The debate over the morality and legality of targeted killing has been rekindled by the death of Osama Bin Laden and shows no sign of stopping. But most of the debaters have overlooked a key point. If it is moral and legal to individually target uniformed enemy military officers, surely the same goes for leaders of terrorist organizations. It cannot be the case that law and morality give the latter greater protection than the former. I made this point in a recent statement that got quoted by Al Jazeera (not a media outlet that I would ever have expected to be cited by, but they asked me to comment, so I did):
Ilya Somin, a professor at George Mason University’s School of Law, echoed Greenberg’s argument that “targeting individual enemy combatants in war is perfectly legal and moral”.
Somin points at US targeting of Admiral Isoroku Yamamoto, the commander of the Japanese fleet during World War II, and the British and the Czechs’ killing of German SS General Reinhard Heydrick [sic] in 1942, as precedents.
“Surely international law does not give terrorist leaders greater protection than that enjoyed by uniformed soldiers such as Admiral Yamamoto.”
“And if it is legal to individually target the commander of a uniformed military force, it is surely equally legal to target the leader of a terrorist organisation, including Osama bin Laden,” he told Al Jazeera.
To my knowledge, hardly any serious commentators claim that the targeted killing of enemy military commanders such as Yamamoto and Heydrich is either illegal or immoral. With the possible exception of Justice John Paul Stevens (who questioned the morality of the Yamamoto attack, but not its legality), everyone understands that individual military officers are legitimate targets. A capable high-ranking officer is a military asset in much the same way as an individual anonymous mass of low-ranking soldiers. In Heydrich’s case, there is the complicating factor that, as one of the architects of the Holocaust, he was an even greater criminal than Bin Laden. However, this was not the reason why he was targeted for assassination by the Allies (who in early 1942 did not yet know of his crucial role in the Holocaust). And Admiral Yamamoto was not guilty of committing any atrocities; the US targeted him simply because he was a more effective commander than his likely replacements.
What is true of uniformed officers surely also applies to leaders of terrorist organizations such as al Qaeda. The latter, too, represent enemy military assets that we can legitimately target in wartime. If anything, targeting terrorist leaders is more defensible than targeting individual uniformed officers. Unlike uniformed soldiers, terrorist leaders openly target civilians and don’t even pretend to obey the laws of war.
The only significant countervailing consideration is that terrorists are sometimes more difficult to distinguish from innocent civilians than military officers are. This creates the danger that unscrupulous governments will use bogus accusations of terrorism as a justification for killing people they dislike. This is a genuine problem. But it doesn’t justify a categorical ban on the targeted killing of terrorists. Instead, such abuses can be constrained in two other ways.
First, targeted killings, like other military tactics, can only be used against terrorists in conflicts that are large-scale enough to qualify as a war. One can legitimately debate the exact point at which a terrorist threat rises to that status. But surely al Qaeda, given the enormous scale of its atrocities, qualifies. The boundary between war and small-scale conflict is also disputable in the case of traditional armed confrontations between states, as the recent debate over the US military intervention in Libya demonstrates. As with many legal concepts, the boundary between “war” and other types of conflict is difficult to define with absolute precision. But most real-world cases are clear enough to readily be classified on one side of the line or the other.
Even when we do have an antiterrorist conflict that qualifies as a war, the deliberate targeting of innocent people under a pretextual accusation of terrorism can still be prosecuted as a war crime. In the same way, officials can be prosecuted for deliberately bombing a civilian target under a bogus claim that it is actually an enemy military unit. No one argues that the use of air strikes or artillery against military targets is categorically illegal or unjust merely because governments sometimes use bogus military rationales to justify attacks on civilians. The same reasoning applies to the abuse of targeted killings.
Sometimes, of course, a targeted killing may end up killing innocent people even though the government that ordered the operation genuinely believed that they were attacking a terrorist. But the same risk is present in conventional military operations against uniformed soldiers. Indeed, far more innocent civilians have been accidentally killed by air and artillery attacks aimed at military units than by targeted killing operations gone awry.
In sum, if we assume that the targeted killing of enemy military personnel is a legal and moral tactic in wartime, the same reasoning also justifies the targeted killing of terrorists.
UPDATE: I previously defended the morality of targeted killing of terrorists here.
UPDATE #2: Kevin Jon Heller responds to this post here, but offers no substantive critique of my argument. He seems to assume that it is obviously wrong to believe that there is no “difference between targeting a military officer in an international armed conflict and targeting a terrorist in something that Ilya Somin is really convinced is a war,” but doesn’t explain why. He also accuses me of claiming that “everything the US does is fine,” which of course I did not say. Heller also conveniently ignores the reason I gave for why the conflict with al Qaeda qualifies as a war: the massive scale of Al Qaeda’s terrorist activities.
UPDATE #3: Heller responds again in an update to his post. He claims that he didn’t make a substantive argument because I didn’t either. But of course my post notes multiple relevant similarities between terrorists and enemy uniformed military officers. Heller also points to this earlier post, where he claims that he addressed “precisely the IHL issues that [Somin] ridicules.” Setting aside the point that I didn’t “ridicule” anything, Heller’s earlier post actually reaches a conclusion very similar to mine:
I have no doubt that killing UBL was legal. To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways. The best rationale is that UBL was a member of an organized armed group (”original” al Qaeda) taking part in the armed conflict in Afghanistan. In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality.
Indeed, Heller’s theory of when targeted killings can be used against terrorists is actually broader than mine. He seems to believe that we can target them any time they are members of “an organized armed group” engaged in an “armed conflict” whereas I argued only that we can do so when they are engaged in an armed conflict that qualifies as a war.
UPDATE #4: In this CNN video, former Clinton administration solicitor general Walter Dellinger makes the argument that killing Bin Laden (and presumably other similarly situated terrorists) was legal because he was an “enemy combatant.” Notice that Dellinger’s argument, like mine, does not distinguish between enemy combatants who are uniformed members of a military and those who are not.
UPDATE #5: Kevin Jon Heller digs his hole deeper in a further update to his post:
Somin replies again, and only makes things worse for himself. He claims that “Heller’s theory of when targeted killings can be used against terrorists is actually broader than mine. He seems to believe that we can target them any time they are members of ‘an organized armed group’ engaged in an ‘armed conflict’ whereas I argued only that we can do so when they are engaged in an armed conflict that qualifies as a war.” Somin obviously doesn’t understand my post, because I was quite clearly discussing targeting in non-international armed conflict, not in “armed conflict” generally, which is a meaningless concept in terms of IHL.
That said, Somin is absolutely right that his view of targeted killing is narrower than mine — just not in the way he imagines. It is, of course, legally impossible for a state to be in a “war” — i.e., in an international armed conflict — with a non-state actor like al Qaeda, as the Supreme Court recognized in Hamdan.
Nothing in Heller’s argument turned on a distinction between “international” and “non-international” armed conflict, unless he is prepared to claim that targeted killing is illegal in the former. Indeed, the earlier post Heller references does not even mention that distinction. As for Hamdan, the Supreme Court majority opinion in that decision repeatedly refers to the “war with al Qaeda” and also describes the Civil War as a “war,” even though the latter was not an international armed conflict, since neither the US nor any other nation recognized the Confederacy as an independent state. Clearly, the Court does not share Heller’s view that it is “impossible” for a state to be in a war with a non-state actor. The Court did rule that the war with al Qaeda was not an “international armed conflict” because it is not against a state. But, in its view, at least some non-international armed conflicts still qualify as wars.