Sunday, February 12, 2012

LD Targeted Killing Topic Analysis - Part 1

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The Legal Basis for the Resolution

The Caroline Incident
The idea of state self-defense certainly precedes the 9/11 terror attacks. One could claim it is as old as statehood, but an interesting case arose in 1837.  I encourage you to read the history of this incident. In summary, Canada was under British rule and a group of insurgents opposed to British rule, tried to capture Toronto and established a provisional government on Navy Island in Canada.  The insurgents were aided by certain U.S. citizens and the U.S. flagged vessel, Caroline made several supply trips to and from Navy Island. On December 29, 1837, the British attacked the Caroline resulting in the death or wounding of several Americans and the loss of the vessel.  While the United States agreed in the right of self-defense, it objected to the attack claiming that certain conditions must preclude an act of self-defense. Known as the "Caroline test" it provides that the need for pre-emptive self-defense must be "instant, overwhelming, and leaving no choice of means, and no moment for deliberation" and in the end allowed that British force was justified because they "did nothing unreasonable or excessive; since the act, justified by the necessity of self–defense, must be limited by that necessity, and kept clearly within it."

Therefore, the Caroline incident establishes two principle requirements justifying pre-emptive self-defense:

  1. It must be necessary - because the threat is imminent and pursuing peaceful alternatives is pointless.
  2. It must be proportional - because it is not unreasonable nor excessive.

Executive Order 12333
In 1981, President Ronald Reagan, issued Executive Order 12333 which stated “No person employed or United States Government shall engage in, or conspire to engage in, assassination.” [Fed. Reg. 59,941, 59,952 (Dec. 4, 1981)]. This order extended a previous ban put in place by Gerald Ford.  While, the EO did ban assassination as a tool to achieve foreign policy objectives, it failed to define "assassination".  As a result, government lawyers have always defined assassination as murder for political purposes.  This does not include accidental death and legal killing such as the use of deadly force by police officers and military personnel engaged in war. (Persons interested in learning more of the history behind EO 12333 should look at the U.S. Senate Church Committee Investigations in 1975 which revealed CIA plots to destabilize foreign governments and assassinate foreign leaders).  Like several nations before it (most notably Israel), in the wake of the September 11th terrorist attacks, the United States reaffirmed its right to defend itself.  While the United Nations essentially bans war, The United Nations Charter, Chapter VII Article 51 states: 
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."
The article thus establishes the legal right of member states to defend themselves without any mention from where or by whom the threat emerges.  Therefore this provision is the justification for the present U.S. War on Terrorism and provides justification for other nations such as Israel to conduct pre-emptive attacks on Palestinian targets.  [It should be realized however, that because this article is so interpreted there is much dispute and contention over whether or not certain states are exceeding the intent of the provision and attacking individuals outside of the legal intention of the article.  We will leave this discussion for another debate as it is highly controversial and not necessary to discuss for the purposes of this LD resolution.]

U.S. Constitutional Law
The Fifth Amendment carries the "due process" clause which forbids anyone to be be deprived of life without due process of law. Under this provision, capital punishment is legal because it is imposed after a full judicial process has been completed. The Fourth Amendment further provides the right of individuals "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."  Therefore, if the state intends to apprehend an individual there must be a certain reasonableness to the action and other court rulings have established the right of the government agents to kill rather than apprehend if it is necessary to prevent physical harm to the agents.  What is not so clear, is how far these Constitutional rights extend beyond the borders of the United States and whether they cover non-citizens. In the case of Reid v Covert, the court suggested that government agents could not escape Constitutional limits since the Constitution travels with them. However, in the case of United States v Verdugo-Urquidez, the court ruled that aliens outside of the U.S. are not protected by the Fourth Amendment. Nevertheless, the case does extend Fifth Amendment rights of Due Process to all people regardless of their national affiliation.

The Law of War (Jus in Bello)
In some respects it seems the Law of War over-rules the Fifth Amendment restrictions on taking life with Due Process, or at least, the state of war whether declared or forced upon a nation by attack is itself the Due Process which confers the right to kill as long as the killing is not done "treacherously" (see the definition of assassination, Article 23b of the 1907 Hague Convention IV) and meets other somewhat ambiguous criteria for justification. These include the following principles:

  1. Distinction - establishes who are the combatants and who are not
  2. Proportionality - limits the extent of attacks so as to minimize collateral damage or harms to non-participants
  3. Necessity - provides for a military purpose and limits unnecessary destruction
  4. Fairness to Prisoners - captured enemy are to be considered non-threatening and so should not be mistreated
  5. No Evil Means - weapons or methods must not be considered inherently cruel or evil, such as mass rape, or uncontrolled killing and destruction.

For more on the legal basis of Targeted Killing see the following two papers for slightly variant points of view:

Targeted Killing and Assassination: The U.S. Legal Framework, Banks & Raven-Hansen, University of Richmond Law Review, Vol. 37:557, 2003

Targeted killing, not assassination: the legal case for the United States to kill terrorist leaders, Om M. Jahagirdar, University of Virginia School of Law, Charlottesville, VA, USA, Published in The Journal of Islamic Law and Culture, Vol 10, No. 2, July 2008, 231-248

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