MIDDLE EAST: Assassinations distorting law
Liaquat Ali Khan

Assassinations carried out in the name of war on terror are distorting international law, which prohibits all forms of extrajudicial executions – including state-sponsored assassinations – and requires that even the worst criminals are granted due process of the law.

The failure of the UN Security Council to condemn the recent killing of Hamas spiritual leader Sheikh Ahmed Yassin indicates an assumed exemption from the law by states claiming to be executing members of terrorist organizations without trial.

No such exemption, however, has been written into international law.

Israel is the most outspoken proponent of the view that members of terrorist organizations are lawful targets for execution without trial. The US does not openly support the Israeli view of assassinations, but it appears to condone such executions. The US alone vetoed a UN Security Council resolution denouncing the assassination of Sheikh Yassin – 11 voted for it, 3 abstained.

In so doing, the US was not simply posing as an ally of Israel; it was serving its own interests. Since the 9/11 attacks, the Bush administration has advocated the killing of terrorists – of course, without a trial.

US special operations snipers have killed several foreign nationals in forced encounters in Afghanistan and Iraq. A well-known US assassination took place in Yemen in 2002 when a CIA-operated drone killed six suspected terrorists speeding in a car below. US deputy defense secretary Paul Wolfowitz called it a “very successful tactical operation.”

Israel and the United States stand united in defending lawless killings. They vow not to let their soldiers and citizens be killed by terrorists. Calling it self-defense or lawful interception, they argue that international law should not preclude executing terrorists who are out to harm their nationals.

Israel promotes a much broader exception to the rule of law than does the US. Israel not only kills people poised to commit terror, but also executes their spiritual and political leaders. Israel argues that by their rhetoric, such leaders father and favor a culture of violence that spawns suicide bombers and other perpetrators of violence. The United States argues for a far narrower exception, under which killing a terrorist leader is legally excusable when that person has actually masterminded specific acts of murder.

From the legal viewpoint, however, even narrow exceptions are fraught with problems. Extrajudicial killings, no matter how narrowly conceived, undermine fundamental human rights that are enshrined in universal treaties. In such cases, the defendant is killed without even a hearing before an impartial tribunal. He is given no opportunity to challenge the evidence or witnesses against him.

The killer state is accountable to no defense attorney, no jury, and no court. It simply says to the world: “Take our word. We executed a terrorist!”

But do we know he was a terrorist? Given that the intelligence over alleged weapons of mass destruction in Iraq was grossly unreliable, how can the international community have complete confidence in a state that is killing alleged terrorists without a trial and irrefutable evidence linking that person to a crime? The Israeli justification for extrajudicial executions is worse and leads to widespread oppression, blurring any distinction between terrorists and insurgents fighting for self-determination.

International law recognizes the right of people under occupation to fight for their freedom. But, according to Israel, the Palestinians have no right to take up arms in their struggle for independence, no matter how oppressive their conditions under occupation may be. Moreover, in Israel’s eyes, any organization that uses force as a means of liberation espouses terrorism and, as such, its entire leadership is a legitimate target for assassinations. But if international law is amended to open the door to lawless executions, states will be emboldened to go even further. Fighting crime will mimic the mantra of fighting terrorism. Already, encounter killings, precipitated through shootouts between the police and alleged criminals, are commonplace in many countries.

Indian security forces have been known to set up encounters to justify extrajudicial executions, including of minority Dalit Christians demanding fair wages. In Brazil, leaders of indigenous populations have been executed for demanding protection from illegal encroachments on their reservations.

The 11 UN Security Council members who voted ‘yes’ not only condemned the assassination of Sheikh Yassin, but more broadly voted ‘no’ to extrajudicial executions. Perhaps their vote also reflected an awareness of the potential risks embodied in the arguments for his death.

Liaquat Ali Khan is a professor at Washburn University School of Law in Kansas