Georgetown Journal of International Affairs, Volume 1, Number 2, Summer/Fall 2000

CIAO DATE: 05/02

Georgetown Journal of International Affairs

Volume 1, Number 2, Summer/Fall 2000

Cloak & Dagger Diplomacy: The United States and Assassination
Mark Vincent Vlasic^*

U.S. air strikes against Libyan leader Colonel Muammar el–Qaddafi, Iraqi President Saddam Hussein, and terrorist Osama bin Laden have, over the years, raised serious questions about the increasingly gray area surrounding the law on assassination. While the American press continually reminds the public of the presidential ban on assassination, the legality of state–sponsored assassination remains unclear. Whereas academics, experts, and the media have engaged in a public debate on this issue, the Department of Justice and the National Security Council have kept their interpretations of domestic and international laws on assassination classified. Contrary to popular perception, there is a very real debate within the intelligence community over the definition, legality, and proper use of assassination. Those who think the United States is legally prohibited from engaging in what is commonly known as assassination are wrong.

Defining Assassination

One of the most contentious aspects of the law on assassination is defining the term itself. While many laws refer to assassination, few, if any, actually define it. Even Executive Order (EO) 12333, which establishes the famous U.S. “ban” on assassination, fails to provide a definition of the term. For this reason, it is necessary to examine the origin, history, and use of assassination.

Long before the CIA’s infamous attempts to assassinate figures like Fidel Castro, the early Romans, Greeks, and Persians plotted their own acts of assassination. In fact, “assassination” itself is derived from the Arabic word hashishiyyin, which refers to members of an eleventh–century Muslim brotherhood that was devoted to killing its religious and political opponents. This origin is reflected in Dante’s use of “assassin” to describe any “professional secret murderer.”

Many thinkers have accepted the legitimacy of killing that aims to achieve political and military objectives. For example, Saint Thomas Aquinas contended that killing the sovereign for the common good was legally justified and, in some cases, even noble. President Abraham Lincoln concluded that “tyrannicide was morally justified when a people had suffered under a tyrant for a long time, when all legal and peaceful means to oust him had been exhausted, and when the prospects for his early departure were grim.” The renowned Italian thinker Alberico Gentili wrote that it made “no difference at all whether you kill an enemy on the field of battle or in his camp.” And Hugo Grotius commented, “It is in fact permissible to kill an enemy in any place whatsoever . . . . According to the law of nations, not only those who do such deeds, but also others who instigate others who do them, are considered free from blame.” Such statements illustrate that, historically, warfare and lawful killing were not limited to acts on the battlefield or traditional combat.

Targeting specific individuals during wartime generally was considered valid, but it was not a right without limitation. Early scholars often excluded from their definitions of lawful killings those acts that involved the use of “fraud and snares,” a limitation still applied in modern law of war doctrine. Indeed, this limitation, known as the "ruse–perfidy distinction," may be found in all U.S. military law doctrine manuals. Scholars equated the use of fraud and snares with treachery, which Gentili denounced as a violation of the trust a victim rightfully expects from an assassin. According to Gentili, such treachery is “so contrary to the law of God and of Nature, that although I may kill a man, I may not do so by treachery.”

Scholars differentiated lawful killings from assassination, which they equated with the use of treachery. Grotius and Gentili defined assassination as a breach of confidence. Similarly, Emmerich de Vattel of Switzerland, writing 150 years later, defined assassination as “murder committed by means of treachery.” De Vattel was careful to distinguish a treacherous act from a killing by surprise or stealth, which he found to be acceptable.

Historically, scholars have not placed an absolute prohibition on killing one’s enemy by unconventional means, either on or off the battlefield. Such killing is lawful so long as one does not use treachery, which is defined as betrayal by one owing an obligation of good faith to the intended victim. It is important to note, however, the narrow interpretation of treachery. The use of stealth or trickery, for instance, is not prohibited and will not render an otherwise lawful act illegal. The historical test for assassination, then, is whether an act of treachery has been committed.

Assassination in Peacetime

Countries have agreed to different standards for murder and assassination, depending on whether it is a time of war or of peace between states. International law during peacetime is governed by both customary international law and treaties between states. Perhaps no such legal standard is more recognized than that of the United Nations Charter. Article 2(4) of the Charter provides that, in peacetime, the citizens of a nation, whether they are political officials or private individuals, are entitled to immunity from intentional acts of violence by citizens, agents, or military forces of another nation. Such immunity would include immunity from assassination.

This prohibition was codified in the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (New York Convention), which entered into force in the late 1970s in an attempt to encourage the criminalization of violent acts committed against certain internationally protected persons. Article 2(a) criminalizes inter alia “the international commission of . . . murder, kidnapping or other attack upon the person or liberty of an internationally protected person.” However, the treaty fails to give full protection against assassination because it accords a person protected status only when the individual is in a foreign state. Such protection, while helpful to such persons traveling abroad, fails to establish any international prohibition of the assassination of those people within their own state’s borders. Furthermore, the New York Convention failed to make assassination a criminal act under international law; instead, the treaty only made assassination a crime under the signatory states’ domestic laws. In spite of these failings, though, the treaty does reflect the international community’s condemnation of assassination.

Under international law during peacetime, the term assassination may be defined as the murder of a targeted individual for political purposes. The UN Charter and the New York Convention demonstrate that assassination is an illegal act prohibited by international law. Therefore, international law forbids any U.S. government action to assassinate an individual in peacetime because such an act would be an unlawful act of force. When states are engaged in armed conflict, however, the international law of assassination differs, and a separate doctrine of law known as the International Law of War applies.

Assassination in Wartime

In wartime, the legitimate role of the military encompasses the lawful killing (as opposed to murder) of the enemy, including combatants, unprivileged belligerents, and civilians that take part in the hostilities. The Law of War consists of treaties, laws, and legal scholarship based on the relationship between states and their actors during times of armed conflict. Everyday peacetime legal prohibitions against assassination fall under different legal doctrine during wartime, and such prohibitions must be understood in order to allow lawful military targeting during times of armed conflict.

The first legal guidelines promulgated on wartime assassination were written by Professor Francis Lieber at the time of the American Civil War. After being reviewed and revised by a board of military officers in 1863, the Lieber Code was signed by President Lincoln as General Order 100. Article 148, which contains the ban on assassinations, states that “the law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, as an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such international outlawry; on the contrary, it abhors such outrage.” Later codification efforts defined “outlawry” as a form of treachery. As a result, the distinction made by earlier scholars between assassination and lawful killing was codified into modern war manuals.

This distinction was later codified as customary international law in the Hague IV Convention, which re–established the assassination–treachery relationship developed by Grotius and de Vattel. Article 23(b) of Hague IV states that “it is especially forbidden to kill or wound treacherously individuals belonging to the hostile nation or army.”

U.S. manuals on the Law of War are generally in agreement with the international law on assassinations. For example, the U.S. Army’s law of war manual, Field Manual 27–10, directly quotes the Hague IV prohibition on assassination. Similar provisions excluding the use of treachery or perfidy appear in U.S. Navy and Air Force law of war manuals. In its compliance with international law, however, the U.S. government has been careful not to overly restrict its potential military operations. For example, the U.S. Army’s Law of Land Warfare, for example, states that the Hague IV Convention “is construed as prohibiting assassination . . . . It does not, however, preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere.”

It is clear that wartime assassination, while still illegal, is defined differently than peacetime assassination. While peacetime assassination focuses on the political intent of a targeted killing, the prohibition on wartime assassination focuses on (1) a targeted individual, and (2) the use of treacherous means. A wartime killing is an unlawful assassination only if it violates both prohibitions (targeting and treachery), so it does not matter whether the killing is political or not. In wartime, therefore, the targeting of a specific individual is not an assassination so long as treachery is not utilized.

The limitation of specific targeting during wartime does not preclude an armed attack utilizing the element of surprise. Combatants are liable to attack, and are themselves legitimate targets at any time or place, regardless of their activity. It is important to note that combatants need not be actively partaking in hostilities at the time of their targeting, nor does individual combatants’ vulnerability to lawful targeting (as opposed to assassination) depend upon their military duties or proximity to the field of combat.

The military prohibition on assassination also does not limit the means one may use to kill a lawful target. The U.S. Army Memorandum of Law on assassinations states that “no distinction is made between an attack accomplished by aircraft, missile, naval gunfire, artillery, mortar, infantry assault, ambush . . . booby trap, a single shot by a sniper, a commando attack, or other similar means. All are lawful means for attacking the enemy and the choice of one vis–á–vis another has no bearing on the legality of the attack.” Such a statement illustrates the many lawful means the United States may employ to eliminate a lawful target during times of conflict. Therefore, under the law of war, the United States may target and kill a specific combatant through any means, so long as treachery is not used. Like any military use of force, however, the principles of necessity and proportionality will govern every operation, but they will have no bearing as to whether an act constitutes an assassination.

Assassination under U.S. Law

While any action by the United States to assassinate a foreign leader would naturally involve international law prohibitions against assassination, U.S. domestic law also limits the ability of government agents to carry out such actions. The domestic law prohibition of assassination is promulgated in EO 12333, which has received increased media attention in recent years due to conflicts with Iraqi President Saddam Hussein and terrorist leader Osama bin Laden. EO 12333, however, fails to provide any definition of assassination, so it is necessary to examine the events that inspired EO 12333 in order to clarify its language.

The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, better known as the Church Committee, was convened in 1975 by Senator Frank Church in an effort to uncover the truth about the U.S. intelligence community’s secret foreign activities, especially its involvement in foreign assassinations during the 1950s and 1960s. The resulting report uncovered the CIA’s involvement in assassination attempts on five different foreign leaders: Patrice Lumumba of the Congo, Fidel Castro of Cuba, Rafael Trujillo of the Dominican Republic, Ngo Dinh Diem of South Vietnam, and General Rene Schneider of Chile.

Perhaps the most infamous CIA operation involved repeated attempts to assassinate Cuban dictator Fidel Castro. The Church Committee identified at least eight different assassination plots against Castro, many of which involved the use of devices like poisoned cigars, poisoned drinks, poisoned pens, high–powered rifles, deadly bacterial powders, exploding seashells, and “other devices which strain the imagination.” In the Trujillo affair, the CIA knowingly provided arms to Dominican dissidents who intended to, and later did, assassinate the Dominican dictator. The Committee also established a CIA connection to a military coup d’état in Chile in which General Schneider was “accidentally” killed during an attempt to kidnap the Chilean commander in chief. Although the CIA was not directly involved in the assassination of President Diem, Senator Daniel Moynihan has stated that “we were around,” implying that the United States was not wholly innocent in this affair.

Early revelations of U.S. involvement in assassination attempts on foreign leaders outraged both Congress and the American public, and the executive branch was quick to respond. Soon after the media began to broadcast stories on U.S. intelligence operations, but well before the committee released its findings, then–CIA Director Richard Helms issued an agency directive prohibiting assassination. In fact, much of the action taken by the executive branch seemed to follow from public commentary and the speed of the Church Committee investigation. While President Gerald Ford attempted to quell public outrage, he repeatedly appealed to the committee members to seal their report in order to protect U.S. interests. When the Church Committee’s report was leaked to the press in January 1976, decisive executive action had to be taken. What followed was EO 11905,which openly addressed public concern over assassination and publicly preempted congressional legislation on the same matter.

Since the Church Committee controversy, every U.S. president has endorsed the executive prohibition of assassination. The current prohibition is set forth in EO 12333: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” Like President Ford’s order, the current executive order fails to define assassination, which has led to significant debate over the true limitations of the ban. In an effort to clarify the presidential ban, executive agencies have worked to establish clearer legal guidance.

Legal experts in the Army’s International Law Division prepared the first executive branch analysis on Executive Order 12333 and assassination. Their legal analysis embraced the distinction first articulated by early scholars and later codified in the Lieber Code. While reaffirming the historical prohibition of treachery during wartime, the experts upheld the ability of the United States to lawfully target specific individuals or groups under certain situations.

The Department of Justice also prepared its own legal opinion on EO 12333. Although the Department’s conclusions remain classified, a former CIA counsel publicly concluded that the ban “does not prohibit U.S. officials from encouraging and supporting a coup, even where there is a likelihood of violence and a high probability that there will be casualties among opponents of the coup.” In other words, as long as U.S. officials do not approve specific plans for the killing of individuals, the “prohibition against assassination has not been violated.”

The failure of EO 12333 to define the term assassination has permitted U.S. officials to interpret its prohibition in a very restrictive manner. The current legal guidance seems to allow the United States to conduct the targeted killing of individuals during a period of armed conflict or when such individuals pose a threat to U.S. national security. In addition, it is permissible for U.S. agents to assist in a coup plot so long as the specific plans do not call for the killing of a specific individual.

The Future of Assassination

In order to understand trends in U.S. law and policy on assassination, it is helpful to first examine recent American operations against Colonel Muammar el–Qaddafi, Saddam Hussein, and Osama bin Laden.

On April 15, 1986, American bombers attacked various targets in Libya, including the home and headquarters of Colonel Qaddafi. Although he survived the raid, his adopted daughter was killed, and his wife and two sons were injured. As a result, many accused the United States of attempting to assassinate the Libyan leader.

The United States articulated two arguments to justify its attack on Libya. First, the U.S. report to the UN Security Council claimed that the attack was a legitimate act of self–defense in response to “an ongoing pattern of attacks by the government of Libya,” including the April 1986 bombing of La Belle Disco in Berlin where a number of U.S. servicemen were killed. Intelligence sources had indicated that Libya was involved in the Berlin bombing and was planning future attacks on up to thirty U.S. diplomatic facilities worldwide.

Second, as Judge Abraham Sofaer, a former attorney for the State Department, argues, Colonel Qaddafi was not “personally immune from the risks of exposure to a legitimate attack. He was and is personally responsible for Libya’s policy of training, assisting, and utilizing terrorists in attacks on United States citizens, diplomats, troops, and facilities. His position as head of state provided him no legal immunity from being attacked when present at a proper military target.”

Judge Sofaer’s characterization of the raid on Libya as an attack on a particular military target rather than a specific individual caused U.S. policymakers to describe other assassination attempts in a similar manner. In addition, the Libya raid demonstrated that the executive branch did not believe that EO 12333 was applicable in times of armed conflict. This view was justified by the fact that the attack on Libya was carried out by military forces rather than intelligence agents.

The international and domestic response to the raid on Libya did not encourage strict adherence to the prohibition on assassination. While the international response was generally negative, it failed to send a clear message about disdain for assassination attempts specifically. The domestic response, on the other hand, was overwhelmingly positive, with bipartisan congressional support and a 77 percent public approval rating.

In the Libya example, then, it seems neither domestic law nor political leaders nor public opinion placed any limitations on a direct attack on the home of a foreign leader as long as the act was carried out by U.S. armed forces.

During the Gulf War, Saddam Hussein was a ripe target for assassination, yet the UN coalition failed to eliminate him. Some scholars have claimed that a decision to directly target Saddam would have been illegal under international law and Executive Order 12333. This view, however, is incorrect, for the decision not to kill Saddam was based on political, rather than legal, considerations.

Any direct targeting of Saddam Hussein by the United States would have been legal under the individual and collective use of force provision in Article 51 of the UN Charter. The invasion of Kuwait, its plea for assistance, and the subsequent UN Security Council resolution condemning the Iraqi invasion provided the legal basis for the coalition’s military actions against Iraq. Saddam, as commander in chief of the Iraqi Armed Forces, was a combatant; therefore, under the Law of War Doctrine, the direct targeting of Saddam would have been lawful, provided treachery was not used. Saddam, as a combatant, could have been attacked at any time or place by any means. EO 12333 would not have applied to such an assassination since it only addresses the conduct of intelligence activities, not military action, during war.

The Gulf War example, then, supports the proposition that the United States can kill a foreign leader, provided the proper prerequisites are met. First, a state of war must exist between the two states. Second, the leader in question must be deemed a lawful combatant under the Law of War. Finally, the attack on the leader’s life must not be done in a treacherous manner. The lawfulness of such an attack outside the scope of an armed conflict, however, remains less clear. Such was the case of the August 20, 1998 cruise missile attack on the terrorist training camps of Osama bin Laden at Khost, Afghanistan.

In October 1998, Defense Secretary William Cohen told U.S. troops in Saudi Arabia that the United States had aimed to “hit” terrorist mastermind Osama bin Laden during the August 20 missile strike. Clinton administration officials stated that, in spite of the executive ban on assassination, the United States has a legal right to use deadly force against terrorist leaders. Specifically, officials claimed that the United States can authorize military commandos or undercover agents to use deadly force against the leadership of an organization that has hurt or threatened Americans. This right, however, should not be equated with the issuance of a written order calling for the death of a particular individual. “Lawful use of force in self–defense,” said one official, “is not assassination.”

In November 1998, National Security Council spokesman David Leavy stated that terrorist groups’ “infrastructure” and “command and control” are “justifiable target[s],” and such “infrastructures” are often “human.” In other words, the U.S. government claimed that it was targeting bin Laden not as an individual person, but rather as part of the larger human command and control infrastructure of a terrorist group.

The rationale used in the attack on bin Laden provides an important precedent for future operations because it greatly expands the number of potential targets of assassination. U.S. policymakers may now justify attacks on threats to American security as attacks on persons not in their individual capacities, but in their identities as human infrastructure and command and control centers. This rationale, which was first articulated to justify the attack on Qaddafi, has now become an integral feature of international law.

The Libya, Gulf War, and Afghanistan examples describe the evolution of a new U.S. doctrine on assassination. This doctrine permits the use of clandestine, low visibility, overt, or covert military force against those who pose a threat to U.S. security. Under such a doctrine, little stands in the way of the direct targeting of a foreign leader, especially in times of conflict. For this reason, it is reasonable to wonder whether the prohibition on assassination contained in EO 12333 remains valid and meaningful.

While much of the law regarding assassination is largely misunderstood by the media and the public, the basic elements of international assassination law have remained largely unchanged since the time of Grotius. The law of assassinations is divided into two doctrines, one for times of conflict and the other for times of peace. The former looks to the presence of treachery while the latter asks whether there was a political purpose in the killing. Problems arise, however, when an attempt is made to determine what constitutes a peacetime setting and what situations permit the use of the Law of War doctrine. An international convention or a new executive order might help clarify these terms, but it is not clear that U.S. policymakers desire such clarity. Indeed, they have exploited the ambiguity in these terms to justify attacks on Qaddafi, Hussein, and bin Laden. As terrorists continues to threaten U.S. security, the rationale used in these attacks will likely be used again each time U.S. military forces conduct operations that appear to violate EO 12333.

Endnotes

Note *: Mark Vincent Vlasic is a student at the Georgetown University Law Center. Back.