As the euphoria surrounding the announcement of Osama bin Laden’s death wears off, and the initial stories of ‘gunfights’ and ‘human shields’ are radically revised, serious doubts are emerging as to the legality of the entire operation. Legal experts have criticised the US for failing to take bin Laden into custody, according him due process rights and trying him before a court for the crimes he has committed. Liberal press outlets have opined: “the line between summary justice and illegal killing is a fine one, but it is one that must be scrupulously observed by any country with a claim to be civilised and governed by the law”. Even the Archbishop of Canterbury has voiced his concerns, declaring that killing this way “doesn’t serve justice”.
Yet whilst the extrajudicial killing of bin Laden may seem like an affront to liberal concepts of justice and the rule of law, the fact is that such targeted killing techniques are fast becoming an integral part of the pre-emptive security apparatuses being developed and deployed by western states in their ‘war against terror’. The attacks of 11 September 2001 exacerbated the movement toward risk management in contemporary security policy. Since then, preventative measures such as control orders, administrative detention and terrorist blacklisting have been rapidly developed, giving rise to “parallel” systems of state intervention that are supplanting criminal justice systems, bypassing due process protections and undermining the rule of law. Rather than punishing those responsible for criminal wrongdoing, such measures seek to absorb the uncertainty of the future by pre-emptively targeting those thought to constitute a threat.
Targeted killing takes this precautionary logic and pushes it to its inevitable conclusion. As counterterrorism is increasingly defined as an ongoing asymmetrical war against potential security risks and terror networks spread across the ‘global battlefield’, targeted killing practices have assumed new significance and enjoyed a renewed sense of official legitimacy as the ultimate means of (literally) eliminating danger.
The use of aerial drones and specialised kill squads against alleged Al-Qaeda combatants has massively increased under the Obama administration. Deaths from US drone strikes in Pakistan have risen exponentially from 89 in 2004 – 2007 to 607 in 2010 and the Director of the CIA now openly acknowledges that drone strikes are “the only game in town in terms of confronting… the al-Qaeda leadership”. In Afghanistan, the notorious US Task Force 373 has been operating covertly within the NATO coalition with the express aim of hunting down up to 3000 Al-Qaeda and Taliban targets designated on 6 different ‘capture or kill’ lists.
If Bush’s national security doctrine was defined by the rendition, detention and torture of terror suspects, its fair to say that Obama’s approach is arguably even more draconian: it aims directly at their elimination. And whilst we might like to think that this is simply an American phenomenon, its clear that other states (such as the UK and Germany) are thoroughly implicated in the practice – either by adding their own names to the kill lists or by providing the US with the intelligence needed to kill their own nationals in militant training camps.
Whether by drone or by death squad, the legal basis for targeted killing is still far from settled and has been the subject of considerable debate amongst lawyers. The US assert that since the attacks of 11 September 2001 they have been in a non-international armed conflict with Al-Qaeda and its affiliates around the world and they are empowered under the UN Charter and the laws of war to use lethal force against their adversaries – whether they be members of Al-Qaeda or civilians who ‘directly participate in hostilities’.
However, there are no accepted definitions of these categories. States have persistently refused to disclose the criterion they use to determine who can and cannot be legitimately targeted and legal challenges seeking to force disclosure have so far failed. According to the former UN Special Rapporteur on extrajudicial, summary or arbitrary executions, this lack of disclosure violates international law and “gives States a virtual and impermissible license to kill”. Nor is this power to kill simply confined to Afghanistan or Pakistan. As the US have left the geographical scope of their conflict against Al Qaeda deliberately undefined, they could forseeably conduct targeted killing operations against anyone they consider to be a legitimate target anywhere in the world. And if the current situation is worrying, the future looks set to be even more complicated. According to a recent report by the Ministry of Defence, advances in artificial intelligence will, within 5 to 15 years, enable fully autonomous (or robotic) drones to make their own algorithmic assessments as to who can be legitimately targeted. The report concludes: “Do military planners and politicians understand the full implications of the systems they are currently tasking and those they hope to procure?”
We are right to be concerned about the killing of bin Laden. Yet his method of death is not so much an aberration of our own legal system, but rather the manifestation of a new regime of extrajudicial killing that is quietly transforming it.