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.
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.