openpolitics.com

A fierce debate swirls on its legality; and on whether it will be good for America

IT WAS, ACCORDING to David Petraeus, a former American army general and director of the CIA, “more consequential” than the killing of Osama bin Laden or of Abu Bakr al-Baghdadi. Few bemoaned the demise of the jihadist leaders of al-Qaeda and Islamic State. But the killing on January 3rd by drone strike of Qassem Suleimani, head of Iran’s Quds Force, the foreign-operations branch of the Islamic Revolutionary Guard Corps (IRGC), has sparked a furore over the legality and the impact of his assassination.

The American authorities dislike the word “assassination”, because it implies a flouting of international and humanitarian law. Indeed, some human-rights lawyers see the use of drones to kill people as almost always unlawful. Agnès Callamard, the UN’s special rapporteur on extrajudicial, summary or arbitrary executions, has argued that “outside the context of active hostilities, the use of drones for targeted killing is almost never likely to be legal….lethal force can only be used where strictly necessary to protect against an imminent threat.” She has deplored the “kill lists” of what the Americans call “specially designated global terrorists” since they have no way of proving their innocence, and in effect face a sentence of death without due process of law. She has criticised the Trump administration for killing General Suleimani.

The Trump administration has argued that General Suleimani indeed posed an “imminent threat” but will find it hard to present evidence that satisfies its critics. It can also point as precedents to the activities of its predecessors. At the end of 2016, just before he left office, Barack Obama issued a report on the legal framework guiding the United States’ use of force (which had included a raid on Pakistani territory in 2011 without the local authorities’ knowledge to kill bin Laden). It says: “Using targeted lethal force against an enemy consistent with the law of armed conflict does not constitute an ‘assassination’.” Assassinations, it notes, are unlawful under an executive order signed by Ronald Reagan in 1981 (which updated those by Gerald Ford and Jimmy Carter). But today there is “a new and different kind of conflict against enemies who do not wear uniforms or respect geographic boundaries and who disregard the legal principles of warfare.” For the Trump administration, even though General Suleimani was an official of the Iranian state, the Shia militias that he oversaw and cheered on in Iraq and elsewhere fall in the terrorist category; in April the Trump administration formally designated the IRGC a “foreign terrorist organisation”.

The campaign against international terrorism falls in the grey area between policing at home and waging war abroad, with few of the well-established laws and norms that attempt to govern them. In the Pentagon’s latest rulebook, it lets armed forces operate as they do in conventional war zones and hit terrorist targets at will in places designated “areas of active hostilities”, including parts of Yemen, Pakistan and Niger, and all of Somalia. The Americans have unleashed hundreds of drone strikes, air strikes and ground raids.

In many ways, America is following the precedent set by Israel, the state that over the past half-century has surely most actively pursued a policy of hunting down and killing foes abroad—not least when it sought to exact retribution against those responsible for the killing of 11 Israeli athletes at the Munich Olympics in 1972. According to Ronen Bergman, an Israeli journalist whose history of the subject, “Rise and Kill First”, was published in 2018, Israel’s security services have carried out some 2,700 assassinations. The killing of Palestinians suspected of planning or perpetrating violence against Israelis has been relentlessly conducted also in the West Bank and Gaza, territories controlled by Israel that seek to become an independent Palestinian state.

The Israelis were at first criticised by Western governments for violating international and humanitarian law. But after al-Qaeda’s attacks on America in September, 2001, the American administrations of both George Bush and Mr Obama, and more recently the British and French governments, followed their example in tracking down and killing enemies abroad, sometimes including their own citizens, by using drones.

Particularly in the past decade or so, the Americans (and their Israeli allies) have sought to apply more elastic rules, while broadly invoking the principle of “self-defence against non-State actors on the territory of another State.” Due process, it is argued, cannot be applied when responding to an imminent attack or when the capture or extradition of a suspected enemy is not feasible.

Definitions of “self-defence”, “active hostilities” and “imminent” are endlessly argued over. Philippe Sands, a human-rights lawyer who has charged both the American and British governments with violations of the laws of war, has argued that it all hinges on whether a situation of armed conflict (war) exists. “If it doesn’t, extrajudicial executions are a total no-no in all circumstances. If armed conflict exists, then every case turns on the facts.” So each case must be judged on its merits. The snag here, in the Israelis’ view, is that they are locked in “an armed conflict short of war”, that their survival as a nation cannot depend on the niceties of the law, and that in any case the situation in Gaza and the West Bank in legal terms “falls somewhere in the middle”. The Americans may apply a similar fuzziness to the state of animosity between the US and Iran, seeing that General Suleimani’s men—including elite units sent abroad, undercover agents and proxies—have been held responsible for numerous attacks on Western and Israeli targets, as far afield as Argentina and Bulgaria.

But does it work?
If the legality of assassinations is endlessly debated, so is the question of their effectiveness. Clearly a successful assassination works in one sense, of doling out retribution and punishment. But, to use General Petraeus’s term, how “consequential” is it in deterring and defeating the enemy? In the long and varied history of assassination, the results have often been disputed, and the consequences unintended. It is generally accepted, for instance, that a bullet fired by a Serbian nationalist started the first world war and even paved the way towards the second, though the bonfire which this ignited in 1914 was ready to be lit.

The killing in 1961 of Patrice Lumumba, the Congo’s first prime minister, often blamed on the CIA, helped set that country on its post-colonial path to mayhem. The murder in 1966 of Sir Abubakar Tafawa Balewa, Nigeria’s first prime minister, led to a dreadful civil war. And the killing in 1994 of Rwanda’s president, Juvénal Habyarimana, set off Africa’s worst genocide.

In the Middle East, similarly, assassinations have also changed the course of history. The killing of Egypt’s President Anwar Sadat in 1981 chilled the peace that he had negotiated with Israel. The murder of Israel’s prime minister, Yitzhak Rabin, by a Jewish fanatic in 1995, severely dimmed the prospect of peace between Israelis and Palestinians.

More recently the Saudis and the Iranians have both made clear that they will kill perceived enemies of the state at home or abroad: witness the murder of Jamal Khashoggi, a journalist who was killed and dismembered in the Saudi consulate in Istanbul because of his criticism of the country’s crown prince, Prince Muhammad bin Salman.

Israeli governments remain wedded to the idea that assassinating their enemies keeps them on the defensive and disrupts their plans. That, too, must be the understanding of Mr Trump. But the result has not always been what was desired. Israel’s botched assassination on Jordanian soil in 1997 of Khaled Mashal, who went on to become leader of Hamas, a Palestinian Islamist group that has carried out myriad suicide attacks, was a costly fiasco. The killing of other Hamas figures, including the movement’s founder, Sheikh Ahmed Yassin, has had little obvious impact on the movement’s popularity or capabilities.

After the Israelis assassinated Abbas al-Musawi, leader of Hizbullah, the Lebanese Shia movement in 1992, he was succeeded by the cleverer Hassan Nasrallah, who has been even more of a thorn in Israel’s flesh—with the encouragement and close-co-operation of General Suleimani.

Yet the idea of organisational decapitation remains seductive to would-be strategic assassins: cut off the leader and watch the body twitch through its death throes. In a book published last November, Jenna Jordan of the Georgia Institute of Technology examines more than 1,000 cases involving the killing or capture of leaders of terrorist or insurgent groups. She says three factors contribute to a group’s resilience afterwards: its degree of

1. bureaucracy,
2. ability to draw on local resources and
3. ideological zeal.

These qualities ensure that its mission does not depend on a single leader.

The death last October of Baghdadi, the self-proclaimed caliph of Islamic State, who blew up himself (and two of his children) to avoid capture by American forces in Syria, has disrupted IS, but perhaps not in a lasting manner. IS ranks highly on all three of Ms Jordan’s factors. It has kept meticulous records and exported its procedures to international franchises that can apply them independently. Though it no longer pulls in $1m a day, as it once did, it still has deep pockets, and is likely to benefit from local Sunni disaffection in Syria. Its ideological purity resonates independently of Baghdadi, to whom a successor was named within days. It has proved its resilience before. It is notable that Mr Baghdadi rose to the top because two predecessors were killed in American strikes in 2006 and 2010.

General Suleimani will no doubt be hard to replace. He was the right-hand man to the supreme leader, Ali Khamenei, and no obvious candidate can take that role. But like Baghdadi, he had created something much bigger than himself that does not depend on him alone. His network will still have much the same capabilities as when he was alive. And because it has been so active across the Middle East, says one former British security official, the Quds Force has “a pool of talent…a battle-hardened cadre” of people used to waging asymmetric campaigns. And for a while at least, outrage in Iran at the assassination is fuelling a thirst for revenge and has drowned out anti-regime protests.

Then there is the impact on Iraq. The killing of General Suleimani at the country’s international airport plainly flouted that country’s sovereignty, enraging many Iraqis who had previously welcomed American troops on their soil. If, as some fear, the jihadists of Islamic State revive in Iraq in the absence of American forces that had previously beaten them down, the new balance could tilt against America. And if the Iraqis do kick the Americans out, summarily or under a more sedate timetable, his assassination will have produced just the result that General Suleimani would have hoped for.