LEGALITY OF TARGETED KILLINGS UNDER INTERNATIONAL LAW

ABSTRACT

Targeted killing refers to the intentional and deliberate use of lethal force, characterized by pre-meditation and authorization under domestic law, against individuals not in physical custody. Governments and their agents employ this tactic in both peacetime and armed conflict. Various methods are utilized to execute targeted killings from a distance, including snipers, missiles, gunships, drones, car bombs, and poison. Despite requiring intricate operational planning, targeted killings pose diminishing risks to the human assets of the targeting state.

This paper presents a comprehensive analysis of targeted killings, encompassing the concept, historical background, legality, international humanitarian law perspective, human rights law perspective, and case studies. Furthermore, it explores India’s options regarding targeted killings, providing a nuanced understanding of the complex issues involved.

KEYWORDS

Targeted Killings, Lethal Force, Domestic Law, International Humanitarian Law, Human Rights Law, Terrorism, Assassination, National Security, Counter-Terrorism, India’s Options.

INTRODUCTION

In the shadows of modern warfare, a contentious practice has emerged, shrouded in controversy and moral ambiguity. Targeted killings, where specific individuals or groups are intentionally targeted and killed, have become a defining feature of contemporary conflict. This phenomenon, often carried out by military or intelligence agencies, is frequently justified as a necessary measure to protect national security, counter terrorism, or conduct military operations. Yet, the legitimacy of such actions is increasingly being questioned, as they often appear to violate fundamental human rights and contravene established principles of international law.

The use of targeted killings has sparked intense debate among scholars, policymakers, and human rights advocates, who argue that such practices undermine the rule of law, perpetuate impunity, and disregard the right to life. As the frequency and scope of targeted killings continue to expand, the need for clarity on their legality under international law has become increasingly pressing. The moral and legal implications of such actions demand scrutiny, and it is essential to examine the complex interplay between international humanitarian law, human rights law, and the law of armed conflict.

MEANING AND CONCEPT OF TARGETED KILLINGS

The concept of targeted killing remains ambiguously defined under international law, with the intersection of disparate legal frameworks complicating the issue further. For the purposes of this discussion, targeted killing is understood to encompass the intentional, premeditated, and deliberate use of lethal force by states or their agents, acting under the guise of legality, or by organized armed groups engaged in armed conflict. This definition specifically pertains to the targeting of a particular individual who is not in the physical custody of the perpetrator. In recent years, targeted killings have been rationalized as a legitimate response to perceived terrorist threats, as well as a necessary adaptation to the challenges posed by asymmetric warfare.

The use of targeted killings has led to a confusing mix of different legal frameworks, including human rights law, the laws of war, and the law governing the use of force between states. However, the countries involved have not been clear about the legal basis for their actions, or about the safeguards they have in place to ensure that targeted killings are lawful and accurate. They have also failed to provide accountability for any mistakes or abuses. Perhaps most worryingly, they have refused to release basic information about who has been killed, why, and what the consequences have been. This lack of transparency has created a situation where the normal rules of law have been set aside, and a culture of impunity has taken hold.

HISTORICAL BACKGROUND

Ancient Times (3000 BCE – 500 CE)

Targeted killings have a long and complex history that spans across various ancient civilizations. In ancient times, targeted killings were often used as a means of eliminating political rivals, enemies, and threats to power.

Ancient Egypt: –

Ancient Egyptian history is replete with instances of pharaohs being assassinated or killed in targeted attacks. Poison was a common method used in ancient Egypt to carry out targeted killings. Priests and nobles often played a significant role in orchestrating targeted killings in ancient Egypt.

Ancient Greece: – In ancient Greece, tyrannicides (the killing of tyrants) were often celebrated as heroic acts. Ancient Greek assassins used stealth and deception to carry out targeted killings. The Scythians, a nomadic people from modern-day Ukraine, were known for their expertise in targeted killings and were often hired as mercenaries.

Ancient Rome: – Ancient Roman history is marked by numerous instances of targeted killings, including the assassinations of Julius Caesar and Caligula. Roman leaders often used gladiators and assassins to carry out targeted killings. The Praetorian Guard, an elite corps of soldiers, played a significant role in orchestrating targeted killings in ancient Rome.

Medieval and Early Modern Period (500-1800 CE)

Targeted killings continued to evolve during the Medieval and Early Modern Period, with the use of assassins and mercenaries becoming more widespread.

The Middle Ages: –

During the Middle Ages, targeted killings were often carried out by secret societies and military orders. The Hashshashin, a secret society of Nizari Ismaili Muslims, were known for their targeted killings of high-profile leaders. In medieval Europe, nobles and monarchs used targeted killings to eliminate rivals and enemies.

Early Modern Period ( 1500 – 1800 CE ) : –

The Early Modern Period saw significant developments in the use of targeted killings. European powers such as France, England, and Spain used targeted killings as a tool of statecraft to eliminate enemies and rivals. The rise of absolute monarchies and the competition for power among European states led to an increase in targeted killings. Assassins and mercenaries were often employed by monarchs and nobles to eliminate rivals and enemies.

Modern Era (1800-2000 CE )

Targeted killings continued to evolve and become more sophisticated in the Modern Era, with the development of new technologies and tactics.

World War I and II (1914-1945): – Assassinations and sabotage were used by various nations during World War I and II, including the British Special Operations Executive (SOE) and the US Office of Strategic Services (OSS). These organizations conducted targeted killings and sabotage operations behind enemy lines, marking a significant shift in the use of targeted killings.

Cold War Era (1945-1991): – The Cold War era saw the rise of proxy wars and covert operations, with the US and USSR using targeted killings to achieve strategic objectives. The CIA and KGB developed sophisticated covert operations capabilities, including targeted killings. State-sponsored terrorism also emerged during this period, with states such as Iran, Libya, and Syria supporting terrorist groups and engaging in targeted killings.

Late 20th Century (1980s-1990s): – The development of precision-guided munitions (PGMs) marked a significant shift in the use of targeted killings, allowing for more precise and effective strikes. The rise of non-state actors, such as terrorist organizations and insurgent groups, also led to an increase in targeted killings by states and non-state actors alike.

Contemporary Era (2000 CE – present)

The Contemporary Era has seen a significant increase in the use of targeted killings, particularly in the context of counterterrorism operations. The development of drone technology and precision-guided munitions has made targeted killings more efficient and effective.

War on Terror (2001-present): – The War on Terror has seen extensive use of targeted killings, particularly by the US and its allies. Drone strikes and special operations raids have been used to target terrorist leaders and operatives. For example, the US used a drone strike to kill al-Qaeda leader Osama bin Laden in 2011.

Modern Technologies: – The development of modern technologies, such as drones, precision-guided munitions, and cyber warfare capabilities, has transformed the nature of targeted killings. These technologies have made targeted killings more precise, efficient, and effective. For instance, drones equipped with precision-guided missiles can strike targets with minimal collateral damage.

THE LEGALITY OF ‘TARGETED KILLING’

The legitimacy of targeted killings, where individuals are identified as security threats to a nation-state, remains a deeply contentious issue. Some nations have adopted pre-emptive targeted killings as a policy tool, framing them within the context of armed conflict laws. This approach is often justified as a necessary response to the challenges posed by terrorist organizations and asymmetric warfare. The United States, for example, has defended its targeted killing policy as an exercise of its inherent right to self-defense, citing its ongoing armed conflict with groups like al-Qaeda.

The legality of targeted killings hinges on the specific circumstances surrounding each incident.” The United Nations Charter’s Article 51 recognizes the inherent right of states to self-defense, while international humanitarian law (IHL) permits states to take necessary measures to protect themselves. However, IHL also imposes strict conditions on targeted killings, deeming them lawful only when the target is a combatant or fighter, or a civilian who is directly participating in hostilities at the time of the attack.

International humanitarian law (IHL) mandates that military actions, including targeted killings, must adhere to the principles of military necessity and proportionality. This means that any expected military benefit must be carefully weighed against potential harm to civilians. Moreover, IHL explicitly prohibits retaliatory or punitive attacks on civilians, regardless of the nature of the conflict – whether between states or between a state and a non-state armed group, including those involving alleged terrorists.

Targeted assassinations, as a counter-terrorism tactic, pose complex ethical dilemmas. However, considering terrorism as a form of warfare, it’s argued that enemies can be targeted. Nevertheless, when contemplating targeted killing as a means to combat terrorism whether domestically or transnationally it’s imperative that such actions fall within the parameters of international law, ensuring a delicate balance between security concerns and adherence to legal norms.

INTERNATIONAL HUMANITARIAN LAW PERSPECTIVE

International Humanitarian Law (IHL) plays a crucial role in regulating the use of force in armed conflicts, including targeted killings. IHL sets out the rules for distinguishing between legitimate military targets and civilians and provides guidelines for conducting hostilities in a manner that minimizes harm to civilians.

Definition of Combatants and Non-Combatants

In the realm of international humanitarian law, the distinction between combatants and non-combatants is a crucial determinant of who may be targeted during armed conflicts. This distinction serves as the foundation for the protection of individuals who are not participating directly in hostilities.

Combatants: – Combatants are individuals who have the right to participate directly in hostilities. This category encompasses members of the armed forces, as well as members of other groups that take a direct part in the conflict. Combatants are entitled to prisoner-of-war status if they are captured by the enemy. The concept of combatancy is closely tied to the notion of military necessity, which justifies the targeting of combatants as a legitimate means of achieving a military objective.

Non-Combatants: – Non-combatants are individuals who do not participate directly in hostilities. This category includes civilians, prisoners of war, the wounded and sick, medical personnel, and humanitarian workers. Under international humanitarian law, non-combatants are protected from attack, and parties to the conflict must take all feasible precautions to avoid or minimize harm to them. The protection of non-combatants is a cornerstone of international humanitarian law, and its violation can result in serious consequences, including the prosecution of war crimes.

Principle Of Distinction, Proportionality, And Precaution

1. Principle of Distinction: – Parties in a conflict must distinguish between military targets and civilians/civilian objects. Military targets are those that help the military and whose destruction gives a clear military advantage. Civilians and civilian objects, on the other hand, are people and things that are not directly involved in the fighting.

2. Principle of Proportionality: – Attacks that may harm civilians or civilian objects must be stopped if the harm is too great. Parties must balance the military advantage against the potential harm to civilians and civilian objects.

3. Principle of Precaution: – Parties must take all necessary precautions to verify that targets are military objectives and not civilians or civilian objects. They must also take precautions to minimize harm to civilians and civilian objects.

Analysis of Targeted Killings under IHL

Targeted killings are subject to International Humanitarian Law (IHL), specifically the Geneva Conventions and Additional Protocols. The legality of targeted killings depends on whether they meet the principles of distinction, proportionality, and precaution.

The Geneva Conventions prohibit attacks on individuals who are hors de combat (out of combat) or those who are not participating in hostilities. This means that targeted killings of individuals who are no longer participating in hostilities or are unable to do so due to injury or illness would be prohibited under the Conventions.

Additional Protocol I provides further guidance on the protection of civilians. Article 51(2) prohibits attacks on civilians, while Article 51(3) prohibits attacks on civilians who are not participating in hostilities. These provisions emphasize the importance of distinguishing between military objectives and civilians, and ensuring that civilians are not targeted in attacks.

Additional Protocol II also provides important protections for civilians. Article 13(2) prohibits attacks on civilians, while Article 13(3) prohibits attacks on civilians who are not participating in hostilities. These provisions are particularly relevant in non-international armed conflicts, where the distinction between military objectives and civilians can be blurred.

Limitations of IHL in Regulating Targeted Killings

1. Difficulty in determining the status of the targeted individual : IHL distinguishes between combatants and civilians, but in modern conflicts, individuals may not fit neatly into one category.

2. Lack of clear guidance on “direct participation in hostilities” : The meaning of this concept is not clearly defined in IHL, leading to confusion and differing interpretations among states.

3. Unclear guidance on the use of lethal force outside of traditional battlefields : The increasing use of drone strikes and special operations raids is blurring the traditional distinction between battlefield and non-battlefield.

4. Inadequate state reporting and accountability mechanisms : IHL relies heavily on state reporting and accountability mechanisms, which can be inadequate or non-existent.

5. State-centric focus : IHL focuses primarily on the rights and obligations of states rather than individuals, leading to a lack of protection for individuals who are targeted by states or non-state actors.

HUMAN RIGHTS LAW (HRL) PERSPECTIVE

From a human rights law perspective, targeted killings pose significant challenges to the protection of the right to life, a fundamental human right enshrined in various international human rights instruments. The use of lethal force by states, particularly in the context of counter-terrorism operations, raises complex questions about the balance between national security concerns and individual rights. Human rights law provides a framework for evaluating the lawfulness of targeted killings, emphasizing the need for strict necessity, proportionality, and precautions to prevent harm to civilians. However, despite its importance, human rights law has several limitations in regulating targeted killings.

Right To Life And Protection From Arbitrary Killing

The right to life is a fundamental human right, enshrined in various international human rights instruments, including the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and European Convention on Human Rights. This right protects individuals from arbitrary and unlawful killings, including targeted killings.

The right to life includes several key elements, including protection from arbitrary killing, protection from unlawful killing, duty to investigate, and duty to prevent. The prohibition of arbitrary killing is a cornerstone of the right to life, and includes extrajudicial executions, summary executions, and disappearances.

In the context of targeted killings, states must ensure that any targeted killing is strictly necessary and proportionate to the threat posed, and that all feasible precautions are taken to avoid or minimize harm to civilians.

Extraterritorial Application Of Human Rights Law

The extraterritorial application of human rights law refers to the application of human rights treaties and obligations to individuals outside the territorial boundaries of a state. This concept is crucial in regulating targeted killings, as many such operations take place outside the territory of the state conducting the operation . The extraterritorial application of human rights law is a contentious issue, with different interpretations among states, international organizations, and human rights bodies. Some argue that human rights treaties only apply within a state’s territory, while others contend that they also apply extraterritorially, particularly in situations where a state exercises control or jurisdiction over individuals outside its territory.

The European Court of Human Rights has established that the European Convention on Human Rights can apply extraterritorially in certain circumstances, such as when a state exercises control over a territory or individual outside its borders. Similarly, the International Covenant on Civil and Political Rights has been interpreted to apply extraterritorially in situations where a state exercises power or effective control over an individual outside its territory.

Analysis Of Targeted Killings Under Human Rights Law

Targeted killings raise complex questions under human rights law, primarily concerning the right to life. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary deprivation of life, requiring states to ensure that any use of lethal force is strictly necessary and proportionate to the threat posed.

Similarly, Article 2 of the European Convention on Human Rights (ECHR) protects the right to life, mandating states to take all feasible precautions to avoid or minimize harm to civilians. When assessing targeted killings under human rights law, key considerations include necessity, proportionality, and precautions.

The use of lethal force must be strictly necessary to prevent an imminent threat, and the force used must be proportionate to the threat posed. Furthermore, states must take all feasible precautions to avoid or minimize harm to civilians. Ultimately, human rights law requires that states ensure any targeted killing is lawful, necessary, and proportionate, and that all feasible precautions are taken to protect civilians.

Limitations of Human Rights Law in Regulating Targeted Killings

1. Lack of Clear Guidance on Extraterritorial Application: – Human rights law lacks clear guidance on the extraterritorial application of human rights treaties, creating uncertainty and ambiguity.

2. Inadequate State Reporting and Enforcement Mechanisms: – Human rights law relies heavily on state reporting and enforcement mechanisms, which can be inadequate or non-existent, particularly in situations where states are unwilling to investigate or prosecute violations.

3. Balancing National Security Concerns with Human Rights Obligations: – States may argue that targeted killings are necessary to protect national security, creating tensions with human rights law.

4. Complexity of Modern Conflicts and New Technologies: – The complexity of modern conflicts and the use of new technologies, such as drones, can create difficulties in applying human rights law to targeted killings.

5. Limited Remedies and Accountability Mechanisms: – Human rights law may not provide adequate remedies or accountability mechanisms for victims of targeted killings.

CASE STUDIES

Mohsen Fakhrizadeh’s assassination

Mohsen Fakhrizadeh’s assassination on November 27, 2020, was a significant event that sparked widespread attention. As a Brigadier in the Islamic Revolutionary Guard Corps (IRGC) and a nuclear scientist heading the Iranian Research and Innovation Organization, his killing was seen as a major blow to Iran’s nuclear program. The assassination method was particularly noteworthy, involving a remotely operated machine gun mounted on a self-destructing truck. This tactic added to the intrigue and speculation surrounding the event.

Fakhrizadeh’s death followed the killing of General Qassem Soleimani, the head of the IRGC, in a drone strike near Baghdad airport earlier that year. Despite these high-profile losses, Iran’s retaliation was relatively muted, sparking curiosity about the country’s strategic calculus.

In the aftermath of Fakhrizadeh’s assassination, Iran’s government accused Israel of complicity in the killing, a claim that has been neither confirmed nor denied by Israeli officials. The event remains a topic of interest and debate among geopolitical analysts and experts.

Assassination of Osama bin Laden

Osama bin Laden, the founder and leader of the terrorist organization al-Qaeda, was killed on May 2, 2011, in a targeted operation conducted by US Navy SEALs. The operation, code-named Operation Neptune Spear, was authorized by US President Barack Obama and involved a team of 24 SEALs who raided bin Laden’s compound in Abbottabad, Pakistan. The operation resulted in the death of bin Laden, and his body was later buried at sea. This operation was a significant example of targeted killing, as it involved the deliberate and premeditated killing of a specific individual deemed to be a threat to national security.

Assassination of Anwar al-Awlaki

Anwar al-Awlaki, a US-born Yemeni cleric, was killed on September 30, 2011, in a drone strike conducted by the US military in Yemen. Al-Awlaki was a prominent figure in the terrorist organization al-Qaeda in the Arabian Peninsula (AQAP) and was accused of playing a key role in planning and inspiring terrorist attacks against the United States. The drone strike that killed al-Awlaki was authorized by the US government, and it raised significant controversy and debate about the use of targeted killings, particularly against US citizens. The operation was carried out by the Joint Special Operations Command (JSOC) and the CIA, and it marked one of the first times that the US government had deliberately targeted and killed a US citizen in a counterterrorism operation.

Neutralization of Burhan Wani

Burhan Wani, a top commander of the Hizbul Mujahideen militant group, was killed on July 8, 2016, in a targeted operation by Indian security forces in Anantnag, Jammu and Kashmir. The operation was carried out by a team of Indian Army and Jammu and Kashmir Police personnel, who had been tracking Wani’s movements for months. Wani was considered a high-value target due to his role in the Hizbul Mujahideen and his ability to mobilize young Kashmiris to join the militant group. The operation was widely seen as a major success for Indian security forces, and it marked a significant blow to the Hizbul Mujahideen’s operations in Jammu and Kashmir.

Neutralization of Riyaz Naikoo

Riyaz Naikoo, a top commander of the Hizbul Mujahideen militant group, was killed on May 6, 2020, in a targeted operation by Indian security forces in Pulwama, Jammu and Kashmir. Naikoo was considered one of the most wanted militants in Kashmir and was known for his role in several attacks on Indian security forces. The operation was carried out by a team of Indian Army, Jammu and Kashmir Police, and CRPF personnel, who had been tracking Naikoo’s movements for weeks. The killing of Riyaz Naikoo is a recent example of targeted killing, where security forces specifically target and neutralize a known militant leader.

Assassination of Mahmoud al-Mabhouh

Mahmoud al-Mabhouh, a senior Hamas commander, was assassinated on January 19, 2010, in Dubai, United Arab Emirates. The assassination was carried out by Israeli Mossad agents, who used a sophisticated and high-tech operation to eliminate their target. The agents used fake passports and disguises to enter Dubai and gather intelligence on al-Mabhouh’s movements. They then used an electromagnetic device to lock the door of al-Mabhouh’s hotel room, ensuring that he was trapped inside. Once the door was locked, the agents entered the room and killed al-Mabhouh. The entire operation was captured on CCTV cameras, which showed the agents using advanced technology to carry out the assassination. The use of fake passports and advanced technology made it difficult for Dubai authorities to identify the perpetrators, but an investigation later revealed that the Israeli Mossad was behind the assassination. The killing of Mahmoud al-Mabhouh is considered one of the most high-profile targeted killings in recent history, and it highlights the use of advanced technology and sophisticated tactics by intelligence agencies to eliminate their targets.

INDIA’S OPTIONS

Pakistan’s alleged support for trans-border terrorist activities has raised significant concerns, with notorious terrorists like Dawood Ibrahim, Hafiz Saeed, and Masood Azhar finding safe haven within its borders. China has consistently supported and shielded Pakistan in international forums, further complicating efforts to bring these individuals to justice.

The issue of cross-border terrorism has been a major point of contention, with India’s External Affairs Minister Dr. S Jaishankar warning Pakistan that such activities will “have consequences”. The Indian government has repeatedly demanded the extradition of these terrorists, but Pakistan has failed to take decisive action. In light of these challenges, some argue that punitive strikes against these targets should be considered if extradition efforts are unsuccessful. However, such actions raise complex questions about their effectiveness and legitimacy.

To ensure the legitimacy and effectiveness of extra-territorial targeted killings, India must establish a robust framework for gathering and verifying intelligence. This framework should prioritize high-certainty inputs, supplemented by rigorous confirmation protocols to minimize errors. Moreover, Indian authorities should exercise utmost caution to prevent civilian casualties, acknowledging the potential consequences of collateral damage. In instances where drone attacks or airstrikes are contemplated, real-time decision-making processes should be put in place. This would enable ground-level decision-makers to swiftly abort or suspend operations if the anticipated collateral damage exceeds initial assessments. Such measures would not only uphold India’s commitment to minimizing harm to non-combatants but also demonstrate a nuanced understanding of the complexities involved in targeted killings.

Targeted killings for strategic gain have historical roots in Indian statecraft. The Ramayana’s account of Rama’s elimination of Bali to secure Sugreeva’s alliance against Ravana exemplifies this. Ancient Indian texts, such as the Arthashastra, endorse preemptive strikes against potential threats and advocate for trained covert operatives to neutralize adversaries.

Neutralizing individuals bent on causing harm to Indian nationals and interests, before they carry out their destructive plans, is an option India may consider more proactively, within the bounds of international law.

CONCLUSION

The legality of targeted killings under international law is a complex and contentious issue that necessitates a nuanced and cautious approach. It demands a delicate balance between upholding the principles of international law and addressing the imperatives of national security. To ensure that targeted killings are conducted in a lawful and responsible manner, it is essential to gather accurate and reliable intelligence, make informed decisions that take into account human rights and legal procedures, and ensure accountability for any mistakes or wrongdoing. By adopting these measures, targeted killings can be conducted in a way that respects international law, human rights, and national security concerns.

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