Is it legal? Is it useful? Some questions on targeted killing

By Walter Rech (HCAS Core Fellow)

Photo by sibsky2016, Shutterstock

Whether carried out by sharpshooting, poisoning or drone attacks, targeted killing has become a defining tool of war and counterterrorism in the twenty-first century. While the term of ‘targeted’ killing seems to indicate a limited use of force, its significance goes well beyond the elimination of single individuals.

Possible justifications of targeted killing: utilitarian and humanitarian approaches

From a strategic perspective, targeted killing has been deemed useful and effective in particular as a means to neutralize enemy entities that rely on charismatic leadership and may find it difficult to replace charismatic leaders adequately or adjust their internal structure in response to external attacks. This especially applies to criminal groups in the early stages of organizational development or to governmental authorities that have recently seized power. These entities may not be able to deal with ‘decapitation’, i.e. the loss of key leader figures.

In addition to being useful and effective under the above circumstances, targeted killing may paradoxically be justified for humanitarian reasons as it allows the state to achieve security goals without starting a full-scale war leading to innumerable civilian and military casualties. Already Renaissance authors noted that although the elimination of enemy individuals may look very much like sheer assassination and thus as blameworthy, it had a humanitarian component. As Thomas More put it in Utopia:

‘[The Utopians] think it likewise an act of mercy and love to mankind to prevent the great slaughter of those that must otherwise be killed in the progress of the war, both on their own side and on that of their enemies, by the death of a few that are most guilty; and that in so doing they are kind even to their enemies, and pity them no less than their own people, as knowing that the greater part of them do not engage in the war of their own accord, but are driven into it by the passions of their prince.’

The human rights perspective

Yet despite utilitarian and humanitarian arguments the practice of targeted killing still raises a number of legal and policy issues. At least in times of (formal) peace, the elimination of individuals without due process seems at odds with international human rights, in particular the individual’s right to life, and may not always comply with strict law enforcement standards typically required by liberal democracies. The elimination of foreign public figures, in particular, would be tantamount to political assassination, which is illegal under domestic laws and international treaties. It could qualify as an act of aggression against a foreign state, unless carried out in self-defence. Beyond the killing of public figures, even the elimination of terrorists, which might raise fewer legal and ethical issues, might turn out to be problematic in the long term if the targeting state deploys security arguments and emergency measures in ways that undermine human rights and constitutional guarantees.

Ticking bombs?

But surely, some might respond, there must be some justification at least for neutralizing terrorists who are preparing an attack, the classical ticking bomb scenario. This would clearly differ from the elimination of foreign leaders. One cannot deprive the state of its right to protect its citizens from terrorists simply because of the risk that some states will manipulate counterterrorism as an ideological tool. In a ticking bomb scenario, targeted killing would be a lesser evil compared with the consequences of a terrorist attack.

Yet the ticking bomb scenarios in which targeted killing seems most legitimate occur fairly rarely in the real world. Most targeted killings are meant to eliminate individuals who may not constitute an immediate threat. As a result, they should be apprehended whenever possible rather than killed, as most liberal legal systems require. If states decide to allow so-called shoot-to-kill policies to address security threats, strict standards of proportionality and necessity should be applied.

Breaching the law to protect the law?

Some have still argued that fully respecting ordinary criminal laws and human rights standards may in some exceptional cases prevent the state from properly addressing security threats, and terrorists should be eliminated as soon as the occasion arises. This might contravene liberal democracy standards, but it may sometimes be necessary to breach the law, or lower legal standards, in order to protect the law itself. The argument goes that when the legal system is threatened by people whose very aim is to destroy the law, legal protections should not be granted to them.

Is this a ‘war’? The law of armed conflict

In addition to utilitarian arguments, there would be a legal avenue for justifying targeted killing occurring in wartime. If terrorist attacks are recurrent and part of a continuous threat, the conflict between the state and opposition forces that the state regards as terrorists may legally be considered as a situation of outright armed conflict. The law of armed conflict would then apply, and this law offers more leeway to the state than human rights law or domestic criminal law. Under the law of armed conflict, all those taking active part in the hostilities – hence not only those constituting immediate threats – represent military targets and may lawfully be killed. There is no strict rule of armed conflict requiring the targeting entity to apprehend rather than kill the targeted person as long as the person is engaged in the hostilities, for instance by virtue of belonging to an armed group. Thus, the targeted killing of enemies during armed conflict does not raise many issues, and indeed states have often eliminated enemy troops and military officers through sharpshooting in wartime. Under this view, the central distinction would be the one between the state of war, in which targeted killing would typically be allowed, and a state of peace, in which human rights would play a major role and would place a heavier burden of proof on the targeting state to show that the targeting is lawful.

Operations abroad

Some further argue that a situation of armed conflict may also exist between the targeting state and terrorist entities based abroad. Under this view the targeting state, as a victim of terrorist attacks, would have a right to defend itself against those entities, including by means of extraterritorial operations. It has been argued that if a country is unwilling or unable to stop terrorists who threaten another state, the latter state has a right to take action to neutralize the terrorist threat on that country’s soil. This would be supported by Art. 51 UN Charter, which endows member states with an ‘inherent right of individual or collective self-defence if an armed attack occurs’ against them.

A slippery slope?

But could the justification of targeted killing turn into a slippery slope nevertheless? Even when targeting states do not intend to undermine the global human rights regime, merely resorting to and justifying targeted killing in an expansive way could weaken constitutional rights for ordinary citizens and introduce worrying precedents in international relations. The fact that targeted killing has sometimes been used by some states to neutralize internal dissidents shows that there is a fine line between legitimate counterterrorism and the more controversial elimination of internal opposition. Who will decide which kind of enemy qualifies as a legitimate target or rather the victim of domestic repression?

As the world order seems to be in transition it is important to keep in mind that targeted killing is part and parcel of broader practices of and discourses on the use of force in global politics. In previous centuries, targeted killing has been seen as a useful and even humanitarian tool, as More suggested, but it has also been used by some states to secure international influence and force regime change abroad. What is at stake in targeted killing policies and practices is not only the legality of specific acts but also the broader standards applicable to the use of force as a way of addressing domestic and international threats.

Walter Rech’s Collegium projectTargeted Killing and International Law, 1600–1800” investigates the history of state-sponsored assassinations and targeted killing in early-modern times, in particular in the period 1600–1800, when lawyers and government officials developed a set of core arguments on the matter. The project addresses the legal, political and ethical issues at stake in targeted killing and why it is important to rethink this practice today.