A Question About Targeted Killing

by Kevin Jon Heller

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.


11 Responses

  1. 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 have unmanned aircraft in all sorts of sizes.

    This does not preclude legal action by a third party nation that believes that he was a civilian and was murdered. Nor would a killing that could authoritatively be traced to the CIA by some foreign government investigation be immune to civil claims for wrongful death if you have strong enough evidence.

    I would not, however, recommend carrying out the mission if Aulaqi is staying in a Dubai hotel room.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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 President.

    If captured and taken to the foreign country as a prisoner, he would have the status of a civilian who had taken up arms and engaged in combat. He would probably not be entitled to protection under the Third Geneva Convention as a POW. Things get a bit more confused when you have a uniformed civilian service like the Border Patrol that might or might not be defined as a militia under international law.

  7. 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.

  8. 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.

  9. “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.

  10. 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 rebel soldier, and this is not something that states would ever accept.

    Thus, in NIACs the only regulation of a possible privilege comes from domestic law. It is that law, not international law, which will ordinarily say that the acts of government forces in suppressing a rebellion etc would not constitute common crimes such as murder, under certain conditions. Conversely, if the government is actually victorious against the rebels, it can try any of their soldiers for murder, treason, or whatever, as they had no right to rebel. This applies even to those rebel soldiers who fully complied with IHL and committed no war crime, which is why AP II encourages states to declare an amnesty for such cases.

    (3) This brings me to the supposed global armed conflict between the US and Al-Qaeda. I, as you know, don’t think that such a thing exists. But if it does, then it is a NIAC – per the Supreme Court’s somewhat unintelligible opinion in Hamdan. And if it’s a NIAC, then NOBODY has the combatant’s privilege, not even the regular army grunt. Then your question essentially becomes beside the point, as a CIA operative is equally lacking an IHL shield from a common murder charge as any US soldier, or as any Al-Qaeda agent. They are all unprivileged.

    (4) The question of a privilege, or a defense to murder, then becomes entirely one of domestic law – US law, Afghan law, or whatever. For obvious reasons, I have no idea how a common murder case – not involving a war crime – would play out in such circumstances. I imagine that the US soldier and CIA operative would both be equally entitled to rely on whatever justification theory is normally used in the various US criminal jurisdictions regarding, say, a police officer who shoots an escaping prisoner, or a hostage taker or whatever.

    (5) As for Gavin Kovite’s comment, again one should bear in mind the distinction between the privilege and a war crime. As Gavin rightly says, neither the US soldier nor the CIA operative would be guilty of any war crime if the drone itself respects applicable targeting rules, the principle of distinction etc. This has no bearing, however, on whether Afghan law would consider the killing by drone to constitute murder, which is solely a matter for Afghan law, about which none of us, I imagine, has anything intelligent to say.

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