Would Assassinating Iranian Civilians Be Legal? (Updated)

by Kevin Jon Heller

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!

http://opiniojuris.org/2007/02/21/would-assassinating-iranian-civilians-be-legal-updated/

20 Responses

  1. It seems to me that the question of when an international conflict exists that would possibly justify the targeted killing/assassination of civilians/non-combatants is the key. I have long argued that the Declare War clause, and the primary war power, of Congress is the power to create a state of war between the US and another state, but that the president has wide latitude in the deployment of US armed forces without express authorization from Congress. However, if one looks at, for example, Bas v. Tingy, where the nature of the state of war is discussed, a state of war means that “one whole nation is at war with another whole nation; and all the members of the nation declaring war, are authorized to commit hostilities against all the members of the other, in every place, and under every circumstance.” If this kind of effort is needed to prosecute a conflict, as it was in WWII, Congress must declare war. It seems logical that if civilians are to be deemed appropriate targets during combat operations according to Executive Order 1233, a declaration of war must exist. While the invasion of Iraq and the “war” on terror have been authorized by Congress, there is no formal declaration of war, and thus Executive Order 12333 is still in force (unless it has been secretly repealed, which is entirely possible and not beyond reason).

  2. Cold-blooded murder is walking into a liquor store, shooting the clerk and taking the money out of the register. Killing people who you believe might be making a nuclear bomb, or people advocating its use against you or your allies, is quite a different thing.

    Whether this is legal is unclear. All we have are some vague legal instruments and the musings of law professors. There are no cases on point (fortunately or unfortunately, depending on how you look at it).

  3. Mr. Reynolds doesn’t appear to be suggesting that assassination would be legal, only that it would be strategically wise. Campos appears to be trying to win the argument by changing the subject.

    (It’s worth noting that Reynolds originally claimed that the U.S. and Iran have been at war since 1979, but quickly scrubbed that claim from Instapundit when Scott Lemieux at TAPPED pointed out that, if he was right, all of the individuals involved in Iran-Contra committed high treason!)

    I really wish Scott Lemiuex had quoted Mr. Reynold’s comment. It’s hard to evaluate the claim when we can’t find a record of it. Herald Blog has the same argument, but also does not quote the comment.

    I don’t think there’s much of an argument that the assassinations Mr. Reynolds advocated are legal, given that the targets appear to be obvious non-combatants, and would be individually targeted. However, there’s a long historical precident to such extra-legal assassinations. Speculation has it Israel has already assassinated one Iranian Scientist.

  4. Matthew,

    Unlike Lemieux, Herald Blog does quote what Reynolds said: “Instapundit shot back that his critic [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.”

    You might be right that Reynolds isn’t claiming the assassinations would be legal. But I’m not sure how that makes what he said any more defensible — it just means that he believes the Bush Administration should knowingly violate both U.S. and international law.

  5. Since the end of WWW II, US existence has depended on a threat of Mutually Assured Distruction. Every President must, as a basic qualification of the job, be ready to launch weapons that will tens of millions of innocent civilians. I can find no plausible interpretation of international law that would not regard such retailiation as a war crime, even if the US was attacked first. If the most basic strategic policy of the US has for 60 years presumed a willingness to committ mass murder, how then can anyone seriously assert that it would be some appalling new policy to target specific individuals who plausibly would be getting what they deserve. Alternately, if MAD is acceptable under international law, then why wouldn’t a scaled down version where we kill ten of yours if you kill ten of ours be equally acceptable? Are the extra six zeros on the end of the casualty count really necessary to make the policy legal?

  6. 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.

    This brings up the important point that Iran has been waging war, often low-intensity, often by proxy, and always asymmetrically, against the U.S. since 1979. It’s rather reminiscent of how the U.S. ignored UBL’s declaration of war against the U.S. until after 9/11, except that the ostrich-like denial has been going on much longer.

  7. Unlike Lemieux, Herald Blog does quote what Reynolds said: “Instapundit shot back that his critic [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.”

    He quoted part of the comment. Without an intact copy of the original, it’s hard to tell whether Mr. Reynolds meant metaphorically or legally.

    You might be right that Reynolds isn’t claiming the assassinations would be legal. But I’m not sure how that makes what he said any more defensible — it just means that he believes the Bush Administration should knowingly violate both U.S. and international law.

    Well, as for the US part, there’s nothing to stop either Bush or Congress from legalizing assassination as foreign policy. So they needn’t violate US law to do so. As for violating international law, I’d say rules against assassination are honored more in the breach than in the observance. Russia doesn’t even care to be subtle about the murder of their opponents, these days.

    For the record, I don’t agree with Mr. Reynold’s proposal, but I’m more concerned about effectiveness and blow-back than as to whether the policy breaks international law. International Law is by nature somewhat fluid, the question is more about what happens when an unacknowledged international norm (assassination) bumps up against a statutorally professed abhorence to the practice?

    The fact that Mr. Reynolds openly ponders the assassination of non-combatant enemies suggests that the practice is not as taboo amongst the world populace as the UN Charter would seem to imply.

  8. There is absolutely nothing vague or controversial about the rule of international law that one state may not kill the nationals of another state. Controversy does exist in respect of state’s obligations under human rights treaties when it acts extraterritorially in a limited fashion, e.g. with targeted assassinations. Additionally, even though killing people is sometimes permissible during an international armed conflict, no such conflict exists between the US and Iran. War has not been declared, and there are no armed hostilities; likewise, none of the parties claims that is engaged in such type of conflict.

    It is also insufficient to argue that a state of international armed conflict would somehow legalize targeted assassinations. That would be true as a matter of the jus in bello, but a state could still violate international law as a matter of the jus ad bellum. If the US declared war on Iran tomorrow, without a valid justification under the UN Charter, it would still not make killing Iranian scientists, soldiers or whomever any more legal under international law. Legality or not of these actions under US law is a completely different matter.

    I must also admit I really don’t see the legal relevance of the aptly named MAD doctrine. The potential annihilation of human beings as a species does not render itself well to useful analogies.

  9. First of all, international law is subordinate to domestic law because of our system of dualism. Second, the US ban on assassination is merely an EO, which can be changed or reversed at any time.

    Next, the assertion that we are not in a de facto war with Iran-a war of much greater magnitude than Bas v Tingy-is a denial of reason. Besides the stream of Iranian explosives and weapons (including sniper rifles) being found on the battlefield, actual Iranian soldiers have been captured alive acting in combat operations! How much more of a declaration of war do you need?? The Pres has an obligation to respond under Prize case authority-Iran has thrust war upon us. No law is intended to be a suicide pact, and we are under no obligation to stand by, holding our proverbial dicks in our shaking hands while plans are afoot and being finalized for our demise. Thankfully Israel has realized this. The time will come for us. All it will take is another tragedy. Thanks for the moral high ground, the gift to mankind that is pacifism; I’ll take the subterranean path, but survive.

  10. Hmm… I’ve never considered myself even remotely a pacifist. But if opposing Bush’s war of choice in Iraq and (soon to be) war of choice in Iran makes one a pacifist, I’ll happily embrace the label.

  11. Reynolds has probably gotten his assassination ideas from Saturn’s Race, which is a sci-fi book he recommended. Ninja assassins figure prominently. He needs to get back in the real world. He is taking an extreme position, and defends it lamely.

  12. Mr. Norris argues that to claim the US is not “in a de facto war with Iran-a war of much greater magnitude than Bas v Tingy-is a denial of reason.” But Mr. Norris is conflating the existence of armed conflict with the creation of a state of war. The former can, and most often does, exist without the latter.

    If armed conflict is one and the same as a state of war then Congress must authorize each, every, and all uses of force by the president in accordance with the Declare War clause. This is most certainly not the case. The relevance of Bas v. Tingy is that it sets out the nature of a state of war…and these conditions most certainly do not exist between the US and Iran, regardless of any armed hostilites that may take place. Only Congress can create a state of war, and only in a state of war could civilians/non-combatants be intentionally targeted.

  13. “Volokh largely ignores Campos’ argument that Reynolds is openly and enthusiastically endorsing assassinations that are illegal under U.S. and international law.”

    Isn’t it most sensible to construe Reynolds as implicitly advocating a change in the law?

  14. Chris,

    No. I think a law professor is capable of advocating a change in policy instead of murder.

  15. “I think a law professor is capable of advocating a change in policy instead of murder.”

    But I don’t understand why you don’t interpret Reynolds’s original statement as itself advocating a change in policy. Given that that’s the sort of thing a law professor does all the time, why interpret him any other way? He says what “[w]e should be…” doing. Isn’t that advocating a change in policy? Just like Dianne Feinstein, Joe Biden, Chuck Robb, Bob Barr, and George Stephanopolous have done.

  16. In the reverse, if someone (hypothetically) prominent in the Iranian media (we’ll call him Iranstapundit) was calling for covert assasinations of American civilians, none of you would think that was OK.

  17. Haven’t Iranian leaders done that regularly for a long time–“Death to America” and the like?

  18. I think Una’s point is an excellent — and underappreciated — one. Given that we have directly threatened and Iran has not directly threatened us, they would have a far stronger case for assassinating our scientists and neo-con pundits (our radical mullahs?) than we have for assassinating theirs. And as Una points out, I don’t think Glenn Reynolds would be too keen on that idea…

  19. Given that we have directly threatened and Iran has not directly threatened us, they would have a far stronger case for assassinating our scientists and neo-con pundits (our radical mullahs?) than we have for assassinating theirs.

    Are we sure that this is the case? I think it rather likely some Iranian editor or public figure has probably made a similiar statement. Just because we haven’t heard of it doesn’t mean it hasn’t occured. I doubt the average Iranian is aware of Mr. Reynold’s comment, either.

    They certainly have threatened our jewish citizens with murder on prior occasions.

  20. If armed conflict is one and the same as a state of war then Congress must authorize each, every, and all uses of force by the president in accordance with the Declare War clause. This is most certainly not the case. The relevance of Bas v. Tingy is that it sets out the nature of a state of war…and these conditions most certainly do not exist between the US and Iran, regardless of any armed hostilites that may take place. Only Congress can create a state of war, and only in a state of war could civilians/non-combatants be intentionally targeted.

    I appreciate your insight, however you have made my point for me. Because Congress had acted to authorize a state of war in the Tingy situation with a lesser state of armed conflict than what is now occurring with Iran and US, it is an indication and supportive of the proposition that Congress would/should do the same in this situation thereby acquiescing to the President’s own prerogative to retaliate without express authorization. US sanctions on Iran may also be evidence of acquiescence. The EO 12333 is not law, it is a self-made proscription on the executive branch; the Pres can target whomever he wants, and whomever he deems a threat to Americans under his defense/reprisal authority without authorization from Congress to do so. eg. Clinton’s missle strikes in retaliation for the assassination attempt on Bush 1 in Kuwait and the Kosovo air war (humanitarian mission or whatever) He also attempted to assassinate UBL on a number of occasions.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.