07 May Melzer, Targeted Killing in International Law
Oxford University Press has just published my friend Nils Melzer’s book Targeted Killing in International Law. Here is the description from the Oxford website:
A comprehensive analysis into the lawfulness of state-sponsored targeted killings under international human rights and humanitarian law, this book examines treaties, custom and general principles of law to determine the normative paradigms which govern the intentional use of lethal force against selected individuals in law enforcement and the conduct of hostilities. It alse addresses the relevance of the law of interstate force to targeted killings, and the interrelation of the various normative frameworks which may simultaneously apply to operations involving the use of lethal force.
Through a comprehensive analysis of treaties, custom and general principles of law in light of jurisprudence, doctrine and travaux preparatoires the author demonstrates that contemporary international law provides two distinct normative paradigms which govern targeted killings in situations of law enforcement and the conduct of hostilities. Based on the resulting normative paradigms, the author shows in what circumstances targeted killings may be considered as internationally lawful. The practical relevance of the various conditions and modalities are illustrated by reference to concrete examples of targeted killing from recent state practice.
The book argues that any targeted killing not directed against a legitimate military target remains subject to the law enforcement paradigm, which imposes extensive restraints on the practice. Even under the paradigm of hostilities, no person can be lawfully liquidated without further considerations. As a form of individualized or surgical warfare, the method of targeted killing requires a “microscopic” interpretation of the law regulating the conduct of hostilities which leads to nuanced results reflecting the fundamental principles underlying international humanitarian law.
The author concludes by highlighting and comparing the main areas of concern arising with regard to state-sponsored targeted killing under each normative paradigm and by placing the results of the analysis in the greater context of the rule of law.
The book is obviously very timely, given the debate (see, for example, here and here) about the legality of the recent U.S. airstrike in Somalia. I hope to organize a mini-symposium on the book in the near future. Until then, buy and read it for yourself!
Kevin,
We also discussed this in Julian’s post last week.
I might have mentioned our discussion was not nearly as focused as the analyses by Diane and Marty, but at least I broached the question of legality, which Julian chose not to respond to.
And of course thanks for the book notice.
Does he address the ‘Killing Pablo’ instance, involving Pablo Escobar? (Book by same author as Blackhawk Down.) I would be interested in his take on that pre-9/11 example of a targeted killing, which involved arguments on both sides of the military/law enforcement distinction. The precise facts there remain undisclosed, and the facts of the ‘last hundred yards’ are very important in determining the justification of deadly force under the law enforcement paradigm, ie. whether the dead guy(s) had reached for a gun. But as noted, the military paradigm is not so limited though it has other constraints. Missiles launched from unmanned aerial vehicles obviously don’t offer arrest as an option, thus effectively nullifying their use under the law enforcement paradigm.
While disgusted by Prof. Organ-Failure-Or-Death’s gross excesses, I nonetheless find the military paradigm persuasive and legal, even without Security Council authorization, where (1) the targeted individual is a non-U.S. person and (2) not a foreign government official, (3) there’s been a finding that the target poses a grave threat to national security, (4) the force meets proportionality standards, and (5) the host-nation consents. Items (2) and (5) are there to satisfy the UN Charter.
The critics of the Somalia strikes appear to focus on UN Charter Articles 2(4) and 51. Do the critics suggest that the UN Charter prohibits all force consented to by the nations involved, in the absence of Security Council permission? If that were correct, no bilateral agreement could make continued U.S. military action in Iraq legal absent another UNSCR. This would seem to be obviously wrong.
” I nonetheless find the military paradigm persuasive and legal, even without Security Council authorization, where (1) the targeted individual is a non-U.S. person”
Shocking statement DG. So, let me ask you this: Would you have let McVeigh walk away (if you had solid evidence of his intentions) moments before he blew up the Federal Building?
On another but related topic, there has been a total lack of information in the US media regarding the killing of Raul Reyes, one of the FARC chiefs that was killed in Ecuador’s border.
Raul Reyes was the chief negotiator for the release of the hostages (it is my understanding that in a hostage situation, when the negotiations are working, you do not jeopradize those negotiations with the use of force).
Also, there is evidence (foto here (in Spanish)) the the Colombians used smart bombs, Although the Colombian Air Force uses Brazilian made planes Super Tucano, which is not equipped to launch such bombs (only guided missels). Coincidently, a US C-130 took off US base Mantra (same as previous link). These suspicions led Ecuador’s President Correa to close all foreign (read American) bases in that country.
Here are a few interesting facts I found in English:
, Raul Reyes, considered the second-in-command of the FARC and the guerrilla movement’s principal international spokesman and diplomatic representative. He was well known in both Latin America and Europe, having served as the principal FARC negotiator in the abortive attempt under the government of President Andres Pastrana (1998-2002) to broker a peaceful settlement of the civil conflict that has wracked Colombia for more than four decades. During that same period, he met with officials of the Clinton State Department.
This ruthless attack was staged not to ward off some pending terrorist attack. On the contrary, it was designed as a “preemptive strike” against a negotiated release of hostages held by the FARC, among them a former presidential candidate…
The FARC itself issued a statement that Reyes had been working through Venezuelan President Chavez to concretize plans for a meeting with Sarkozy to arrange for the hand-over of Betancourt
After the news of Reyes’s assassination, the French foreign ministry issued a pointed statement to the effect that the Colombian government was well informed that France was conducting negotiations with him.
Colombian officials have openly acknowledged the role of US intelligence agencies in instigating and coordinating the March 1 targeted assassination
As for the air raid itself, Ecuador’s Defense Minister Wellington Sandoval reported the attack included the use of five “smart bombs” of the type utilized by the US military. “It is a bomb that hits within a meter of where it is programmed, from high velocity airplanes,” he said. He added that to target Reyes with such weapons, “they needed equipment that Latin American armed forces do not have.”
Signed: SHRECK :0)
cruz del sur:
Item (1) is there to require assessment under the U.S. Constitution, specifically under Am. V, ‘nor be deprived of life, liberty, or property, without due process of law[.]’ Yes, I am unwilling to state that the Constitution is inapplicable to a McVeigh, or for that matter a Johnny Walker Lindh or a James Yee (the former Army Chaplain treated as enemy combatant held in solitary confinement for over 2 months). I admit the issue gets murkier in time of insurrection, rebellion or invasion. That said, having ‘solid evidence of his intentions’ McVeigh would be plainly subject to arrest under the law enforcement paradigm, and deadly force may well be justified even under that paradigm depending on his resistance to arrest or the unreasonable risk to human life posed by traditional means of arrest (e.g., if he held the detonation switch in his hand).
As for your second issue, the Reyes action has similarity with the Pablo Escobar matter (both involving Columbia with suggestions of direct U.S. involvement greater than publicly acknowledged). The Reyes action plainly lacked host-nation consent or Security Council authorization. Columbia immediately took responsibility for it claiming it was justified by self-defense in hot pursuit (arguments the U.S. would have difficulty raising). If it were indeed hot pursuit (though there seems to be little in the way of supporting physical evidence) then it would likely be legal. But if it were purely a targeted killing, it may well have violated the UN Charter.
The Turkish incursions into Kurdish areas of Iraq, over the objections of Iraq, apparently not in true hot pursuit, similarly appear to be illegal. The basing of hostile forces just-over-the-border is a recurring and difficult theme. They raise real security concerns, and they also raise ‘manufactured’ concerns. The country opposing the hostile forces has little hope of getting the Security Council to act with effectiveness. Columbia (and perhaps the U.S.) eventually had to decide whether ‘the juice was worth the squeeze.’ Turkey likewise. They obviously concluded it was.
All of which raises the question of appropriate and achievable remedies for such illegal temporary incursions.
Ironically,(and off topic) there is a more startling connection between Reyes and Escobar:
This used to be in Narconews, but apparently it has been scrubed, so I found an identical post in (!) Myspace.
President Alvaro [Scarface] Uribe and his family have had a long time relationshipwith the drug cartels. The president’s father helicopter [aka, the ghost helicopter] was found at the Tranquilandia cocaine lab.
Famous drug lord Pablo Escobar truly admired A. Uribe (Escobar said that if it were not for Uribe, they would have to swim to the US to deliver their cocaine)
There are picture of Uribe’s brother Santiago with the drug-dealing clan Ochoa and Alvaro Uribe said he was taken a picture with Justo Pastor Perafán, another drug dealing lord currently in a U. S. prison
Mario Uribe , the president’s cusin, was a member of what is called Para-politics (members of Colombia’s Congress who are controled by the Paramilitary)
I wonder if the Reyes killing was more of a cartel killing or if the allegations that he was killed just to appear to have a tough policy against the FARC just so he can continue to persue his constitutional reform so he can become “President for life”, just like Chavez did?
By the way, Governor Richardson met with Chavez to ask him to intercede with the FARC so the three American hostages who have been held for 5 years can be freed.