Last August there was a fair amount of international coverage of a new US policy involving targeted assassinations of Afghan drug lords thought to be funding the Taliban. A good example was in the Guardian; US puts Afghan drug lords on hitlist to disrupt Taliban finances (August 10).
What was striking to me about this, and indeed all of the coverage I could find at the time, was that no mention was made of the legality, or indeed ethics, of extra judicial killings. Assassinations of non-combatants in foreign countries are unambiguously illegal under international law (for obvious and good reasons), and (even if we can overlook nuisance issues like due process and the impact of 'collateral' damage) it is also fair to say that killing people more generally has also been historically frowned upon.
I wrote a very short letter to the Guardian highlighting my concern that was published the following day. The question received almost zero attention otherwise, such that Prof Paul Rogers, writing about the policy a few days later on Open Democracy, noted that 'there has been almost no comment on [the policy of targeted killings] legality', and that my letter was 'a rare exception'. Unfortunately I didn't have the time to pursue the issue, so was pleased to see a new paper by Patrick Gallahue published last week for the International Yearbook on Human Rights and Drug Policy (from the newly established ICHRDP) called 'Targeted Killing of Drug Lords: Traffickers as Members of Armed Opposition Groups and/or Direct Participants in Hostilities’
The paper, the abstract and conclusion of which are copied below (the full text is available in pdf), explores the legal issues in considerable detail, demonstrating how 'targeting people for death is not an appropriate or legal means for holding those involved in criminal activities accountable for their actions'.
One additional issue not touched upon by the paper, the media coverage, or the US analysis, is oneof efficacy. Even if it were legal, it seems highly unlikely that killing drug lords would be anymore effective at curtailing production and supply than arresting them has been historically. Whilst the environment remains conducive and the profit opportuinity exists, criminal profiteers will always seek to exploit it. 'Taking out' the boss, or even 50 bosses, will only lead to players lower down the hierachy assuming the senior roles in the business. It seems remarkable that the pragmatic analysis around the futility of eradication, as expressed by Richard Holbrook in the original Guardian article ("wasteful and ineffective") is not extended to the equally pointless targeted killings policy.
So to illegal and unethical, we can confidently add stupid and ineffective.
In 2009, the United States announced that it had placed fifty Afghan drug traffickers with links to the Taliban on a ‘kill list.’ This controversial proposal essentially weds the counter-narcotics effort with the mission to defeat the Taliban, and challenges a cornerstone of international humanitarian law, the principle of distinction. This article argues that drug traffickers, even those who support the Taliban, are not legitimate targets according to the rules applicable to non-international armed conflict. It explores the notions of membership in armed groups, civilian status and acts that result in the loss of protection, and argues that the US plan violates international humanitarian law.
Drug traffickers are clearly not ‘combatants’ or ‘fighters’ in the sense intended by international humanitarian law. They remain civilians, and as such are subject to arrest and prosecution. Organised criminals plague any number of societies around the world, but the vast majority of them should not be in the line of fire of state militaries, even when operating in an armed conflict. As such, the US military’s policy to kill suspected drug traffickers is inconsistent with multiple principles of international humanitarian and human rights law.
There is no argument over the nexus between the drug trade and the Taliban. The insurgency has clearly exploited Afghanistan’s lucrative heroin trade to subsidise its efforts to topple the Karzaigovernment. Yet legitimate targeting hinges on membership in an armed group or direct participation in hostilities. While these topics are notoriously nebulous areas of international law, they have received much-needed clarification from the ICRC. The conditions articulated in that document would plainly not allow for the killing of drug traffickers due to their financial support for the Taliban.
However, even before the ICRC released its interpretive guidance, the killing of financiers was established to be unlawful. There is nothing in the treaties relevant to non-international armed conflict that makes targeting sponsors of an insurgency permissible. Even the Israeli Supreme Court decision supporting the assassination of those who directly participate in hostilities explicitly removed financiers from the list of legitimate targets.
Targeting people for death is not an appropriate or legal means for holding those involved in criminal activities accountable for their actions. If a mode of liability can be established, civilian criminals could be prosecuted domestically or even theoretically be brought before the International Criminal Court. As Luis Moreno-Ocampo, the prosecutor of the ICC, once said, ‘Investigation of the financial aspects of the alleged atrocities will be crucial to prevent future crimes and for the prosecution of crimes already committed.’