Recently published details regarding the assassination on January 20, 2010 of Hamas leader Mahmoud al-Mabhouh, in Dubai, underline the strategic issues raised by targeted assassinations in violation of international law.
It is one thing for a country to attack an individual actively engaged in the launching of armed attacks against the territory of another state when that individual is acting in the country from which attacks are being launched, and quite another to assassinate an individual believed to have been engaged in a pattern of such attacks when that individual is on the territory of a third state.
The question of what is legally permitted under international law involves identifying the line between permitted and non-permitted uses of force separating these two hypothetical cases, under both the United Nations Charter and international human rights law. Stated differently, what are the limits on the use of force in exercise of the right of self-defense under Article 51 of the U.N. Charter, in the absence of consent by the territorial state? And what are the limits on the use of force imposed by international human rights law and the domestic legal order of the territorial state when the latter has given its consent to another state to take such military action? How might these principles be applied in these two hypothetical cases?
In general, it appears clear that a state does not have the right to violate the territorial integrity of another state to use force against an individual in the territory of that state, without the permission of the territorial state. It is also clear that the territorial state cannot legally give permission to another state to take the life of individuals on its territory in a manner that it would not itself be legally permitted to do under international human rights law and its own domestic legislation. Under international law, including human rights law, and the domestic law of nearly all countries, states are not permitted to simply identify criminals and terrorists and then go kill them.
The United Arab Emirates would not have the legal authority to conduct an extrajudicial assassination of Mahmoud al-Mabhouh when he is in Dubai, and consequently could not give its consent to a third state to do what it itself could not do under either international or domestic law.
This analysis is based on sound and universally accepted principles of international law. These principles, which are embodied in binding legal norms, help to preserve international order and avoid the slippery slope toward anarchy upon which one would enter with any policy sanctioning targeted assassinations in third countries.
It does not take much imagination to envision Russian hit squads or agents assassinating domestic critics, or political candidates from countries in Russia’s asserted sphere of influence whom it opposes, when these individuals are in a third country such the United Kingdom. Or Israel assassinating a Hamas leader in Dubai.
But if these hypothetical examples were either accepted as permissible under international law, or permissible in some moral scheme in which international law is “irrelevant” or “out of date”–which amounts to the same thing–the forces of anarchy would be unleashed upon the world.
The most essential characteristic of a democratic state is at issue here. Individuals may not be killed except in exercise of the right of self-defense, as defined in domestic and international law, or as the result of due process of law, i.e., judicial process or its equivalent under humanitarian law (also known as “the law of war”).
On the domestic level, the alternative is a regime like that of Nazi Germany, or Argentina during “the dirty war” in the 1970s in which the government killed an estimated 30,000 Argentines who it viewed as a threat to the nation.
On the international level, the alternative is an anarchic existence in which, for example, a state in Africa, Latin America, or South Asia might send hit squads into the teritory of another state to assassinate political opponents or individuals it believed had the blood of its soldiers or citizens on their hands.
States react sharply to violations of their territorial integrity, and it is not difficult to see how one or a series of such incidents might lead to armed conflict between the two states involved.
The remaining question to be addressed is what are the limits of self-defense in employing targeted assassinations against the leaders or participants of an insurgent group directing and organizing attacks from one state into the territory of another, e.g. from the territory of Pakistan into the territory of Afghanistan?
Here, at a minimum, the requirements of self-defense under international law must be applied to the specific facts of each case, absent the consent of the territorial state. In general, exercise of the right of self-defense requires that the requirements of necessity, proportionality and immediacy be met. On the other hand, when the attacking state is operating with the consent of the territorial state, it must act in accordance with the provisions of international human rights and humanitarian law, as well as the domestic law of the territorial state.
(The application of humanitarian law or “the law of war” in an expanisve manner permitting any indivdidual supporting the Taliban’s military activities to be targeted for assassination is highly controversial, inherently subject to potential abuse due to its self-judging character, and raises serious questions in terms of its longer-term strategic effects on populations where civilians are frequently killed.)
Whether an individual’s involvement in earlier decisions to launch attacks against Afghanistan from Pakistan would justify a targeted assassination of that individual when he is residing, for example, in Karachi, is a case which raises the pertinent questions.
When acting without the consent of the territorial state, the requirements of necessity, proportionality, and immediacy would, at a minimum, have to be met.
When acting with the consent of the territorial state, human rights and humanitarian law requirements must be observed by the attacking state, just as they would need to be observed by the territorial state if it were carrying out the attack itself.
Would the Pakistani government be legally entitled to conduct a targeted assassination of this individual in Karachi, or would an effort to arrest him and bring him before the courts or military tribunals be required?
It is interesting to note that the Afghanistan Taliban’s second in command, Mullah Abdul Ghani Baradar, was arrested, not assassinated, in Karachi in mid-February, 2010.
The Trenchant Observer
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