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Targeted Killing and Its Law: On a Mutually Constitutive Relationship

Published online by Cambridge University Press:  30 July 2012

SUSANNE KRASMANN
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Abstract

Although initially perceived as illegal and illegitimate, targeted killing has gained legal approval and greater acceptance as a tactic in the US fight against terrorism. Rather than being accomplished extra-legally or gradually normalized as an exception to the rule, as critics proclaim, targeted killing becomes inscribed into a law that was, and is, prepared to accept it as a practice. Conceiving of law as a practice renders the mutually constitutive relationship between targeted killing and the law visible. As a practice, law is indissoluble from the forms of knowledge both that enact it and that its enactment invokes. Targeted killing could assert itself as a security dispositif that displaces and relocates political notions underlying and defining international law.

Keywords

dispositifgovernmental knowledgelaw as practicetargeted killing
Type
INTERNATIONAL LEGAL THEORY: Symposium on Foucault
Information
Leiden Journal of International Law , Volume 25 , Issue 3 , September 2012 , pp. 665 - 682
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2012

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References

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2 President Obama pointedly dissociated the administration's commitment to legality from the previous White House position, for example, when outlining the new national security policy in a speech at the White House on 21 May 2009: ‘Now let me be clear: we are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability’, available at www.whitehouse.gov/video/President-Obama-Our-Security-Our-Values#transcript.

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7 Deliberation alludes to the fact that the killing is the aim of the operation, which involves intention and premeditation; see, on these three defining moments, N. Melzer, Targeted Killing in International Law (2008), 4.

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11 See, e.g., the International Covenant on Civil and Political Rights, which enshrines the right to life (Arts. 6, 1) and key procedural safeguards (Art. 9), UN Doc. A/6316 (1966).

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67 Whereas the Caroline doctrine provided for self-defence in the case that the threat to national security ‘is reasonably believed to be imminent’, Art. 51 of the UN Charter authorizes self-defence only ‘if an armed attack occurs’; see Guiora, A. N., ‘Anticipatory Self-Defence and International Law: A Re-Evaluation’, (2008) 13 JCSL 3Google Scholar, at 9–10. See, for varying contemporary interpretations of the legality of self-defence operations taking either the presence of an armed attack or the immediacy of a threat as a precondition, Downes, C., ‘Targeted Killings in an Age of Terror: The Legality of the Yemen Strike’, (2004) 9 JCSL 277Google Scholar, at 288; Gill, T. D., ‘The Temporal Dimension of Self-Defence: Anticipation, Pre-Emption, Prevention and Immediacy’, (2006) 11 JCSL 361Google Scholar, at 367; Tams, supra note 26, at 370.

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82 ‘Press Conference by US Secretary of Defence Donald Rumsfeld’, NATO HQ, Brussels, 6 June 2002, available at www.nato.int/docu/speech/2002/s020606g.htm.

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86 Dyzenhaus, supra note 8.

87 Ibid.

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92 See, exemplarily, Ulrich, supra note 20, at 1050–4.

93 Ibid., at 1053; similarly, Vogel, supra note 29, at 124.

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98 K. Anderson, ‘Should John Brennan or Eric Holder Simply Have Quoted Harald Koh?’, 5 May 2011, available at www.opiniojuris.org/2011/05/05/should-john-brennan-or-eric-holder-simply-have-quoted-harold-koh.

99 See, e.g., Human Rights First's pondering about the event: ‘While the legality of lethal force is a closer question outside of armed conflict than in it, the totality of circumstances make it difficult to claim that the killing was arbitrary, even if bin Laden was not actively resisting or fleeing’, available at www.humanrightsfirst.org/2011/05/05/was-killing-osama-bin-laden-legal.

100 See, for a nuanced argumentation considering the degree of organization of a terrorist network, Byman, supra note 10.

101 See S. Weber, supra note 77, at 101.

102 G. Agamben, State of Exception (2005), 40.

103 Ibid.

104 G. Agamben, Homo Sacer: Sovereign Power and Bare Life (1998), 18.

105 See, on this concept, O. Gross und F. N. Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006).