The newly expanded American doctrine of preemption: can it include assassination?

• Author: Beres, Louis Rene

On September 20, 2002, President Bush issued the National Security Strategy of the United States of America ("National Security Strategy"). (1) Expanding this country's right of preemption in foreign affairs--a right known formally as "anticipatory self-defense" under international law (2)--the new American doctrine asserts, inter alia, that "[t]raditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents...." (3) The doctrine goes on: "We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries." (4) This "adaptation" means nothing less than striking first where an emergent threat to the United States is presumed to be unacceptable. (5)

Might the broadened right of preemption include assassination? Normally we think of preemptive strikes in terms of military operations against enemy forces and/or infrastructures. (6) Moreover, there are substantial prohibitions of assassination in domestic and international law (7) that would seem prima facie to rule out this use of force as an expression of anticipatory self-defense. Yet, when we examine the issues purposefully and dispassionately, it could well turn out that assassination would be the most humane and useful form of preemption. If this is indeed the case, we must now get beyond any deep-seated visceral objections to a reasoned and careful comparison with all other preemption options. To be sure, assassination is not "nice," but neither is full-scale war. (8)

International law is not a suicide pact. The right of self defense by forestalling an attack was already established by Hugo Grotius in Book II of The Law of War and Peace in 1625. (9) Recognizing the need for present danger (10) and threatening behavior that is "imminent in point of time," (11) Grotius indicates that self defense is to be permitted not only after an attack has already been suffered but also in advance, where the deed may be anticipated. (12) Or as he says a bit further on in the same chapter, "It is permissible to kill him who is making ready to kill...." (13)

We may recall also Samuel Von Pufendorf's argument in his On the Duty of Man and Citizen According to Natural Law:

[W]here it is quite clear that the other is already planning an attack upon me, even though he has not yet fully revealed his intentions, it will be permitted at once to begin forcible self-defense, and to anticipate him who is preparing mischief, provided there be no hope that, when admonished in a friendly spirit, he may put off his hostile temper; or if such admonition be likely to injure our cause. Hence he is to be regarded as the aggressor, who first conceived the wish to injure, and prepared himself to carry it out. But the excuse of self-defense will be his, who by quickness shall overpower his slower assailant. And for defense, it is not required that one receive the first blow, or merely avoid and parry those aimed at him. (14) But what particular strategies and tactics may be implemented as appropriate instances of anticipatory self-defense? Might they even include assassination? (15) Understood as tyrannicide, (16) assassination has sometimes been acceptable under international law (e.g., Aristotle's Politics, Plutarch's Lives, and Cicero's De Officiis). (17) But we are concerned here not with the international law of human rights, (18) but rather with those equally peremptory rights (19) of legitimate self-defense (20) and national self-protection.

ASSASSINATION WHERE NO STATE OF WAR EXISTS

Normally, of course, the authoritative presumption obtains that assassination of officials in other states represents an incontrovertible violation of international law. (21) Where no state of war exists, such assassination would likely exhibit the crime of aggression and/or the crime of terrorism. (22) Regarding aggression, Article 1 of the Resolution on the Definition of Aggression defines this crime, inter alia, as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition." (23)

In view of the jus cogens norm of nonintervention (24) codified in the U.N. Charter that would ordinarily be violated by transnational assassination, such killing would generally qualify as aggression. Moreover, assuming that transnational assassination constitutes an example of "armed force," the criminalization, as aggression, of such activity, may also be extrapolated from Article 2 of the Definition of Aggression:

The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances.... (25)

In the absence of belligerency, assassination of officials in one state upon the orders of another state might also be considered as terrorism. (26) Although it never entered into force because of a lack of sufficient ratifications, the Convention for the Prevention and Punishment of Terrorism (27) warrants consideration and consultation. (28) Inasmuch as the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, (29) is normally taken as a convention on terrorism, its particular prohibitions on assassination are also relevant here. After defining "internationally protected person" at Article 1 of the Convention, Article 2 identifies as a crime, inter alia, "The intentional commission of: (a) a murder, kidnapping or other attack upon the person or liberty of an internationally protected person." (30)

The European Convention on the Suppression of Terrorism (31) reinforces the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons. According to Article 1(c) of this Convention, one of the constituent crimes of terror violence is "a serious offense involving an attack against the life, physical integrity or liberty of internationally protected persons, including diplomatic agents." (32) And, according to Article 1(e), another constituent terrorist crime is "an offence involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if this use endangers persons." (33)

ASSASSINATION WHERE STATE OF WAR EXISTS

When a condition of war exists between states, transnational assassination is normally considered as a war crime under international law. (34) According to Article 23(b) of the regulations annexed to Hague Convention IV of October 18, 1907, respecting the laws and customs of war on land: "[I]t is especially forbidden ... to kill or wound treacherously, individuals belonging to the hostile nation or army." (35) The U.S. Army Field Manual, The Law of Land Warfare (1956), which has incorporated this prohibition, authoritatively links Hague Article 23(b) to assassination at Paragraph 31: "This article is construed as prohibiting assassination, proscription or outlawry of an enemy, or putting a price upon an enemy's head, as well as offering a reward for an enemy 'dead or alive.'" (36) Whether or not a particular state has followed a comparable form of incorporation, it is certainly bound by the Hague codification and by the 1945 Nuremberg judgment that the rules found in the Hague regulations had entered into customary international law as of 1939. (37)

There is, however, a contrary argument. Here the position is offered that enemy officials, as long as they are operating within the military chain of command, are combatants and not enemies hors de combat. (38) It follows, by this reasoning (reasoning, incidentally, which was accepted widely with reference to the question of assassinating Saddam Hussein during the 1991 Gulf War), that certain enemy officials are lawful targets, and that assassination of enemy leaders is permissible so long as it displays respect for the laws of war. (39) As for the position codified at Article 23(b) of Hague Convention IV, which is also part of customary international law, this contrary argument, in practice, has simply paid it no attention. (40)

In principle, adherents of the argument that assassination of enemy officials in wartime may be permissible could offer two possible bases of jurisprudential support: (1) they could argue that such assassination does not evidence behavior designed "to kill or wound treacherously" as defined at Hague Article 23(b); and/or (2) they could argue that there is a "higher" or jus cogens obligation to assassinate in particular circumstances that transcends and overrides pertinent treaty prohibitions. (41) "To argue the first position would focus primarily on a 'linguistic' solution; to argue the second would be to return to the historic natural law origins of international law." (42)

But even if one or both of these positions could be argued persuasively, the conclusion would, by definition, have nothing to do with anticipatory self-defense. Because assassination during wartime can not be a measure of self help short of war, its "legality must be appraised solely according to the settled laws of war." (43) It follows that any assassination of enemy officials in another state may be a lawful instance of anticipatory self-defense only in those cases wherein the target person(s) represents states with which there is no recognized belligerency. (44)

ASSASSINATION AS LAW ENFORCEMENT AMONG STATES NOT AT WAR

The customary right of anticipatory self defense has its modern origins in the Caroline incident, which concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule (a rebellion that aroused sympathy and support in the American border states). (45)...