Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
E. LETHAL FORCE
The use of lethal force—employing perhaps a gun, grenade, or guided missile instead of a gavel—involves an attempted act of state-sponsored, premeditated, deliberate, extrajudicial, targeted killing.44 This option is arguably the most extreme, retributive, and legally problematic of all transitional justice alternatives because it does not provide for due process, exacts the death penalty without observing a right to a fair trial or appeal, and violates the principles of respect for human life and presumption of innocence. As a result, critics often characterize such measures as simpleminded vengeance or vigilantism. Killing may also be counterproductive because it can eliminate individuals critical to negotiations,45 create martyrs from whom the killer’s enemies can draw inspiration and grievance, forgo the possibility of interrogating someone with crucial knowledge of past and incipient offenses, or leave a power vacuum that enables an equally or even more potent enemy to assume leadership. Such killings may also result in the death or injury of secondary, untargeted individuals (e.g., innocent civilians), euphemistically deemed “inevitable collateral damage” by the killers. Killing also carries with it the risk that the target himself is not actually responsible for the alleged offenses or he is mistakenly identified, resulting in the further shedding of innocent blood. A 2011 book on the history of high-priority manhunts concludes: “killing or capturing an individual seldom correlates to strategic success.”46
For transitional justice and other purposes, governments have pursued targeted killings throughout history because extrajudicial executions have been viewed as relatively quick, inexpensive, simple, and permanent solutions for dealing with enemies, including individuals suspected of heinous crimes. Owing to the development, destructive force, mobility, and accessibility of certain technologies (e.g., weapons of mass destruction), and to the increasing role of nonstate actors in perpetrating global threats, incapacitating such suspects is a growing concern and strategy of some states. Also in part because of advanced technologies (such as unmanned aerial vehicles (also known as “drones”) and precision- guided munitions), identifying and targeting individuals to be killed has become increasingly more feasible. Precisely because international criminal law and its concepts such as “command responsibility” individualize culpability for atrocities, killing suspected criminals is a means of dispatching a “flesh-and-blood villain.”47 Through decapitation strikes that degrade or destroy an adversary’s command and control capabilities, these lethal actions may actually or effectively dispose of an enemy group’s leadership, precipitating a turning point in a conflict. In the process, less collateral damage may occur than if a full-blown war had emerged. Such killings can also be dramatic spectacles, which may raise morale (perhaps unintentionally) among the killer’s supporters and demoralize—and deter—his enemies. Furthermore, deceased individuals cannot use an amnesty hearing, trial, or other public forum as a bully pulpit from which to further their cause, perhaps inciting even more atrocities. Killing an individual also precludes the decedent retaining or regaining power and position if otherwise subject to a different transitional justice option, such as prosecution or exile, from which he escapes or is deliberately released.
Finally, targeted killing helps avoid some of the political, legal, and practical challenges (discussed elsewhere in this book) associated with detaining a suspect. For example, how could or should a suspect be apprehended? What level of resources—including soldiers’ lives—should be expended in the process? An intervening state may calculate, for example, that targeting a suspect through an air strike as opposed to a mission by ground troops would incur less safety risks for both military personnel and equipment. Also, which of the other transitional justice options could or should be used to address the individual once captured, including questions about whether the captor or the suspect’s home state will take custody? Indeed, the lack of such a coherent policy—and the deliberate avoidance of the thorny problems of due process—have sometimes been cited for the USG’s preference for killing over capturing an atrocity suspect.48
There are essentially two practices constituting the use of lethal force: legitimate military targeting, which is legal, and assassination, which is illegal. The former applies force—often predictable, overt, and with a lethal objective—to non-civilian targets during a military conflict. The Geneva Conventions define legitimate military targets as “those objects which by their nature, location, purpose!,] or use make an effective contribution to military action and whose total or partial destruction, capture!,] or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”49 Proponents argue that this use of lethal force is a justifiable, legal exercise of state power and does not constitute assassination. These individuals contend that such killing is consistent with both international and domestic laws, as it occurs in the context of self-defense or armed conflict. In these scenarios, targets are generally not afforded due process, and targeting these combatants, facilitated by modern advanced technologies, abides by ethical and legal principles of precision and proportionality.50
Assassination is the second type of lethal force. It is the targeted killing of an individual (including civilians), usually by surprise, often in secret, not necessarily in the context of a military conflict, and possibly in furtherance of political rather than military objectives. Though often suspected, the identity of the assassin is not always known. If the assassin is discovered, however, he and the state for which he works may suffer significant backlash from adversaries and allies alike. Because the legitimacy of a military target may be controversial, the line between legitimate military targeting and assassination may not always be clear.
Using military personnel to target individuals has always been a weapon in the USG’s foreign policy arsenal. Over the past decade, such targeted killings have been particularly prominent. In 2006, the USG conducted a successful targeted killing of Abu Musab al-Zarqawi, the Jordanian leader of al-Qaeda in Iraq.51 Bush, Jr. referred to the killing as a mechanism that “delivered justice.”52 More recently, the administration of President Barack Obama has fatally targeted suspected terrorists and other alleged atrocity perpetrators.53 In 2011, after USG forces had been hunting al-Qaeda leader Osama bin Laden for years with the intent to kill him,54 American soldiers mortally shot him. The USG strike team was reportedly explicitly ordered to kill, not capture, bin Laden.55 Bush, Jr. and Obama both characterized this targeted killing as “justice” being “done.”56 The same year, the USG also used a drone attack in Yemen to kill Anwar al-Awlaki, an American-born Muslim cleric and al-Qaeda propagandist, and Samir Khan, an American citizen of Pakistani origin who was an editor of al-Qaeda’s English-language online magazine.57 The U.S./DoJ wrote a secret memorandum authorizing the targeting of al-Awlaki, justifying the legality of this lethal attack.58 By April 2013, the Obama administration had killed approximately 3,000 individuals in counterterrorist strikes overseas, mostly by using drones.59 Since then, the USG has continued killing or injuring individuals through such means.60
Members of the Obama administration, however, have not always agreed on the morality, legality, or utility of its potential targets or tactics.61 Some of these targets, such as bin Laden, were unarmed and foreigners.62 Others, such as al- Awlaki and Khan, were American citizens, who some commentators argue are, or at least should be, entitled to due process under the U.S. Constitution and thus protected from extrajudicial executions.63 Contrary to the Obama administration’s repeated claims, the targeted killings have not been limited only to officials, members, and affiliates of al-Qaeda who pose an imminent threat to the United States.64 Sometimes these missions have resulted in unintended deaths, fatalities that the USG has, on occasion, belatedly admitted after attempting to cover up.65 The USG has also participated in military targeting indirectly by providing support to non-USG groups that use force against suspected atrocity perpetrators.66
Like legitimate military targeting, assassination has historically been a part of the USG’s foreign policy toolbox. The USG has attempted or carried out assassinations (or has acquiesced to or supported assassinations attempted or carried out by its allies) in which transitional justice may have been a motivating factor. As discussed in Chapter IV, U.S. officials considered summarily executing Nazis after WWII. More recently, as revealed by a 1975 U.S. congressional report, the USG has either attempted or completed the assassination of several foreign leaders (who may or may not have been involved in atrocities), including Congolese prime minister Patrice Lumumba in 1961, Dominican president Rafael Trujillo in 1961, Cuban president Fidel Castro from 1961 to 1963, South Vietnamese president Ngo Dinh Diem in 1963, and Chilean president Salvador Allende in 1970 to 1973.67 Commentators suggest that the USG was involved in other assassinations, including that of Ernesto “Che” Guevara in 1967.68 Even after President Gerald Ford signed a 1976 Executive Order prohibiting political assassinations,69 which was refined by President Jimmy Carter in 1978,70 the USG has allegedly in some cases and admittedly in others continued to plan assassinations, including on Guyanan opposition leader Walter Rodney in 1980.71 Furthermore, even after President Ronald Reagan’s 1981 Executive Order, which expanded the prohibition on political assassination to include all types,72 the USG, without issuing any superseding directives, has attempted several assassinations, including on former Iraqi president Saddam Hussein and former Libyan leader Muammar Gaddafi.73 One American commentator noted that al-Alwaki “appears to be the first United States citizen that our government has publicly targeted for assassination.”74
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