A Tale of Two Evil Men: More Droning on Targeted Killing

Cross-referencing: NSL ch. 6 & General Commentary

I recently received a call from a US reporter writing a story on Mary Ellen O'Connell, one of the most prominent US legal academics who has persisted in questioning the legality of the US policy of targeted killing.  The reporter wished to gauge the views of non-US international lawyers on this topic.  I cannot speak for that larger community, but I can speak for myself.

I doubt the legality of this policy, at least outside of the context of conventionally understood armed conflicts.  I have blogged before on my concerns, and shall do so again.  But this time I shall explore the topic with reference to two Evil Men Who Deserved to Die (EMDOD).

The two EMDODs in question are Adolph Eichmann and Osama bin Laden.  Both were killed by the state whose citizens were victimized by their acts.  By the standards of any era, both were evil.  And because of the manner in which they expressed that evil, I agree that they deserved their ultimate fate (whatever my views on the death penalty).

But from this point forward there is a difference.  Adolph Eichmann was rendered (snatched and removed from Argentina to Israel), and then tried and executed by judicial order.  Osama bin Laden was executed by executive fiat.  To be fair, the facts in relation to bin Laden are contested.  Was he armed, did he resist?  Were there actually capture orders?  Recent reporting suggests that President Obama wanted him tried.  But those same accounts are also fuzzy about what the special forces unit involved in the event was expected to do.

The Lex Specialis of Killing

Let us assume, however, that bin Laden is in fact a representative of that class of persons who has been targeted for killing and his death was not the result of an extraction rendition that went sideways. If I am wrong about this, then we could just insert the names of some other EMDOD in lieu of bin Laden -- there are all sorts who have been on the receiving end of a drone missile.  

I am not aware of any argument advancing the view that an outright execution of Eichmann by the "volunteers" who snatched him from the street of Buenos Aires would have been legal.  The snatching itself was illegal of course -- and Argentina did voice its views on the violation of its sovereignty.  A killing would have been even more illegal -- a violation of sovereignty and an extrajudicial execution.  (To be fair, the Eichmann case predates the full development of international human rights law, so there is an anachronistic aspect to this last assertion).

Osama bin Laden was killed long after the concept of extrajudicial execution received full treatment in human rights law.  And we needn't rehearse convoluted arguments about the extraterritorial reach of this ban.  I have discussed this elsewhere, and I am content that the views of the UN Human Rights Committee represent the proper and only sensible approach to the question.  That is, "it would be unconscionable to so interpret the responsibility under article 2 of the Covenant [on Civil and Political Rights] as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory".  Sergio Euben Lopez Burgos v. Uruguay, Communication No. R.12/52, U.N. Doc. Supp. No. 40 (A/36/40) at para. 12.3. 

(I know there could be a protracted argument about whether the effective control concept now associated with the extraterritorial reach of the Covenant applies when someone is shot from a distance.  It is hard to envisage, however, the success of arguments advancing a version of the law that limits what a state does once it grabs someone but permits them to do whatever they wish if they do so from a distance.  That said, I acknowledge that exact and problematic distinction is one possible explanation for the confusing European Court of Human Rights jurisprudence under the equivalent rules of the European Convention on Human Rights).

So how is Eichmann different from Osama bin Laden?  Everything turns of whether human rights constitutes the basis for assessing the legality of the killing, as opposed to international humanitarian law (IHL).  The latter permits extrajudicial killings.  The former does not.  Whether IHL applies depends on whether there is an armed conflict -- in practice a non-international armed conflict between a state and a non-state actor (Al Qaeda).

The seemingly majority view in the United States is that there is, in fact, an armed conflict against Al Qaeda wherever it may be found.  I believe this to be a doubtful proposition that becomes even more doubtful with the passage of time.  

And on this point there is a doctrinal objection and a political objection.

When it Comes to Theatres is the World a Stage?

In terms of doctrine, we have a serious problem of round pegs and square holes.  The round peg is the measures taken in relation to 9/11 terrorism.  The square hole is conventional rules on non-international armed conflicts.  I outline these issues here.  But in summary, I subscribe to a Tadic style intensity requirement for non-international armed conflicts that serves as a on-off switch for the existence of such a conflict.  

I shall call my view "theatre specific" as opposed to the "theatre independent" approach preferred by many US commentators.  In my version, non-international armed conflicts between a state and a non-state actor only exist in those geographic theatres in which violence reaches a protracted intensity requirement, per Tadic.  I think this is the only plausible approach when a non-state actor is as (increasingly) amorphous and intangible as Al Qaeda.  The latter is now more movement than formal entity.

To be fair, there are defences of the "theatre independent" view.   The clearest and quite compelling vision of it that I have encountered is Professor Michael Lewis's "Drones and the Boundaries of the Battlefield".  Professor Lewis critiques a theatre specific definition of non-international armed conflict: "By limiting IHL to territory on which the threshold of violence for an armed conflict is currently occurring [in keeping with the Tadic test], [the theatre specific view of] IHL would effectively create sanctuaries for terrorist organizations in any state not currently involved in a domestic insurgency in which law enforcement is known to be ineffective" (at text around footnote 91).  Professor Lewis instead proposes that the existence of an armed confict, and thus the applicability of IHL, should depend on the overall level of violence between the state and non-state actor, pooled regardless of geography.  The result, of course, is the theatre independent approach to non-international armed conflict, leavened in Professor Lewis's analysis by a recourse to a neutrality style law.  That is, states harbouring the non-state actor would be the locus for use of force unless they declined to cure the problem themselves.

Professor Lewis's argument is creative -- it offers a legal argument and not simply an invocation of expendiency to justify the theatre independent view.  But I think that on simply doctrinal terms, the Tadic view has the upper hand. That is, there is more clear law here.

That, of course, is no real answer.  (In international law, it seems that doctrine is the last refuge when all else fails.)  The real answer to Professor Lewis's concern about sanctuaries is that the theatre specific view does not create sanctuaries.  It creates a test for assessing which rules of law apply.  The zone in which lethal force cannot be used is the one in which there is no armed conflict.  To equate that to a sanctuary supposes that the only tool available in the arsenal is a hammer.  And yet, a hammer was not the tool used by the Israeli "volunteers" to bring Eichmann to justice. 

That might a trite comparison, since Eichmann was an old man in quasi-hiding, not (or at least no longer) the member of an organized group able to resist with violence.  That said, it is also overbroad to imagine that every terrorist is different from Eichmann.  Take Osama bin Laden, when he was killed.  He was a lot more like Eichmann than like a para-military chieftain protected by hard military power.

All of this is to say that the logic of "theatre specific approach = no use of lethal force = impunity for terrorists in havens" is not clear cut.  Since this logic is the defining justification for letting people be killed by military force (in large number and often not the right ones), surely we should expect it to be watertight.

More than that, it is entirely unclear how one tabulates the violence attributed to Al Qaeda per the Lewis approach to consider whether a global conflict exists.  Bombings in Madrid, London, Bali and elsewhere, spaced in time and conducted by an array of terrorists, including "home grown".  To be included in the calculus, would these have to be commanded and controlled by Al Qaeda Central?  Would you include copycats and ideological fellow-travellers?  If so, suddenly your non-international armed conflict is a global armed conflict against an idea, and the drones are launched in a game of shadow boxing.

Blowback 2.0

More generally, in terms of politics, the risk presented by lowered thresholds on the use of armed force is extreme.  We are confronted with legal arguments marshalled to support to actions of the goose that would be more universally troubling if applied to the gander: prospective Russian drone attacks on Chechen terrorists in border states; Chinese targeted killings of Uyghur "splittists"; Indian commando attacks in Pakistan against Kashmir militants.  Or, to use a more actual, historical example: apartheid South Africa assassinations of ANC fighters in frontline states.  These are not just implausible hypotheticals.  Iran is apparently developing its own drones.  Surely it is better to gird your law firmly when the technology it should govern proliferates like weeds.

Poll most people in my neigbourhood and I suspect the "ick" factor of targeted killing goes up when you change the person launching the attack from "Obama administration" to any of the above players.

More generally and more critically, anything that opens the door wider to legitimate state use of violence will, with the passage of time, cause a blowback that hurts international stability (among other values).  Put another way, legal expediency that facilitates hard power solutions to complicated, endemic problems bites back.  Great powers can often skate above the repercussions of their acts, until they can't anymore.  And then, they, like the rest of us, benefit from rules that stay the hand of vengeance in the interest of collective security.

All of this is to say that Osama bin Laden and his confreres killed in drone attacks (and by whatever other means) in theatres removed from actual zones of conflict may have been EMDOD.  But I do not believe the international community deserves the long term implications of the legal arguments advanced to justify their killings.  

And so bravo to Mary Ellen O'Connell for her vocal dissent.  For those more inclined to find international law justifications for the killing of EMDOD, be wary of what you have wrought.  The extra-judicial executions of evil men makes for bad law.