Targeted Killing: When pragmatism and international law collide

"Killing a man is murder unless you do it to the sound of trumpets." ~ Voltaire

The sources, methods, goals and tactics of identifying legitimate targets for covert action, are matters typically hidden from public scrutiny, yet clearly worthy of public attention and philosophical debate. The following of unequivocal ethical criteria when identifying targets is necessary to minimize blowback when conducting Targeted Killing Operations. Comparable to torture and rendition, the debate that encompasses these operations have passionate supporters on both sides of the issue. In spite of the genuine controversy surrounding this subject, a carefully circumscribed policy of targeted killing can be a legal and effective tool in a counter-terror campaign.

It is necessary to provide a coherent and acceptable definition of both assassination and targeted killing in order to form a common frame of reference when debating the pertinent moral and legal arguments for and against targeted killing. First, we must differentiate the current US policy of targeted killing from the common understanding of “assassination.” In asymmetric warfare determining combatant vs. non-combatant status is a critical task to any operation. Discerning between these two designations may initially seem effortless, however, in an asymmetric environment these distinctions only come in shades of grey. Throughout the paper, we will examine the arguments for and against targeted killing. Subsequently, I propose policy guidelines to that must be considered in order to minimize blowback when conducting Targeted Killing Operations.

Establishing a difference between assassination and targeted killing is paramount in developing ethical criteria for Targeted Killing Operations. International Law does not address the term assassination. The word assassination does not appear in the United Nations Charter, Hague or Geneva Conventions, or the Statute of the International Criminal Court. However, Executive Order 12333 is the most recent in a series of three executive orders to have included U.S. Presidential bans on assassination. The purpose of EO 12333 was to preempt more restrictive congressional legislation, preclude individual agents or agencies from taking unilateral actions against selected foreign officials, and to unequivocally affirm that the United Sates does not condone assassination as an instrument of nation policy. “Defining what is not assassination is as important as defining what is assassination.” Assassination is considered illegal regardless of the circumstances. The difference between a targeted killing and a wartime assassination is really a question of method. A wartime assassination disregards jus in bello by utilizing treacherous and perfidious techniques to eliminate the target where a targeted killing does not.

Many scholars categorize assassination as a subset of murder8 where the target is chosen based on his identity, prominence, public position and the killing motivated to achieve some political objective. This definition lays out three required elements to qualify as an assassination: (1) murder, (2) a specific individual, (3) for political purposes. Therefore, in order for an assassination to take place there must be a politically motivated murder of a specific individual in peacetime.

The widely accepted definition of targeted killing is “the intentional slaying of a specific individual or group of individuals undertaken with explicit government approval.” This definition however does not establish a legal justification. To go one step further we must distinguish between a legal and illegal government approved slaying in the context of a targeted killing. Two models have been presented to deal with international terrorism, the law enforcement model, as reflected in standards of international human rights law and the armed conflict model, as understood by the international humanitarian law. The law enforcement model inherently assumes terrorist are non-combatants therefore, limiting actions to apprehension making targeted killing illegal. This illegal slaying, (which does not fully meet the above criteria of assassination as it lacks political aspirations) should be considered an extra-judicial execution. The armed conflict model identifies targets as combatants in order to justify lethal action. Hence, the term targeted killing would be appropriate when using the armed conflict model to identify combatants. For this paper, targeted killing will be used to define a legal lethal action as long as it satisfies the requirement of armed conflict and combatant classification.

The crux of the debate whether targeted killing is legal and subsequently morally just is based on the classification of the subjects being targeted for killing. In conventional war, the distinction between combatants and non-combatants turns on the simple notion of bearing arms, wearing uniforms, belonging to a military organization, and abiding by the rules of war. These conditions; found in Article 4 of the Geneva Convention (1949) are what is used to define a combatant. In 1977 Protocol I to the Geneva Convention made allowances for guerrilla organizations to shed their uniforms when they fight an army of occupation.

Members of the Al Qaeda organization do not fit the definition of resistance fighter or volunteer militia as set forth in Article 4 of the Geneva Convention. According to Patricia Zengel, Military Law Review, they do not wear uniforms, are not led by a commander that takes responsibility for their actions, and do not follow the laws and customs of war; three of the four requirements needed to be considered a lawful combatant. However, it seems that international terrorists should be considered some sort of combatant. They have not limited themselves to solely seek out and destroy only civilian targets. “It appears then”, as Gross states, “that international terrorists warrant some status that combines criminality with combatancy. This is the proper understanding of unlawful combatant.” Differentiating these key terms allows us to clearly examine the legality and pragmatic positions for targeted killing.

Arguments for and against Targeted Killing:
Mary Ellen O‟Connell, of the School of Law at Notre Dame, is a key proponent of the law enforcement model. “Terrorist attacks are criminal acts, not an armed attack. They have all the hallmarks of crime; they are Sporadic and are rarely the responsibility of the state where the perpetrators are located.” This statement is based on Article 2 (4) of the UN charter, stating the premise that terrorist organizations are criminal in origin and they should not be considered combatants. Unfortunately, there is no law enforcement agency today capable of dealing with an international terrorist organization like al-Qaeda. Therefore, the only model that has any chance of success is the armed conflict model. By definition then, using this model infers active members of al-Qaeda to be combatants and may be lawfully targeted at will.

What is the alternative to the armed conflict model when suspected terrorists are in a foreign country and that nation is either unwilling or incapable of capturing these suspected terrorists? In “Targeted Killing” Daniel Statman claims that the United States is entitled to classify operations against al-Qaeda as war.

with the loosening of various moral prohibitions implied by such definition, rather than a police-enforcement action aimed at bringing a group of criminals to justice based upon two specific criteria: (a) the gravity of the threat posed by al-Qaeda and (b) the impracticality of coping with this threat by conventional law enforcing institutions and methods.

It is best to understand targeted killing as an adaption of the guerilla war convention that permits soldiers to identify and subsequently kill one another in the absence of uniforms. Can a government just use lists of names to identify their enemy? In this case, names on a list serve the same function as a uniform: they determine affiliation. The obvious problem is who decides whose name is on the list? This is where transparent and ethically sound criteria must be followed to ensure mistakes are minimalized.

In the past, states attempted to uphold the principle that states deal only with other states. To do otherwise would confer power and legitimacy to non-state actors and organizations such as al-Qaeda. The precedence set on September 11th, by these international terrorist demonstrate that the U.S. can no longer treat terrorism as a legal matter to „depoliticize‟ and „delegitimize‟ it by defining it as criminal activity instead of warfare due to the magnitude of destructive capabilities these terrorist organizations have evinced in recent history.

Through the early 1990s the U.S. attempted to apply the law enforcement model against terrorists, bringing to trial those accused of perpetrating the 1993 World Trade Center bombing. This model at best seems to only get the „foot soldiers‟ not the leaders of these international terrorist organizations. Since the adoption of the armed conflict model as doctrine the U.S. is under no obligation to attempt to arrest an individual before targeting him or her. Under this model, the combatant status remains in effect for the duration of the armed conflict unless the individual takes some action to renounce this status. However, considering the importance of intelligence it does not make sense to kill the target when capture and interrogation would produce significant benefits. This opportunity of intelligence demands support of a policy guideline to ensure targeted killing is used as a method of last resort.

Another argument against targeted killing is to demonstrate a lack of efficacy. Targeted Killing Operations must be supported by a robust intelligence apparatus. Copious amounts of reliable intelligence are necessary to sustain an effective targeted killing program. However, any failure in this process has wide spread blowback potential. The opposition to targeted killings increases dramatically when targeting errors occur and innocent non-combatants are killed. According to the opposition, targeted killing provokes a fierce reaction against both collaborators and those who recruit them and, at the same time, rend the moral and social fabric of the community by introducing an element of distrust among the population.

Every time a wanted individual was captured, wounded, or killed, the public immediately suspected the work of an informer. It was the beginning of a vicious cycle in which they wanted individuals were hunted by the security forces, while the suspected collaborators were hunted by the wanted, who held them responsible for the death or capture of their comrades.

Targeted killing may deplete the ranks but, it also counter intuitively motivates previously non-ideological individuals to join the ranks based on personal grievances. Therefore, the decision to conduct a targeted killing operation must discriminate targets and weigh the benefit of removing the threat with the risk of blowback from the community you are trying to protect. This type of consideration must be included when developing procedures to guide the proper implementation of a U.S. policy of targeted killing. The answer is not to stop
targeted killings when they are justified, but to minimize mistakes with more timely and reliable intelligence and a careful process that reviews and approves all targeting missions.

The argument between sovereignty vs. the right to self-defense often comes up when considering the legality of targeted killing. A state‟s inherent right to self-defense is established by Article 51 of the U.N. Charter which reads: "Nothing in present Charter shall impair the inherent right of individual or collective self – defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self – defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."

Unfortunately, much debate and controversy surround the ambiguity in what a legitimate self – defense response entails. The most accepted interpretation of this doctrine is based upon the necessity and proportionality test established in customary international law by the Caroline Doctrine. Proponents claim that under this doctrine states possess a right of anticipatory self – defense and that no armed attack need occur before a state may resort to force to counter a threat. If a nation is able to justify a targeted killing under Article 51 then it is legal in both international and domestic law. Emmanuel Gross provides four factors that are especially appropriate in determining the plausibility of a perceived threat:

1. Past Practices: Past practices of the terrorist organization must be reviewed to determine the extent to which a possible attack is consistent with those practices.
2. Motives: Does the group have particular goals? If so, then the extent to which those goals have or have not been fulfilled will bear on the likelihood of future attacks.
3. Current Context: Have contemporary events cause tensions between the state and the terrorist to become exacerbated or relaxed? Similarly, what is the current state of relations between the target state and those sponsoring the terrorist group? Further, to what extent is the target state currently vulnerable from either a security or political perspective?
4. Preparatory Actions: Even though no intelligence is available indicating a planned attack, are activities underway that suggest that an operation is being planned?...The more consistent the particular activities that the group conducts are with prior operations, the more likely a response is to be deemed necessary.

These factors can assist a government in assessing conditions and identifying whether targeted killing is justified under the protection of Article 51 of the UN Charter.

Weighing the risk of collateral damage vs. the benefit of removing a high value target must take into consideration proportionality and necessity. To present a realistic scenario, consider that a suspected “High Value” terrorist is discovered through intelligence information to be operating out of a house in a remote village outside of a northern Pakistani village. Three courses of action present themselves, (1) rely on the Pakistan government to resort to their only means of handling the situation, (2) use a hellfire missile mounted on a UAV platform to take out the target, (3) Do nothing, and let the known terrorist go free until the remote possibility of capture presents itself. Even though Michael Gross is not a supporter of targeted killing he acknowledges that, “assassination has the singular virtue of substantially reducing collateral damage and harm to noncombatants while eliminating grave, military threats.”

The general consensus among early international law theorists and scholars was that an intentional attack to kill an enemy leader was typically permissible, provided the attack did not employ treacherous or perfidious means. Limitations designed to ensure legality and transparency must be established in order to ensure Targeted Killing Operations are not perceived as perfidious by the world community. Philip Alston, the Special Rapporteur for the United Nations, states in his report to the UN:

Transparency and accountability in the context of armed conflict or other situations that raise security concerns may not be easy. States may have tactical or security reasons not to disclose criteria for selecting specific targets (e.g. public release of intelligence source information could cause harm to the source). But, without disclosure of the legal rationale as well as the bases for the selection of specific targets (consistent with genuine security needs), States are operating in an accountability vacuum. It is not possible for the international community to verify the legality of a killing, to confirm the authenticity or otherwise of intelligence relied upon, or to ensure that unlawful targeted killings do not result in impunity. The fact that there is no one-size-fits-all formula for such disclosure does not absolve States of the need to adopt explicit policies.

The U.S. policy on targeted killing remains classified. However, publishing transparent guidelines (focusing on limitations) would provide some legal reassurance not only to the international community but, to the U.S. government employees that have been charged to conduct these crucial missions. In the paper, “The role of targeted killing in the campaign against terror,” COL Peter Cullen states, “The U.S. policy on targeted killing remains extremely controversial. It is a high risk, high payoff component in the campaign against terror. When successful, it eliminates key adversaries, disrupts terrorist planning, and highlights U.S. military prowess. When unsuccessful, however, it undermines U.S. credibility and severely strains relations with other nations.”

The following proposed guidelines for Targeted Killing Operations should be implemented before congressional legislation removes this effective component from the armamentarium available in dealing with international terrorist:


Although it has been established that all members of al-Qaeda are combatants and would be legitimate targets, as stated earlier, targeted killing should be considered a high risk, high payoff asset. Limiting operations to key targets that pose a substantial threat to the U.S. would ease political strains with the international community. Mixed signals are given when political leadership is targeted as well. Focus should remain on combatants who take a direct role in planning, financing, or executing terrorist activities.

Domestic Law should never be violated and conducting operations on U.S. citizens or on U.S. soil would inevitably contravene Federal Law. Also, in adherence to Article 2(4) of the UN charter all attempts should also be made to seek authorization from the state where the targeted individuals are located. In cases where combat operations are being conducted (e.g. Iraq or Afghanistan) then authorization with that government would not be possible or necessary.

When the host country has a reliable and capable law enforcement element then all attempts to capture and interrogate the target should be made. Targeted killing should only occur when circumstances of capture are not a viable option or present an unreasonable risk to U.S. personnel. The operation to apprehend Somali warlord Mohammed Farrah Aidid in Mogadishu in 1993 illustrates some of the potential dangers inherent with the application of the law enforcement model within rogue states. Attempts to arrest a target in hostile territory could lead to an egregious level of collateral damage that may have been averted using targeted killing.

The CIA plays a very important role in creating and maintaining the short list of individuals for targeted killing operations. The accuracy of this list is the key to success. However, CIA personnel are considered non-combatants on the battlefield and therefore the operations themselves should be executed only by military personnel. Again, proportionality must be a factor when conducting targeted killing. The ICRC states that, “the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.”

Political considerations involving both impact and sensitivity demand that approval authority for these operations should only be given the highest levels of government. The U.S. system used today for Presidential findings for covert action would be ideal. The Presidential finding would be that the operation is a matter of necessity – the target poses a serious threat to the U.S. and that arrest is not a viable option – would have to be based upon clear and convincing evidence utilizing the most current intelligence available.

Congressional oversight of how individuals are put on the list is required to maintain the support of the public. Understandably, it would be difficult to notify the congressional leadership prior to a targeted killing operation, however effort should be made to inform them immediately thereafter at a minimum. The first, most obvious reason is the inherent secrecy of the information involved in targeted killing operations. In other areas, such as the environment or banking, the media plays a valuable role in helping Congress monitor the actions of the federal government on behalf of the public. In the largely classified world of intelligence, in all but a few exceptional cases, the media is effectively precluded from playing that supporting role, thus enhancing the importance of legislative oversight.

The 2002 National Security Strategy expanded the doctrine of pre-emptive self- defense.

"Given the goals of rogue states and terrorists, the United States can no longer rely solely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today‟s threats, and the magnitude of potential harm that could be caused by our adversaries, choice of weapons, do not permit that option. We cannot let our enemies strike first…"

"We must adapt the concept of imminent threat to the capabilities and objectives of today‟s adversaries. Rogue states and terrorist do not seek to attack us using conventional means…"

"The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy‟s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively."

This represented the most dynamic and controversial aspect of the National Security Strategy and what has since become known as the Bush Doctrine. This doctrine laid the foundation for the justification of targeted killing. In assessing the legality of these operations it is essential to determine whether or not an armed conflict exists between the U.S. and al-Qaeda. Regardless of the debate, since September 11th, the U.S. has clearly adopted the armed conflict model in its attempt to thwart this terrorist organization.

In the pursuit of maintaining international legitimacy the U.S. must be more transparent in how it develops its policy regarding the specific targeting of suspected terrorist outside of the combat zones of Iraq and Afghanistan. Success or failure depends on the accuracy of the intelligence provided to conduct these operations. For targeted killing operations to succeed resources to improve identifying and locating high value targets must be allocated.

When targeted killing operations are supported by a comprehensive information operations strategy and executed using accurate intelligence, it becomes a decisive weapon against international terrorism. Defining these operations as extra-judicial killings or assassinations is done so out of ignorance of the actual intent of the program. Again transparency is the key to this argument and assurances need to be provided that the above mentioned guidelines are being followed. Cullen states, “the U.S. must aggressively explain the strong legal and moral bases for the policy and assure the world community that the tactic is invoked sparingly and only when no other reasonable alternatives are available to prevent the target from threatening the U.S. and innocent civilians…public confidence in its checks and balances to ensure proper targeting decisions must be attained.

Author's Note:
This research paper was submitted in partial fulfillment of the requirements of the Master of Diplomacy and Military Studies Degree at Hawaii Pacific University. The views expressed in this student academic research paper are those of the author and do not reflect the official policy or position of Tactical Gamer.

Editor's Note:
McGann's highly annotated original work and be found at the following link.
http://www.tacticalgamer.com/attachm...6&d=1304810995