Author: Seumas Miller
Targeted killing is a controversial practice. Indeed, it is sometimes referred to as extrajudicial killing, thereby implying it is unlawful. Moreover, targeted killing needs to be distinguished from assassination, a practice that is typically unlawful. Further, the contexts in which targeted killing takes place need to be distinguished, as do the nature of the targets. For example, targeted killing of civilians by police officers is both unlawful and morally impermissible. But what of targeted killing of combatants by combatants in a theatre of war? Surely this is both lawful and permissible. This chapter seeks to provide answers to these and related questions.
Two relatively recent events have placed the ethics of assassination and targeted killing at the fore: the killing of Osama bin Laden in Pakistan and the bombing by NATO forces of Colonel Gaddafi’s compound in Tripoli in the context of the civil war in that Libya. In May 2011, Osama bin Laden was killed by US Special Forces in Abbottabad, Pakistan. US officials said bin Laden resisted and was shot in the head; it has also emerged that he was unarmed. US officials also said that three other men were killed during the raid, one believed to be bin Laden’s son and the other two his couriers; in addition, a woman was killed when she was used as a shield by a male combatant. There were no American casualties. Bin Laden’s death came nearly ten years after al-Qaeda terrorists hijacked and crashed American passenger airplanes into the World Trade Center in New York and the Pentagon outside Washington, killing some three thousand people. Since Abbotabad is a medium-sized city, fairly close to Pakistan’s capital, Islamabad, and home to a large Pakistani military base, questions have been raised as to how bin Laden could have lived there undiscovered for so many years without alerting the Pakistan security agencies. Significantly, the US operation to kill bin Laden was evidently carried out without the knowledge of the Pakistani government.
What of the bombing of Colonel Gaddafi’s compound in Tripoli? In February 2011, major political protests broke out in Libya against Gaddafi’s government. Subsequently, these turned into a civil war in which evidently Gaddafi was responsible for the killing of unarmed civilians by Libyan forces loyal to him. In March 2011 the United Nations declared a no-fly zone in Libya and authorized air strikes by NATO forces to be undertaken for the purpose of protecting the civilian population of Libya. A NATO air strike in April in Tripoli apparently killed the youngest son of Gaddafi and three of his grandsons. US Defense Secretary Robert Gates said that NATO was not targeting Gaddafi specifically, but rather his command-and-control facilities—including a facility inside Gaddafi’s sprawling Tripoli compound. However, it remains unclear whether or not NATO was attempting to kill Gaddafi; this is especially so given that Gaddafi was a key element of the Libyan government’s armed forces command-and-control center. It is also unclear whether under UN resolution 1973 it is permissible for NATO forces to bomb command-and-control facilities in order to protect civilians; the wording of the resolution is vague, speaking as it does of using “all necessary measures to protect civilians.” Certainly, it did not authorize Gaddafi’s removal from power by military means. On the other hand, the destruction by NATO of Gaddafi’s military forces in the course of NATO’s efforts to protect the civilian population, if this is a correct account of what happened, did lead to Gaddafi’s demise. I note that in addition to being responsible for civilian deaths in this conflict, Gaddafi had a long history of human rights violations to his name. Moreover, Gaddafi was responsible for the assassination of dozens of his “enemies” around the world. In May 2011 the International Criminal Court issued a request for an arrest warrant against Gaddafi for “crimes against humanity.”
Targeted killing has been variously defined. Here I provide, in summarized form, a definition set forth and defended in detail elsewhere. By definition, targeted killing is the premeditated, freely performed, intentional killing of a uniquely identified individual person. Moreover, at the time of the killing the person in question does not pose an imminent threat to life or limb. Further, the killing takes place in the overall context of an armed conflict in which both the target and the person targeted are participants. The protagonists in the armed conflicts in question are the armed forces of political entities (see below).
In relation to this definition, I make the following points, which are made elsewhere but are also necessary to make here for purposes of clarification. First, unlike the shooting by combatants, including by snipers, of enemy combatants in a theater of war, the targets in targeted killing are uniquely identified; they are not simply anonymous enemy combatants identified by their uniform. A uniquely identified individual in this sense is someone about whom there is prior detailed information in respect of his or her role in the armed conflict, and someone who can be reliably identified as such at the time of their killing. Second, unlike in the standard cases of justified use of deadly force by police officers in law enforcement contexts, the targets in targeted killing do not pose an imminent threat at the time of their killing. For example, Osama bin Laden was killed in his domicile during the night, Mahmoud l-Mabhouh was killed in a hotel room in neutral Dubai, and so on. Third, unlike assassinations, such as that of President Kennedy, targeted killings take place in the overall context of armed conflict. Fourth, I note that armed conflicts include conventional wars, nonconventional (so-called) wars of liberation, and armed conflicts involving terrorist groups. Fifth, the potentially large-scale killing of individuals who merely exhibit a pattern of suspicious behavior is not targeted killing in this sense. Thus the use of drones by the United States to inflict relatively heavy casualties on the Taliban and al-Qaeda in Afghanistan and FATA is not targeted killing, notwithstanding the US government’s use of terms such as “targeted killing” and “surgical strike” in relation to their use of drones. Sixth, and finally, I note that my definitional restriction on targeted killings that they take place only in contexts of armed conflict is non-arbitrary. The killings that are of interest to us in this paper take place in the context of armed conflicts, such as that between the United States and al-Qaeda, and that between Israel and Hamas. Moreover, to remove this restriction would muddy the moral waters and bring into play phenomena that are importantly morally different, such as one-off assassinations of political leaders by malevolent “lone-wolf” individuals with idiosyncratic political motives.
The principles of necessity and proportionality are far more permissive in military conflict than in law enforcement contexts. For example, the use of lethal force by a military combatant is not necessarily in defense of an imminent threat to that combatant, his fellow combatants in that encounter, or, for that matter, any other individual person present at that time and place. Thus it is morally permissible in military conflict, but not in law enforcement, to use the tactic of ambush, whereby enemy soldiers are attacked and killed without warning and notwithstanding the fact that they do not constitute an imminent threat to anyone at that time and place. At the risk of overstating the point, in a theatre of war there is a presumption in favor of using lethal force against enemy combatants, if it serves a military purpose, whereas, as we saw above, in law enforcement there is a presumption in favor of arresting offenders.
The implications of this for targeted killing are clear. If armed force A is acting in justified collective self-defense against armed force B, then it may well be morally permissible—in accordance with the principles of military necessity and proportionality—for members of A to engage in the targeted killing of members of B, such as the killing of B’s commanders. Such action might well be morally justified self-defense at the collective level(s) in the context of ongoing armed conflict even though, at the individual level:
- The aim is to kill (rather than capture or arrest);
- There is no imminent deadly threat from the target to any individual (e.g., target is asleep or unarmed); and
- It is not necessary for personal self-defense or defense of other individual person in that place at that time to kill the target (e.g., an attempt to poison Hitler when he was eating his food).
Indeed, consistent with the above-mentioned description of military necessity, it may well be morally permissible to engage in such targeted killing, notwithstanding that even at the collective level it is not strictly necessary to do so in order to further the immediate, medium, or long-term military goals in question.
Given this description of targeted killing in the context of armed conflict—and the earlier definitions of targeted killing and of terrorism—let me now turn to the moral considerations in play in the use of targeted killing by the security forces of liberal democratic states in counterterrorism operations. The targeted killing in question takes place in either (1) a theatre of war, albeit war against a non-state actor; (2) a jurisdictional setting in which there is not effective enforcement of the law in relation to terrorists perpetrating ongoing, serious terrorist attacks against the liberal democratic state in question; (3) a well-ordered, liberal democratic state in peacetime or, indeed, in wartime if the territory in question is enjoying effective law enforcement against terrorism.
In relation to type 2 jurisdictional settings, we can distinguish two kinds of cases. There are those settings that are more or less well-ordered, but in which the authorities are nevertheless unable or unwilling to successfully enforce the law against the terrorists in question. The killing of Osama bin Laden in Abbottabad in Pakistan by US Special Forces illustrates this kind of case. The other kind of type 2 jurisdictional setting is one that is not well-ordered. The FATA in Pakistan is a case in point. The FATA are nominally under the authority of Pakistan, but in fact Pakistani law enforcement agencies have not been able to effectively exercise their authority. Moreover, Pakistan security agencies have evidently engaged in military—as opposed to law enforcement—operations in these areas, creating at times de facto theatres of war. Of particular importance to us here, Pakistani security agencies have been unable to dislodge al-Qaeda from its bases in these areas. Hence the United States has resorted to military action—apparently with the tacit consent of the Pakistan government—and the extensive lethal use of drones in particular.
Let us briefly consider type 3 settings. Other things being equal, targeted killing cannot be morally justified in such contexts. For in these settings the law enforcement option is available, and, as argued above, the law enforcement option is the default option when it comes to combating terrorism. This is not to say that moral dilemmas in relation to the use of lethal force might not arise for police engaged in counterterrorist operations against suicide bombers in particular. For example, in 2005 Jean Charles de Menezes—an innocent Brazilian student—was shot dead by members of a UK counterterrorism squad in a London underground station. This was a case of mistaken identity in which the police falsely believed Menezes was a suicide bomber about to trigger a bomb. The dilemma arose because the normally available option of arresting Menezes was highly problematic. What if he triggered the bomb, killing dozens of innocent commuters, as soon as he realized he was about to be arrested? Importantly, this was not a case of targeted killing, since the threat or, at least, believed threat was imminent. The point to be stressed here is that police use of lethal force, even against suicide bombers, in well-ordered liberal democratic states is rightly constrained by the above-mentioned principles of necessity and imminent threat to life constitutive of the law enforcement model.
What, finally, of type 1 settings? It is surely apparent from the discussion in section 9.2 above that the targeted killing of known combatants or their leaders in theaters of war is morally permissible, at least in principle. Arguably, the armed conflict that provides the overall context in which such killings takes place needs to be morally justified—perhaps by recourse to some appropriately revised version of the jus ad bellum of just war theory applicable to such conflicts.
Further, it may well be that the principles of jus in bello need to be complied with if such targeted killing is to be morally justified. But there does not seem to be any in-principle reason why the principles of necessity, proportionality, and discrimination could not be complied with. Indeed, it would be a good deal easier for targeted killings in theatres of war to comply with the principles of discrimination and proportionality than for non-targeted killings to do so—a point often made by supporters of targeted killing. Targeted killings, other things being equal, are more discriminating than non-targeted killings, and, for the same reason, they are less likely to require justification on the grounds of proportionality, there being less loss of innocent life. Naturally, it is important to ensure that lethal actions being called targeted killings by those performing them are in fact targeted killings. Israeli aerial bombing of buildings in Gaza known to house children as well as members of Hamas is not targeted killing. As for the principle of necessity, again compliance is eminently possible, at least in principle. Surely the killing of “high value” terrorist leaders in a theatre of war might well be justified on grounds of military necessity.
Notwithstanding the above arguments of mine in favor, at least in principle, of the moral permissibility of targeted killings in theatres of war in the overall context of ongoing armed conflict between liberal democracies and non-state terrorist groups, various other considerations have been offered against such targeted killings. I will be quite brief in my treatment of them here.
Targeted killings are sometimes referred to as extrajudicial killings. Here the assumption is not only that they are unlawful, but that, being unlawful, they are morally impermissible. No doubt some targeted killings are unlawful in some jurisdictions and, moreover, morally ought to be unlawful, notably those that take place in well-ordered jurisdictions. Since I discuss such type 2 settings below, I set this possibility aside here. The question to be answered at this point is different; it is whether or not targeted killing in theatres of war morally ought to be lawful. The answer is evidently not only that targeted killing in theaters of war ought to be lawful, but that in fact it is.
That said, the killing of terrorists in theaters of war does give rise to moral problems not necessarily present in killing conventional combatants in such theaters. One important problem arises from the difficulty of distinguishing terrorist combatants from innocent civilians. However, in the case of targeted killing, as opposed to, say, combatants responding with lethal force to a current terrorist attack in a firefight in a civilian area, there has been a prior investigative process that has resulted in a description of the role of the target in the terrorist organization and a unique identifying description of the target. Moreover, the target is to be killed only if he or she can be reliably identified as such at the time of the killing. Further, the targeted killing is discriminating—only the target is to be killed. It follows, therefore, that, at least in principle, the problem of distinguishing terrorists from innocent civilians is substantially reduced by the tactic of targeted killing. This is, of course, not to say that some investigations are not sloppy, that mistaken identity does not happen, or that all targeted killings are as discriminating as they ought to be. Far from it. For example, there is evidence of faulty intelligence in relation to the targeted killing of Taliban leaders in Afghanistan by NATO forces. But it is to say that the tactic of targeted killing, insofar as it lives up to its own standards, is not morally impermissible—and, therefore, ought not to be legally impermissible—on the general grounds of the difficulty of distinguishing terrorists from innocent civilians.
Further arguments against targeted killing rely on appeals to various practical and essentially consequentialist considerations, such as ineffectiveness. For example, it can be argued that the targeted killing of some terrorists might not reduce terrorist attacks, since others take their place. However, these kinds of arguments rely on the truth of empirical claims that might turn out to be false under certain circumstances. Accordingly, they do not show that targeted killing is necessarily morally unjustified.
I conclude that the targeted killing of terrorists is, in principle, morally permissible. This is consistent, of course, with the actual policies and practices of targeted killing on the part of, for example, the United States and Israel in specific contexts being morally impermissible.
 Seumas Miller Shooting to Kill: The Ethics of Police and Military Use of Lethal Force (Oxford University Press, 2016) Chapter 9.