Targeted Killings Symposium: Fernando Tesón Responds to Andrew Altman

by Fernando Teson

[Fernando Tesón is Tobias Simon Eminent Scholar and Professor of Law at Florida State University College of Law.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

Andy Altman offers what I see as a friendly amendment to my piece on targeted killings. There I make a few central claims:

1) A state may not declare war on terrorists and then help itself to the tools of warmaking –essentially, the right to kill enemies on sight wherever they are found.  Thus the language of “war on terror” is a dangerous misdescription, because it suggests that government can unilaterally abolish the permissibility of killing persons without any kind of process. I take it Andy concurs.

2) In a “peacetime setting” such as Paris or New York, the state may not kill a terrorist unless it complies with very strict conditions: the killing is necessary to avert a terrorist plot, the terrorist is culpable (in  a sense that I specify), and the government has a just cause (which, according to my definition of “terrorist”, a liberal government always has). Andy does not challenge this.

3) However, following the laws of war, I accept that terrorists may be permissibly killed in a “wartime-setting.”  Andy doubts this, and suggests that all I need is the peacetime standard in (2). He claims that in wartime settings such as Afghanistan all we need is increased governmental cooperation in order to aprehend terrorists. Presumably, this implies that terrorists are after all, private persons, not soldiers, and this makes the “killing-on-sight” standard problematic.  But all I meant by preserving the permissibility of killing in these kinds situations was to acknowledge that sometimes terrorists fight armies in battlefields, even if they don’t wear uniforms.  Recall that the morality of such killings is dependent on the severe strictures of just war theory, including just cause, proportionality (governed by some version of the doctrine of double effect), and the like. Any possibility of abuse I try to fend off by requiring a strict interpretation of what is a wartime setting; thus Abbottabad (certainly no Paris) was not a wartime setting.

4) I offer a new definition of terrorist. A terrorist is a principled evildoer, that is, someone who not only employs immoral means (kills innocents) but also pursues an unjust cause, such as religious domination or whatever. In other words: contrary to conventional belief, a terrorist is not defined only by the immorality of his means, but also by the injustice of his cause.

5) It is never permissible to kill a terrorist (or anyone else) if capture is possible at an acceptable moral cost. Thus, killing an unarmed terrorist who can be captured is murder. In contrast, if the capture of a terrorist would cause the deaths of innocents, killing a terrorist is permissible, provided that the government complies with the conditions already specified.

6) A final point that Andy addresses.  I propose to make targeted killing illegal in principle, given the general objections to the practice, in particular the epistemic objections that burden governments (such as assessing the necessity requirement, mistaking targets, etc.) I accept, however, that in the cases where the killing is justified, the highest authority in the land must explain the justification to the citizenry. Andy says this is unrealistic, and of course he is right, at least as governments continue to be obsessed with secrecy. However, all I can do as an academic is to sketch ideal conditions. A liberal government must defend itself from this scourge, but it must do it as close as possible to the rule of law and the respect of the moral rights of persons.

http://opiniojuris.org/2012/06/06/targeted-killings-symposium-fernando-teson-responds-to-andrew-altman/

2 Responses

  1. Response…
    I take it that much of this is form an alleged “moral” perspective. With respect to international law, don’t ignore the self-defense paradigm. An interesting question is whether a state can engage in acts of self-defense under customary international law within its own territory.  That should open up the debate a bit! Of course, under the law of war paradigm, the human rights paradigm (prohbiting “arbitrary” killings — a nice word for the moral philosophers as well), and the law enforcement paradigm, some killings are permissible within the state. regarding the morality of killing those who are killing your fellow nationals, see http://ssrn.com/abstract=1718548
    A “terrorist” is what? and who, especially from a moralist view, is “innocent”? Those who voted against Bush-Cheney perhaps? Can’t a terrorist be unprincipled? Why can’t states agree on what is covered by the word “terrorism” although many dictionaries do a pretty good job — e,g., of identifying needed elements of (1) intent, (2) to produce terror, and (3) a terror outcome.  After all, how, realistically and objectively, can something be “terrorism” without an intent to produce terror and a terror outcome?
    Regarding the kill or capture issue, please note that under the law of war and the self-defense paradigms an individual who is a combatant or DPH in an armed conflict or a DPAA (direct participant in armed attacks) regarding self-defense targetings would have to surrender. See, e.g., HC No. IV, Annex, art. 23(c).

  2. Response…
    as supplemented by Geneva Protocol I, art. 41(2)(b) — clearly expresses an intention to surrender.

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