Targeted Assassinations Save Lives

Most of the world condemns the Israeli policy of targeted killings of Hamas and Islamic Jihad combatants. British Foreign Secretary has declared that they are unlawful and in violation of international law. The United Nations Secretary General has termed them 'extra-judicial killings', and therefore prima facie illegal. The United States, at least officially, opposes Israeli targeted killings of Hamas and Islamic Jihad activists. At the same time, President George W. Bush has revoked President Ford's 1976 executive order 12333 which banned the CIA from conducting "targeted assassinations", and the US has engaged in at least one known high-profile action of targeted assassination, when Qaed Salim Sinan Al-Harithy, believed to be Al-Qa'eda's chief operative in Yemen, was struck down in the northern Yemeni province of Marib by a Hellfire missile, launched from a US Predator unmanned aerial vehicle operated by the CIA.

A vigorous debate has been conducted lately in Washington with regards to American policy on torture of terrorist suspects, triggered in part by the McCain amendment that would ban "cruel, inhuman, or degrading" treatment of any prisoner by any agent of the United States, and Charles Krauthammer's article in the Weekly Standard, "The Truth about Torture: It's time to be honest about doing terrible things."

which urges consideration of possible scenarios in which torture may be morally necessary. One needn't necessarily agree either with John McCain's position or Charles Krauthammer's argument, but the subject is certainly being given careful attention.

In contrast, there has been little or no public discussion of the legality or morality of targeted assassinations. This is puzzling. Targeted assassination is likely to be a major element of the strategic arsenal in the war on terrorism in the foreseeable future, and the legal and moral status of it should be reviewed and studied just as critically.

There is, in general, widespread opposition to or at least unease at the prospect of state use of a targeted killing policy. The explanation most people are likely to provide for their position on the subject can be gleaned from the term 'extra-judicial killing' that is sometimes used to describe targeted killings. The argument is usually presented as follows: even if one is willing to grant the state the right to take human life, that should only be permitted after the exhaustion of lengthy due process, giving the accused his day in court and his day in appeal, and after guilt of committing the most heinous of crimes has been proven beyond doubt. Anything less, and the hand of the executioner must be stayed. All men are innocent until proven guilty by a court of law.

It would appear, then, that targeted killing violates one of the major universal principles underpinning democracy. The only problem with this argument is that the principle itself is not as universal as it might appear at first thought. The wrong paradigm is being applied.

Imagine an enlisted combat soldier, let's call him Sgt Brian, serving in an army engaged in conventional conflict with the armed forces of another state. Sgt Brian participates with his unit in a successful frontal assault overrunning an entrenched enemy position. During the battle, he kills several enemy soldiers, using light arms, or grenades or perhaps a rocket-propelled grenade.

Sgt Brian risks being killed himself. He risks becoming a prisoner of war. But in the normal course of events, he does not risk being put on trial for murder or war crimes. The soldiers he killed were not read Miranda rights. They were not represented in a court of law and judged guilty of a capital crime. Neither were they given fair warning nor necessarily an opportunity to surrender. They might be cooks or gunners, fresh recruits or generals or even civilians in the military chain of command. They may have been killed in full combat gear or asleep in their underwear. But their death at the hands of Sgt Brian, as a soldier of a national army, is considered perfectly legitimate under the rules of military engagement. It is certainly 'extra-judicial' but acceptable, because everyone understands that the paradigm that should be applied here is not that of criminal law.

The international laws of war developed over centuries in response to evolving historical conditions. They spell out both the rights and responsibilities of national armies in conflict, and the trade-offs that they involve need to be treated as a coherent whole. The framers of these laws recognized that outlawing all violent armed conflict is not feasible, but that some of the worst possible outcomes of conflict can be moderated or avoided. A very important distinction is therefore made between individuals directly taking part in the war effort, as part of the 'chain of command', who are considered legitimate targets in the conflict, and innocent civilians, whose suffering of causalities must be minimized as much as possible, even in the pursuit of legitimate military targets. In order to maintain that distinction, national armies are required to dress their soldiers in distinctive uniforms, and to train and quarter them in military bases separate from civilian residences. It is perhaps remarkable to reflect that this has the effect of making 'legitimate military targets' -- their own enlisted citizens -- easier to identify as part of the bargain for protecting non-combat civilian populations.

The conventions on the laws of war are generally assumed to apply mainly to the armies of states. This is not because terrorism was unknown prior to September 11, 2001. Revolutionaries and anarchists have been committing acts that we would recognize as terrorist for centuries, if not millennia. But for various reasons, in the past it was generally assumed that the most effective way to deal with armed movements that were not agents of sovereign states was through criminal law, not the rules of war.

Contemporary international terrorism seeks to benefit from the gap between criminal law and the law of international combat. When they find it convenient, today's terrorists proudly proclaim themselves to be militant fighters, often comparing themselves to legendary military leaders of the past, training in military-style bases and appearing in army fatigues. But when they are targeted by opposing armies, they are quick to cry foul, claiming to be innocent civilians victimized by 'state-sponsored terrorism'. They commit acts that are military in nature, but want the protections of civilian legal proceedings, especially when they know they are located in jurisdictions whose law enforcement officials either will not or cannot prosecute them under criminal statues, and will thus be given a free pass to commit their acts.

Rather than letting the terrorists get away with playing both sides in their favour, it is preferable to label them by what they are: 'unlawful combatants'. They are combatants in every sense of the word, even if they wear civilian garb and live amongst civilian populations, and therefore they should be subject to the same rules that apply to all combatants under international law. This means that they are legitimate military targets unless they surrender of their own volition. There is no more requirement that the lives of soldiers be placed at risk to attempt to arrest them than there would be if they the same terrorists were in the uniform of a national army. They may be targeted at the moment of planning actions or when they are in bed, whether they are at the apex of their chain of command or foot-soldiers.

There is no reason to grant unlawful combatants greater protections than those we accept for the soldiers in a national army. If anything, they deserve less, because they do not accept the 'package deal' binding lawful combatants -- they consciously place themselves outside it. They do not wear uniforms, endanger their own civilian populations by hiding amongst them, and they deliberately strike at civilians. Of course, even after one accepts the principle, it must be subject to rules and applied judiciously. The traditional distinction between lawful combatant and criminal has the merits of limiting cases of 'mistaken identity' -- the accused criminal is given opportunity to challenge the accusations against, and the lawful combatant usually identifies himself. Adopting a 'targeted killing' policy requires the state in a sense to be 'judge, jury and executioner', which is a heavy burden. It should be used only against individuals who are without a doubt identified as unlawful combatants who are involved in the chain of command of on-going terrorist activities, not as a vendetta tool. It should be limited to cases in which there is no opportunity to apprehend the terrorist without disproportionate risk to those assigned to carrying out the arrest. And as in all military actions, undue risk to innocent civilians must be avoided.

Finally, there is a growing need to correct lacunae in international law that overlook the new challenges posed by the war against terrorism. Lawful combatants serving national armies who are captured as prisoners of war have guaranteed rights, among them review of their conditions of imprisonment by the IRC and the right to be repatriated after the cessation of hostilities. Much of the perplexities experienced with respect to the imprisonment of captured terrorists in Guantanamo Bay stems from the fact that there is little or no established international law regarding how prisoners of war who are unlawful combatants are to be dealt with. There is also the important question of whether or not killing wounded terrorists ought to be considered a crime. The rules of war traditionally regard the deliberate killing of a wounded soldier to be forbidden because an injured enemy poses no threat, but in the new reality of the war against terrorism, injured terrorist have been known to be carrying explosive devices that they are capable of triggering even after being wounded by several shots. It is an open secret that several armies are training soldiers to 'confirm kill' wounded terrorists by firing at their heads, because reality is outrunning legality.

In practice, it is difficult to foresee in the current international climate a truly honest effort to update international conventions on these matters. But neither lacunae nor pusillanimous interpretations of existing international law ought to deter the free world from pursuing unlawful combatants with the conviction that doing so is serving the highest goal of all -- saving human lives.

My conviction comes down to this: We do not create terrorism by fighting the terrorists. We invite terrorism by ignoring them. And we will defeat the terrorists by capturing and killing them abroad...