A Question About Targeted Killing

A Question About Targeted Killing

As the Washington Post notes, the Obama administration has authorized the CIA to assassinate Aulaqi wherever he is found.  It is very unlikely that CIA agents qualify as lawful combatants — they don’t distinguish themselves from the civilian population, they don’t carry their arms openly, etc.  So, let’s assume that CIA agents manage to kill Aulaqi in Afghanistan.  I assume everyone would be okay with Afghanistan capturing and prosecuting those agents for murder?  They would have no combatant’s privilege, and “self-defense” would only (at best) prohibit Afghanistan from claiming that the US committed an internationally wrongful act.

Thoughts?

NOTE: I should make clear that I am interested in situations in which the US is relying on IHL, not “self-defense,” to justify targeted killing — situations in which the US argues that the individual in question was directly participating in hostilities and was thus a lawful target for lethal military force.  My point is simply that, even if we assume the existence of an armed conflict and that the target was directly participating in hostilities and was thus not a civilian at the moment he was killed, a CIA agent could be prosecuted for murder under domestic criminal law even though a US soldier could not, because only the latter would have had a combatant’s privilege to kill.  I take it as fairly obvious that if IHL does not apply — and the US’s argument that we are in an amorphous global armed conflict with Al Qaeda is no less incorrect when made by Obama than it was when made by Bush — anyone who used lethal force against a “terrorist,” CIA or US military, could be prosecuted for murder in a domestic court with jurisdiction over the crime. As Marko has pointed out, the US’s alternative claim of “self-defense” might prevent the state whose territory was the object of the attack from claiming that the US violated its sovereignty. But it would not provide the killer with a defense to a criminal charge.

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[…] there is a post on a slightly different question from Kevin Jon Heller, asking about the effect in domestic law of a place where a killing might occur.  There should be […]

Howard Gilbert
Howard Gilbert

The US could not complain if a foreign country arrested CIA agents who lacked diplomatic immunity for violation of local law. In Afghanistan, however, it is likely that their disposition would be determined by the Status of Forces Agreement. The lawful or unlawful combatant distinction occurs in IHL with regard to the capture of an enemy soldier.  Lawful combatants are entitled to the protected status of Prisoners of War. Since no US personnel, military or civilian, would be subject to detention by the Afgan government as POWs, the lawful/unlawful combatant status of CIA operatives is not meaningful in Afghanistan. Instead, the question would be whether Aulaqi is a legitimate enemy combatant military target or a civilian. If he is a target, then his death is not a crime in any allied country no matter who kills him. If he is a civilian, then his death by non-military personnel might be regarded as murder by the country with jurisdiction. Of course, Aulaqi is in Yemen, not Afghanistan, and since Yemen is not an allied country and does not have a SOFA, a CIA on the ground attack would be subject to criminal charges if the Yemeni government chooses. That’s why we… Read more »

Kevin Jon Heller

Howard,

Why does it matter if Aulaqi qualifies as a civilian or was directly participating in hostilities?  When a person without combatant’s privilege kills someone, he can be tried for murder in a domestic court even if his victim could have been lawfully killed by someone with combatant’s privilege.  That’s why, for example, rebels can be prosecuted for killing government soldiers in a NIAC.

Howard Gilbert
Howard Gilbert

Kevin,

Lawful combatant status is protection against civilian criminal charges. However, in an allied country, the killing of an enemy combatant is not a crime. In an enemy country, or in territory occupied by an enemy, the killing of one of their soldiers by an unprivileged person would be regarded as a crime by them. In allied or occupied countries, however, it is called resistance an the killer is regarded as a hero.

Did I miss the part where the French after WWII rounded up all the members of the Resistance and charged them with murder? What about the Philippine guerrillas fighting the Japanese sometimes with direct US military involvement. When Douglas MacArthur asked for their help and participation after the Leyte landing, was he ever arrested and prosecuted for his involvement in killing by unprivileged individuals? Since the Philippines were US territory, that happened in US jurisdiction so MacArthur would have had to arrest himself and then probably try himself.

It did not happen. Not in Italy, or Greece, or Indochina, or any of the places where there was an armed resistance. Not in WWII, and not anywhere else in any other war in history.

Kevin Jon Heller

I’m not sure likening our “ally” Afghanistan to the French resistance is a particularly helpful analogy. It is far from inconceivable that Karzai’s government — he of “I’m gonna join the Taliban if you don’t stop saying mean things about me” fame — would become so estranged from the US that it would capture and prosecute a CIA operative for murdering people on its territory.  Regardless, I was more interested in the legal question, about which we we seem to agree, than any particular political situation.

Jens Iverson
Jens Iverson

This is not my area of expertise, but I think an interesting related question is whether members of a civilian intelligence service who are directly involved in an armed conflict are themselves legitimate targets under international humanitarian law.  The question is not so much whether those members qualify as “lawful” combatants, but whether they are combatants at all (or for that matter whether they qualify as civilians directly participating in hostilities, see http://www.icrc.org/web/eng/siteeng0.nsf/html/p0990?opendocument for recent, excellent work on this subject).  Perhaps that seems abstract in this instance, but the general question may be of increasing importance as unmanned killing technologies proliferate, civilian intelligence services avail themselves of them, and they are used in more traditional conflicts.

Howard Gilbert
Howard Gilbert

Let’s approach this from a different point of view. Other countries guard their borders with soldiers. In the US, however, even in times of war the territorial waters, borders, and ports are defended by the Coast Guard (part of the armed forces) and by the armed officers of the various civilian agencies that guard the border in peacetime (Border Patrol, Customs, Immigration, FBI, …). An FBI agent not in uniform confronted by an enemy armed force attempting to infiltrate the US is authorized to use lethal force to repel the invasion, even though an invading enemy army commits no crime and could not be arrested (it is not illegal for an enemy army to invade the US and no civilian criminal charges can be brought against them under combatant immunity). If one of the agents of these civilian organizations kills an enemy invader in his paramilitary capacity of border defense in time of war, he is not subject to prosecution by the US for murder even though, under international law, he might be regarded as not having combatant privilege. Not only has he not committed a crime, but he was doing the duty assigned to him by Congress and the… Read more »

Howard Gilbert
Howard Gilbert

In the case of a killing of an enemy combatant who is a US citizen by an unprivileged civilian agent of the US Government, subsequent legal procedures fall into several categories:

Criminal charges under the municipal law having jurisdiction over the death.
Criminal charges under US domestic law.
Criminal charges under the enemy domestic law.
Charges under international human rights law.
A Bivens action filed by the estate of the deceased against the agents responsible for his death charging violation of his constitutional rights.

I would argue that his status as an enemy combatant precludes US criminal charges (the death of an enemy combatant is always justifiable) and would be the US defense against International Human Rights charges (although some Europeans might disagree).

There is no defense against enemy domestic charges since the agent was unprivileged.

The exercise of municipal law is the option of the government having jurisdiction, subject to international or bilateral agreements it has with the US governing such charges.

The Bivens action, however, provides the cleanest test of any theory that such an action violates constitutional rights. If you really want to question the application of the Constitution to targeted killings, ask about the Bivens action and not the more complicated criminal questions.

Gavin Kovite
Gavin Kovite

I think the answer depends in part on how Awlaki is targeted. If it’s by a drone piloted by some CIA officer in Langley, it really doesn’t matter whether the officer sports an identifiable insignia / carries arms openly – it is the drone itself that must be distinguishable from a civilian aircraft. I’m not sure about the paint job on the CIA’s predators, but the silhouette is fairly unmistakable.

The point of the identifiability provision is to avoid the confusion of who is/is not a combatant in the combat zone. It’s nonsensical to apply it to drone pilots operating thousands of miles away from the enemy.

Liz
Liz

“The point of the identifiability provision is to avoid the confusion of who is/is not a combatant in the combat zone. It’s nonsensical to apply it to drone pilots operating thousands of miles away from the enemy.”
It does seem counterintuitive, but I think it does apply. For instance, we have private contractor drone operators in theatre…they need to have people actually over there to get the drones off the ground, but military pilots take them over to do the targeting. That wouldn’t be necessary otherwise.

Marko Milanovic
Marko Milanovic

Kevin, You raise an extremely interesting issue – I have some thoughts on it, but with the caveat that they are tentative: (1) It is necessary to distinguish, as you yourself quite properly do, between the combatant’s privilege and unprivileged killing on the one hand, and any possible war crime on the other, such as perfidy. It bears repeating that an unprivileged belligerent – a civilian taking a direct part in hostilities – is not by definition a war criminal. He simply loses the privilege that would otherwise be granted to him by the law of war. (2) Crucially, the combatant’s privilege, like combatant status, exists only in international armed conflict; in non-international conflicts no such privilege exists as a matter of international law. Thus, not even the soldier of a government fighting a rebel group would have the international legal entitlement to kill the insurgents, as would be the case if the conflict was international in nature. The reason for this is simple – IHL must give equal powers to the parties to a conflict. This is its principal guiding principle. And if a government soldier were to have the combatant’s privilege in a NIAC, then so would a… Read more »