The contents of this document are the sole responsibility of the author and do not necessarily represent the views of CCADD.
By Hugh Beach and David Fisher
The war against terrorism needs to be conducted on the widest possible front. The use of armed force can only play a minor part in this. Good intelligence, the work of police, customs and the courts, the control of money laundering and the battle for ‘hearts and minds’ lie at the centre of this problem. A heavy responsibility also rests on the major powers to remedy, as best they can, the profound grievances that terrorism can point to. This paper concentrates on one narrow but topical and important question: whether a specific attack upon an enemy leader is justifiable as an act of state policy. To sharpen the issue such a policy is described as ‘assassination’. The section dealing with legal considerations is by Hugh Beach, that concerning ethical issues is by David Fisher.
What is assassination?
Assassination is defined as the murder of an important person in a surprise attack for political or religious reasons. The first assassins were members of the Nizari Isma'ilites, a heretical sect of Shia Muslims which flourished in Persia and Syria from the 11th to the 13th centuries. It was known in its early years for murdering its enemies as a religious duty and took a special pride in suicide missions. The Arabic name means ‘hashish smoker’, referring to the Assassins' alleged practice of taking hashish to induce ecstatic visions of paradise before setting out to face martyrdom. The historical existence of this practice is doubtful. But the family likeness to twenty- first century Jihadists, such as al-Qaeda, is unmistakable.
Assassination has played an important role in history. On 14th January 1858 an Italian agitator Felice Orsini threw three bombs under the carriage of Emperor Napoleon III, who he regarded as a great obstacle to progress of the revolution in Italy. This happened outside the Paris Opera; ten people were killed and 156 injured, but not Napoleon or his Empress. Orsini and his accomplice were duly guillotined. But it came out that the Orsini plot had been hatched in England and the bombs made in Birmingham. This produced a great wave of protest in France against Britain for harbouring a nest of vipers. There was much sabre-rattling and the British responded in kind. An excruciating verse by the Poet Laureate (Alfred Tennyson) in The Times of 9th May bade ‘Riflemen, riflemen, riflemen form’. Lords Lieutenant were instructed to establish volunteer units of infantry, as well as coastal defence gunners and engineers. The rifle volunteers were to prove a lasting feature of army organisation throughout the United Kingdom. Even more notoriously the assassination of Archduke Franz Ferdinand, heir to the Austrian throne, by a Serb agitator Gavrilo Prinzip in Sarajevo on 28th June 1914 led directly, by a series of well-charted steps, to the outbreak of World War I. Both of these were ‘bottom-up’ atrocities, no doubt rationalised in the minds of their perpetrators as ‘tyrannicide.’
More to the immediate point has been the habit in Israel (long practised but now openly avowed) of killing prominent Palestinians. Notable examples are Mustafa Zibri, leader of the Popular Front for the Liberation of Palestine (PFLP), who was killed by Israeli snipers on 27th August 2001 and Abdul Rahman Hamad, a Hamas official, who was killed in the same way at Qalqilya on 16th October, having been held responsible by the Israelis for directing the suicide bomb attack of a disco in Tel Aviv. These men had never been formally accused let alone the subject of any judicial process. Their killing was therefore, in most people’s eyes, an act of murder justifying the term assassination, carried out in cold blood by a democratic government.
The question is, can such an act by any form of government be justified? This question brings into play a number of considerations. Can a state of war be said to exist between a government and a terrorist leader? What legal code, if any, applies in such cases and what does it prescribe? What actions constitute terrorism? Does a civilian person who masterminds such an action become, de facto, a combatant? What constitutes ‘Self Defence’ in such circumstances? Could such a terrorist leader ever be brought to court, or indeed a whole government?
International legal considerations
On 13th September President Bush declared that the attacks on the World trade Centre in New York and the Pentagon in Washington DC were the beginning of the ‘first war of the 21st century’. Next day, following the unanimous vote in the US Senate authorising the President to use ‘all necessary force’, he said ‘war has been declared’. Later the House of Representatives completed the congressional process with only one vote dissenting. The joint resolution of 14th September authorised the use of US armed forces against nations, organisations or persons that the President determines ‘planned, authorised, committed or aided the terrorist acts that occurred on 11th September 2001’.
NATO likewise resolved to invoke Article V of the Washington Treaty - which provides that an attack upon one nation be treated as an attack upon all - if it were determined that the attack was directed from abroad. On 2nd October that determination was made. Each ally had then to consider what assistance it should provide, consulting as necessary with other members, with the aim of restoring and maintaining the security of the North Atlantic area. Two days later NATO ‘operationalised’ Article V by agreeing to six specific actions requested by the US. But, as Bill Hopkinson has pointed out, proclamation of a general war on terrorism is a political metaphor, not a guide to action. It cannot form coherent instructions to a commander nor can it provide a long-term basis for coalition making. (What is Security Now? In Western European Union Institute for Security Studies, Newsletter No. 35, October 2001). More to the immediate point, these moves and much of the rhetoric employing the phrase ‘war on terrorism’ could be taken to imply that the Laws of War should apply. It is, therefore, important to recognise that such language in itself carries no weight in terms of International Humanitarian Law (IHL, otherwise known as the Laws of War).
The body of law in question comprises the rules governing the actual conduct of armed conflict (jus in bello). Its aim is to limit the effects of conflict by protecting those who are not, or are no longer, taking part in fighting and constraining the means and methods of warfare. It also restricts what may be done by way of reprisals - that is illegal actions in response to breaches of IHL by one party, designed to induce them to desist. The law applies to armed conflicts between nations whether or not a formal declaration of war has been made. (In fact there has been no such declaration in the past half-century). Parts of IHL also apply to internal armed conflicts. This term includes civil war between the armed forces of a country and ‘dissident armed forces or other organised armed groups’ which are under responsible command, in control of territory and able to carry out sustained and concerted operations. (1977 Geneva Protocol II, Article 1.i).
But this term does not apply to internal disturbances, such as riots and isolated and sporadic acts of violence, because these are regarded as not amounting to armed conflict. (Note in passing, that the British Government has always held, on these grounds, that the Laws of War do not in general apply to disturbances over the past 30 or so years in Northern Ireland). Hence the term ‘combatant’ is not normally used because it is linked to the status of Prisoner of War that does not exist in such conflicts. But there is a legal inconsistency. While attacks on military targets - headquarters as well as guard posts and patrols - may be legitimate in internal conflicts under international law, they can nevertheless be offences under domestic law. A rebel who attacks a military patrol can be charged with murder in domestic courts.
Whether or not the actions of Hamas and other militant Palestinian organisations amount to internal armed conflict is open to doubt since this question is tied up with the status of the Occupied Territories. Even if they do, then the provisions of Common Article 3 to the Geneva Conventions apply, which outlaws violence against persons taking no active part in hostilities, such as customers in supermarkets and discos. These acts are illegal by any standard. The status of al-Qaeda in Afghanistan is also open to question. It seems that the American and British governments are arguing in effect that the Taleban (as de facto government of Afghanistan) and al-Qaeda are so closely linked as to be indistinguishable. Intelligence sources believe, for example, that al-Qaeda provides over 60% of the Taleban government’s funding and the best of its armed forces. The concept of ‘state sponsored terrorism’ has thus been stood on its head, and Afghanistan has become a ‘terrorist sponsored state’. If the attack of 11th September was an attack by Afghanistan then the Pentagon, at least, was a legitimate target. If al-Qaeda was acting independently, as a non-state actor, it is difficult to argue that there was an armed conflict at that point. But an armed attack there clearly was. The response by the US has converted that into an armed conflict. The fact that it is directed against the Taleban, de facto government of Afghanistan, means that it has now become a full international conflict against that country.
Marcel Berlins,1 an influential legal journalist, has argued persuasively that there can be no such thing, legally, as war between a sovereign state and a group of terrorists. (The Guardian 18th September 2001). To talk of ‘declaring war’ is therefore meaningless. He acknowledges that countries have a right to use force in self-defence (the formula used when Britain fought Argentina over the Falklands). But all this definitional talk, he believes, is of no consequence when the legal concept of war has been overtaken by the reality of international and intra-national hostilities and by the activities of terrorists. ‘The law is inadequate, out of date or non-existent regarding the World Trade Centre outrage. The US cannot be blamed for, in effect, creating its own legal framework and definitions’.
But this is to go too far. Even if, as seems clearly to be true, no international legal code specifically covers the case, nevertheless the US, like all nations, is under an obligation to conform to customary international law. This applies whether or not those involved are parties to particular conventions. It includes the principle that force used in any form of armed conflict should be proportional to the military advantage to be gained. This does not mean that the amount of force has to be equivalent to the force used by an adversary - an eye for an eye and a tooth for a tooth. The amount could be larger in scale so long as it is no more than enough to make the adversary stop an attack on its territory or citizens or on its allies in collective defence - or in the case of grave breaches of the law of armed conflict to make the adversary desist from particular actions.
Another principle of customary international law is that of discrimination. It introduces the notion - almost universally subscribed to in public utterance if not in practice - that non-combatants and those hors de combat should not be deliberately targeted. The idea of a non-combatant is at first sight simple, though it is far from being a matter of whether or not a person is part of an organised armed force, let alone wears a uniform. But in practice the borderline can be a hazy one raising distinctions, for example, between military people and the civilians (whether officials or politicians) who organize and direct them; between factory workers who make weapons and those who process foodstuffs. There is a subtle point at issue in the latter case. Under international law both are civilians. If armament workers were treated as legitimate targets this would mean they were combatants, and only armed forces can have that status. However a weapons factory is a military objective whereas a food-processing factory is not. Hence collateral killing of or injury to armament workers will perhaps carry less weight in the proportionality balance than uninvolved persons. Some experts try to capture the force of this by using the term ‘quasi-combatants’ but this has no legal standing and can serve only to muddy the water.
In the case of terrorists, however, the position is clearer. The term terroriste was originally applied in the French revolution to supporters of the Jacobins who advocated repression and violence in pursuit of democracy and equality. Attempts to develop a watertight legal definition of terrorism have foundered on the difficulty of distinguishing between this and the action of ‘freedom fighters’ conducting a just campaign against oppression and tyranny. It is important to recognise that violence may be the only means available to protest against and seek to reverse flagrant and continuing abuses of human rights. But this is a separate study in itself, to which much thought and energy has been devoted. A workable dictionary definition of terrorism is ‘the use of violence and intimidation in pursuit of political aims’. (The New Oxford Dictionary of English, Clarendon Press, Oxford, 1998). In modern terms, as Michael Walzer says:
‘However the political code is specified, terrorism is the deliberate violation of its norms. For ordinary citizens are killed and no defence is offered - none could be offered - in terms of their individual activities. The names and occupations of the dead are not known in advance; they are killed simply to deliver a message of fear to others like themselves. What is the content of that message? I suppose it could be anything at all; but in practice terrorism, because it is directed against entire peoples or classes, tends to communicate the most extreme and brutal intentions. … In its modern form terrorism is the totalitarian form of war and politics. It shatters the war convention and the political code. It breaks across moral limits beyond which no further limitation seems possible.’
(Just and Unjust Wars, Allen Lane, London, 1978, page 203)
If that is a true picture, and it certainly seems to meet the present situation, no terrorist could claim immunity from attack on grounds of being non-combatant, nor could any rational line be drawn between those who carry out an attack and those who inspire, finance, plan and direct their actions. Harbouring them knowingly would seem to carry a heavy burden of culpability.
Of recent years there has been no shortage of International Conventions and the like, dealing with terrorism and exhorting nations to take preventive actions of various kinds. The European Commission has been working during 2001 to write a pan-European definition of a terrorist act and to create EU search and arrest warrants that could be executed in all member states. A number of states, including the United Kingdom, have enacted anti-terrorist legislation and are now considering how to strengthen it further. (See Terrorism Act 2000 enacted by the UK Parliament on 20 July 2000). The al-Qaeda group among others has been outlawed in the UK. But understandably none of these instruments addresses the question of how terrorists are to be dealt with if due legal process is not available or accessible.
We return therefore to the question of what action states are entitled to take under the rubric of self-defence. This right is enshrined in Article 51 of the UN Charter and sets out the inherent right of individual or collective self-defence if an armed attack occurs against a member, but only as an interim measure ‘until the Security Council has taken measures necessary to maintain international peace and security’. The Security Council has already expressed its readiness to authorise military force in response to the attacks of 11th September. There is, however, an interesting question whether Article 51 is limited to inter-state relations. If, as mooted above, these attacks were carried out by Afghanistan then Article 51 applies without question. If they were carried out by al-Qaeda, regarded as a non-state actor, then it might be necessary to rely on the inherent right to self-defence under customary law. Since this has no connection with the UN and therefore provides no direct role for the Security Council this is a less satisfactory reading.
In a speech in the House of Lords on 14th September 2001 Lord Howe of Aberavon,2 himself a barrister and distinguished Foreign Secretary, recalled the decision of the UK in 1986 to support American plans to bomb Libya after the murder committed by Libyan-inspired terrorists in Berlin. He said that one distracting feature was the tendency of some to justify the necessary action as an act of retaliation; a response justified as revenge in its own right. The British made it clear to the United States administration - which the latter acknowledged - that they were prepared to support their action, but only because it could and properly should be justified as a legitimate act of self-defence. He defined this in terms of the ‘plain right of states to defend themselves and their citizens against attacks and sustained threat of attacks. … It plainly includes the right to destroy or weaken the capacity of one's assailant, to reduce his resources, and to weaken his will so as to discourage and prevent further violence’. (Official Report, Commons, 16th April 1986; column 954.) This, he said, includes, if we can achieve it, the right and the duty to identify, try, convict and punish. In 1986 that argument was seen to grow in strength because, as the months and years went by, Gaddafi increasingly behaved like a man who had been taught a lesson. Eventually critics found it impossible to continue criticising an act of deterrence, sincerely and convincingly undertaken in self-defence, that was actually seen to have deterred. (House of Lords, 14 Sept 2001 : Column 26.)
Lord Mayhew of Twysden,3 one-time Attorney General, in the same debate (Column 32) supported his colleague for two reasons:
‘First, in international law a state will be justified in striking with focused and proportionate force if that is necessary to forestall an attack on it from elsewhere. That is only common sense. No state should be required to wait until an attack has in fact been launched and only then to try to parry the blow. There are good reasons for that: some blows and attacks simply cannot be parried. The attack (of 11th September 2001) was such an event. Furthermore, no state is required to give an assailant which has already launched an attack the benefit of any possible doubt as to whether it will attack again. In all the circumstances, it will be enough to expect that a further devastating attack will be mounted. Again, once the perpetrators behind (the attack in question) have been identified, they will become lawful targets against which America could deploy force proportionate to the risk and to prevent a recurrence of such events; the risk is very high. That can be done lawfully within the doctrine of national self-defence. No other justification would be needed, even if one were available. The second reason reinforces the first. International law simply does not recognise any doctrine of lawful retaliation as distinct from self-defence. No state may lawfully employ force simply and exclusively in pursuit of retaliation for a wrong already committed against it. In law, a state cannot punch back in order to punish, but it can do so in order to protect. Thus, I believe that it would be a great mistake to speak of retaliation’.
A parallel could be drawn between this action in 1986 and the retaliatory bombings in 1998. After terrorist bombing of American embassies in Kenya and Tanzania, with much loss of life, the US launched cruise missile attacks on al-Qaeda camps in Afghanistan and on a pharmaceutical factory in Sudan. The former were largely ineffectual since the camps had been evacuated. The latter was done on the understanding - never fully substantiated - that the factory was being used to make chemical warfare materiel. Motivated by the need to take immediate action in revenge rather than for motives of self defence these actions have been widely condemned, not least in the United States itself.
Targeting an individual
This brings us to the heart of the immediate question: to what extent is it legitimate to pick on an individual - let us say a terrorist leader such as bin Laden – to be murdered by surprise attack for political reasons, that is to say assassinated? It is easy to see why any leader is likely to discourage the murder of his or her opposite numbers. Apart from the prospect of retaliation in kind, such an operation is inherently hazardous. It runs the risk of making a martyr and the assassinated leader may well be replaced by someone worse. In 1976, following revelations that the CIA had tried to kill Fidel Castro, with consequent fears that this might have led to the murder of President Kennedy, President Gerald Ford by executive order forbade assassinations. A prohibition was enacted by President Reagan at the request of Congress in 1981 stating bluntly ‘No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination’. There can be no doubt that the bombings conducted by the US in 1986 and 1998 (discussed above), had as one of their objectives the killing of Ghaddafi and bin Laden. Indeed American officials believe that the attack on a complex near Khost may have taken place only an hour or so after bin Laden had left. Similarly no one would deny that during the Gulf War of 1991 it was an allied aim to locate Saddam Hussein and to kill him. But these actions notwithstanding, the British and US governments have stopped short of using or hiring death squads specifically to assassinate terrorists or their masters. In 1998, in response to bombings in Omagh in which 28 people were killed, Prime Minister Tony Blair said that he would not authorise the assassination of the perpetrators. President Clinton, though under pressure from Republican Congressmen after the 1998 embassy bombings to rescind ban on assassinations, refused to do so. So as matters stood in the US, while the use of military force was obviously permitted in principle against recognised threats including terrorism, whenever possible the aim was ‘to bring terrorists to justice for their crimes’ rather than kill them on the spot. (IHT, September 2001).
In mid October Senator Richard Shelby of Alabama, ranking republican on the Senate Intelligence Committee and Bob Barr, Republican representative of Georgia, have invited President Bush to rescind the order. They argue that stronger measures are needed in the new circumstances. ‘This is a different type of war. They are going to assassinate our people and blow up our buildings unless we eradicate them first. .. The US policy should not tie the hands of the CIA by forbidding targeted assassinations. Rather the authority to carry out such killings means that masterminds can be eliminated in cases where it is simply impossible to capture them by ordinary military means’. It is hard to fault the logic of these arguments. Indeed they follow from the reasoning set out by Lord Howe quoted above. But the latter went on to qualify his comments as follows:
‘In today's circumstances .. other conditions need to be fulfilled for robust action in self-defence to be justified and effective. First, before any such robust counter strike is authorised, it is essential to be sure, or as sure as one can be, that the evidence of guilt is equally robust. The second condition will not be fulfilled without that for it is to sustain the unflagging long-term unity of international support that will be essential to success in what is bound to be a long and detailed campaign’.
Neither of these conditions is easy to meet. Terrorist organisations are by definition highly secretive and al Qaeda appears to be exceptionally dispersed and compartmentalised. Intelligence organisations are very reluctant to share the evidence of guilt with allies, or even their own publics, for fear of compromising sources. There is the obvious danger of exposing an agent’s identity or revealing that a particular communication link has been penetrated. But these considerations need to be weighed against the high political cost of not making a water tight case linking the leaders with those who carry out the atrocities. While there is strong circumstantial evidence linking the attacks of September 11th to al-Qaeda, and the latter have come close to acknowledging responsibility by their exultant welcome for them, no legally compelling evidence has yet come to light. And to these conditions another might be added. The attempt to capture the suspected terrorists and bring them to trial in a specified court of law should at least have been considered if not attempted.
The Rome Charter of the International Criminal Court contains a specific category, under Article 7, entitled ‘Crimes against Humanity’ which exactly fits the case. It is defined as follows:
‘For the purpose of this statute, crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
Unfortunately the Charter of the International Court is not yet in force. It requires 60 states to ratify and only 43 have so far done so (including Britain, France and Russia). On present showing it will come into force some time next year. But up to now America has been unbending in its refusal to countenance ratification. Some in the US are keen to use current events to wear down opposition to the Court but right wing Republicans still argue strongly against it. To overcome this difficulty the Security Council could be asked to establish an ad hoc tribunal, like those for the former Yugoslavia and Rwanda, to judge those accused of complicity in the crimes of 11th September. It would certainly comply if the US so requested.
There remains the possibility of bringing members of al-Qaeda to trial in an American domestic court. On 18th October 2001 four men were sentenced by a Federal District Court in Manhattan to life imprisonment for bombing the US embassies in Kenya and Tanzania in 1998: a Tanzanian, a Saudi, a Jordanian and a naturalised Lebanese. But Marcel Berlins is dismissive of this possibility:
‘Can you imagine such a trial? Finding an American jury to try it dispassionately? Applying the test of guilt beyond reasonable doubt? Going through the processes of presenting evidence, cross-examining witnesses and all the other procedures of a normal trial? All this with the kind of publicity that would make the trial of O.J. Simpson seem like a dignified, restrained and private event’.
He goes on to float the possibility of America passing a special law dispensing with jury trial, thus opening the way to proceedings on the Lockerbie model in a highly guarded corner of a foreign country. But he cannot see the American government and people allowing this, even if a country could be found willing to host it. For similar reasons he does not think it possible to set up a special tribunal along the lines of those dealing with atrocities in former Yugoslavia and Rwanda. His conclusion is bleak:
‘The US does not trust foreign judges and unfamiliar systems of criminal justice. Anyway the sheer logistical, security and publicity problems, and the delays, would be nearly impossible to cope with. I do not see bin Laden being allowed to stay alive to face a trial.’
This conclusion falls on willing ears in America where President Bush has spoken of ‘hunting down’ those who were behind the terror campaign, indeed ‘taking them ‘dead or alive’. So long as the government of Afghanistan rejects all requests to hand over bin Laden for trial peacefully there seems little other option.
A legal justification for so doing can be found in Article 43 of 1977 Additional Protocol I to the Geneva Conventions 1949. This defines the armed forces of a Party to a conflict as:
‘all organised armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or authority that is not recognised by an adverse Party’.
Reading this clause in the light of current circumstances al-Qaeda could be seen as a combatant organisation, and members of that organisation (including bin Laden) as combatants. Their deliberate targeting and indeed deliberate killing would thus be a legitimate act of war. It may be that thinking of this kind underpins the so-called ‘Intelligence Finding’ issued by President Bush in September instructing to CIA to attack bin Laden’s communications, security apparatus and infrastructure. This is a process well known to the US military as ‘decapitation’. According to a senior official ‘the president has given the agency the green light to do whatever is necessary’. (IHT, 22nd October 2001). This presumably includes lethal action against bin Laden himself.
Taking all these factors into consideration it is reasonable to conclude that specific attacks on individuals who are already legitimate targets is perfectly legal.
Some ethical considerations
Could assassination be ethically justified? There are powerful arguments for supposing that it could not. First and foremost amongst these, is the moral prohibition against the taking of human life – "Thou shalt not kill."
There are also secondary but important political arguments against one state licensing the killing of leaders or prominent individuals within another. As Hugh Beach suggests, it is very understandable why any leader is likely to discourage the murder of his or her counterparts abroad, in view of the threat such a policy may pose to his or her own position. This may sound self-serving but it is more than that. For a threat to political leaders is a threat to the security of states and the hard-won culture of dispassionate international dealings, hence to the peaceful and orderly lives that ordinary men and women live within those states.
These thoughts, together with the classic demands of justice, provide a compelling moral presumption against assassination. Are there any circumstances in which that presumption could be lifted? To assess this, helpful guidance is furnished by the body of thought fashioned within the Judaeo-Christian tradition, and strongly echoed within Islamic teaching, known as the Just War tradition.4
That tradition wrestles with the difficult issue of whether a state can ever legitimately use violence against another. Many of the ethical insights this gives rise to in the wider case of war, involving violence against many individuals, are directly relevant to the narrower question of whether a state can legitimately apply violence to a single individual. This is so, without in any way seeking to prejudge the question of whether a "war" can legally be said to be waged against an individual or group of individuals, as opposed to a state.
The just war tradition starts from the presumption that war – involving as it does immense human suffering and loss of life – is wrong. It then seeks to set very strict limits on the circumstances in which that prohibition may be lifted. These conditions relate to the circumstance in which a state may resort to war – the jus ad bellum – and the way in which the war is conducted – the jus in bello.5
The jus in bello prescribes that war is permissible if and only if: war is undertaken by a competent authority; all available non-violent means of settling the dispute have been tried and failed, so that war is undertaken as a last resort; the war is undertaken for the sake of a just cause; and the harm judged likely to result from the war is not disproportionate to the likely good to be achieved, taking into account the probability of success.
The jus in bello adds two further conditions governing the conduct of war: the harm likely to result from a particular military operation should not be disproportionate to the good it might achieve; and non-combatant casualties should be minimised.
Let us consider how a policy of assassination might fare against each of these conditions.
The first requirement of competent authority is usually interpreted within the tradition to mean that war can only be undertaken by governments, not individuals. This would, of course, not preclude assassination. What could cause more difficulty is the requirement added by some modern commentators that the sanction of the United Nations is required. The UN, as noted earlier, has been robust in its condemnation of terrorism but whether that would extend to licensing assassination is highly problematic. But while the sanction of the UN is clearly extremely important and desirable, it may be unduly restrictive to insist that it is always a necessary condition. For example, the Tanzanian intervention to prevent genocide in Uganda was not authorised by the UN and yet is generally considered to have been justified.
The second requirement - of last resort – does not impose a temporal condition, that all other means should have been tried first before force is contemplated. This would often be recipe for military disaster, where the early application of limited force may prevent the need for wider application of force later. It is rather a logical requirement that force should only be used if there are no available non-violent means available to resolve the problem. Tyrannicide should not, therefore, be contemplated, however vicious the tyrant, if the leader can be removed by other means, such as through the ballot box. Similarly, force could only be permissible against a terrorist if this were the only way of preventing his undertaking further violent acts. If the terrorist can be readily apprehended and brought to justice then he should be. The difficulties of achieving this in the case of Osama bin Laden are, however, all too apparent, not least since the Taliban authorities in Afghanistan have resolutely refused all approaches from the international community, including from their neighbour Pakistan, to hand over the terrorist leader. It is, therefore, arguable that force was only initiated on 7th October as a last resort.
The thousands of innocent people instantly killed in the World Trade Centre and Pentagon on September 11th shocked and appalled the world. This surely, therefore, furnished a pre-eminent just cause for military action? Perhaps so. But it is necessary to be clear as to the grounds for so thinking. The just cause tradition does not sanction the use of force to wreak revenge or express retaliation, for that would merely add to the suffering already perpetrated yet more senseless suffering, with no good achieved. Nor would the just war tradition permit action to be taken against Osama bin Laden because we disapproved of his extreme political or religious beliefs. What and what alone would constitute a just cause for action would be if this were necessary for our self-defence "to destroy or weaken the capacity of one’s assailant, to reduce his resources, and to weaken his will so as to discourage and prevent further violence," in the words of Lord Howe quoted above. Life may be taken if this is the only way to prevent many further innocent lives being destroyed, such as in new terrorist outrages.
Moreover, a cause however just, will not license the use of force unless more good than harm is likely to result, taking into account the probability of success. This – the first application of the principle of proportion – is in many ways the most difficult condition to satisfy. It is very difficult to foresee all the consequences of one’s actions and well-intentioned actions may notoriously issue in ill-fashioned results. Gavrilo Prinzip would surely have paused before his attack on Archduke Franz Ferdinand if he had been able to foresee the millions of deaths in the Flanders trenches that his action gave rise to. Similarly, we need to consider whether if we assassinate a terrorist leader this may simply spawn - Hydra-like- others just as bad or, even, worse. We need also to consider whether the assassination may provoke counter-reactions in other countries leading to more deaths and more suffering. These are appallingly difficult questions to answer. But inaction is not necessarily, therefore, the right answer for that too may have dreadful consequences. If Osama bin Laden is unchecked how many more and even more devastating attacks against innocent people may he perpetrate? There is, moreover, an ever-present risk that he or his followers may add nuclear, biological or chemical weapons to his already deadly armoury, an armoury in which even the humble Stanley knife can turn passenger planes into weapons of mass destruction. On such grounds there may indeed be a prima facie case for a special operation to be mounted against bin Laden personally.
The conditions of the just war are not, however, yet all met. For there remain the requirements that each particular action undertaken must be proportionate to the good to be achieved and that it must be discriminate, minimising the risk of innocent casualties. A terrorist leader, against whom there is evidence that he has killed many thousands of innocents and who – even if not publicly admitting responsibility - has publicly rejoiced in their deaths on a video released to the world’s media, can hardly claim the defence of innocence. In its original meaning the innocent are those not prosecuting harm; the nocent are those, like bin Laden, who are pursuing harm. An assassin’s bullet may, moreover, be more readily proportioned to the result to be achieved and more likely to avoid innocent casualties than a widespread bombing campaign that may risk civilian lives. The eradication of a terrorist network as well ensconced and supported in its host country as the al Quaeda may, however, require both kinds of operation. But, if so, it will be necessary to ensure – as Western leaders have avowed - that the bombing campaign is well prepared and carefully aimed at military targets.
Could there be a morally just assassination? These considerations suggest there could, with Osama bin Laden arguably as a prime target, but only if all the conditions of the just war can be fully met. A just cause alone is not enough and the action would have to be judged the only way of preventing far worse harm occurring and conducted in a proportionate and discriminate way, eschewing risk to innocent civilians. The difficulty of satisfying these conditions is, moreover, well exemplified by the fact that neither Felice Orsini, still less Gavrilo Prinzip, the assassins with whom we began, could, by the remotest stretch of the imagination, be regarded as just assassins. Political disapproval does not constitute a just cause, nor were their actions fashioned so that there was good reason to judge that more good than harm would prevail. Indeed, in the case of the assassin of Archduke Franz Ferdinand there was a staggering disproportion between the harm caused and the good – Bosnian independence – that it was hoped might be achieved.
The authors gratefully acknowledge the help they have received from Lord Roper, Ronald Higgins and Colonel Charles Garraway. The views expressed in this article are those of the authors alone and do not constitute official policy or thinking.
‘Documents on the Laws of War’. Adam Roberts and Richard Guelff (eds), OUP, Oxford, Third Edition, 2000.
‘The New Oxford Dictionary of English’ Clarendon Press, Oxford, 1998.