Can extra judicial killing ever be just?
This year has seen the killing of three wanted men, all active in politics in their own peculiar ways: Osama bin Laden of al-Qaeda, Anwar al-Awlaki, the Islamist internet preacher based in Yemen, and Muammar Gaddafi, the ousted ‘Brother Leader’ of Libya. The circumstances of these killings were different, but they have generated both an exuberant sense of justice done and, at the same time, serious concerns about the legality and ethics of such acts.
One of the important questions to ask is how these killings should be described? Were they assassinations, extra-judicial executions, or acts of war? Whatever they were, what legal or ethical frameworks might be invoked to justify or condemn them?
It is, of course, natural to dismiss such questions as naive, un-decidable or irrelevant. It is easy to regard law and morality as mere fig-leaves for the pursuit of national self-interest, or naked revenge. Is it not absurd to imagine the US Navy Seals, on a testosterone fuelled-high in an extremely risky mission, mulling over such scholarly problems? Can we seriously think of Gaddafi’s captors, full of loathing for the man who tyrannised over them, agonising about whether he should be executed after a trial, rather than finished off on the spot?
However, to accept that such actions are only to be expected is not proof that these irritating questions should not be asked. Even if legal and moral defences, when they are offered at all, are largely rationalisations of decisions already taken, they can still be rationally discussed. There are real, if difficult, distinctions between assassinations and executions, and between acts of war and ordinary crime. There are also pressing questions about what constraints, if any, should operate in the pursuit of a just cause.
If the killing of bin Laden was an act of war, what was the war? George W. Bush declared a ‘war on terror’, but is this ‘war’ more like the clearly-defined war against Nazi Germany, or the more nebulous ‘war on drugs’? Does it imply that al-Qaeda leaders represent a coherent political entity? If they really are seen as military commanders, you would expect them to be treated as prisoners of war, if captured, rather than put on trial as criminals. And if they are judged to be criminals, you would expect them to be arrested, if possible, rather than killed. There is a worrying tendency for the question of their status to be decided in accordance with how they are going to be treated, rather than the other way round.
If the killing of Colonel Gaddafi was likewise an act of war, albeit a civil war, questions clearly arise about why he was apparently killed after capture. If it was an execution (or at least an act ‘in the spirit’ of execution), under what law was he judged guilty? And where was the trial? These well-worn questions invite the retort that whatever the legal minutiae, he was a bad man who deserved his fate and, moreover, similar tyrants need to be warned.
In fact, all these problems lead back to the ethical and legal tradition of the Just War. This is a set of principles which were formulated over many centuries, and whose original purpose was to reconcile that apparent pacifism of the New Testament and the early Church with the need for a Christian state to defend itself against unjust aggression. War involves deliberate killing, so how can such killing be justified? The tradition lays down both the conditions when war may legitimately be declared and the constrains on conduct during combat.
For example, war may waged only when – among other things – there is a just cause, when it is fought with a ‘right intention’ and when there is a reasonable prospect of victory. In the course of war, non-combatants must never be attacked deliberately, though there may be unintended civilian casualties (‘collateral damage’).
Modern conditions press upon us the question of whether the Just War tradition should be considered relevant at all, and if so, how it can be interpreted to cover such things as terrorism, civil war or humanitarian military intervention. There are always those who consider that, in the end, there neither can – nor should be – any normal moral restraints in war: the main point is to win a war and thereby defend the interests of one’s own side, and perhaps also make the world a better place. This position is sometimes known as ‘realism’, to be contrasted with ‘moralism’ or ‘idealism’. Morality is important, but cannot be applied in war as it can in civil society.
In a forthcoming discussion at the London Legal Salon, which I will introduce, we will try to unpick the seeming conflict between the demands of morality and those of realpolitik; and enquire into the proper descriptions of these recent high-profile killings as well as the underlying legal and moral problems.
The Independent Online is partnering with the Institute of Ideas’ Battle of Ideas festival to present a series of guest blogs from festival speakers on the key questions of our time.
Piers Benn is visiting lecturer at the Centre for Medical Ethics and Law, King’s College London. He will be introducing the discussion Can extra judicial killing ever be just? at the London Legal Salon on Monday 12 December.Tagged in: Anwar al-Awlaki, Muammar Gaddafi, osama bin laden, terrorism
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