The Changing Law of Assassinations

by Liaquat Ali Khan

The war on terror is changing the international law of assassinations. Presently, the law prohibits all forms of extrajudicial executions, including state-sponsored assassinations, and requires that even the worst criminals be granted due process and fair trial. Nonetheless, the recent failure of the United Nations Security Council to condemn the assassination of Sheikh Ahmed Yassin raises the question whether exceptions are emerging under which states may execute, without any judicial process, the rank and file of terrorist organizations.

 

No such exception has been written into international law–not yet. Israel is the most articulate proponent of the view that members of terrorist organizations are lawful targets for execution without trial. Israel’s advocacy of extrajudicial executions is most intriguing, for it has otherwise outlawed capital punishment in its legal system. Close behind Israel is the United States, which hesitates to openly embrace the Israeli view of assassinations. And yet for all practical purposes, it seems to condone such executions. For it was the United States–the lone star on the Security Council–which actively opposed the resolution that denounced the assassination of Sheikh Yassin. (11 members voted for the resolution, 3 abstained.)

 

In vetoing the resolution, the United States was not posing as a morally blind ally of Israel. It was serving its own interests. Since September 11 attacks, the Bush administration has been openly advocating the killing of terrorists–of course without a trial. In Afghanistan and Iraq, US special operations snipers have actually killed several foreign nationals in forced and staged encounters. The most theatrical assassination occurred in 2002 when a CIA-operated pilotless plane, flying over the Yemeni desert, killed six terrorists speeding in a car below. Deputy Defense Secretary Paul Wolfowitz called it a “very successful tactical operation.”

 

n defending their lawless killings, Israel and the United States take a confederate stand. They vow not to let their citizens and soldiers be killed by known terrorists who plan or perpetrate acts of murder and mayhem. Calling it active self-defense or lawful interception, they argue that international law should not preclude executing terrorists determined to harm their citizens and soldiers.

 

Despite their united stand, Israel promotes a much broader exception to the rule than does the United States. Israel would kill not only persons poised to commit terror, but would execute even their spiritual and political leaders. These leaders are lawful targets, Israel argues, because they, by their rhetoric and blessing, foster and favor a culture of violence that spawns suicide bombers and other perpetrators of violence. In contrast, the United States pleads for a far narrower exception under which killing a terrorist leader is legally excusable when the leader has actually masterminded specific acts of murder.

 

From a legal viewpoint, however, even narrow exceptions may hurt the innocent. Any extrajudicial killing, no matter how narrowly conceived, cuts off fundamental human rights enshrined in universal treaties. For example, the defendant is slain without a fair hearing before an impartial tribunal. He is given no opportunity to impeach the evidence or witnesses against him. The killer state is accountable to no defense attorney, no jury, and no court. It simply says to the world: “Take my word. The man just executed was a terrorist!” Was he? Given the botched intelligence about Iraq’s weapons of mass destruction, not even a superpower can assure the world that its decision to kill without a trial is based on irrefutable evidence of criminality.

 

The Israeli version of extrajudicial executions is even more problematic, as it leads to sheer oppression. It shatters all distinctions between terrorists and insurgents fighting for self-determination. International law recognizes the right of peoples under colonial and racist regimes or other forms of alien domination to struggle and seek freedom. According to Israeli, however, no matter how oppressive are the conditions of servitude, occupation, and even genocide (Sabra and Shatila), the Palestinians have no right to armed struggle for independence. Moreover, any organization that uses force as a means of liberation espouses terrorism and, as such, its entire leadership is a lawful target for assassinations.

Furthermore, there is the domino effect. If international law opens the door to lawless executions, national systems will be emboldened to go even further. Fighting crime will mimic the mantra of fighting terrorism. Already, encounter killings, precipitated through shootouts between the police and alleged criminals, are commonplace in many countries, including Nepal, the Philippines, and Sri Lanka. The United States Country Reports on Human Rights Practices, issued in 2003, recounts how Indian security forces faked encounters to justify extrajudicial executions. While some victims were Muslim and Sikh militants, others were Dalits demanding fair wages. In Brazil, street children have been routinely killed as security risks and leaders of indigenous populations have been executed for demanding a better demarcation of their reservation lands to stop illegal encroachments.

Perhaps realizing the inherent perils embodied in the arguments for the Sheikh’s assassination, the eleven members of the Security Council rightfully stood behind an undiluted prohibition against extrajudicial executions.

 

The writer is a professor at Washburn University School of Law in Topeka, Kansas.