Harvard professors Gabriella Blum and Philip Heymann have a new, short article online at the Harvard National Security Law Journal (which, by the way, is doing many interesting things), Law and Policy of Targeted Killing (June 27, 2010). (A version of it will appear as a chapter in their forthcoming book on terrorism and counterterrorism.) It is a fine essay, not over-long, and well worth reading if you at all take an interest in these topics. Below the fold is a little bit from the introduction.
More than any other counterterrorism tactic, targeted killing operations display the tension between addressing terrorism as a crime and addressing it as war. The right of a government to use deadly force against a citizen is constrained by both domestic criminal law and international human rights norms that seek to protect the individual’s right to life and liberty. In law enforcement, individuals are punished for their individual guilt. Guilt must be proven in a court of law, with the individual facing trial enjoying the protections of due process guarantees. Killing an individual without trial is allowed only in very limited circumstances, such as self- defense (where the person poses an immediate threat) or the immediate necessity of saving more lives. In almost any other case, it would be clearly unlawful, tantamount to extrajudicial execution or murder.
When agents of a state seek to engage in enforcement operations outside their own territory without consent of the foreign government, they are further constrained by international norms of peaceful relations and the respect for territorial boundaries among states. Ordinarily, when a criminal suspect finds refuge in another country, the United States would ask the other country for extradition to gain jurisdiction over him. Even interviewing a person outside of U.S. territory would be unlawful; executing him would be an extremely egregious offense. Violations of these norms run the risk of replacing law with force and spiraling international violence.
In wartime, governments may use deadly force against combatants of an enemy party, in which case the peacetime constraints are relaxed. But in war, the enemy combatants belong to another identifiable party and are killed not because they are guilty, but because they are potentially lethal agents of that hostile party. Moreover, soldiers are easily identified by the uniform they wear. Once in the uniform of an enemy state, any soldier, by commitment and allegiance, is a potential threat and thus a legitimate target, regardless of the degree of threat the soldier is actually posing at any particular moment: the relaxing, unarmed soldier, the sleeping soldier, the retreating soldier—all are legitimate military targets and subject to intentional targeting. No advance warning is necessary, no attempt to arrest or capture is required, and no effort to minimize casualties among enemy forces is demanded by law.
The identity and culpability of an individual not wearing a uniform but suspected of involvement in terrorism is far less easily ascertained. While combatants should not benefit from defying the obligation to distinguish themselves from civilians (wearing civilian clothes does not give a soldier legal immunity from direct attack), the lack of uniform does raise concerns about the ability to identify individuals as belonging to a hostile force. Moreover, joining a military follows a distinct procedure that allows for a bright-line rule distinguishing between those in the military and those outside it (although it hides the dangerous responsibility of civilians who take part in hostile activity without being members of the armed forces). Joining a terrorist organization does not necessarily have a similar on/off switch; individuals might join the organization or support it in some ways or for some time, but then go back to their ordinary business without any ritual marking their joining or departing. Identifying individuals as terrorists grows more difficult as organizations, such as Al-Qaeda, become a network of small dispersed cells, or even individuals, making the association with a hostile armed group even more tenuous.
Despite these difficulties, both the United States and Israel (as well as several other countries) have made targeted killing—the deliberate assassination of a known terrorist outside the country’s territory (even in a friendly nation’s territory), usually (but not exclusively) by an airstrike—an essential part of their counterterrorism strategy. Both have found targeted killing an inevitable means of frustrating the activities of terrorists who are directly involved in plotting and instigating attacks from outside their territory.
Adopting a position on targeted killings involves complex legal, political, and moral judgments with very broad implications. Targeted killing is the most coercive tactic employed in the war on terrorism. Unlike detention or interrogation, it is not designed to capture the terrorist, monitor his or her actions, or extract information; simply put, it is designed to eliminate the terrorist. More than any other counterterrorism practice, it reveals the complexity involved in classifying counterterrorism operations either as part of a war or as a law enforcement operation.