Would Assassinating Iranian Civilians Be Legal? (Updated)

A fascinating debate has been taking place this week concerning a post on Instapundit in which Glenn Reynolds, a law professor at the University of Tennessee, advocated assassinating Iranian atomic scientists and “radical mullahs.” Here is Reynold’s original post:

IRAN IN IRAQ: Smoking guns.

This has been obvious for a long time anyway, and I don’t understand why the Bush Administration has been so slow to respond. Nor do I think that high-profile diplomacy, or an invasion, is an appropriate response. We should be responding quietly, killing radical mullahs and iranian atomic scientists, supporting the simmering insurgencies within Iran, putting the mullahs’ expat business interests out of business, etc. Basically, stepping on the Iranians’ toes hard enough to make them reconsider their not-so-covert war against us in Iraq. And we should have been doing this since the summer 2003. But as far as I can tell, we’ve done nothing along these lines.

Reynold’s post prompted a reply in the Rocky Mountain News by Paul Campos, a law professor at the University of Colorado, entitled — appropriately enough — “The Right’s Ward Churchill”:

Murder is the premeditated unlawful killing of a human being. Glenn Reynolds, the well-known University of Tennessee law professor who authors one of the Internet’s most popular blogs, recently advocated the murder of Iranian scientists and clerics.

[snip]

Of course Iran is not at war with America, but just as Reynolds spent years repeating Bush administration propaganda about Iraq’s nonexistent weapons of mass destruction, he’s now dutifully repeating the administration’s claims about supposed Iranian government involvement in Iraq’s civil war.

Moreover, even if Iran were at war with the United States, the intentional killing of civilian noncombatants is a war crime, as that term is defined by international treaties America has signed. Furthermore, government-sponsored assassinations of the sort Reynolds is advocating are expressly and unambiguously prohibited by the laws of the United States.

How does a law professor, of all people, justify advocating murder? “I think it’s perfectly fine to kill people who are working on atomic bombs for countries – like Iran – that have already said that they want to use those bombs against America and its allies, and I think that those who feel otherwise are idiots, and in absolutely no position to strike moral poses,” Reynolds says.

Campos also argued that Reynold’s comment raised a number of questions about the limits of academic freedom. “For instance, does academic freedom insulate a law professor from any institutional consequences when he advocates murder?” And more ominously: “Certainly, it’s worth asking Reynolds’ administrative superiors at the University of Tennessee what limits, if any, the terms and conditions of Reynolds’ employment put on his behavior.”

And that is where Eugene Volokh, one of the most consistent and principled defenders of academic freedom, entered the fray. Responding to Campos, Volokh argued:

In any case, these are serious questions that serious people should discuss seriously. But Campos isn’t in the mood for discussion. He is so confident of his position that he wants his academic adversaries fired, the usual rules of academic freedom suspended, and the debate presumably shut off at all levels: After all, if discussion about this is improper for academics, it is presumably at least as improper for journalists, think tank members, Congressmen, executive officials, and everyone else.

[snip]

But only an unwise certitude — and a certitude that I think is unlikely to yield moral action, especially if you have even a modest amount of consequentialism in your moral reasoning — would simply cut off all this debate and fire those who endorse one side of it. That, unfortunately, is the error that Prof. Campos seems to have fallen into.

I’m slightly less certain than Volokh that Campos wants Reynolds fired. But Campos’ comments certainly come close to that line, more than justifying Volokh’s reply. (It is worth noting that Volokh and I both defended Ward Churchill’s academic freedom at the time.) Moreover, I fail to see how any other disciplinary measure — a gag order, perhaps? — would be any less objectionable from an academic-freedom standpoint.

That said, I think it is important to note that Volokh largely ignores Campos’ argument that Reynolds is openly and enthusiastically endorsing assassinations that are illegal under U.S. and international law. Instead, Volokh offers a long discursus on the morality of assassinating civilians, as the following passage from his reply indicates:

What sorts of killings are morally proper in war, or in actions against one’s enemies that are short of all-out war, is a difficult question. When are targeted killings today proper to avoid the need for threatened nuclear bombing in the future — a threat that we might have to make good on, or for that matter that the Israelis might have to make good on? Should the rule turn on whether we’re in a state of war with Iran, and if so may there be states of war short of hot war? Should the rule turn on whether an “Iranian government official has … said Iran wants to use nuclear weapons against the U.S.” (one item Campos points to in condemning Reynolds)? Should the rule differ for killings of atomic scientists, who are directly involved in what we strongly suspect is a weapons program, than for killings of mullahs, who are just spreading an ideology of war against us?

Unless we’re more or less pacifists, we can’t just assume that all killings of hostile states’ civilians, atomic scientists, and fomenters of jihad are categorically immoral; that’s certainly not an assumption on which the world — not just America and France but I suspect virtually all countries — operates. Nor can we just assume that such killings are proper only during war and that there is no war now between the U.S. and Iran.

Volokh’s moral arguments are thought-provoking and well worth a read. But they are ultimately irrelevant to whether assassinating Iranian civilians is illegal. On that question, Volokh simply says this:

Nor can we simply say that “Murder is the premeditated unlawful killing of a human being” and appeal to some abstract legal principles to decide that targeted killings are “unlawful” and therefore beyond reasonable discussion. First, the legal rules are far from clear — for instance, some have pointed to Executive Order 12333 as a categorical prohibition on “assassination,” but an influential, and, in my view, persuasive, 1989 memo concurred in by various Executive Branch legal officials concludes that many targeted killings remain permissible despite this. The memo likewise concludes that many such targeted killings do not violate various international law norms.

The 1989 memo, however, actually supports Campos’ argument. That is why I felt it necessary to write this post — to ensure that readers do not come away from Volokh’s reply to Campos thinking that the “many targeted killings” that “remain permissible” despite Executive Order 12333 include the kinds of assassinations that Reynolds is advocating.

The memo begins by noting Executive Order 12333’s prohibition on assassinations:

Executive Order 12333 is the Reagan Administration’s successor to an Executive Order renouncing assassination first promulgated in the Ford Administration. Paragraph 2.11 of EO 12333 states that “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” The Bush Administration has continued Executive Order 12333 in force without change. Neither Executive Order 12333 nor its predecessors defines assassination.

The memo then discusses assassinations during peacetime. According to the memo, such assassinations are categorically prohibited by both U.S. law (via Executive Order 12333) and international law:

In peacetime, the citizens of a nation – whether private individuals or public figures – are entitled to immunity from intentional acts of violence by citizens, agents, or military forces of another nation. Article 2(4) of the Charter of the United Nations provides that all Member States “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purpose of the United Nations.” Peacetime assassination, then, would seem to encompass the murder of a private individual or public figure for political purposes, and in some cases (as cited above) also require that the act constitute a covert activity, particularly when the individual is a private citizen. Assassination is unlawful killing, and would be prohibited by international law even if there was no executive order proscribing it.

Volokh’s post is initially misleading, therefore, in that it fails to make clear that nothing in the memo suggests that assassinating Iranian atomic scientists or “radical mullahs” would be legal during peacetime.

The post is also misleading, moreover, regarding civilian assassinations during wartime. This section of the 1989 memo begins by pointing out that there are a number of situations in which the killing of civilians during wartime does not qualify as assassination and is in no way a violation of the laws of war:

the death of noncombatants ancillary to the lawful attack of a military objective is neither assassination nor otherwise unlawful. Civilians and other noncombatants who are within or in close proximity to a military objective assume a certain risk through their presence in or proximity to such targets; this is not something about which an attacking military force normally would have knowledge or over which it would have control.

As this paragraph indicates, if the U.S. was involved in an international armed conflict with Iran and Iran’s nuclear facilities were lawful targets (more on that below), the incidental death of civilian atomic scientists would not be assassination. That scenario, however, is not the one contemplated by Reynolds. As Reynolds’ post makes clear, he is advocating the targeted assassination of Iranian atomic scientists as an alternative to more dramatic military attacks.

The memo then reaches the heart of the matter: the “unresolved issue” of “which civilians may be regarded as combatants, and therefore subject to lawful attack” during wartime:

While there is general agreement among the law of war experts that civilians who participate in hostilities may be regarded as combatants, there is no agreement as to the degree of participation necessary to make an individual civilian a combatant. No existing law of war treaty provides clarification or assistance. Historically, however, the decision as to level at which civilians may be regarded as combatants or “quasi-combatants” and thereby subject to attack generally has been a policy rather than legal matter. The technological revolution in warfare that has occurred over the past two centuries has resulted in a joining of limited segments of the civilian population with each nation’s conduct of military operations and vital support activities.

Three points can be made in this respect. (A) Civilians who work within a military objective are at risk from attack during the times in which they are present within that objective, whether their injury or death is incidental to the attack of that military objective or results from their direct attack. Neither would be assassination. (B) The substitution of a civilian in a position or billet that normally would be occupied by a member of the military will not make that position immune from attack. (C) Finally, one rule of thumb with regard to the likelihood that an individual may be subject to lawful attack is his or her immunity from military service if continued service in his or her civilian position is of greater value to the nation’s war effort that that person’s service in the military. A prime example would be civilian scientists occupying key positions in a weapons program regarded as vital to a nation’s national security or war aims.

This passage make clear that, if the U.S. was involved in an armed conflict with Iran, there would in fact be situations in which the targeted assassination of civilians would be legal. A few points, however, are worth noting. First, none of the factors mentioned above would justify the targeted assassination of “radical mullahs.” Loathsome though their ideology may be, the mullah’s anti-Western rhetoric does not make them “quasi-combatants.” On this point, therefore, Campos’ allegation that Reynolds is advocating murder is correct.

Second, although it is a closer case, the factors would appear to justify only the targeted assassination of Iranian atomic scientists who were working in a nuclear facility or living in military quarters at the time of the attack — situations that Reynolds is clearly not contemplating. The difficult factor to assess is #3, which seems to suggest that, during wartime, it would be permissible to assassinate an Iranian atomic scientist who was vital to Iran’s “war effort.” The problem here is that (1) it is unclear whether Iran’s nuclear program is intended for military purposes; and (2) even if it is (which I tend to believe), the scientific community and the U.S.’s own intelligence agencies agree that Iran is at least a decade away from being able to build a functioning nuclear weapon. The idea that assassinating Iranian atomic scientists is necessary to disrupt Iran’s war effort, therefore, seems difficult to maintain.

Third — and perhaps most importantly — this entire discussion assumes that the U.S. and Iran are currently involved in an international armed conflict. I am not an expert on the issue of what qualifies as “armed conflict” — and would greatly appreciate the input of our readers — but I doubt that, as a matter of international law, the necessary threshold has been crossed. If it hasn’t, the question is, as they say, academic: as noted above, the targeted assassination of civilians is per se illegal during peacetime.

(It’s worth noting that Reynolds claims that the U.S. and Iran have been at war since 1979 — a claim that led Scott Lemieux at TAPPED to point out that, if he is right, all of the individuals involved in Iran-Contra committed high treason!)

In short, Volokh is absolutely right to take Campos to task for implying that Reynolds should be fired for what he wrote on his blog. But Volokh is wrong to imply that assassinating Iranian civilians would be in any way legal under U.S. or international law. On that point, Campos is correct: Reynolds is simply advocating cold-blooded murder.

UPDATE: Contrary to my original post, Reynolds did not scrub his claim that the U.S. and Iran have been at war since 1979. I have modified the relevant paragraph accordingly. The quote, which appears here, is as follows: “[Campos] hurts his credibility up front by saying that Iran is not at war with us — when, in fact, it has been since 1979, with the deaths of many Americans, soldiers and otherwise, on its hands.”

Amusingly enough, when informed of the implications of that claim for the Iran/Contra crowd, Reynolds responded: “But I said Iran has been at war with us; we, however, have not been at war with Iran.” Another international-law gem courtesy of Instapundit!