I apologize for posting on a topic that strays from the theme of our blog (although not entirely.)

I am writing an article which will be published in a OUP volume (see here the contributions in draft form) where I argue that targeted killing, defined as the extrajudicial killing of a named person by a government for a public purpose, can be morally justified outside the battlefield only if the following four conditions are met:

1) it is necessary to avert deaths of innocents;

2) the government has a just cause (this condition is different from the first one);

3) the target is culpable, a true villain; and

4) capturing the villain is not possible.

I think that the three first conditions were met in the case of bin Laden, but I’m unsure about the fourth. We don’t know what happened here but even someone as wretched as bin Laden has to be given the chance to surrender. I’m inclined to think that this last requirement does not stem from any fundamental right that bin Laden has, but rather from what our democracy should be.

A popular justification, that the United States was at war with Al Qaeda, is insufficient to justify targeted killing. If persons outside the battlefield have a moral right not to be killed the government cannot unilaterally extinguish this right by a declaration. The “war” rationale, in my view, only works for the battlefield and places assimilated to it, like military barracks. Thus targeted killings in Afghanistan and similar warlike places are, in principle, justified (provided that a number of stringent conditions for just war obtain; of course, for a pacifist none of this matters.) But imagine that the U.S. government declared “war” on some particularly hated group, like violent sexual offenders. Surely no one would say that the government could start killing them on sight.

There is a literature arguing that assassinating terrorists is the functional equivalent of killing in conventional war, but I’m unconvinced. I think the slope is so slippery here that a humane democracy cannot implement that view without sliding into tyranny. This problem is not hypothetical: witness the declared intention of the Obama administration to kill U.S. citizen Anwar al-Awlaki.

Of course, none of this alters my view that bin Laden was the worst kind of villain, the villain who acts out of evil principles (as opposed to opportunistic villains), and that he deserved to die.

Here is a sensible account of the legal position, arguing that the operation was lawful under international law.

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  • Mike Valdman

    Why should the target’s culpability matter? Suppose we learn that Osama was literally someone else’s puppet (in the sense that another person directly controlled his actions, speech, etc.), thus (presumably) relieving him of culpability. Or, if you don’t like that example, suppose he suffered from some rare psychological illness that made it impossible for him to be anything other than a terrorist. I find it hard to believe that such revelations should affect the moral status of his killing.

  • Carlos F. Véliz

    “for an absolutistor non-contingent pacifist none of this matters”

    http://plato.stanford.edu/entries/pacifism/

  • Miko

    I think conditions (1) and (2) are suspect. Reports suggest that ObL was no longer in operational control of AQ, so his death is unlikely to save innocents (and indeed, if a backlash occurs, his murder could even lead to harm to innocents). The U.S. government has never done anything that has an unambiguously just cause; their cause here likely has more to do with short-term political propaganda purposes than anything else, so (2) is out too.

    Mike Valdman:

    I find it hard to believe that such revelations should affect the moral status of his killing.

    Theories of morality are usually intended as back-handed ways of justifying things that we inherently know to be wrong, such as murder. Since morality is inherently arbitrary and usually just a tool by which the powerful convince everyone else to go along with their actions, I would in general agree with your statement. However, Teson seems to be applying to some supposedly objective standard of morality, which could very well contain a prescription against murdering someone if (for example) they cannot control their actions. So, such revelations are unlikely to affect the pragmatic desirability of his murder, but could certainly affect the morality of the action from within certain objective standard moralities.

    • J_hall

      Theories of morality are usually intended as back-handed ways of justifying things that we inherently know to be wrong, such as murder
      If morality is after right/wrong what is the basis for evaluating actions as right or wrong?

  • http://profiles.google.com/troycamplin Troy Camplin

    A question: which is to be preferred? assassination, or war? (Note: neither is of course preferred; that is not the choice.)

  • EmptyFridge

    Profesor Teson,

    Are you at least open to discussing why you are unwilling to apply your criteria to the US Government, and specifically the executive branch? Or will you just keep deleting comments that address the subject?

    • Fernando Teson

      I didn’t delete your comments.

      It is obvious, at least to me, that our enemies lack a just cause.

      • Carlos F. Véliz

        He clearly violated jus in bello by killing innocent civilians in his terrorist attack of 9/11, but I think it is much more difficult to ascertain with confidence that he lacked just cause.

        He might have had some legitimate grievances to declare ‘jihad’ against US, for example, the presence of US troops in the country of the “two holy cities,” Mecca and Medina, as it was recognized
        by Peter L. Bergen,
        Holy War, Inc.: Inside The Secret World of Osama Bin Laden (New York: Free Press, 2001).
        .

        • Carlos F. Véliz

          Chapter 5.

        • Fernando Teson

          So, Carlos, do you really believe that had Al Qaeda attacked, say, only the Pentagon and not innocent civilians, the action would have been morally justified?

          • Carlos F. Véliz

            The most honest thing I can say is: I’m not sure.

            If you truly believe that there is a “war” between US and a non-state actor like Al-Qaeda – as the US government declares – how can you consider illegitimate targeting the USS Cole? By denying the moral equality of combatants à la Jeff McMahan?

            PS: Have you ever seen this? http://www.youtube.com/watch?v=uGm-4MRuGF0

          • Clark

            I don’t know about others, but it seems like Al Qaeda’s attacks on things like the Pentagon, the White House and the USS Cole were legitimate military targets. But of course it then entailed war. Targeting civilians in airplanes or skyscrapers seems intrinsically illegitimate.

            The tricky bit is when it moves from terrorism for terrorism sake (i.e. more a police action) into outright war. I don’t think everyone agrees on this. Europeans definitely favor a more police styled response, although I don’t see how that deals with the realities of Afghanistan and Pakistan. Others (including myself) think it is more military. The problem is that most of our rules and standards are predicated upon only having to deal with state actors. The stuff dealing with things like Al Qaeda really go back more to the era of dealing with pirates in the 19th century and are hard to reconcile to modern ethics.

          • Carlos F. Véliz

            Clark: I agree. Deliberately targeting innocent civilians is immoral and should be condemned as an infringement of the proper rules for combat.

            I don’t know exactly how we should deal with a terrorist non-state actor that happens to be outside the territory of the belligerent state actor. But, if the response is military, the parameters of GCIV should be applicable (with the necessary adjustments).

            Daniel Statman has a pretty much known article in which he defends “targeted killing” in the “war on terror”. He says that, unless we were absolute pacifist, we cannot reject targeted killing on pain of inconsistency with our acceptance of the legitimacy of killing in war. But I think there is something wrong in that argument, although I must admit, I still don’t have a full-fledged counter-argument.

            I think we should think more carefully about the geographic moral limits of war (Check what Ashley Deeks says about this from a legal perspective, and this paper by Kenneth Anderson, here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1824783).

  • John

    Why limit item 1 to just innocents and who are they — only innocent citizens of the particular polity taking the action or would they be external to that polity, on the basis that all within the polity share some responsibility for being in the boat the are (war/conflict)?

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  • Mark Brady

    I guess it was the editors of Bleeding Heart Libertarians who deleted
    Empty Fridge’s posts, which I read last night. I can guess why you did
    so although Empty Fridge made it quite clear that he was not advocating
    the assassination of either Obama or Bush. Would the editors please
    provide the criteria whereby posts get deleted so we don’t waste our
    time posting comments that will get deleted.

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      I deleted the comments. Call me risk-averse, but he wasn’t quite clear enough for my tastes in making his lack of advocacy clear. And since it’s my hide on the line as owner of this blog, I felt entitled to make a judgment call.
      As for criteria, I don’t have any. But apart from another post from this same user, these are the only posts I’ve ever deleted from this blog on substantive grounds. And we’ve had over 2,000. So I think you needn’t be too concerned about your own future comments.

      • Mark Brady

        Thanks for your substantive reply and clarification.

  • Clark

    Out of curiosity, do you think all drone attacks by the US on
    Al Qaeda leadership within Pakistan is also unjustified? I guess it seems to many of us that the modern battle field is just different from how it used to be. It’s easy with overt armies who play by the general rules of warfare but a mite bit trickier with an insurgency like Al Qaeda or even the Taliban in general. Add in the apparent complicity of at least factions within the Pakistan government and things get trickier.

    If you’d allow for a drone strike then why should the rules of engagement be different if a Seal team is sent in? Hasn’t the ethical standard been met? If you reject drone attacks as well then I’m not sure how you engage the enemy in Pakistan without effectively declaring war on Pakistan.

    • Fernando Teson

      Clark:

      Here is my view on the use of drones by a liberal government. If they are used to kill enemies, whether conventional or unconventional (like terrorists), in a battlefield or a place assimilated to the battlefield, then they are legitimate. If they are used instead to kill persons outside the battlefield, they are only justified if the following stringent conditions are met (in addition to having a just cause): 1) the operation is necessary to avert the deaths of innocents (e.g., foiling a terrorist plot); 2) capture is not possible. In particular, I think that killing someone outside the battlefield just because he is a member of an organization is highly problematic. The actual use of drones (again, outside the battlefield) is worrisome for two reasons: they are sometimes used against persons that could have been captured (indeed, using the drone is a way to dispense with capture); and they often produce collateral deaths.

  • Jim Rose

    I wonder what your views are an assassinating Hitler or Stalin or Mao?

    What do you mean killed away from the battlefield? Where is the battlefield?
    Who draws this line?

    Wars of national liberation routinely used assassination of soldiers and politicians
    behind the lines to overthrow tyranny and gain independence.

    Was the kidnapping of Eichmann from Argentina
    wrong? A few people in the dock at the international criminal court in The
    Hague were shanghaied from Serbia
    too.

    On terrorists and international law, soldiers must under international law wear
    uniforms and carry their arms openly specifically to help their enemies.

    Precisely because uniformed the solders who carry their arms openly are easy
    to spot, their enemies have less reason and less excuse for shooting at
    civilians and fearing attack from within groups of civilians, near and far.

    If there is civilian immunity from attack for soldiers in irregular forces
    away from whatever the battlefield is, would this not prolong the war that these
    terrorists declared on your country and mine and more will die by both hands.

    The terrorists have more incentive to intermingle among civilians – a war
    crime on their part – if this offers them more protection than a cave in the
    middle of nowhere.

    Would all this legal hand-wringing over justice in the way the current war is
    fought have shortened World War 2, if applied back then? Who would have won?

  • Pingback: Anton’s Weekly Digest of International Law, Vol. 2, No. 18 (12 May 2011) | Anton's Weekly Digest of International Law

  • Anonymous

    Wow, many thanks for the link to the excellent resource list. I’ve been looking for something like that. I’m much more interested in the legalities of the move, since as a general matter I don’t think states sincerely seek to justify all their actions in pursuit of security from a global moral perspective. So we might well conclude that many of their actions are not morally justified and it doesn’t have much salience in the real world as apart from whatever significance it has as a moral judgment standing in isolation on its own. More interesting is the question of what constraints states are under in regimes of international law that we might posit are actually-existing systems of relations between states and regulations on their behavior (however unbinding such regimes might in fact be, existing at the supra-coercive-enforcement level of the anarchy of the international space).

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