Extrajudicial Targeted Assassination Notes

As I write, the recent targeted killing of Qassem Suleimani by a US missile ordered by President Trump dominates the news cycle as pundits and politicians clamor to guess what it means and whether or not it may result in yet another war in the Mideast. Here are notes I wish to keep for future reference. There is a considerable body of research about targeted assassinations. This link was among the first I came across. What follows here barely scratches the surface of what appears at the link.

The transformation of targeted killing and international order (2017)

This article introduces the special issue’s question of whether and how the current transformation of targeted killing is transforming the global international order and provides the conceptual ground for the individual contributions to the special issue. It develops a two-dimensional concept of political order and introduces a theoretical framework that conceives the maintenance and transformation of international order as a dynamic interplay between its behavioral dimension in the form of violence and discursive processes and its institutional dimension in the form of ideas, norms, and rules. The article also conceptualizes targeted killing and introduces a typology of targeted-killing acts on the basis of their legal and moral legitimacy. Building on this conceptual groundwork, the article takes stock of the current transformation of targeted killing and summarizes the individual contributions to this special issue. The current transformation of targeted killing has kindled considerable interest among scholars and has resulted in a fast-expanding literature. This literature consists of three branches that address the use, legitimacy, and broader impact of targeted killing.

The first branch on the use of targeted killing includes statistical studies on the frequency of targeting killing, work on the history of targeted-killing strategies and studies on how and why agents resort to this type of violence.

International humanitarian law, or jus in bello, is the law that governs
how warfare is conducted. IHL is purely
humanitarian, seeking to limit suffering.
It is independent from questions about
the justification for war, or its prevention,
covered by jus ad bellum.

The second and largest branch discusses the legitimacy of targeted killing, that is, whether acts of targeted killing comply with legal and moral principles, and ponders whether states should amend these principles to meet the realities of armed conflicts. In this context, a fundamental question is whether the paradigm of law enforcement, which is restrictive regarding the use of lethal force against individuals, or the more permissive paradigm of armed conflict governs state-mandated targeted killing.... Focusing specifically on the paradigm of armed conflict, which the United States and Israel have invoked to justify their killing of terrorists actors, scholars have debated whether the jus ad bellum and jus in bello principles of Just War Theory still apply in asymmetric conflicts between states and terrorist organizations, or should be supplemented with new principles of a jus ad vim.

The third and final branch of the literature inquires into the broader impact of targeted killing. A first set of scholars focuses on the impact that the targeted killing of state leaders has on domestic political orders. A second set addresses targeted killing in the context of contemporary conflicts and debates local and regional effects such as increasing anti-American sentiments and psychological distress of local populations or the destabilization of governments and escalation of regional conflicts. Only few scholars have extended the scope further by addressing the effects of targeted killing on the current international order. Ward Thomas focuses on the anti-assassination norm that has consolidated together with the Westphalian international order and argues that the rise in targeted killing, or what he calls “the new age of assassination”, has resulted in a decline of this norm. While Ward Thomas addresses normative decline, Fisher concludes in his work that a “norm permitting the use of targeted killing for counter-terrorism purposes appears likely to emerge [emphasis added] and spread successfully". In a similar vein, Fisk and Ramos argue that a norm of preventive self-defense slowly supersedes the existing prohibition of the preventive use of force. Although these studies point to the relevance of inquiring into this dimension of the nexus between targeted killing and international order and provide a number of relevant insights, our overall knowledge of whether and how the current transformation of targeted killing is affecting the ideas, norms, and rules that constitute the global international order is still very limited. This special issue seeks to advance our understanding of this important question as well as to stimulate a sustained scholarly debate on it.

Craig Murphy's Lies, the Bethlehem Doctrine, and the Illegal Murder of Soleimani is an introduction to the writing of Daniel Bethlehem.

In one of the series of blatant lies the USA has told to justify the assassination of Soleimani, Mike Pompeo said that Soleimani was killed because he was planning “Imminent attacks” on US citizens. It is a careful choice of word. Pompeo is specifically referring to the Bethlehem Doctrine of Pre-Emptive Self Defence.
Developed by Daniel Bethlehem when Legal Adviser to first Netanyahu’s government and then Blair’s, the Bethlehem Doctrine is that states have a right of “pre-emptive self-defence” against “imminent” attack. That is something most people, and most international law experts and judges, would accept. Including me. 

What very few people, and almost no international lawyers, accept is the key to the Bethlehem Doctrine – that here “Imminent” – the word used so carefully by Pompeo – does not need to have its normal meanings of either “soon” or “about to happen”. An attack may be deemed “imminent”, according to the Bethlehem Doctrine, even if you know no details of it or when it might occur. So you may be assassinated by a drone or bomb strike – and the doctrine was specifically developed to justify such strikes – because of “intelligence” you are engaged in a plot, when that intelligence neither says what the plot is nor when it might occur. Or even more tenuous, because there is intelligence you have engaged in a plot before, so it is reasonable to kill you in case you do so again. 

I am not inventing the Bethlehem Doctrine. It has been the formal legal justification for drone strikes and targeted assassinations by the Israeli, US and UK governments for a decade. Here it is in academic paper form, published by Bethlehem after he left government service (the form in which it is adopted by the US, UK and Israeli Governments is classified information). 

So when Pompeo says attacks by Soleimani were “imminent” he is not using the word in the normal sense in the English language. It is no use asking him what, where or when these “imminent” attacks were planned to be. He is referencing the Bethlehem Doctrine under which you can kill people on the basis of a feeling that they may have been about to do something. 

The idea that killing an individual who you have received information is going to attack you, but you do not know when, where or how, can be justified as self-defence, has not gained widespread acceptance – or indeed virtually any acceptance – in legal circles outside the ranks of the most extreme devoted neo-conservatives and zionists. Daniel Bethlehem became the FCO’s Chief Legal Adviser, brought in by Jack Straw, precisely because every single one of the FCO’s existing Legal Advisers believed the Iraq War to be illegal. In 2004, when the House of Commons was considering the legality of the war on Iraq, Bethlehem produced a remarkable paper for consideration which said that it was legal because the courts and existing law were wrong, a defence which has seldom succeeded in court.

Again, there is much more at the link. This is just a sample to help me recall what's there.

Finally, here is a link to Daniel Bethlehem's eight-page paper at The American Journal of International Law.

NOTES AND COMMENTS
PRINCIPLES RELEVANT TO THE SCOPE OF A STATE’S RIGHT OF SELF-DEFENSE AGAINST AN IMMINENT OR ACTUAL ARMED ATTACK BY NONSTATE ACTORS
By Daniel Bethlehem

There has been an ongoing debate over recent years about the scope of a state’s right of self-defense against an imminent or actual armed attack by nonstate actors. The debate predates the Al Qaeda attacks against the World Trade Center and elsewhere in the United States on September 11, 2001, but those events sharpened its focus and gave it greater operational urgency. While an important strand of the debate has taken place in academic journals and public forums, there has been another strand, largely away from the public gaze, within governments and between them, about what the appropriate principles are, and ought to be, in respect of such conduct. Insofar as these discussions have informed the practice of states and their appreciations of legality, they carry particular weight, being material both to the crystallization and development of customary international law and to the interpretation of treaties.  

Aspects of these otherwise largely intra- and intergovernmental discussions have periodically become visible publicly through official statements and speeches, evidence to governmental committees, reports of such committees, and similar documents. Other aspects have to be deduced from the practice of states—which, given the sensitivities, is sometimes opaque. In recent years, in a U.S. context, elements of this debate have been illuminated by the public remarks of senior Obama administration legal and counterterrorism officials, including Harold Koh, the Department of State legal adviser, John Brennan, the assistant to the president for homeland security and counterterrorism, Jeh Johnson, the Department of Defense general counsel, Attorney-General Eric Holder, and Stephen Preston, the Central Intelligence Agency general counsel.  

While there has been no similar flurry of speeches elsewhere, important elements of this debate have also attracted comment in the United Kingdom over the years. For example, between 2002 and 2006, the UK House of Commons Foreign Affairs Committee published a series of reports, entitled Foreign Policy Aspects of the War Against Terrorism, in which important elements of this debate were addressed.

As before, there is more at the link. Bethlehem's expectations about conflict resolution are muted at best. He adds later...

In parallel to these reports and statements, a good deal of scholarly writing has addressed the scope of the right of self-defense against imminent and actual armed attacks by nonstate actors. These writings have illuminated the complexity of the issues as well as the doctrinal divide that continues to beset the debate— between those who favor a restrictive approach to the law on self-defense and those who take the view that the credibility of the law depends ultimately upon its ability to address effectively the realities of contemporary threats. 

This scholarship faces significant challenges, however, when it comes to shaping the operational thinking of those within governments and the military who are required to make decisions in the face of significant terrorist threats emanating from abroad. There is little intersection between the academic debate and the operational realities. And on those few occasions when such matters have come under scrutiny in court, the debate is seldom advanced. [My emphasis.]  The reality of the threats, the consequences of inaction, and the challenges of both strategic appreciation and operational decision making in the face of such threats frequently trump a doctrinal debate that has yet to produce a clear set of principles that effectively address the specific operational circumstances faced by states.