29 Aug The Cliff of Targeted Killings: From Rushdie to Al-Zawahiri
[Marissa Kardon Weber is an international criminal and human rights lawyer. She works on strategic human rights litigation against Iran and its agents and instrumentalities in U.S. federal court on behalf of victims of hostage taking, torture, extrajudicial killing, and aircraft sabotage. The views expressed herein are entirely her own.]
Double Standards in Extrajudicial Killings?
The decades of treatment and recent likely attempted murder of novelist and defender of the freedom of artistic expression Salman Rushdie are nothing short of horrific.
The US government’s necessary concern for and response in support of Rushdie – and others targeted by the Islamic Republic of Iran on US soil including Iranian journalist and women’s rights activist Masih Alinejad and allegedly US officials – raises an important question: what are the significant differences, if any, between the Iranian regime’s targeted killings of these critics, dissidents, and political opponents and the US’s targeted killings of suspected members of terrorist organizations in Afghanistan, Iraq, Libya, Pakistan, Somalia, Syria, and Yemen (notably Osama bin Laden and Ayman al-Zawahiri of al-Qaeda, Abu Bakr al-Baghdadi of ISIS, and Qasem Soleimani of the IRGC)?
There are certainly some significant differences – Iran’s targets generally have a demonstrated record of advocating for the protection of basic freedoms and human rights in Iran, likely in violation of “divine verses”, while the US’s targets generally have a demonstrated record of terrorist activities against Americans and US allies, likely in violation of international law.
However, as “likely” alone is not enough in any modern criminal justice system, there is an undeniable commonality that makes these differences irrelevant under international law: these killings, and attempted killings, are extrajudicial, or deliberately authorized by a state outside any judicial framework affording the targeted individual all judicial and due process guarantees.
As UN Special Rapporteurs on extrajudicial, summary, or arbitrary executions have repeatedly confirmed,
[t]he right to protection from arbitrary deprivation of life is a rule of customary international law, a general principle of international law and a rule of jus cogens. It is recognized in the Universal Declaration of Human Rights [“UDHR”], the International Covenant on Civil and Political Rights [“ICCPR”] and regional conventions.(see here, para. 30, quoted by here, para. 33).
In order to be lawful, an extrajudicial killing must not only satisfy the domestic laws of the targeting state, but also “the legal requirements under all applicable international legal regimes: the law regulating inter-State use of force (jus ad bellum), international humanitarian law and international human rights law.”(see here, para. 30). When states like Iran and the US carry out extrajudicial killings that are patently unlawful or even ambiguously unlawful by their own intelligence community’s assessment, everyone suffers:the reliability and credibility of the state’s political and legal frameworks; the individuals deprived of due process; individuals like Rushdie and Alinejad who are at increased risk due to one state’s shielded reliance on another state’s use of targeted killings in ambiguous contexts; and the rule of law more broadly.
Legality Under Domestic Laws
Iran and the US have distinct justifications for their targeted killings under respective domestic laws. Iran’s are patently unlawful under international law while the US’s might not be tenable under international law.
Iran’s targeting of critics like Rushdie (note Iran has denied responsibility for his recent attempted murder), dissidents like Alinejad, and political opponents like US officials is governed by religious laws “based on ‘Islamic criteria’ and an official interpretation of sharia [law]”. In the case of Rushdie, then-Supreme Leader Ayatollah Khomeini issued a 1989 fatwa, or legal decree, deciding that his literary work about the Prophet Muhammad’s life was “blasphemous” and warranted a death sentence and $3 million bounty for him. Since issuing the fatwa, Iran has repeatedly incited violence against him and called for his murder.
The Islamic Republic has targeted Alinejad through more veiled means. Instead of issuing fatwas ruling on her culpability, the government has persecuted her through public shaming and threats, designating her an “enemy” and punishing her collaborators with up to 10 years in prison, and arbitrarily detaining her brother. She was also the victim of two assassination attempts, both allegedly by Iranian agents. Her crime? Peacefully advocating for Iranian women to not wear hijabs if they prefer not to, in violation of Iranian law.
In their targeting of both Rushdie and Alinejad, Iran relies on religious laws to deprive them of basic freedoms protected under international law – namely their right to due process and freedoms of expression, thought, conscience, religion, belief of choice, association, and assembly enumerated in, inter alia, the ICCPR, to which Iran and the US are states parties, and the UDHR, of which they are both signatories. Even more, Iran strives to penalize them with capital punishment absent due process. As international law allows the death penalty solely for the “most serious crimes […] pursuant to a final judgment rendered by a competent court”, it is irrefutable that death is not a proportionate or humane punishment to sharing ideas in a book or women displaying their hair.
The religious bases of the Islamic Republic’s targeting alone are not problematic or determinative of its unlawfulness. Instead, it is the protected human rights that these religious bases violate, the disproportionality of the punishments, and the absence of due process that make them legally untenable.
For their targeting of individuals like Ayman al-Zawahiri, a top al-Qaeda leader allegedly behind the September 11 attacks, in Afghanistan, the US relies on the 2001 Authorization for the Use of Military Force (“AUMF”), which was enacted following the 9/11 attacks to authorize the President to “use all necessary and appropriate force against those […] organizations he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” While al-Zawahiri was a leader of al-Qaeda at the time that it carried out the 9/11 attacks making him a legitimate target under the AUMF, the Authorization continues to be broadly interpreted and applied. In response to al-Zawahiri’s killing, international law expert Professor Oona Hathaway wrote:
There is no sunset clause in the 2001 AUMF, but Congress clearly did not contemplate an endless war when it enacted the law more than two decades ago. There is a strong argument that the authorization has effectively expired, though the argument has yet to win in court when raised by those who continued to be detained at Guantanamo Bay under the authority indirectly granted by the authorization.
Following the evacuation of US troops from Afghanistan in August 2021, President Biden explained “the guiding principle behind” the decision:
We delivered justice in  – over a decade ago. Al Qaeda was decimated.
[…] The fundamental obligation of a President, in my opinion, is to defend and protect America – not against threats of 2001, but against the threats of 2021 and tomorrow.
Twenty-one years after its enactment and one year after the US withdrew troops from Afghanistan due to no perceived ongoing threat against the US by al-Qaeda in Afghanistan, the AUMF alone may no longer be an adequate legal justification for the targeting of al-Qaeda leaders in Afghanistan, even if the US remains concerned about their future actions.
Legality Under International Law
Ultimately, while the Rushdies and Alinejads of the world might be targetableunder Iranian law and the al-Zawahiris under US law, these actions are subject to the same international legal framework in which these domestic laws must operate. This includes the UN framework, international human rights law, and international humanitarian law, by which the US and Iran are bound.
Many international legal scholars and practitioners have recently discussed in detail the legality of the US’s policy of targeted killings under international law in the context of the Biden Administration’s July 2022 killing of Ayman al-Zawahiri in Afghanistan. As they note, the overarching legal basis for killing al-Zawahiri would be the US’s jus ad bellum right of self-defense under Article 51 of the UN Charter. Under Article 51, international human rights law, and international humanitarian law, acts such as the extrajudicial killing of a person are legally justified if that person poses an actual, ongoing, or imminent threat. However, a recently released US intelligence assessment revealed that the US government could not have considered al-Zawahiri an imminent threat at the time of his killing because al-Qaeda “has not reconstituted its presence in Afghanistan since the US withdrawal last August” and “[t]he terror group does not have the ability to launch attacks from the country against the United States”. While the assessment’s reasoning is contested, it was prepared by the same intelligence community that would have informed the targeted killing in the first place.
This legal framework also requires that the state seeking to use force in the territory of another state must have that other state’s consent, unless they are responsible for the actual, ongoing, or imminent threat. It is highly unlikely that Afghanistan’s Taliban government consented to the US’s strike on al-Zawahiri as they publicly denounced the strike. The US has recognized a policy of not seeking consent from such a state if they are unwilling or unable to prevent or address the threat, yet this approach is widely debated and employed by a vast minority of states. (see here and here).
Even if an argument for the legality of the killing of al-Zawahiri can be made under international humanitarian law alone, which requires that an intentional and deliberate killing of a legitimate target (i.e. a combatant or civilian directly participating in hostilities) is guided by the principles of distinction, proportionality, and precaution, the killing fails to satisfy the“the legal requirements under all applicable international legal regimes”.
While these top experts did not reach definitive conclusions as to what the legal basis for the killing was, if any, this is the very issue: Where is the line? How much ambiguity is too much to justify such an intentional state action that has not been authorized via a legal process affording all judicial guarantees? The answer comes down to an analysis of the broader implications of these state actions.
A closer look at the disparity between the US’s killing of al-Zawahiri and the US intelligence community’s assessment of the threat of al-Qaeda in Afghanistan, and the ambiguity as to the killing’s lawfulness under both domestic and international law, requires a consideration of the broader implications of the US’s policy on targeted killings under its current legal framework. Arguably as important as lawfulness is the impact one state’s actions may have on the wider international community.
In response to the US’s comparable killings of Osama bin Laden in 2011 and Qasem Soleimani in 2020, then-UN Special Rapporteurs on extrajudicial, summary, or arbitrary executions condemned the US’s claims of self-defense as overly expansive, finding: “if other states were to claim the broad-based authority that the United States does, to kill people anywhere, anytime, the result would be chaos” and that it “is not just a slippery slope. It is a cliff.” (see here and here, para. 64). Yet, other states do follow suit and claim the very same “broad-based authority” with dangerous results. In July 2021 and 2022, when Masih Alinejad was living in exile in the US, she was a victim of two failed assassination plots allegedly carried out by agents of the Islamic Republic on US soil. In August 2022, Salman Rushdie narrowly survived an attempt on his life by an alleged Iran and IRGC-sympathizer.
As Samuel Moyn explained:
The normalization of targeted killings, which is the killing of people off hot battlefields, is the single most sinister thing. […] The US has normalized it and claimed it’s legal. That means any other state, like Russia poisoning people, can claim it’s just acting in self-defense.
This is especially true in the context of both the US’s and Iran’s broadly and frequently applied policies on targeted killings, which are unlikely to address the root causes of the issues they are trying to resolve. Iran’s decades-long persecution of its critics, dissidents, and political opponents has done little more than induce fear and unite those in a position to speak up. At the same time, the US has conducted drone strikes killing members of al-Qaeda and other terrorist organizations for over 20 years. Some of these strikes have been “successful” and even considered lawful due to the presence of an actual, ongoing, or imminent threat and consent from the state in which it was carried out, such as in the 2002 case of Qaed Salim Sinan al-Harethi and five other men in Yemen (note even this targeted killing garnered criticism from the then-Special Rapporteur, see here, paras. 37-9). Still, al-Qaeda has only grown in size and strength since 9/11.
By continuing to engage in this conduct that fails to address root causes or generate sustainable progress toward their goals, the US and Iran have prolonged signaling to other states that they may act on the basis of the same flawed justifications. We have indeed seen other states do just the same throughout the past few decades.
A New Framework
While we can easily understand and support the US government’s support for Alinejad and Rushdie and wanting to bring to “justice” terrorist leaders posing threats to Americans, or any persons for that matter, we can just as reasonably conclude that the Iranian government is not able or willing to fairly prosecute Alinejad and Rushdie (see e.g., here), while the US government has the resources and legal framework to do so of its targets. This comparison becomes untenable in circumstances of terrorists posing active, ongoing, or imminent threats to the US or its allies. However, when ambiguity reigns, steepened by a US-sponsored report admitting no imminent threat, we must question state policies that employ the very practices they aim to condemn.
It is true that “[g]overnments have a responsibility to protect their citizens against the excesses of non-State actors or other authorities […] in accordance with international human rights and humanitarian law” (see here, para. 39). Yet they also have an equal responsibility to not be those very authorities from which other states must protect their citizens. It is not enough for the US, or any state, to speak out against Iran’s targeted killings on their soil while failing to carry out the very lawful conduct they urge Iran to employ.
A “legal process affording all judicial guarantees” such as prosecution is not always feasible, including in the case of al-Zawahiri. However, a targeted killing in such cases may be equally if not more dangerous than the risk of that single targeted individual contributing to a plan larger than themselves that could put a state’s citizens in harm’s way, particularly when the lawfulness of the targeting is not grounded in patent legality.
It is time to construct a more robust multilateral legal framework to rely on in instances where prosecution is not feasible and a targeted killing is unlawful, such as a multilateral joint declaration on ending such extrajudicial killings, providing enumerated actions that signatory governments would individually and collectively take in such circumstances. This move away from extrajudicial killings by government consent is instrumental in preventing the expansion of alarming and permissive precedent and encouraging compliance with and protection of the international legal order.