The Politics of a Lethal Name

Over the past few weeks I have been working on my PhD proposal. Apart from being a huge distraction from the blog (!), the proposal is, in many way, a blueprint for my whole project and although it has been arduous it has also been immensely productive (and relieving) to put thoughts to paper and to create a workable project! Over the next few posts I will be culling and rewriting parts of the proposal to give an idea of my broader interests and research directions. As is always the case with these things, editing, rewriting and chopping helps to sharpen the key points and arguments so aside from sharing, this exercise will hopefully be very useful for me too!

My research is about the geography, history and law of targeted killing. Here I want to say some preliminary words on the last of those four things.  Targeted killing has a number of definitions, all of which are contested It’s also worth pointing out that the laws of war do not define targeted killing per se: something that it will surely have to eventually (but then again, the laws of war have never been quick to respond – let alone pre-empt – changes in warfare). I’ll save the intricate debate about the definition and naming of targeted killing for a future post, but suffice it to say for now that one productive way to think about targeted killing, I think, is as a form of legalised assassination [see A Law To Kill – downloads tab]. This word scares many, and rightly so. Kenneth Anderson, a legal scholar at the Brookings Institute who is otherwise unapologetic about his support for U.S. targeted killing policy, noted  in 2009 that “extrajudicial killing is one of the most serious violations of international human rights [law]“. Assassination is a dirty word and it is unsurprising that states would want to distance themselves from such language.  In a speech given earlier this year, for example, Jeh Johnson, the General Counsel of the Department of Defense, spoke directly about his repulsion for the term:

“On occasion, I read or hear a commentator loosely refer to lethal force against a valid military objective with the pejorative term “assassination.” Like any American shaped by national events in 1963 and 1968, the term is to me one of the most repugnant in our vocabulary, and it should be rejected in this context. Under well-settled legal principles, lethal force against a valid military objective, in an armed conflict, is consistent with the law of war and does not, by definition, constitute an “assassination.””

I’ll leave you draw your own conclusions here, but it is worth pointing out that Johnson is absolutely correct that the use of what he calls ‘lethal force’ is perfectly legal under the Geneva Conventions and the laws of war. This is not the same as saying that all lethal force in war is legal, of course – because clearly it isn’t. Targeted killing can be lawful but it can also be unlawful: it depends on the circumstances in which it is deployed, at least according to the Israeli Supreme Court (HCJ) (see the pdf of the 2006 ruling here). One of the key prerequisites for determining the legality of a targeted killing is that a strike must be part of a war (or what lawyers call ‘armed conflict’). Outside of an armed conflict, targeted killings are nearly always (and by definition) illegal unless they directly save life (see Philip Alston’s report as U.N. Special Rapporteur here where he explains what it (not) allowed under human rights law). This is why commentators have cited U.S. drone strikes as classic examples of assassination: because so many of them take place outside of the warzone, in Pakistan, Yemen and Somalia (states with which the U.S. is clearly not at war with). The Obama administration’s way around this, of course, has been to define these spaces as part of an ongoing and ambiguous war on al-Qaeda, the Taliban and what they call “associated forces” (see for example, Harold Koh here). Such vitriolic reaction from the likes of Johnson toward the word assassination is symptomatic of this geo-juridical fudging: assassination is that which happens outside of the warzone, and seen as there is no outside to the warzone, there is no assassination. It’s no accident that all of this quickly becomes utterly Orwellian: war is peace, slavery is freedom and assassination is targeted killing. No, really…

These geo-legal wranglings require a further post, but I want to get back to my thesis and claim that targeted killings are a form of legalised assassination. I am not claiming that they are the same thing, not at all. By ‘legalised assassination’ I partly mean that there is a significant legal discourse about targeted killing, a legal discourse that also existed around assassination to be sure, but did so in a very different register. Executive Orders like EO12333  drawn-up by Reagan in 1981, for example, prohibited assassination: “”No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination” (see the full document at the U.S. National Archives).  For years, Israel denied its hand in assassinations, even after Munich and, of course, the U.K. did the same with its MI6 (again, more on this later). But in those very same states which once publically abhorred assassination, we have moved from a discourse of prohibition to a discourse of permissiveness, arriving at a position that targeted killing is not ipso facto illegal in the same way that assassination was. Even the human rights lawyers and those with humanitarian sympathies have had to make this concession (see e.g. legal scholar Nils Melzer’s fantastic book on the law of targeted killing – Melzer, by the way is one of the world’s leading authorities on the legality of targeted killing). Significant ground has been lost in the transition from assassination to targeted killing, as have many lives.

Targeted killing is both an anesthetising discourse and a euphemistic one. Israel invented modern targeted killing as a name and a practice: it was the first state to ever publically acknowledge that its armed forces carried out targeted killings as a matter of official policy. When Israel began this policy it was opposed vehemently by the international community. British Foreign Secretary Jack Straw claimed that the assassinations were “unlawful, unjustified and self-defeating“. The E.U. said the policy amounted to “extrajudicial killings” while the U.S. said such action was “heavy-handed”. Even George Bush opined that such behaviour did not “contribute to peace in the Middle East“.  Israel continued and indeed still continues its policy of targeting and killing Palestinians: since 2000 over 430 have been killed by this method, 3/4 of them in Gaza, according to Israeli human rights group B’Tselem.

It is extraordinary to think that just 10 years ago, and even after 9/11, the U.S. government was opposed targeted killings, at least on the official record. We know that the CIA have been involved in numerous assassinations and assassination attempts (for an overview of which you can see a little-known but immensely revealing report published by the U.S. Senate in 1977) but the key difference in 2000 was that Israel took the unprecedented step of taking full responsibility for conducting an assassination. It didn’t call it that, or at least it didn’t call it that for long. Israel immediately stopped using the word “assassination”, and dropped all terms which carry a negative and illegal connotation. In 2001, Attorney General Elyakim Rubinstein pointed out that the term “liquidation” damages Israel’s image and proposed that it was better to use the phrase “targeted killing” to describe the policy. The change in terminology is immensely significant because it changes the act of killing from one that is always-already illegal to one that is, if not persuasively, then at least plausibly, legal and permissible. If the plausibility clause could survive, then the legalization of targeted killing could take place through a number of legal fora, political statements and – with time – state practice and customary international law.

The lawyers and the leaders moved fast. On 3 July 2001, the “kitchen cabinet” gave the Israeli army “a broader license to liquidate Palestinian terrorists” and allowed the army “to act against known terrorists even if they are not on the verge of committing a major attack”. In February 2002, the Judge Advocate General of the Israeli army issued further guidelines legitimizing assassinations and the policy was justified publicly as part of a “war of commandment” by the highest religious authorities in Israel. Targeted killing had been sanctioned from on high in the Israeli legal and religious elite.

But contrary to what I have led my readers to believe, assassination and its transformation into targeted killing is only one small part of my proposed research. What I am really interested in is the law of targeted killing, and looking at the parallels  – and differences – between assassination and targeted killing provide one avenue through which we can examine the historical contours of targeted killing law. But I have gone on for too long and I haven’t even reached the interesting bit yet.




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