Such a change would only further alienate the United States from these already suspicious, and even hostile, populaces that can directly affect the pursuit of American policy objectives. Retracting Executive Order at such a sensitive time is especially pointless considering that it is essentially symbolic in nature, serving mostly as a useful symbol of American moral policy, while doing little to actually restrict the use of force.
In order to prove that a revocation of Executive Order would cost the United States a great deal but result in virtually no gain, this article will first examine the treaties and conventions that form the international law regarding assassination in both peace and war times. This article will therefore try to define those circumstances in which a state-sanctioned killing would be considered a prohibited assassination. Finally, it will examine the nature and scope of the domestic ban on the practice from its initial development in the Ford Administration.
It is important to note that the debate over the practicality and morality of assassination as a tool of national policy is beyond the scope of this analysis. Both are provocative and timely issues, with compelling arguments to be made on both sides. However, the weighing of those complex moral issues and political judgments are best left as an exercise for the conscience of the reader.
One of the primary challenges of any analysis of assassination is reaching a clear definition of the term. There is a remarkable lack of legal uniformity in its use, as different studies employ different interpretations. However, as explained below, such an act fails to qualify as assassination because it is perfectly legal under the laws of war. The acceptability of assassination as a wartime strategy has persisted for hundreds of years, but the formulation of a body of law dedicated to it only began during the seventeenth and eighteenth centuries.
War began to be viewed and accepted as a natural tool of international politics, and the custom of waging it became more responsive to practical, rather than religious, requirements. As the customary practice of the seventeenth and eighteenth centuries clearly limited assassination to times of war, study of the subject focused not on when a leader could be killed, but instead on the manner in which it could be done.
Grotius also held that the waging of war was a natural right of kings, and suggested that the legal protections that shielded lords from treachery extended only as far as the sovereignty of the state. The development of a formal legal ban on assassination began with the codification of the international laws of war during the late nineteenth and early twentieth centuries. The U. Five thousand copies were printed and distributed to the officers of the armies of both the Union and the Confederacy.
The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such international outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority.
Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.
General Orders further provided that soldiers may be killed as long as they are not individually singled out, or their deaths achieved as a result of a bounty placed upon their head. Within ten years, however, this concept was widely adopted, making the Lieber Code a model for the rules of war of other nations.
The formulation of a body of international treaty law that restricts the practice of assassination began with the Brussels Conference of The Hague Peace Conferences of and produced a number of major international instruments, including the Convention on the Law and Customs of War on Land. Both the Hague IV Convention and the laws of war permit attacks upon valid military targets at any time or place.
Noncombatants and civilians can be designated a valid target if they are sufficiently involved in the war effort. Although the exact level of involvement necessary for a civilian to become a valid target has not been fully defined legally, 41 it is usually viewed as being a decision in practice based on context.
Civilians who work directly to conduct the war, or occupy a role normally held by a soldier, are valid targets. There is also a legal consensus that a civilian head of state who serves as commander-in-chief of the armed forces falls within this category. It is important to note that the Article 23 b ban on treachery does not preclude the use of either stealth or surprise, and does nothing to change the basic rule that combatants are still legally subject to attack at any time or place.
Later conventions on the law of war have further defined and expanded modern treachery-based interpretations. It is prohibited to kill, injure or capture an adversary by resort to perfidy.
Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.
This additional rule takes the protections against assassination in Article 23 b of the Hague IV Annex and expands them by adding perfidy as an entirely new component of prohibited treachery.
From the above, a number of conclusions can be drawn about what attacks against specific individuals during wartime are assassinations, and thus prohibited under the laws of armed conflict.
First, the applicable law, as established in the treaty and customary law that regulates the use of force, primarily serves to narrow the methods by which individuals can be attacked. It is important to note, however, that killings that are not assassinations may be illegal for other reasons. Assassination during peacetime has been generally interpreted to mean the killing of a particular individual for political reasons.
Many scholars believe it to be a subset of murder, with the choice to kill motivated by politics, and the particular target selected because of his identity, prominence, or public status. An application of this as a legal requirement is problematic, however, as political motive is not an absolute and is based largely on perception and context.
Those who employ state-sponsored killing will deny they were motivated by politics, while those who are victimized will argue the opposite. To further complicate matters, the line between wartime and peacetime legal standards for assassination blur together in the face of conflicts less than war, such as self-defense, preemptive self-defense, and counterterrorist operations. But here, it depends on what kind of war. In interstate wars, the parties may kill only armed forces of the enemy state who are neither sick, wounded, detained, or surrendering.
In noninternational wars, fought by or against nonstate adversaries who may live civilian lives when not fighting, killing is permitted only when the targets are directly engaged in hostilities. Hunting them down when they are going about their everyday business is prohibited—targeting particular individuals rather than armed groups in general, even more so. In short, in neither times of peace nor times of war is assassination—what the United States now labels targeted killings—generally considered acceptable.
To be sure, there is some ambiguity. In the U. Army Field Manual, for example, the definition hinged on whether a specific individual was selected for execution; soldiers must be targeted not because they are personally guilty but only because and as long as they pose a threat to the enemy army. Bush administration conceptualized the fight against a group of terrorists as a war. In such a battle, fought not against states but networks, the old rules of war—including policies about prisoners of war and prohibitions on torture—were argued not to apply.
Similarly, the United States began to argue that the ban on assassination applied only to political leaders and only in peacetime. His guilt had never been established in a court of law. Five other suspected al Qaeda members died with him. On assuming office, the Barack Obama administration reaffirmed the U. Obama lawyers argued that a conflict zone existed everywhere states were unable or unwilling to arrest jihadis.
Allowing suspected militants to live posed a continuing, imminent danger to civilian life and limb. They were not assassinations, either, according to an internal memo leaked to the press in Yet human rights activists and scholars have repeatedly critiqued these formulations. They argue that terrorists should not be dealt with as war combatants but as criminals, using a law enforcement paradigm.
According to those, only the very highest-ranking militia leaders could be considered combatants at all times—and even then, under Common Article 3 of the Geneva Conventions , those people should not be attacked when sick, wounded, or surrendering. This standard was likely not met during the mission that killed al Qaeda leader Osama bin Laden: He died unarmed in front of his family.
For lower-level militants, the relevant rules say they can be attacked only when directly participating in hostilities, not when they are going about their daily civilian business or supporting hostilities indirectly. The drone killing in of U. Many other targets of drone strikes in Pakistan, Somalia, and Yemen were young men who happened to fit the description or profile of terrorist suspects but who were in reality civilians going about their business—like Tariq Aziz , a teen Pakistani soccer player and human rights activist who died when his car was hit by an American missile in Although the term treachery did not feature in the article, the sense that certain acts violate the law of war principle of chivalry, which is reflected in the work of the earlier scholars, was clear.
The Lieber Code sparked other codification projects, particularly in Europe. In , Czar Alexander II of Russia convened an international conference to draft a law of war convention. These documents served as the basis for drafting the Hague Convention II with Respect to the Laws and Customs of War, in which the ban on treacherous killing finally appeared in binding treaty form. A second Hague Peace Conference in slightly revised that instrument, although Article 23 b survived unchanged in the Regulations annexed to its Hague Convention IV.
As such, the rule binds all States today. The most recent comprehensive treaty governing the conduct of hostilities is the Protocol Additional I to the Geneva Conventions of 12 August , and relating to the Protection of Victims of International Armed Conflicts.
It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.
The following acts are examples of perfidy:. Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law.
The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation. In doing so, it is on firm ground.
It does not, however, preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere. Yet, the Lieber Code described assassination in terms of outlawry. Contemporary U. The U. Constitution and international law prohibit the use of lethal force outside of armed conflict zones unless it is used as a last resort against a concrete, specific, and imminent threat of grave harm. Even in the context of an armed conflict against an armed group, the U.
Regardless of the context, whenever the government uses lethal force, it must take all possible steps to avoid harming civilian bystanders.
0コメント