over United States foreign policy objectives and whether force of any kind should be used to pursue them. Certainly this was true with regard to the controversies that surrounded United States policy, including its alleged involvement in assassination plots, against officials in Cuba, Vietnam, the Congo, and the Domini. can Republic in the 1960's and in Chile in the early 1970's. It is also true, though to a lesser degree, of more recent debates concerning the United States air strike against Libya in April 1986, and the role of the United States in Panama prior to the December 1989 invasion. In each case there was, or later de. veloped, significant disagreement over the appropriateness of United States policy toward the nation involved and the use of force to induce changes in the nature or activities of its government.

Inevitably. these drsagreements have tended to distract attention from the issue of the manner in which force might be applied. if the chosen objective appears not to be a legitimate one or if the use of force seems unjustified, the relative merit of an attack on a military installation, for example-as opposed to the assassination of a single individual-is unlikely to be senouslq- or productively considered. The recent war in the Persian Gulf has again revived the controxersy and pro. vided a new opportunitb- for debate This time, however, the issue appeared more starkly framed than previously Public doubt as to the legitimacy of the immediate objectire-the ejection af Iraq from KuiG-ait-was for the most part absent, and although there u-as disagreement about the timing and amount of coercion to be used, force generally was perceived as a legitimate option Far from presenting a sympathetic im. age, Iraqi President Saddam Husseln was perceived by the American public as probably the least ambiguous villain of the second half of the tw-entieth century Unchallenged by any significant politicai opposition prior to the u-ar, he appeared as the sole instigator of Iraq's seizure of Kuwait, as weii as the cause of its intransigence in the face of international insistence that 11 withdraw

These circumstances prompted a number of knowledgeable individuals-both within and without the United States gou-ernment-to suggest that kiiling Saddam actuaiiy might prove faster. more effective and less bloody than kiiling his army in resoiring the problem of Iraq.' Public discussion touched lightly an the feasibility of this action and the likelihood that it would succeed in Its purpose, but focused primarily on the legality of active efforts by the United States to bring about the Iraqi President's death The answer offered to that question most often turned on whether killing Saddam Hussein would be an "assassination" within the meaning of a presidential ban on resort to assassination currently embodied in Exec-utive Order 12333.' Argument on that issue Inevitably must be uneniightening. in part because the order itself provides no guidance, but also because the argument is a circular one-that is. to determine that a particular kiiling was illegal leads

directly to the conclusion that it 1s by definition an assassination, and conversely, If not illegal. it is not assassination. Yeedless to say, apparently there was little discussion of international law concerning assassination.

Actually, however, because this issue inescapably involves relations between nations, any useful discussion of the circumstances in which it would be permissible for the United States actively to seek the death of a foreign leader must consider both international law, and whatever constraints the United States may see fit to impose upon itself It is assumed that the killing of a foreign political or military leader in an attempt to influence another nation's leadership, foreign policy, or military capabilities would amount to a use of force that generally is prohibited under the United .\ations Charcer,3 unless justified as a defensive action.' Accordingly, assassination will be discussed in the context of international law of armed conflict. It is the thesis of this article that what is commonly called assassination is best treated as one of many means by which one nation may assert force against another, and should be considered permissible under the same circumstances and subject to the same constraints that govern the use of force gener. ally. It should not be viewed as a unique offense under international law or as a subject of statutory prohibition under the law of the United States.

11. International Law Regarding Assassination

Assassination as a tactic of war was a subject frequently discussed by chroniclers of international law writing during the seventeenth and eighteenth centuries. None of these authors asserted that a leader or particular member of an opposing army enjoyed absolute protection, or was not a legitimate target of attack. They focused on the manner and circum. stances in which these individuals could be killed, insisting that they not be subject to treacherous attack The writings of most reflect concern that the honor of arms be preserved, and that public order and the safety of sovereigns and generals not be unduly threatened. Although their discussions clearly assumed that an individual specifically selected as a target would be a person of some prominence, their concept of assassination did not, as will be seen, necessarily require an eminent victim

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126 MILITARY LAW REVIEW [Yoi. 134 A. Early Commentators

Alberico Gentill, writing early in the seventeenth century:, considered three possible situations: (1) the incitement of subjects to kill a sovereign; (2) a secret or treacherous attack upon an individual enemy; and (3) an open attack on an unarmed enemy not on the field of battle Gentili concluded that each of these was to be condemned He argued

If it is allowed openly or secretly to assail one man in this way, it will also be allowable to do this . by falsehood

. . If you allow murder, there are no methods and no forms of it which you can exclude: therefore murder should never be permitted.6

He feared the danger to individuals and general disorder that would result if opposing sides plotted the deaths of each other's leaders Just as important to Gentili, however, &,as the absence of valor. He noted,

. . accomplishment (victory) consists in the acknowl. edgement of defeat by the enemy. and the admission that one IS conquered by the same honorable means which gave the other victory. But if "no one says that the three hundred Fabn were conquered, but that they were killed;" and if the Athenians are said on some occasions to have been rather worn out than defeated, when they nev. ertheiess fell like soldiers, ahat shall we think of those who fell at the hands of assassins?'

Gentili expressly rejected the suggestion that, by killmg a single leader, many other lives might be saved, believing that such an argument ignored considerations of justice and honor. Moreover, he questioned the ultimate result-that IS, a new leader would emerge, with followers all the more inflamed by their previous leader's death If, howerer, an enemy leader was sought out and attacked on the field of battle, Gentili considered that to be entire]) permissible s

Hugo Grotius considered "whether. according to the law of nations, it IS permissible to kill an enemy by sending an

assassin against him."g He distinguished between "assassins who violate an express or tacit obligation of good faith"-such as subjects against a king: soldiers against superiors; or suppliants, strangers, or deserters against those who have re. ceived them-and assassins who have no such obligation.'" Grotius considered it permissible under the law of nature and of nations to kill an enemy in any place whatsoever, though he condemned killing by treachery or through the use of the treachery of another. He further condemned the placing of a price on the head of an enemy, apparently not oniy because such an offer implicitly encouraged treachery among those to whom it was directed, but also because, like Gentili, he disapproved of a victory that was "purchased."" Grotius, unlike Gentili, exonerated Pepin. the father of Charlemagne, who reputedly crossed the Rhine at night, slipped into the enemy camp, and killed the enemy commander while he was sleeping.12 Grotius went on to note that a person who commits such a deed, if caught, is subject to punishment by his or her captors, not because he has violated the law of nations, but because "anything is permissible as against an enemy,'' and it is to be expected that his or her captors will want to punish-and presumably dlscourage-attacks of that sort.:) The reason Grotius offered for forbidding the use of treachery with regard to assassination, but for allowing it in other contexts was that the rule "prevent(ed) the dangers to persons of particular eminence from becoming excess~ve."~~

Interestingly, Grotius believed that one attribute of sover. eignty was the right to wage war,L6 and that the prohibition of treacherous assassination applied only in the context of a "public war" against a sovereign enemy...