Legality Of Targeted Killing

Legality of Targeted Killing

By Kazi Anwarul Masud

A recent Washington Post report on targeted killings states that the Obama administration has authorized such attacks more frequently than the Bush administration in its final year including in countries where the US forces are not officially welcome. Improvement in electronic surveillance and precision targeting from a distance has made this type of US response more popular. Tehrik-e-Taliban Pakistan Hekmutallah Meshud has been killed, affirmed by both the Pakistani and the US authorities, in a drone attack. One is not certain how far the US has moved away from the gung-ho policy of Bush administration by adopting the new AfPak strategy of the Obama administration and accepting the recommendations of General Stanley McChrystal’s winning the hearts and minds of the Afghans in place of shock and awe of the previous administration. In the commander's summary section of the report, McChrystal states that “The key take away from this assessment is the urgent need for a significant change to our strategy and the way we think and operate." He elaborates by saying that U.S. and NATO forces must change their mind set from killing the enemy alone, to protecting the entire civilian population from the Taliban, Al Qaeda, violent ethic extremists and internal criminals. The change in mind set would require U.S. troops to blend in with the population, getting closer than ever before and risking immense danger by trusting local leaders who may double cross them. How far the new strategy will succeed remains to be seen.

The point of enquiry of this article is to ascertain the legality of the targeted killing of the leaders of al-Qaeda and TTP. Monstrous as their crimes are obedience to law, both national and international, sets the civilized world apart from the terrorists whose primary aim is to terrorize mainly because in this asymmetric war they have no scope to win.

Targeted killing has been defined as attempts by a government to eliminate individuals they consider as threat. In the case of the US Executive Order 12333 issued in 1981 stated that “no person employed by or acting on behalf of the US government shall engage in, or conspire to engage in, assassination”. Bush administration officials argued that Congressional authorization given to the President “to use all necessary and appropriate force in order to prevent any future acts of international terrorism against the United States” had provided the legal foundation for targeted killing as well as other military actions. It has also been argued that the inherent right of self-defense acknowledged in the UN Charter provides additional legal foundation. One must, however, admit that the principles of imminent danger of attack and proportionality of response once attacked are essential elements of the laws of war.

Before the advent of the non-state actors, under the UN Charter, described by John Foster Dulles as a per-atomic document, intervention in any form is defensible only as self-defense (following the rules set by Michael Walzer in his seminal work Just and Unjust War) or under the authorization of the UNSC. An article titled “ Can we put the leaders of the Axis of Evil in the cross hairs” published in Parameters( Fall 2002) of the US Army War College asserted “Under the current circumstances assassination may prove to be a more frequent and necessary means of countering the asymmetric threat our nation will continue to face”. It went on to argue that murder would be a justifiable weapon against leaders of “rogue states”. Though it is upheld that assassination would be illegal under international law, many legal experts suspect that it may not be illegal because most terrorist leaders fall under the category of “illegal combatants” who are denied the benefits granted to legal combatants under the Geneva Convention on War.

Regardless of the debate constancy remains on targeted killing of political leaders during war time if they become part of the command and control structure of the warring parties. Professor Louis Rene Beres( of Purdue University) argues that (a) no crime without punishment is a sacred principle of international law; (b) where known perpetrators of crimes can not be punished through normal judicial remedy ( i.e. extradition and prosecution) the criminals have to be punished extra-judicially , and assassination may be the least injurious form of such punishment; (c) the right of self defense as codified in article 51 of the UN Charter and customary right of anticipatory and pre-emptive attack could include assassination as a distinct law enforcing measure. Justification sought in assassinating foreign leaders must have the two essential invariant that they must be terrorists and their crimes can not be remedied through normal judicial process. Professor Nathan Sales of George Mason University argues that the National Security Act of 1947 creating the CIA had given the Agency the so-called “Fifth Function”- to perform such duties affecting national security as directed by the President or the National Security Council. He further argues that fewer than three conditionsin response to an actual attack by the enemy, to defend against the enemy’s planned attack, and in response to a continuing threat- slaying of al-Qaeda figure would be permissible.

Apart from the questionable validity of targeted killing under international humanitarian law and international human rights law, the unresolved issue of the violation of national sovereignty where the target has been killed remains. Additionally the deaths of innocent people described as collateral damage is difficult to accept. The reduced popularity of the US in countries like Iraq, Afghanistan and Pakistan should amply demonstrate that assassination or targeted killing does not endear the offender and produces counter productive results. While terrorism must end the methods of bringing an end to terrorism should be carefully considered by those who would like to be emulated as bastion of liberal and pluralistic form of governance.

Could one argue that India having been a victim of cross border terrorism for decades would be within its rights to kill terrorists who the Indian authorities are convinced and have proof of being masterminds of specific acts of terrorism like the ones at Mumbai and Pune? One would tend to reply in the affirmative, more so when the country where the terrorists are getting sanctuary is reluctant to take these people to task. Israel is committing such targeted killings of Palestinians for many years. The reason Israel does not get international support is because of the disproportionate retribution it inflicts on the Palestinians causing death and destruction to innocent civilians which cannot be described as “collateral damage” and Israel’s acts themselves could be equated with terrorism. Besides the Palestinian issue that Israel refused to recognize as a political problem till George Bush, the unlikely US President to take over the mantle of a sincere mediator of the Middle East problem , strongly came out in favor of two state solution, one of Israel and the other of Palestine, as a solution of the Middle east crisis.

US and NATO’s demolition of the Taliban in Afghanistan was backed by the UNSC because Mullah Omar refused to handover Osama bin Laden and the al-Qaeda terrorists. There are specific UNSC resolutions against giving support and sanctuary to terrorists and of punitive actions against the country found in violation of the UNSC resolution. The problem of India taking resort to targeted killings is the possibility of Pakistan widening the conflict into an all out war and proving US Defense Secretary Robert Gates’ prophecy to becoming true that the Islamists are trying to stoke a war between nuclear armed India and Pakistan. US Defense Secretary warned in December 2009 that Al Qaida would try to provoke a war between India and Pakistan with the aim to destabilizing Pakistan and gaining access to its nuclear arsenal. US Secretary of State Hillary Clinton backed the US defense chief in his testimony to the US Congress that Al Qaida and like-minded terrorist groups were determined to seek nuclear weapons. The two senior officials told a hearing on President Obama’s new Afghan policy at the Senate Committee on Foreign Relations that they had taken such threats very seriously.

Secretary Gates said that Al Qaida was also supporting Lashkar-i-Taiba, the group responsible for the Mumbai terrorist attacks. ‘Al Qaida is providing them with targeting information and helping them in their plotting in India clearly with the idea of provoking a conflict between India and Pakistan that would destabilize Pakistan,’ he said. ‘And whether or not the terrorists are home-grown, when we trace their roots, they almost all end up back in this border area of Afghanistan and Pakistan, whether they’are from the United States or Somalia or the United Kingdom or elsewhere,’ he added. Senator Richard Lugar, a ranking Republican on the panel, warned that ‘the future direction of governance in Pakistan will have consequences for non-proliferation efforts, global economic stability, our relationships with India and China.’ Describing Pakistan-India relationship as critical in the regional security context, Chairman US Joint Chiefs Staff Admiral Mike Mullen said stability on their border would be a great step forward in stabilizing the region.

Testifying before the House Foreign Affairs Committee, the US military chief said the US regional strategy included all countries of the region. He said that while President Obama’s strategy focused greatly on Afghanistan and Pakistan, it covered the entire South Asian region ‘and India is a big player in that region as well.’ The remarks are likely to irk India which does not want to be bracketed with Pakistan and Afghanistan but does want to play a role in resolving the Afghan dispute. Admiral Mullen noted that the relationship between Pakistan and India would play a critical role in stabilizing the region. ‘Leadership there must … step forward, to stabilize that border more than anything else. And I think that would be a great step forward in stabilizing the region,’ he said. He was responding to Congressman Donald Payne who wanted to know what was the US doing to make Pakistan feel comfortable on the Indian border so that it could focus more effectively on its western border with Afghanistan. Appearing at the same hearing, Secretary Clinton replied affirmatively when asked if Washington talked to India about reducing Islamabad’s concerns on this issue.

Western apprehension of Pak nuclear weapons falling into wrong hands remains. The presence of Al Qaeda in the tribal areas and the fear that the insurgents may be seeking nuclear weapons made Pakistan the focus of America’s new war strategy, senior US officials told a Senate panel on Thursday. ‘The Taliban regained momentum in Afghanistan and the extremist threat grew in Pakistan, a country … with 175 million people, a nuclear arsenal, and more than its share of challenges,’ Secretary of State Hillary Clinton told the Senate Foreign Relations Committee. Chairman of the committee Senator John Kerry backed her, saying that ‘what happens in Pakistan ... will do more to determine the outcome in Afghanistan than any increase in troops or shift in strategy’.

Opening a hearing on Obama’s Afghan strategy, Senator Kerry said that it was the ‘presence of Al Qaeda in Pakistan, its direct ties to and support from the Taliban in Afghanistan and the perils of an unstable, nuclear-armed Pakistan that drive our mission.’ Senator Richard Lugar, the ranking Republican on the committee warned that Pakistan’s nuclear weapons made it a riskier landscape than Afghanistan. US intelligence officials claim that only about 100 Al Qaeda operatives remain in Afghanistan and that while they have great influence over the larger Taliban network, Al Qaeda’s base has moved to Pakistan. To Senator Lugar it was not clear how any expanded military effort in Afghanistan addressed the problem of Taliban and Al Qaeda safe havens across the border in Pakistan. Admiral Mullen assured Senator Lugar that Pakistan was a ‘critical part’ of the three-month strategy-drafting process and agreed that the link between the trajectories of both countries was ‘almost absolute’. The relationship between Al Qaeda and various insurgent and terrorist networks in Fata was also endorsed by Secretary Gates and Admiral Mullen. Secretary Clinton described these groups as a syndicate headed by Al Qaeda. She told the Senate panel, that Al Qaeda retained a capability to export terrorism to ‘Yemen, Somalia or, indeed, Denver’. This was a reference to the recently arrested Najibullah Zazi, who allegedly was trained in Fata for setting up Al Qaeda cells in the United States, a charge he denies.
‘This is no idle danger; no hypothetical threat,’ President Obama said in his speech at West Point. ‘In the last few months alone, we have apprehended extremists within our borders that were sent here from the border region of Afghanistan and Pakistan to commit new acts of terror.’ According to Secretary Gates Al Qaeda in the Islamic Maghreb, Al Qaeda in the Arabian Peninsula, place high value on their affiliation with Al Qaeda on that border (Fata) and there is ample intelligence’ of others forming and seeking to reach back to the capabilities of Al Qaeda’s leadership in Pakistan. Separately, Janet Napolitano, the Secretary of Homeland Security, told an audience in Washington that there was a significant risk that ‘recent arrests’ in the US showed that terrorists had been ‘sent here from the border region of Afghanistan and Pakistan to commit more acts of terror’. She said that Zazi’s connections to Al Qaeda’s senior leadership in that region were 'at most one step removed'.

A transatlantic consensus exists with regard to the threat posed by extremists in Afghanistan and Pakistan, even though Americans and Western Europeans generally disagree about what policy to pursue in Afghanistan. Concern is also shared about the potential danger from a Pakistan controlled by extremists. More than six-in-ten Italian (68pc), French (67pc), British (65pc) and American (64pc) respondents told the Pew Research Center’s Global Attitude Project that this would be a major threat to their countries. Slightly smaller majorities hold this view in Spain (59pc) and Germany (57pc). The poll conducted from Aug 27 to Sept 24 last year finds Americans expressing the greatest concerns about the Taliban regaining control of Afghanistan: roughly three-in-four (76pc) say that this would be a major threat to the wellbeing of the US. However, solid majorities throughout Western Europe also see this as a major threat to their nations, including 72pc of Italians and at least six-in-ten in France (66pc), Germany (65pc), Spain64pc)and Britain (60pc).

Osama bin Laden’s latest video message to Barak Obama and his ownership of the failed air terrorism in the US coupled with almost daily carnage in Kabul’s “secure” areas and in Pakistan reflect that the determination of the radical Islamists to pursue violent course to impose their brand of “pure Islam” has not abated. Though the radicals do not pose a strategic geopolitical threat on a global or even a regional scale it would be prudent at this stage to revisit the Taliban movement and its global reach in order to gauge the damage that can be wrought to the politico-economic stability in the world. Political analyst Scott Stewart (Stratfor-Jihadism in 2010-the threat continues) classifies the Jihadist movement into three distinct yet interlocked groups.

At the pinnacle is the al-Qaeda core group comprised of Osama bin Laden and his closest advisors holed up in Pakistan near Afghan border under intense US pressure, have become insular and unable to directly provide tactical and material support to terrorist operations outside the core areas. The second group consists of that embracing al-Qaeda ideology like al-Qaeda in Islamic Magherb (AQIM), al-Qaeda in the Arabian Peninsula (AQAP), Tehrik-e-Taliban Pakistan (TTP), Lashkar-e-Toiba (LET), Harkatul Jihad (HUJI) etc. The third and the broadest layer are the jihadists at grass root level who may have little or no connection with the major militant groups. Due to almost exclusive discussion on Afghanistan and Pakistan, the resurgence of Islamist movement in Yemen, Somalia and Indonesia had not figured prominently in international discourse on terrorism. The attempt to blow up an airline traveling from Amsterdam to Detroit on Christmas Day last year, the terrorist believed to have been trained in Yemen, the public declaration of allegiance by Al Shabaab group of Somalia to al-Qaeda, the attempt on the life of Saudi Deputy Interior Minister by AQAP, and the death of Noordin Mohammed Top of Indonesia have focused anew the possibility of al-Qaeda resurgence in these countries.

This brings up the question whether Samuel Huntington’s (The Clash of Civilizations and the Remaking of World Order) thesis of the primacy of “culture and cultural identities- broadly defined as- civilizations- are the primary factors that shape cohesion, conflict and disintegration within and between nations” (Book Review by James Elwood-May/June/July 1999 issue of Freedom Network News) should be discredited as it has been by some academics and political leaders. Huntington gave particular attention to Islam that has proved to be resistant to overarching Western cultural influences that fits German theorist Jurgen Habermas’ description of the radical Muslims, as “either combating the modern world or withdraw from it in isolation”.

A 2007 study undertaken by International Policy Attitude in Egypt, Indonesia, Morocco and Pakistan showed that majority of the people interviewed viewed Washington’s primary goal was to dominate Middle East and divide the Islamic world. Another poll conducted last year showed over 80% Pakistanis were against drone attacks by the US on Pakistani soil. An option to reform the terrorists has been the adoption of the deradicalization program in Saudi Arabia where most of the detainees were men in the age group of 20s and came from lower or middle class families. Jihad, therefore, for many of them was just a job of fighting foreign military occupation. Of the 25000 detainees in Iraq in 2007 nearly all were underemployed and 78% were unemployed.

It has been stated earlier of the concern expressed to US Senate Foreign Relation Committee by US Defense Secretary Robert Gates supported by Hillary Clinton and Joint Chiefs of Staff Chairman Admiral Mullen of fears that al-Qaeda in league with Lashkar-e-Toiba was planning to ignite a war between India and Pakistan in a bid to destabilize the latter and gain control of the nuclear arsenal. They stressed that stability of Indo-Pak border was of crucial importance in stabilizing the region. One of the US’ main concerns has been Pakistani nuclear materials falling into the hands of the terrorists. Despite Pakistani assurances that enough measures are in place to prevent such a possibility Shaun Gregory, Director of Pakistan security research unit at Bradford University wrote in a counter terrorism journal published by West Point of the attacks on Pak army bases that stored nuclear weapons and of breaches and infiltration by terrorists into military installations strengthening US fears of an inside job given growing anti-American feelings in Pakistan.

While many studies, seminars, books and media presentations have been done throughout the world on the causes of “Rage of the Muslims” or “What went Wrong” after the events of 9/11 in particular to try to understand the al-Qaeda and Taliban phenomenon accusing the Islamic world in general of terrorism, optimists among the world leaders refuse to accept the thesis that Islamophobia is there to stay atypical of Queen Elizabeth’s grand son, Prince Harry’s, reference to a British Pakistani Muslim colleague as “our little Paki friend”. Unfortunately Prince Harry’s use of the word “Paki” is loaded with UK’s precarious and violent record of race relations of the 1960s and 70s that has subsumed Islamophobia in post 9/11 terrorist attacks on the US and post 7/7 world of terrorism in the UK. Yet British Foreign Secretary David Miliband (The danger is being out governed rather than outgunned-New Statesman-21-01-2010) hopes that as the Taliban have limited appeal due to their ethnicity, geography and people’s memory of brutality perpetrated by them during their rule a strategy of military and developmental efforts by the Karzai government, widely accused of being corrupt to the core, would win the hearts and minds of the Afghans. Vali Nasr (of Fletcher School of Law and Diplomacy-Forces of Fortune) thinks that great battle for the soul of Islam will not be fought over religion but over business and capitalism. Vali Nasr adds that middle class people from all over the Muslim world travel to the West and admire its business friendly atmosphere and respect for personal liberty. Bassam Tibi((Europeanization, not Islamization-- of Gottingen University) suggests that assimilation of the Muslims in Europe rather than integration that calls for total surrender of the self through cultural conformity would defeat the curse of al-Qaeda variety of terrorism. Islamophobists fear that by 2050 Europe would be unrecognizable because of , what they claim are due to low fertility rates among the natives, massive immigration from Muslim countries, and an assertive Islamic culture vis-à-vis a self-effacing European one leading Europe to losing its Western identity( Eurobian Follies-Justin Vaisse-Foreign Affairs-Jan/Feb 2010).

Spate of books such as Christopher Caldwell’s Reflection of the Revolution in Europe, Gisele Littman’s Eurobia, Oriana Fallaci’s The Rage and the Pride, Millane Phillips’s Lodonistan have inflamed the already existing anti-Muslim feelings in the West dampening the data based analyses presented by scholars like Italian Stefano Allevi, German Wermer Schiffauer, French political scientist Oliver Roy that deconstruct the facile fear of Islamization of Europe. The US National Intelligence Council estimates 18 million Muslims in Western Europe or barely 5% of the total population. The number is even less in the European Union. NIC study finds that children of immigrants often emulate the culture of their adopted country with less fertility rate, declining immigration to Europe due to discrimination in jobs and social exclusion by the natives, and no less increasing detachment from practicing religion. A 2009 Harvard University working paper reveals that over time the basic cultural values of the Muslim immigrants evolve to conform the predominant culture of Europe. In the ultimate analysis the Muslim Diaspora in the West is more concerned with bread and butter issues than trying to establishing Caliphate in Europe.

Clearly one must distinguish between the militant Islamists who resort to violence for political motive creating reigns of terror and the great majority of Muslims who abhor the practice of violence in any form. Our enquiry is aimed at the first group who for various reasons remain outside the judicial jurisdiction of the victims. Since from time immemorial the principles that crime does not pay and that criminals must be punished have become constant in the graduation of civilized society from the state of barbarism it is necessary to devise ways of punishing the terrorists remaining beyond the reach of national and/or international legal remedy.

Michael Byers of Duke University advocates the principle of exceptional illegality “in truly exceptional situation where a serious threat exists, no invitation can be obtained, and the UN Security Council is not prepared to act, states should simply violate international law without advancing strained and potentially destabilizing legal justifications. States then could allow their actions to be assessed subsequently, not in terms of the law, but in terms of its political and moral legitimacy, with a view towards mitigating their responsibility rather than exculpating themselves”. This theory calls for redesigning international framework and the concept of state sovereignty in order to face the threats of the 21^st century. Evidently the principle of exceptional illegality suits more the doctrine of preemption than the existing global security situation. But in cases like that of cross border terrorism where one country continues to be the victim for decades and has the capacity to retaliate yet cannot do so due to international pressure and/or the fear of turning the situation into a greater conflagration should that country remain silent, depend on diplomatic means of conflict resolution with no end in sight or resort to targeted killing.

Despite the changing nature of global structure and disappearance of US “unipolar moment” yet the US remains and shall remain the most powerful nation on earth in the foreseeable future and the US as the global hegemon has to cover for those countries forced to take targeted killing to spare the lives of the innocent people who become victims of terrorism. The US is already doing so in the lawless area of Pakistan against the TTP leaders. It may not oppose others doing so under such compelling reasons that will be acceptable to the international community.

(The writer is a former Ambassador and Secretary of Bangladesh)