There is a widespread understanding that assassination is often, if not always, illegal in international (and normally domestic) law – for example, in armed conflict, an assassination would be illegal if it used “perfidy” (treachery) under Additional Protocol I to the 1949 Geneva Conventions. However, a starting point for any discussion of the issue must be the recognition that there is currently no clear definition or international understanding of what constitutes “assassination.” That said, for the sake of this blog post, assassination (although I genuinely prefer the term “targeted killing”) will be understood broadly as the planned direct killing of an individual because of his or her perceived membership in (and often perceived leadership of) a terrorist movement. 

Armed with Assassination?

Assassination advocates frequently rest their arguments on three assumptions: 1) that terrorists “do not play by the rules” and, as such, do not deserve any protections under the international law that they regularly violate; 2) that assassinations directed against outlawed state leaders and terrorists are often easier, more pragmatic, and leave a lighter footprint than full-scale invasions; and 3) that assassination is a viable and effective counter-terrorism strategy.

The first idea is not morally unintelligible: That we should apply the protections of international law to those who constantly and consistently violate that law for their own advantage seemingly harkens back to a notion of reciprocity that played a historical role in supporting the enforcement of the laws of war. For example, in the past, states treated prisoners of war well, with the assumption that their own captured personnel were afforded similar treatment. With this in mind, assassination advocates invoke the notion of “the Golden Rule,” or “do onto others,” when looking to ground their stance. Based on this logic, if terrorists consistently target leaders and soldiers, they render themselves fair game. However, modern treaties of the laws of war have largely downplayed crude reciprocity as a basis of application – states are now largely expected to apply the laws, regardless of the actions of their opponents, to ensure that a bare minimum of humanity is maintained and a spiral of tit-for-tat violence is avoided. And if this reasoning is insufficient for assassination advocates, they should consider, too, that the “Golden Rule” logic has been overwhelmingly rejected by western militaries as immoral and not reflective of western military values.

The second idea – that states should “take out” individuals rather than send in armed forces, invade countries, or engage in mass bombing campaigns – is also not prima facie unethical or immoral. It is not difficult to see the logic of employing drone strikes to take out terrorist organizations when sending in ground troops would be next to impossible, dangerous, or politically unviable. (Consider, for instance, the Taliban/al-Qaeda-affiliated terrorists, which operate in the mountainous areas of Afghanistan/Pakistan.) However, this is a very particular circumstance, related to a specific context. To suggest that one can derive a general political, legal, or moral right from this one example to justify any and all “assassinations” is highly problematic.

Finally, and most importantly, the largest problem with arguments put forward by assassination advocates is the underlying assumption that assassination is an effective counter-terrorism strategy. Unfortunately, research and scholarship on assassination have not been able to demonstrate that this is actually the case. This is partly due to the secretive nature of assassination programs: We simply do not know what is happening on the ground in Afghanistan, Pakistan, Yemen, and other areas of the world where assassination strikes against terrorists have been carried out. The lack of access to much of this information also means that measuring the impact of such exercises is extremely difficult. Furthermore, there has been little thought given to how we measure the “success” of assassination. Is it simply deemed successful if it eliminates individuals seen as threats? If there is a measurable decrease in the number of attempted, or successful, terrorist attacks carried out by the target’s organization? Or is it necessary to look at second- and third-order effects such as the target organization’s morale, recruitment, support from the population, etc.?

There is, quite simply, no evidence that assassination works as a counter-terrorism strategy (or, to be fair, that it doesn’t). At best, killing terrorist suspects or “rogue” leaders may have the advantage of instantly eliminating a threat, or lead to the dissolution of a terrorist group. However, it would seem that examples of this happening are actually few and far between. Instead, there may be a series of unanticipated consequences: terrorist leaders may be replaced with leaders who are actually worse or more violent; terrorist groups may split into rival camps, making future attempts at reconciliation or negotiations more difficult; or, as mentioned above, there may be negative second- and third-order effects (i.e. a targeted-killing/assassination campaign may inspire terrorist recruits among a population that feels it is under siege. In this case, the number of terrorists may actually increase rather than decrease.).

Additionally, while assassination advocates may not be particularly sympathetic to the idea that capturing terrorists and putting them on trial helps to emphasize the rule of law and justice, they seem to overlook the fact that “dead men tell no tales.” States often benefit from gaining information from captured terrorists – about the nature of their operations, other operatives, and future plans. Clearly, it is impossible to gain such information from terrorists who have been killed.

The Big Questions

Assassination advocates are correct about one thing: that states, particularly the United States, have increasingly engaged in assassination-like activities since 2001. Although the United States executive has restricted its use of assassination through such policies as Executive Order 12333, it justifies its actions using a legal argument that combines the international right of self-defence and the 2001 Authorization of the Use of Military Force. In doing so, the U.S. has placed its direct targeting of terrorists under the umbrella of activities carried out as part of the War on Terror, which it views as an international armed conflict. Critics of these policies are concerned that the U.S. has simply taken the idea of self-defence too far – that the War on Terror and justification under “self-defence” has been expanded into creating a global battlefield where anything goes, including the killing of individuals deemed to be threats, outside of any judicial supervision whatsoever.

In this new paradigm of warfare, there are still many unanswered questions that should be addressed – regardless of how you feel about the norm of assassination.

First, under the framework of the War on Terror, what criteria are states using to determine who is a legitimate target? While Osama bin Laden’s status as a legitimate target was widely accepted given his role in actively providing leadership and material support to al-Qaeda, the targeting of Anwar al-Awlaki, an individual who has been linked with ideologically supporting terrorism, but who has a less clear and direct material connection, was arguably more controversial. At the very least, this seems to suggest a widening of the criteria as to who is an eligible target in the War on Terror. So what criteria are states (particularly the United States) using to designate someone as a legitimate target, whether or not they are using a law-of-war framework?

Second, it is not clear what legal precautions states (again, especially the United States) have put in place. A law-of-war framework assumes that actions we would typically characterize as military in nature are carried out by armed forces who are trained in, and subject to, international agreements, such as the Geneva Convention. However, the drone program in Yemen, Afghanistan, and Pakistan is widely understood to be carried out by civilians at the Central Intelligence Agency who have not necessarily received law-of-war training, and who may not be considered legitimate combatants.

Third, while Israel has come under heavy criticism for its targeted-killing campaigns, at least the targets have frequently been made public, and are subject to judicial review. Although the United States’ drone campaigns in Yemen, Afghanistan, and Pakistan have been kept secret out of necessity, as a democratic country, the U.S. should be more open about the criteria it uses to justify targeting individuals, and about the precautions it takes to ensure that such campaigns are conducted as legitimately as possible. This would serve to demonstrate that the campaign is governed by rules, and that it is not at the whim of counter-terrorism officials.

Finally, as there is no evidence either for or against the effectiveness of assassination as a counter-terrorism strategy, states should identify the indicators of success that they (and their populations) are looking for. The seriousness and significance of engaging in targeted killing suggest that, while determining what constitutes success in counter-terrorism, governments should at least be able to say what benefits they expect to see as a result of their engagement in this kind of activity.

Ultimately, accountability and responsibility are two key features of the western tradition of warfare. This is not only for legal and moral reasons, but also because the past 100 years have seen a clear link between legitimacy, efficiency, and effectiveness. Democratic accountability is important to ensure that programs do not run amok, and that governments, policy-makers, and citizens can expect results at the end of the day.

Unfortunately, the assassination programs currently in existence fall short of meeting these standards. While the United States may remain engaged in a War on Terror, relying on a declaration of self-defence and decisions that were made over a decade ago – at a time when that war looked very different – is problematic. While counter-terrorism activities must realistically stay secretive, this does not mean that any and all democratic accountability is out of the question.

This essay is part of OpenCanada’s How We Fight series.

Photo courtesy Reuters.