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Reciprocity and Self-Defense in Relation to Targeted Killing
by <http://richardfalk.wordpress.com/author/richardfalk/> Richard Falk
This post is a modified and expanded text of a contribution to a Jadaliyya
roundtable on targeted killing posted on March 5, 2012, and responding to the
article by Lisa Hajjar referred to in the opening paragraph.
**********************
There is an emergent Israeli/American controversy on the lawfulness of targeted
killing. Although the policy has not yet attained the status of being a
national debate, there are signs that it may be about to happen, especially in
light of the Attorney General, <http://en.wikipedia.org/wiki/Eric_Holder> Eric
Holder’s
<http://maps.google.com/maps?ll=41.8963,-87.6174&spn=0.01,0.01&q=41..8963,-87.6174%20(Northwestern%20University%20School%20of%20Law)&t=h>
Northwestern Law School speech on March 5, 2012 outlining the Obama’s
administration’s controversial approach to targeted killing in some detail.
Lisa Hajjar convincingly narrates how the “legalization” of targeted killing
has evolved over the course of the last twenty years. [Hajjar, “
<http://en.wikipedia.org/wiki/Lawfare> Lawfare and
<http://en.wikipedia.org/wiki/Targeted_killing> Targeted Killing:Developments
in the Israeli and U.S. Contexts,” Jadaliyya, Jan. 15, 2012] She there calls
attention to the analogy to the torture debate that, in many ways, defined the
political and moral identity of the Bush presidency in the aftermath of the
9/11 attacks, and even caused moral and legal fissures to develop that divided
the American people unto this day.
Hajjar shows that it was
<http://maps.google.com/maps?ll=31.7833333333,35.2166666667&spn=0.1,0..1&q=31.7833333333,35.2166666667%20(Israel)&t=h>
Israel that first crossed the threshold of legality in response to a wave of
suicide bombings that traumatized Israeli society in the 1990s. In other words,
targeted killing became a tactic of choice for both the Israel and the
<http://maps.google.com/maps?ll=38.8833333333,-77.0166666667&spn=10.0,10.0&q=38.8833333333,-77.0166666667%20(United%20States)&t=h>
United States as part of the preventive logic of counter-terrorism, that is,
placing a premium on eliminating threats before harm is inflicted rather than
the reactive logic of striking back and retaliating. The upsurge in targeted
killing seems responsive to the belief that neither defensive strategies nor
deterrence, nor massive retaliation are appropriate or effective against a
terrorist adversary, especially if the violence might accompanied by the
readiness of a perpetrator to die while carrying out a mission.
By so doing, it gives up on the struggle to restrict the discretion of states
to claim self-defense as an open ended justification for the use of force. This
is a major setback for war prevention efforts resting on international law that
can be traced back at least to the
<http://en.wikipedia.org/wiki/Kellogg%E2%80%93Briand_Pact> Kellogg-Briand Pact
of 1928 that outlawed recourse to war, and was later reinforced and elaborated
at the Nuremberg trials and in the core provisions, Articles 2(4) and 51, of
the UN Charter. In other words, from an international law perspective the
stakes are higher than they might seem in the context of authorizing target
killing by invoking the alleged security necessities of the ‘war’ occasioned by
the 9/11 attacks. Holder framed his defense of the tactics, including targeted
killing, relied upon by the <http://whitehouse.gov> Obama presidency in the
terms initially laid down by
<http://www.rottentomatoes.com/celebrity/george_w_bush> George W. Bush in his
September 20, 2001 speech to a joint session of Congress: “We are a nation at
war.” How different might the last decade have been, and likely for the better,
if Bush had opted back then in that feverish atmosphere for a policy of
enhanced law enforcement, not a global war on terror. And one can only wonder,
and question the failure of Obama to take advantage of the changed climate in
2009 when he moved into the White House, or after the
<http://maps.google.com/maps?ll=34.1691666667,73.2425&spn=0.01,0.01&q=34.1691666667,73.2425%20(Death%20of%20Osama%20bin%20Laden)&t=h>
execution of Osama Bin Laden, to indicate that the war was at an end, and from
now on the guidelines of law enforcement would prevail. Earlier terrorist
organizations operating in Europe poses much greater threats to the security of
societies than is posed by the remnants of Al Qaeda, and never insisted on the
governmental prerogatives of warmaking.
In considering the victims of targeted killing we are dealing with one aspect
of the plight of rightless Palestinians and alleged American enemies scattered
around the world, with an inevitable skepticism about the degree to which this
unaccountable authority to kill individuals is exercised in a responsible
manner as claimed by its apologists, most recently by Eric Holder. Looking at
the Israel record with respect to Palestinian prisons or the American treatment
of its detainees at Abu Ghraib or Gunatánamo Bay there is every reason to doubt
whether the claims of great care exercised in the approval of targets are to be
trusted at all. Certainly, those selected for torture were often persons
without information and sometimes without any real involvement with terrorist
activities. In important respects, target killing is worse than torture due
both to its finality which deprives the target of any opportunity to tell his
or her story, and because of the collateral damage inflicted on those unlucky
innocents who happen to be in the killing zone—or are mistakenly targeted.
Lawfare: Hajjar draws an instructive distinction between those who regard
reliance on law and courts as a positive dimension of political democracy and
those who view recourse to law as a means to delegitimize states and their
security policies. I would develop this distinction by viewing civil society’s
recourse to litigation and legal arguments as “constructive lawfare,” while
viewing the denigration of law’s role by governments, specifically, Israel and
the US, as nihilistic or regressive, and an effort to free themselves from all
forms of legal accountability that they cannot fully control. Such efforts to
deplore recourse to law and international standards of legitimacy aim to
insulate state security policy from procedures and discipline of
accountability, and deprive society of an absolutely necessary check on the
abuse of state power undertaken in secrecy and insulated from even post-facto
investigation. Constructive lawfare is one of the few means available in a
democratic society to redress the new imbalance between state and society in
the post-9/11 world, and in relation to the acute vulnerability experienced
daily by a people living under occupation for decades.
Instead of seeking to invalidate ‘lawfare,’ governments that took seriously
their own insistence on the importance of living according to cherished values
would move to allow citizens to have greater access to courts to raise
questions of international and constitutional law flowing from governmental
security policies.
More specifically, it would be a meaningful gesture in this direction if the
U.S. Government were to foreswear procedural copouts from accountability by
renouncing the political questions doctrine, executive privilege, and sovereign
immunity. Holder quotes Obama several times to the effect that adhering to the
rule of law is the right thing to do, but also because it is more effective in
upholding security interests. As Obama expressed it as the National Archives in
2009: “[w]e uphold our most cherished values not only because doing so is
right, but because it strengthens our country and it keeps it safe. Time and
again, our values have been our best national security asset.” If that were
genuinely believed, then a different approach would have been long ago adopted
both in relation to targeted killing, and more generally, to security: less
secrecy, more accountability, and more readiness to recognize and address the
legitimate grievances of foreign adversaries.
Reciprocity: David Cole makes the following
<http://www.nybooks.com/blogs/nyrblog/2011/sep/19/secret-license-kill/> cogent
observation on his New York Review of Books blog (19 September 2011): “In
international law, where reciprocity governs, what is lawful for the goose is
lawful for the gander.” He goes further in questioning the approach taken to
targeted killing by the Obama administration as being unmindful of setting a
precedent that is a prelude to future regret: if we “continue to justify such
practices in only the vaguest of terms, we should expect other countries to
take them up—and almost certainly in ways we will not find to our liking.” In
effect, he is adopting the view that Obama embraces, which is the convenient
convergence of virtue and practical benefit.
It is true that international law in many substantive domains, from diplomatic
exchange to commerce, substitutes reciprocity for enforcement, and so what is
claimed for oneself is granted to others. However, in the domains of national
security, the use of armed force, and criminal accountability for gross crime,
international law operates more characteristically according to an imperial
logic, or at best a hegemonic logic, in which equals are not treated equally.
It is obvious that losers in wars with the West and leaders of some Global
South countries are being held more and more accountable for crimes against
humanity, especially since the establishment of the International Criminal
Court a decade ago. But it is equally obvious that leaders of Western
countries, including Israel, enjoy de facto impunity despite their evident
involvement in crimes against humanity.
The one exception, which irritates geopolitical actors clinging to impunity, is
the haphazard efforts to detain and prosecute state officials and agents under
the controversial rubric of universal jurisdiction. Hajjar’s article gives a
helpful summary of the pull and push pressures associated with attempts to rely
on universal jurisdiction in relation to Israeli military and political leaders
whose travel carries them to countries in Western Europe that have laws on
their books permitting the use of domestic courts to pursue accountability for
crimes of state committed beyond normal territorial sovereignty. What is most
notable is that these attempts to extend the reach of international criminal
law beyond what is possible at a global level are furiously resisted by the
United States and Israel, claiming the potential disruption of diplomatic
interaction. True, the imposition of law can be disruptive, but the refusal to
apply law is also disruptive in a different way by discrediting fundamental
claims about animating values.
Whether the targeted killing precedents being set by the US and Israel will
come to haunt these countries is highly uncertain, and they will do what they
can to persuade public opinion that such claims made by hostile states are
undisguised terrorism. Israel can assassinate Iranian nuclear scientists with
impunity, while an alleged Iranian threat to kill a Saudi Arabian diplomat,
which never materialized, is treated as a heinous instance of international
terrorism is never questioned in the mainstream media. In other words, the
language of law will be used in contradictory ways to deal with our acts and
theirs’.
The US used atomic bombs against Japanese cities at the end of World War II,
escaped any kind of accountability as war crimes prosecutions were limited to
the wrongdoing of the Germans and Japanese, the losers in the war, which led
critics of such double standards to deride the outcomes at Nuremberg and Tokyo
as “victors’ justice.” In the current era, practices of targeted killing are
certain to spread. Fifty countries have drones, and some deploy them for
surveillance and reconnaissance missions. For example, Turkey, in fighting
against Kurdish insurgents, made use of drones to carry out recent cross-border
raids against PKK base areas in northern Iraq. The future will almost surely
witness a strong effort by the United States to impose geopolitical discipline
on attack uses of drone aircraft. Whether such an effort will be successful is
uncertain as the relative high accessibility of drone technology as compared to
nuclear weaponry may make it impossible to implement a non-proliferation
approach.
Surely, Iran would have strong grounds to emulate Israeli and American practice
with regard to targeted killing, particularly in view of the alleged Israeli
targeting and assassinating of Iranian nuclear scientists in recent years, as
well as mounting repeated overt threats of launching an attack designed to
disable Iran’s nuclear program. Such threats would appear to be direct
violations of Article 2(4) of the UN Charter that categorically prohibits “the
threat or use of force” except in situations of self-defense against a prior
armed attack (Article 51) or as mandated by a decision of the UN Security
Council. But if Iran was to avail itself of the targeted killing precedent to
assassinate individuals in Israel or the United States that it deemed to be
threatening or responsible for a prior attack on its citizens, such violence
would be denounced as “terrorism,” and devastating forms of retaliation would
almost certainly follow.
In other words, reciprocity is not likely to shape the future of targeted
killing, but rather a regime of double standards tailored to the specific
realities of the spread and use of drone weaponry. If such a one sided regime
is established it would have the effect of giving a new meaning to military
superiority in the 21st century, and widen the opportunities for geopolitical
management of international conflict. It is hard to imagine that China or
Russia, and perhaps others, would acquiesce in this event, and new dangerous,
costly, and unstable rivalries among leading sovereign states might likely
ensue.
Human Rights: It is important to introduce the perspectives of human rights
into the legal debate on targeting killing, and not limit inquiry to the
applicability of international humanitarian law as set forth in the Geneva
Conventions of 1949 and the Geneva Protocols of 1977. Targeted killing of a
non-combatant involves a challenge to the right to life, as well as constitutes
a flagrant form of extra-judicial execution. UN Special Rapporteur on
Extra-judicial, Summary or Arbitrary Executions Philip Alston, in his
influential
<http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf>
2010 report to the UN Human Rights Council, legally condemns targeted killing
by drones on these bases, especially those taking place outside the combat
zone, or as the Obama presidency puts it, far from “the hot battlefield.”
These human rights objections to targeted killing take on added force when
extended to individuals who are suspected of inciting terrorist acts, as was
the case with Anwar al-Awlaki, but without any disclosure of evidence of either
the case against the target or a credible demonstration that such an individual
posed an imminent security threat and could not be captured. As Hajjar points
out, the difficulties posed by detention constraints and questionable evidence
that would hold up in court exert pressure to avoid these complexities by
killing the person in question.
Self-defense: The most serious encroachment on relatively settled conceptions
of the self-defense exception to the international law prohibition on the use
of force is the US reliance on an extended definition of self-defense to
validate targeted killing in countries outside existing combat zones. To view
the execution of individuals in Yemen or Somalia on the ground that their
activities are to be assimilated to the claim of self-defense associated with a
continuing urgent response to the al-Qaeda 9/11 attacks is to unilaterally
expand the option of recourse to international force beyond what international
law had attempted to impose on states after 1945. True, over the years state
practice has nibbled away at the red lines written into Article 51, especially
the insistence that a valid claim of self-defense could only be made in
response to a prior armed attack, but the Obama administration’s legal
rationale for targeted killing cuts the use of force off from any legal
mooring, including the procedural requirement in the Charter that a claimant
state must submit its use of force to the Security Council for review. What
becomes clear, and without any indication of forethought, is the abandonment of
that effort memorialized in the words of the Preamble to the UN Charter “to
save succeeding generations from the scourge of war.” Additionally, Obama has
done nothing to restore the constitutional balance when it comes to war,
failing to seek a declaration of war before its involvement in the NATO War
against Libya. The Legal Advisor, Harold Koh, sought to justify this failure by
claiming that the hostilities didn’t rise to the level of war mainly because
there was little prospect of American casualties or troops on the ground.
Apparently, the devastation wrought by thousands of bombing sorties does not
count in Koh’s thinking as ‘war.’ Whether such a sensibility should be
described as Orwellian or imperialist is mainly a matter of taste.
The most comprehensive legal justifications for targeted killing have been made
by Eric Holder and John Brennan, Obama’s official chief counterterrorist
advisor, in
<http://www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an>
his speech at the Harvard Law School a few months ago. The irony here is that,
just as John Yoo shocked the conscience of liberal America by insisting that
practices long assumed to be torture (most notably water boarding) were not
torture (i.e., flagrantly illegal) when employed by the US government, now the
Obama administration asserts a similar position that America loves the rule of
law, except of course when it might inhibit recourse to a preferred tactic. If
such a bump in the road, then the lawyers are sent in with their shovels to
remove any appearance of an obstacle, making it clear to the world that
whatever America wants to do is “legal” so are as its leading legal technicians
are concerned even when the policy in question flaunts generally accepted
understandings of a rule of international law. In this instance, self-defense
is stretched way beyond the accepted consensus among international law
specialists as most authoritatively expressed by the majority of the
International Court of Justice in its Nicaragua decision of 1986. Claiming that
self-defense entitles the United States to convert the entire world into a
global battlefield is certainly bad law, but it is also likely to be bad
policy, generating support for extremist expressions of anti-Americanism and
creating tensions with such other states as China and Russia, and maybe Brazil,
India, and Turkey. And it is scant consolation for Mr. Holder, Mr. Brennan and
other Obama officials to reassure the public that this broad legal authority is
being used prudently and sparingly, and with a maximum effort to avoid harm to
others than those targeted. Unfortunately, the facts as more impartially
assessed do not lend credence to such self-serving packaging of targeted
killing without even taking consideration
the spread of terror to communities that might be struck day or night by a
drone missile aimed at a suspect. This indiscriminate form of state terrorism
embedded in targeted killing does not even get the benefit of an
acknowledgement.
A Word in Conclusion
We now have the materials we need to launch a much overdue debate on targeted
killing. Unlike torture, which has vividness and immediacy that existentially
assaults our sense of decency and dignity, the relative novelty and remoteness
of targeted killing, a technologically facilitated innovation in the tactics of
state violence, seems more abstract and numbing, and less in conflict with
civilizational values. In some respects, this distinction identifies some real
differences. Most legal commentators do not challenge targeted killing if
confined to the combat zone, say Afghanistan, but focus their criticisms on its
cross-border uses, which in the US case, can be anywhere in the non-Western
world. In this regard, while torture is primarily of concern as a crime against
humanity, targeted killing raises the most fundamental issues of world order,
sovereignty, the scope of warfare, the crime of aggression, and extra-judicial
executions.
<http://richardfalk.wordpress.com/author/richardfalk/> Richard Falk | March 6,
2012 at 1:42 pm | Categories: <http://richardfalk.wordpress.com/?cat=271>
Commentary, <http://richardfalk.wordpress.com/?cat=70091244> Crimes of State,
<http://richardfalk.wordpress.com/?cat=382394> Global Governance,
<http://richardfalk.wordpress.com/?cat=46143845> International & Global Law,
<http://richardfalk.wordpress.com/?cat=60468> World Politics | URL:
<http://wp.me/p19Wt7-d6> http://wp.me/p19Wt7-d6
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