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Article Excerpt
There is no consensus definition "targeted killing" in the law of armed conflict or in case law. (1) A reasonable definition is: the intentional killing of a specific civilian who cannot reasonably be apprehended, and who is taking a direct part in hostilities, the targeting done at the direction and authorization of the state in the context of an international or noninternational armed conflict.
In the second year of the Redland-Blueland war, an armed conflict between two states, a Redland sniper squeezed the trigger of his rifle, the crosshairs of the scope unmoving on his target: a uniformed Blueland soldier. The weapon fired, and five hundred meters away the enemy combatant fell to the ground, dead. Was this a "targeted killing"?
The Redland-Blueland war continued. After months of planning and the training of a team of disaffected Redland nationals, Blueland was ready to implement an operation against the enemy. Days later, two clandestinely inserted Redland nationals, trained in Blueland and wearing Blueland army uniforms, planted an explosive charge under a bridge located inside Redland. Later, as the limousine of the president of Redland passed over the bridge, the charge was detonated and the target killed. The president, elected to office when he was a college professor, had been a thorn in the side of the Blueland government, with his anti-Blueland rhetoric and verbal attacks on Blueland policies. Now, Blueland's most hated critic was dead, silenced by Blueland agents.
Was this a "targeted killing"?
During World War II, in April 1943, Admiral Isoroku Yamamoto, commander in chief of the Japanese Combined Fleet, was on an inspection tour hundreds of miles behind the front lines. Having broken the Imperial Japanese Navy's message code, U.S. forces knew his flight itinerary and sent sixteen Army Air Forces P-38 Lightning fighter aircraft to intercept him. Near Bougainville, in the northern Solomons, the American pilots shot down their target, a Betty bomber, killing all on board, including Admiral Yamamoto.
Was this a "targeted killing"?
First, consider the Redland sniper. On the battlefield the killing of combatants--uniformed members of the army of one of the parties to the conflict--by opposing combatants is lawful. The sniper, a lawful combatant, killed a lawful enemy combatant in the course of armed conflict between two high contracting parties to the Geneva Conventions. To kill the enemy in a lawful manner was the sniper's mission; it was expected and required of him. A combatant taking aim at a human target and then killing him is not what is meant by the term "targeted killing." "The [1907] Hague Regulations expressed it more clearly in attributing the 'rights and duties of war.' ... [A]ll members of the armed forces ... can participate directly in hostilities, i.e., attack and be attacked." (2) 1977 Additional Protocol I, which supplements the 1949 Geneva Conventions, repeats that formulation. (3) The status of "combatant" is crucial, because of the consequences attached to it. It is the mission of every state's armed forces--its combatants--to close with and destroy the enemy. Soldiers who do so are subject to no penalty for their acts. (4) This was not a targeted killing.
The killing of Redland's president is another matter. He was a civilian and presumably a noncombatant, not subject to combatant targeting. The leaders of some states may be considered combatants, however--World War II's Adolf Hitler, for example. Saddam Hussein of Iraq, another example, was a combatant and lawful target, since he customarily wore a military uniform and went armed, often in the vanguard of Iraqi military units. He decided the tactical and strategic movements of his nation's military forces. These factors combined to make him a combatant and a lawful target in time of war.
How about the president of the United States? He is denominated by the Constitution as the "commander in chief" of the nation's armed forces. He is the person whom the chairman of the Joint Chiefs of Staff advises. The president is the final authority for the strategic disposition of U.S. armed forces--"the decider." (5) In time of international armed conflict the president of the United States is a lawful target for an opposing state's combatants.
The United Kingdom's monarch? The monarch is the honorary colonel in chief or captain general of many Commonwealth regiments--seventy-one, in the case of Queen Elizabeth II--and is sometimes in military uniform for ceremonial occasions. But determining if a chief of state is a lawful target is not simply a question of whether he or she wears a uniform. In this instance, the king or queen exercises no command of armed forces and has no say in the tactical or strategic disposition of British forces; those decisions reside in the prime minister and Parliament. The United Kingdom's monarch, in uniform or not, is probably not a lawful target.
What little we know of Redland's president--a noncombatant with no apparent role in directing Redland's armed forces--suggests that he was not a lawful target. His killing, even in time of war, even by opposing combatants, was assassination.
There are many definitions of "assassination," none universally accepted. The term does not appear in the 1907 Hague Conventions, 1949 Geneva Conventions, United Nations Charter, or the Statutes of the International Criminal Courts for Yugoslavia and Rwanda. Confusingly, the term is used differently in peace and in armed conflict. (6) Assassination in time of armed conflict is "the specific targeting of a particular individual by treacherous or perfidious means." (7) This wartime definition tracks with that in the law of armed conflict (LOAC): "It is especially forbidden ... to kill or wound treacherously individuals belonging to the hostile nation or army." (8) In U.S. practice, that language is "construed as prohibiting assassination.... It does not, however, preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere." (9) One simplistic but adequate definition of peacetime assassination is the "murder of a targeted individual for political purposes [or] for political reasons." (10) Former Department of State legal adviser Abraham D. Sofaer has described it similarly: "Any unlawful killing of particular individuals for political purposes." (11)
In the domestic law of most states, assassination is considered murder. Michael Walzer writes, "Political assassins are simply murderers, exactly like the killers of ordinary citizens. The case is not the same with soldiers, who are not judged politically at all and who are called murderers only when they kill noncombatants." (12) In any event, the armed forces of most states are not customarily involved in assassination, that being left to other government organizations.* The killing of Redland's president was assassination and murder, hut it was not a targeted killing.
Nor was Admiral Yamamoto's death a targeted killing. Like the Blueland sniper's victim, Yamamoto was a lawful combatant in an international armed conflict, killed by opposing lawful combatants. "There is nothing treacherous in singling out an individual enemy combatant (usually, a senior officer) as a target for a lethal attack conducted by combatants distinguishing themselves as such ... even in an air strike." (13) The fact that Yamamoto was targeted away from the front lines is immaterial. Combatants may be targeted wherever found, armed or un armed, awake or asleep, on a front line or a mile or a hundred miles behind the lines, "whether in the zone of hostilities, occupied territory, or elsewhere." (14) Combatants can withdraw from hostilities only by retiring and becoming civilians, by becoming hors de combat, or by laying down their arms. (15) The shooting down of Admiral Yamamoto was not a targeted killing.
These exclusionary examples indicate that targeted killing is not the battlefield killing of combatants by opposing combatants. Targeted killing is not the assassination of an individual, military or civilian, combatant or noncombatant, for political purposes. What is an example of targeted killing, then?
On 3 November 2002, over the desert near Sanaa, Yemen, a Central Intelligence Agency-controlled Predator drone aircraft tracked an SUV containing six men. One of the six, Qaed Salim Sinan al-Harethi, was known to be a senior al-Qa'ida lieutenant suspected of having played a major role in the 2000 bombing of the destroyer USS Cole. He "was on a list of 'high-value' targets whose elimination, by capture or death, had been called for by President Bush." (16) The United States and Yemen had tracked al-Harethi's movements for months. Now, away from any inhabited area, the Predator fired a Hellfire missile at the vehicle. The six occupants, including al-Harethi, were killed. (17)
That was a targeted killing. In today's new age of nonstate actors engaging in transnational terrorist violence, targeting parameters must change. Laws of armed conflict agreed upon in another era should be interpreted to recognize the...
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