Assassination & targeted killing - a historical and post-Bin Laden legal analysis.

Author:Vlasic, Mark V.
 
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TABLE OF CONTENTS I. INTRODUCTION II. HISTORICAL BACKGROUND AND DEFINITIONS A. Early Definitions of Assassination B. Contemporary Definitions of Assassination in the United States C. Defining Targeted Killing III. INTERNATIONAL LAW IN PEACETIME A. The United Nations & the Prohibition of Force B. The United Nations and Self-Defense C. Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents D. Charter of the African Union E. Extradition Treaties F. Conclusions on Assassination and International Law in Peacetime IV. INTERNATIONAL LAW OF ARMED CONFLICT (THE LAW OF WAR) A. Early Wartime Limitations: The Lieber Code & the Brussels Declaration B. Modern Wartime Limitations: The Hague Convention & Geneva Protocols C. Acceptance of International Law in United States Manuals on the Law of War D. Conclusions on Assassination and International Law of War V. UNITED STATES DOMESTIC LAW A. The Church Committee Intelligence Investigation B. Executive Response to the Church Committee Investigation C. Early Government Interpretation of Executive Order 12,333 D. Scholarly Interpretation of Executive Order 12,333 E. Executive Order 12,333 and Targeted Killing Policy Under Presidents George W. Bush and William J. Clinton F. Recent Targeted Killing Policy and President Barack Obama's Expanded Drone Attacks G. Critical Views of Targeted Killing and Drone Attacks H. Views Supporting Targeted Killing and Drone Attacks, and Viewpoints on Police Action VI. THE FUTURE OF THE LAW OF ASSASSINATION AND TARGETED KILLING A. U.S. and NATO Attacks on Libya and Colonel Muammar al-Qadhafi 1. Attacks in the Twentieth Century 2. Attacks in the Twenty-First Century B. The Gulf War, Iraq War, and Saddam Hussein C. Legal Trends: The U.S. Attempts and Killing of Osama bin Laden 1. Attacks in the Twentieth Century 2. Attacks in the Twenty-First Century D. Approaching the Problem of Terrorism: Is There a Ready Framework? E. Terrorist Combatant Status: A Lingering Question F. An Alternative Combatant Status Theory: Terrorists as Hostes Humani Generis G. The Legality of the Bin Laden Killing: Applying the Terrorist Framework H. The Case of Anwar Al-Awlaki VII. ASSASSINATION AND TARGETED KILLING TODAY: CONCLUSIONS "Grecian nations give honors of the gods to those men who have slain tyrants"--Cicero (1)

"Justice has been done"--President Barack Obama, announcing Osama bin Laden's killing (2)

  1. INTRODUCTION

    Military strikes against such individuals as Libyan leader Colonel Muammar al-Qadhafi, (3) former Iraqi President Saddam Hussein, and Al-Qaeda leader Osama bin Laden, have raised questions, across the world, about the gray area surrounding the law on assassinations, targeted killings, and the vagueness of presidential Executive Order (E.O.) 12,333, (4) the domestic prohibition of assassination. In the past, questions regarding assassination law might have focused on "cloak-and-dagger"-type discussions--exploding cigars and poisoned umbrellas--or exploring the legality of individual "hit teams." But now, with the advent of armed unmanned aerial vehicles (UAVs), such as "Predator" and "Reaper" drones, it is possible for governments to engage in targeted killing operations, continents away, while sitting at a computer terminal, thus raising additional legal and policy questions regarding what constitutes an assassination and what may be deemed a permissible targeted killing.

    While many of us may be familiar with the so-called presidential "ban" against "assassination," we should also understand that the legal analysis around E.O. 12,333, assassinations, and targeted killings have evolved since the order was first signed in 1976. Often pressed by geopolitical considerations and tactical operational demands, policy makers and government lawyers have been reviewing the legality of state-sponsored assassination and the targeted killing of individuals in more and more detail throughout the last thirty-five years, revealing the vastness of the gray area surrounding assassination. And while much of the legal analysis done by the U.S. Departments of Defense, Justice, and State, and the National Security Council is classified, public discourse--by the press, scholars, and academics--tends to center such discussions on the definitions of the terms "assassination" and "targeted killing," the legality (or illegality) of such acts, and the reasons for and against their use.

    Despite public debate on assassination, public discussion by government officials often remains a taboo topic, (5) adding to the collective confusion. Only recently have U.S. officials elaborated on the legal basis for the specific targeting of individuals. (6)

    It is worth noting that, by the turn of the millennium, the term "targeted killing" had emerged in competition with "assassination" as a frequently used term of art, (7) often without regard to the important legal differences between the two terms (which will be discussed later in this article). (8) Indeed, in many cases, individuals in the media have labeled targeted killings as assassinations, regardless of the legality of the act. For one example, the term "assassination" was used to describe the killing of Osama bin Laden by many major American and world news outlets, (9) further adding to the confusion between these two terms. (10)

    In order to bring some clarity to the term "assassination"--and to better understand where the line might be drawn between "assassination" and "targeted killing"--this article will explore not only the meaning of assassination in the technical sense, but will also examine the legal frameworks, both domestic and international, for lawful targeted killing, and apply those frameworks to the modern targeted killing policies of the United States and other nations. Part II of this article will describe the historical background and definitions of assassination and targeted killing. Parts III and IV will examine assassination law under the international law of peacetime and the international law of war, while Part V does so under domestic law. Part VI looks to the future of assassination law in light of recent developments in the field.

  2. HISTORICAL BACKGROUND AND DEFINITIONS

    One of the most contentious aspects of the law of assassination is defining the term itself. The issue is particularly problematic in that while many laws refer to assassination, few, if any, actually define it. (11) While some individuals have taken an approach similar to Supreme Court Justice Stewart's explanation of obscenity: "I know it when I see it," (12) such a standard does little to aid in any practical understanding of the legality of the act. A true understanding of assassination must be predicated on the history of the term.

    1. Early Definitions of Assassination

      Assassination is far from a modern phenomenon. Before the U.S. Central Intelligence Agency's (CIA) infamous attempts on figures like Fidel Castro, the early Romans, Greeks, and Persians plotted their own acts of assassination. (13) In fact, the word "assassination" itself is derived from the Arabic word "hashishiyyin," (14) which refers to the members of an eleventh-century Muslim brotherhood devoted to killing opposing religious and political leaders. (15) Later, Dante used the word "assassin" to describe any "professional secret murderer." (16) But Dante was only one of many to write on assassination and tyrannicide. (17)

      Saint Thomas Aquinas opined that killing a sovereign for the common good was legally justified, and in some cases, even noble (18) (a similar attitude was proposed centuries later by Abraham Lincoln (19)). The renowned Italian thinker Alberico Gentili wrote that it made "no difference at all whether you kill an enemy on the field of battle or in his camp." (20) And Hugo Grotius, the so-called "father of international law," when referring to the story of Pepin, (21) reflected that:

      Not merely by the law of nature but also by the law of nations ... it is in fact permissible to kill an enemy in any place whatsoever; and it does not matter how many there are that do the deed, or who suffer.... According to the law of nations not only those who do such deeds, but also others who instigate others who do them, are considered free from blame. (22) Such statements illustrate that, even historically, warfare and lawful killing were not limited to acts on the battlefield and traditional combat. The targeted killing of one's enemy, however, was not a fight without limitation.

      Targeting specific individuals during wartime generally was considered valid, yet the permissible means were not viewed as unlimited. (23) Early scholars often drew the line at assassination involving the use of "fraud and snares," (24) a limitation still in use in modern law of war doctrine. (25) Scholars have continuously denounced any use of "treachery" in committing a lawful wartime killing. (26) According to Gentili, treachery is the violation of the trust a victim rightfully expects from an assassin. (27) Such treachery, writes Gentili, is "so contrary to the law of God and of Nature, that although I may kill a man, I may not do so by treachery." (28)

      Hugo Grotius, like Gentili, found treachery to be a breach of confidence, as well as a violation of good faith:

      In general a distinction must be made between assassins who violate an express or tacit obligation of good faith, as subjects resorting to violence against a king, vassals against a lord, soldiers against him whom they serve, those also who have been received as suppliants or strangers or deserters, against those who have received them; and such as are held by no bond of good faith. (29) Grotius found that while "all treachery may be sinful, treacherous killing severely disrupts what little order exists in war." (30)

      Emmerich de Vattel of Switzerland echoed the thoughts of Gentili and Grotius over 150 years later in his own writings on law and nature...

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