WASHINGTON – U.S. forces have now pumped more Tomahawk cruise missiles into Osama bin Laden’s terrorist bases and installations around Afghanistan than they did three years ago under President Clinton.
Yet bin Laden has again emerged unscathed, surviving to possibly organize more attacks on American soil.
Can President Bush order special forces to move in, on the ground, and assassinate the mastermind of the brutal al-Qaida network, without breaking U.S. or international laws?
Executive Order 12333 – first promulgated by President
Ford (under another order number) and reissued by
Presidents Carter, Reagan, Bush and Clinton – appears
to ban unequivocally such action.
“No person employed by or acting on behalf of the United States government shall engage in, or conspire to engage in, assassination,” the order states.
But former State Department lawyer Michael P. Scharf
sees several ways around the order to justify a hit on
bin Laden or Taliban militia leader Mullah Omar.
Bush can “circumvent the ban and legally carry out an assassination,” asserted Scharf, now a law professor and director of the Center for International Law and Policy at New England School of Law.
He cites four ways it can be done:
- Bush can declare “the existence of hostilities” and target persons in command positions, such as bin Laden, as “combatants.”
- He can rationalize a targeted attack on bin Laden as a legitimate self-defense operation under Article 51 of the U.N. Charter, in light of evidence that bin Laden and al-Qaida were planning future attacks against the U.S.
- More, he can narrowly interpret Executive Order 12333 to prohibit only “treacherous” attacks on foreign leaders.
- Or, the president can simply repeal or amend the order – “or even approve a one-time exception to it,” he said.
An assassination order is not without precedent.
The legal “contours” of the executive order were tested in 1986, Scharf notes, by the bombing of Libyan leader Col. Moammar Gadhafi’s personal quarters in Tripoli.
Reportedly, half of the 18 U.S. fighter jets dispatched to Tripoli had a specific mission to kill Gadhafi and his family.
Invoking Article 51 of the U.N. Charter, Reagan characterized the attack on Gadhafi as a legitimate use of force in self-defense.
After U.N. members overwhelming rejected the assertion, senior U.S. Army lawyers made public a memo concluding that Executive Order 12333 was not intended to stop the U.S. from acting in self-defense against “legitimate threats to national security.”
Reagan’s self-defense argument held – even though the
attack was in response to Libya’s role in the
terrorist bombing of a West Berlin disco, which killed
some Americans. Now compare that to the unprecedented
Sept. 11 terrorist attacks on the World Trade Center
and Pentagon, the very headquarters of the U.S.
military.
In 1990, during the Gulf War, U.S. Air Force Chief of Staff Michael J. Dugan publicly stated that the U.S. might seek to “decapitate” Iraqi leadership by targeting Saddam Hussein, his family and even his mistress.
Other U.S. officials have since denied a specific attempt to kill Saddam.
But former British Prime Minister John Major admitted in a recent BBC interview that Saddam was in fact targeted by allied forces.
“Did we try to kill Saddam Hussein by finding out where he was and dropping a bomb on him?” Major said. “Of course we did; we were at war then.”
Ultimately, Saddam was spared, and his menacing activities have since cost the U.S. more than $7 billion in continued military operations in Iraq.
Meanwhile, Gadhafi, who was reportedly injured in the attack on his home, has been relatively quiet.
Then in 1998, Clinton ordered strikes on bin Laden’s bases in Khost, Afghanistan, in an attempt to wipe out bin Laden and his henchmen. Clinton now says forces missed bin Laden by just an hour, confirming that he had targeted the terrorist leader for slaughter.
Interestingly, there was almost no international outcry over the cruise-missile attack on bin Laden. Outrage focused instead on Clinton’s concurrent bombing of a pill plant in Sudan, which he mistakenly took for a bin Laden chemical-weapons operation.
Assassination has traditionally been viewed as illegal both in war and outside of war. During war, it’s considered a war crime under Article 23 of the Hague Convention IV of 1907.
It provides that “it is especially forbidden … to kill or wound treacherously, individuals belonging to the hostile nation or army.”
However, the Hague Convention’s ban is “not as broad as it might appear at first blush,” Scharf said in a 1998 paper sponsored by the Hoover Institution’s National Security Forum.
The operative word is “treacherous.” Targeting military leaders for elimination during wartime is not viewed as treachery by military legal analysts.
Here are a few examples of assassinations or attempted assassinations that are not considered violations of the Hague Convention prohibition:
- The 1941 raid at Bedda Littoria, Libya, by Scottish commandos, whose goal was to kill German Field Marshal Erwin Rommel.
- The 1943 downing by U.S. aircraft of a Japanese airplane known to be carrying Japanese Adm. Isoroku Yamamoto.
- The 1951 airstrike by the U.S. Navy that killed 500 senior Chinese and North Korean military officers and security forces at a military planning conference in Kapsan, North Korea.
Some might argue that the U.S. has not officially declared war on Afghanistan, or bin Laden’s paramilitary group within the country, and therefore is confined by even stricter laws against assassination.
Under international laws, assassinating a state official or representative outside of war may itself constitute an act of terrorism. Article 2(a) of the Convention on Internationally Protected Persons, to which the U.S. and most other countries are parties, criminalizes such an attack.
But it’s noteworthy that the convention accords such individuals protection only when they are outside their country – “whenever any such person is in a foreign state, as well as members of his family who accompany him,” reads the actual language.
By all accounts, bin Laden is still in Afghanistan.
Previous stories:
Killing tyrants justified, says legal group
Experts debunk bioterror myths
Pistol-shooting parties at terrorist safe-house
Tactical nukes may be necessary
Pentagon suspects Osama bin Laden
Related columns:
Please, Mr. Bush, no Basrah this time
