When targeted killings undermine the rule of law

By Dr Gideon Boas and Pascale Chifflet

The assassination of Osama Bin Laden last year was lauded by many world leaders, including our own, as a great strike for justice. Finally the behemoth had been destroyed. The idea that the most reviled and feared of people, the face of modern terrorism, should be arrested and subjected to trial and judgement in a court of law was in the eyes of many a puritanical absurdity.

Of course, such a process would be riddled with difficulties and obstacles. However, the argument extends beyond those practical concerns; where the worst of criminals who have no respect for the rule of law are concerned, we should abandon, it seems, the façade of justice and revert to pre-civilised notions of revenge. The bastard deserved what he got, after all.

Yet, Bin Laden is really the tip of the iceberg in a debate about extrajudicial killing that is becoming, if not increasingly prevalent, then at least, increasingly publicised. There have always been targeted killings undertaken by states through their secret services or contracted agents. But in recent years the United States and Israel, in particular, have not just undertaken but publicly declared their right to target and kill persons identified as a threat to their national security.

The introduction of modern technology rendering such killings possible in foreign territory and from safe distance raises concerns. The killing by the US of Al Qaeda number two, Abu Yahya al-Libi, last week, is a perfect example, undertaken, as it was, by an unmanned drone firing rockets into the territory of a foreign state. What gives the United States the right to violate Pakistan’s sovereignty by using lethal force on its territory?

It is not hard to imagine what would have been the response had it been Pakistan firing on a target in US territory. The justification is ostensibly that Pakistan is not doing enough to target and deal with Al Qaeda and other terrorist groups who are using its territory (and may even be supported by elements within its armed forces and government). Such justification may have some moral or political force, but its lawfulness is another matter altogether.

US Secretary of State Hillary Clinton said, in a glowing statement directly after the killing, that al-Libi posed an imminent threat to the security of the US. This makes it sound like a legitimate use of force in self-defence. Such defensive use of force against the territorial integrity of a sovereign state is only lawful as a response to an imminent armed attack by that state.

Although Al Qaeda certainly continues to focus on US interests, no statement made by the US has suggested that Pakistan, let alone al-Libi himself, posed such an imminent threat justifying the attack. Where then is the specific legal justification for the attack? It is not enough simply to say, as Clinton did, that the US will always maintain its “right to use force against groups such as Al Qaeda that have attacked us and still threaten us with imminent attack”. Some would argue that waiting for a threat to be imminent is absurd. However, the law requires a precise justification. If it did not, then any use of force could be excused on the basis of vague or potential threats.

Clinton also said that in carrying out such killings, the US is complying with international law, including the laws of war. The obvious question in response to that is: what war? The war on terror? Obama had, we thought, put that fictitious war to bed. The laws of war have specific jurisdictional requirements. You cannot simply assert that there is a war when it suits you and by doing so claim legitimacy in killing people.

The definition of an armed conflict is a term of art and, while there may be an armed conflict in Afghanistan, or parts of it, there is no credible argument that there is a war underway in Pakistan. Neither was there a war in Yemen when Anwar al-Awlaki was killed there by a US drone in 2011.

The use of drones to conduct targeted killings has other implications. Under the Obama administration, there have been over 250 drone attacks in Pakistan alone. Last Friday, the UN Human Rights Commissioner declared her concern over this use of drones for such killings.

Apart from the questionable legal basis for the targets themselves, such strikes invariably kill innocent civilians in proximity to the target at the time. The bland justification that such ‘collateral damage’ is inevitable just does not satisfy any legal – or, we believe – moral test.

Even if occurring in a war, the attacking state has a duty to distinguish military targets from civilians and to engage in only proportionate attacks that minimise civilian harm. There simply is no justification beyond the fact that these were bad guys who got their just deserts.

That may be so. But let us call a spade a spade. People are being killed, including innocent civilians in proximity to such attacks. And if that killing is unlawful, then it undermines the credibility of states who tout themselves as protectors of the civilised world, of democracy. It undermines the rule of law. And it undermines the one fundamental and unquestionable human right – the right to life.

Dr Gideon Boas is Associate Professor and Pascale Chifflet is a doctoral candidate and lecturer in the Faculty of Law at Monash University.