Warfare and Humanitarian Ethics Assassinating Al Qaeda Leaders in AF-PAK

September 2012

Legal Arguments: Distinction

• Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.”• Combatants are “All organized armed forces,

groups and units which are under a command responsible to that Party for the conduct or its subordinates”

Legal Arguments: Proportionality

• Loss of civilian life cannot be excessive “in relation to the concrete and direct military advantage anticipated”

“Excessiveness” depends on the strength of the evidence linking the target to the attack on allied Forces(ISAF) and his ranking within Al Qaeda

Links to AQ do not confer combatant status

•When in doubt, treat non-classifieds as civilians

Moral Arguments

• Just War theory proscribes attacks for purposes of revenge, deterrence, and “good consequences” (e.g., killing one leader to save many civilians)• There should be evidence that the target is an

imminent threat, preferably a military leader, and that the principles of proportionality and distinction are also met

Could create unforeseeable consequences

Political Arguments

• Leads to retaliatory attacks against ISAF targets• Weakens international norms against

assassination, making it more common• Increases sympathy and recruitment for

terrorist groups (“martyrdom effect”)• Might erode domestic support• Might alienate allies

A Textbook case In Yemen• Target: Qaed Salim Sinan al Harethi• Background:

Yemini citizen and senior Al Qaeda member believed to have been behind the U.S.S. Cole bombing and an attack on a French oil tanker Wanted since the Cole incident (2000) Indications of continued fundraising and planning for future Al Qaeda terrorist attacks

In December 2001 Yemeni SF launched a failed raid against al Harethi; 18 soldiers were killed On Nov. 3, 2002 a Hellfire missile fired from a U.S. Predator killed Harethi and five associates in a car on

an isolated road 100 miles east of Sana’ Four passengers were members of Abden Abyan Islamic Army, an AQ “affiliate” The fifth was an American recruiter for AQ

They were thought to be en route to a target Yemeni and American officers had been monitoring al Harethi’s phone traffic in preparation for an

attack Evidence was collected after the attack to verify the identities of the killed

Positively identified the target (but not the passengers) Cooperated with local government Took due care to collect accurate intelligence Proportional use of force Non-combatants were almost fired upon on two previous occasions Command to fire was given when the target was isolated Identities confirmed after the fact U.S. acknowledged its role

• Assessment

Not all cases are textbook cases

• Phoenix Program - Vietnam: 8,000 assassinations, many based upon personal vendettas

• Op. El Dorado Canyon – Libya: Failed assassination attempt on Moammar Gadhafi, 15 civilian casualties

• OEF – Afghanistan: 3 men killed with Hellfire, one mistaken for bin Laden

• OEF – Pakistan: Numerous civilians killed in cross-border raids, missile strikes

• OIF – Iraq: Failed decapitation strikes against Saddam and his coterie resulted in numerous civilian deaths

• OIF – Iraq: Dozens of civilians killed in 50 attacks that relied on inaccurate Thuraya GPS coordinates

Recommendations to Minimize Civilian Casualities

Deliberation

• Establish a special court to quickly evaluate potential targeting casesDecide if strike is lawfulAscertain that the target is a threat to ISAF

security and high-value statusEnsure other means of neutralizing the target

have been exhausted• Ensure operation fits with broader political

objectives and foreign policy Assess unintended consequences

Recommendations to Minimize Civilian Casualities

Planning

• Vet intelligence properly Multiple sources Cooperate with local government if possible

• Take measures to minimize collateral damage Time, location, weapon, attack azimuth

• Ensure there is a reasonable chance for tactical success Use sufficient force to minimize need for

follow-on attack