How High are High Officials: Analyzing Obama’s Speech on Syria

The early hours of August 21, 2013 saw a drastic turn in the Syrian conflict as a chemical weapons attack on civilians living in the agricultural belt around Damascus took place. Three days after the attack, medical charity Medecins Sans Frontieres confirmed that three hospitals it supports in Damascus had treated about 3,600 patients with “neurotoxic symptoms” on the day of the attack; 355 of these had died.[1] Ever since there’ve been mutual accusations of the use of chemical weapons by the countering parties, namely Assad’s regime and the rebels,[2] which also caused a split of views and stances on the international plane. Yet, despite the absence of the forthcoming United Nations [hereinafter UN] report on the attack,[3] the parties to the conflict and the international community are all of no doubt that the attack has taken place. 10 days after the beginning of the political turmoil within the ‘concerned’ international community President Obama issued a statement on Syria accusing the Assad’s regime of the attack on its own people and calling for a targeted military strike to deter the regime from using the chemical weapons ever again.[4]

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Targeted Killings: a Summary

Targeted Killings

Currently there is no legal definition of targeted killings in either international or domestic law.[1] ‘Targeted killing’ is rather a descriptive notion frequently used by international actors in order to refer to a specific action undertaken in respect to certain individuals.

Various scholars propose different definitions. Machon, for example, refers to ‘targeted killing’ as an “intentional slaying of a specific individual or group of individuals undertaken with explicit governmental approval,”[2] whereas Solis suggests that for there to be a targeted killing (i) there must be an armed conflict, either international or non-international in character; (ii) the victim must be specifically targeted; (iii) he must be beyond a reasonable possibility of arrest; (iv) the killing must be authorized by senior military commanders or the head of government; (v) and the target must be either a combatant or someone directly participating in the hostilities.[3] But whereas some scholars seek to use a human rights-based definition, [4] others propose those which do not entail the applicability of international humanitarian law. [5]

However, such definitions are incorrect for several reasons. First of all, the definition of a ‘targeted killing’ has to be broad enough as to cover a wide range of practices and flexible enough as to encompass situations within and outside the scope of an armed conflict, thus, being subject to the application of both international human rights law and international humanitarian law, as opposed to the definition provided by some scholars and even states themselves.[6] Secondly, one should bear in mind that defining an act as an instance of ‘targeted killing’ should not automatically render the illegality of such an act at stake.[7] Moreover, the definition also has to cover situations where such an act is carried out by other subjects of international law, rather than only by states.

Therefore, maintaining an element-based approach and synthesizing common characteristics of multiple definitions, it is more advisable to use the one employed by Alston and Melzer, which refers to targeted killings as a use of lethal force by a subject of international law (encompassing non-state actors) that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary), and deliberate (meaning that ‘the death of the targeted person [is] the actual aim of the operation, as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims).[8]

Moreover, being a descriptive notion, ‘targeted killing’ does not entail legal rights and obligations per se. The legality of the actions referred to as an instance of ‘targeted killing’ is rather dependent on the compliance of such an action with the norms of international law applicable to it. As it has been argued before, given its descriptive nature and a broad scope of practices referred to as ‘targeted killings’, the notion is subject to the application of a complex legal framework. The legality of every instance of ‘targeted killing’ is to be assessed on a case-by-case basis, and whether or not a specific targeted killing is legal depends on the context in which it is conducted: in an armed conflict, outside an armed conflict, or in relation to the use of force.[9]

In cases of an armed conflict specific norms of international human rights law seize to apply and are substituted by those of international humanitarian law as lex specialis.[10] Whether a particular targeted killing is legal under international humanitarian law, whose applicability is triggered by the existence of an armed conflict,[11] is determined by several criteria. Firstly, a killing is lawful only when the target is a combatant or a civilian directly participating in hostilities.[12] Additionally, the killing must constitute a military necessity, the use of lethal force must be proportionate to the direct military advantage anticipated, whereas everything feasible must be done to minimize collateral damage and harm to the civilian population.[13] Moreover, these standards apply regardless of the character of an armed conflict.[14]

Whether a particular targeted killing is legal under international human rights law depends on the compliance of the use of lethal force with the requirements of necessity and proportionality. The requirement of necessity implies that there are no other means rather than the use of lethal force in order to prevent the threat to life, whereas proportionality implies that a killing is only legal to protect life.[15] Thus, proportionality limits the permissible level of force based on the threat posed by the suspect to others, whilst necessity imposes an obligation to minimize the level of force used, regardless of the amount that would be proportionate through, for example, the use of warnings, restraint, and capture. [16]

Therefore, the use of lethal force under international human rights law is legal if it is strictly and directly necessary to save life and, thus, ‘targeted killing’ as a deliberate, intentional and premeditated deprivation of life is illegal under international human rights law with killing itself being a sole objective of an operation, unless, such an operation is intended to save the lives of others.

It is customary international law that States have the right to use force to maintain domestic order. [17] However, a targeted killing conducted in the territory of another state might violate the principle of sovereignty and amount to aggression,[18] which is prohibited by Article 2(4) of the UN Charter.[19] Nonetheless, there are certain exceptions justifying such an extra-territorial use of force. An extra-territorial targeted killing does not violate the principle of sovereignty either if the state whose sovereignty is at stake consents, [20] or if the targeting state has a right to use force in self-defense in response to an ‘armed attack’ as provided for by Article 51 of the UN Charter. [21] The second exception entails the following prerequisites: the second state is either responsible for an armed attack against the first state[22] or the second state is unwilling or unable to stop armed attacks against the first state emanating from its territory. [23]

Moreover, the use of lethal force in self-defense in response to an ‘armed attack’ must also comply with the principles of necessity and proportionality. Proportionality requires that a state acting defensively employ no more force than reasonably required to overcome the threat. In the context of cross-border operations, this limitation means that the scale and nature of the force employed cannot exceed that which is necessary. [24]

Article 38(1)(b) of the Statute of the International Court of Justice accepts ‘international custom’ as a source of law, [25] but only where this custom signifies a general practice which constitutes opinio juris, i.e is accepted as law. [26] As it has been argued above, ‘targeted killings’ do not have a legal definition and, thus, are not treated as such by states.[27] Given the absence of such a treatment, we can reasonably argue that there is no opinio juris present and that there is, thus, no rule of customary international law emerging. Moreover, the legal framework governing targeted killings contains jus cogens, i.e. peremptory norms from which no derogation is possible and which can be modified only by subsequent norms of general international law of the same character. [28] What is most important in this context is that only several subjects of international law cannot create jus cogens and thereafter impose their interpretation on the majority of States. [29]

Therefore, both insignificant contemporary state practice and the absence of opinio juris do not attest the emergence of a rule of customary international law nor do they provide any justification for such actions, which are rather governed by the legal framework described above.

Written by Jan Guardian


[1]       Philip Alston, The CIA and Targeted Killings Beyond Borders , 2 Harv. Nat’l Sec. J. 283 (2011)(hereinafter Alston, Targeted Killings), p. 295.

[2]       Matthew J. Machon, Targeted Killing as an Element of U.S. Foreign Policy in the War on Terror. Fort Leavenworth, KS: School of Advanced Military Studies, 2006, p. 20.

[3]       Gary D. Solis. The Law Of Armed Conflict: International Humanitarian Law in War. Cambridge: Cambridge University Press, 2010 (hereinafter Solis, Law of Armed Conflict), pp. 542-43.

[4]       L. Gross. Moral Dilemmas Of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict. Cambridge: CambridgeUniversity Press, 2010, p. 106.

[5]       Michael 5 Solis, Law of Armed Conflict, supra note 3.

[6]       See e.g., Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02. IsrSC 57(6) (2006), p. 285.

[7]       Alston, Targeted Killings, supra note 1, pp. 297-298.

[8]       U.N. Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum: Study on Targeted Killings, U.N. Doc. A/HRC/14/24/Add.6, May 28, 2010 (prepared by Philip Alston), paras. 1, 10; Nils Melzer. Targeted Killing in International Law. Oxford: OxfordUniversity Press, 2008, pp. 3-4 [online][accessed 26 February 2013].

[9]       Alston, Targeted Killings, supra note 1, p. 300.

[10]     Alston, Targeted Killings, supra note 1, p. 301.

[11]     See e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 J.C.J 226, July 8, 1996 [online][accessed 26 February 2013].

[12]     Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12., 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I][online][accessed 26 February 2013]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3, Aug. 12., 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, [hereinafter Geneva Convention II][online][accessed 26 February 2013]; Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III][online][accessed 26 February 2013]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV][online][accessed 26 February 2013].

[13]     Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 51, June 8, 1977, 1125 U.N.T.S. 3 [online][accessed 26 February 2013]; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 13, June 8, 1977, 1125 U.N.T.S. 609 [online][accessed 26 February 2013].

[14]     Ibid.

[15]    See e.g., Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth U.N. Congress on Prevention of Crime and Treatment of Offenders, Havana., Cuba, Aug. 27-Sept. 7, 1990.

[16]     U.N. Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions (prepared by Philip Alston), U.N. Doc. A/61/311, September 5, 2006, pp. 42-44.

[17]     Malcolm Shaw, International Law, 6th ed. Cambridge: Cambridge University Press, 2008, p. 1126.

[18]     UN General Assembly, Definition of Aggression, A/RES/3314, December 14, 1974, art. 1 [online][accessed 26 February 2013].

[19]     United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI (hereinafter UN Charter), art. 2(4) [online][accessed 26 February 2013].

[20]     See, e.g., Ian Brownlie, International Law and the Activities of Armed Bands, 7 Int’l & Comp. L. Q. 712, (1958) hereinafter Brownlie, Armed Bands), p. 732.

[21]     UN Charter, supra note 19, art. 51.

[22]     Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, ICJ Rep 136, para 139 [online][accessed 26 February 2013].

[23]     Nils Melzer, Targeted Killing supra note 8, p. 288.

[24]     Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), December 19, 2005 , J.C.J. 116, para. 147 [online][accessed 26 February 2013].

[25]     United Nations, Statute of the International Court of Justice, 18 April 1946, art. 38(1)(b) [online][accessed 26 February 2013].

[26]     North Sea Continental Shelf Case (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), International Court of Justice (ICJ), 20 February 1969, ICJ Reports 1969, para. 77 [online][accessed 26 February 2013].

[27]     Alston, Targeted Killings, supra note 1, p. 295.

[28]     M. Cherif Bassiouni, International Crimes: ‘Jus Cogens’ and ‘Obligatio Erga Omnes’. In: Law and Contemporary Problems. Vol. 59, No. 4, p. 68.

[29]     C. Tomuschat, Obligations Arising for States Without or Against their Will, 241 Recueil des Cours (1993), p. 307.

Targeted Killing: A View From The “Other(s)” Side

WRITTEN BY: ELIAS OFFOR[1]

Targeted killing has increasingly become the cultivated means of combating terrorism by some countries of the world. These countries cite “self-defence” as one of the major justifications for disregarding the sovereignty of another country in carrying out an act. Regarding the prohibition of targeted killing as a form of interstate force and the exceptions to the prohibition, such self defence should be considered alongside the question whether a particular targeted killing violates the right of another state under Art. 2(4) UN Charter.

The targeting of state leaders is one of the major ways sovereignty of the targeted states is disregarded. While the roles of targeted heads of state in terrorist actions are not always proven, this act has always been criticized but generally has been considered to fall under the rubric of assassination.[2] There are many examples of campaigns from different countries that use targeted killing as a means for achieving reprisal or political aims. Prior to his death, Israel named Yassir Arafat as a legitimate target in their counter terrorism activities in Palestine.

Following the La Belle Disco bombing in Germany, United States conducted a targeted killing operation as an act of reprisal and bombed the house of Muhammar Khadafi, the former Libyan President. The incident recorded untold casualty figures including the death of an 18-month old Khadafi’s adopted baby. While the allegation provoking such targeted killing operations are sometimes unfounded, the point remains that the sovereignty of the targeted countries’ heads of state are disregarded. Under the customary international law, the case of Caroline is in the center point of anticipatory self defence as a justification for the use of force,[3] and then follows the International Court of Justice interpretation of Article 51 of the UN Charter in the case of Nicaragua. In Caroline the facts occurred during the Canadian Rebellion of 1837. Despite the efforts of the United States to prevent any sort of assistance to them, the rebels established a force at Navy Island on Canadian waters from which they raided Canadian shores and attacked passing British ships. The Caroline, an American ship supplied the force from American shore. At night, the British seized the Caroline from the American port of Schlosser, fired at her and sent her over Niagara Falls. Two US nationals were killed.[4]

In the controversy that ensued, McLeod, a British national was arrested over the attack and there arose a long correspondence between the then US Secretary of State, Daniel Webster and the British Prime Minister in Washington, Henry Fox on the legality of the attack. Fox stated that Britain was justified to attack on the grounds of self-preservation and self defence. Webster countered with territorial integrity because the Caroline was attacked in American territorial waters. In the raging controversy, Webster in a letter to Fox specified the basic principles of self defence which, hitherto has been known and referred to as the Caroline Doctrine. The content of the letter:

“It will be for …[Her Majesty’s] Government to show a necessity of self defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it, it must be shown that admonition or remonstrance to the persons on board the Caroline was impracticable, or would have been unavailing; it must be shown, that daylight could not be waited for; that there could be no attempt at discrimination between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her … A necessity for all this, the Government of the United States cannot believe to have existed.”[5]

The much cited Caroline Case which forms the basis of present day targeted killing policies renders the territorial sovereignty of targeted countries irrelevant and therefore has often been misapplied. In the context of Webster’s writing, “…the necessity, present and inevitable…” portrays an emergency situation which leaves no room for an alternative. The letter seems to be very clear as to the parameters.  It is quite surprising that the clause has always been singled out and given a bogus interpretation to suit a particular targeted killing policy, and an excuse against the respect for the sovereign territory of the “targeted state.”

Webster’s writing after the incident, a priori, was not a justification of what occurred; rather it was a statement as a result of the incident. This is against the background of numerous references which do not always allude to the context and manner in which Webster wrote. For instance, the Encyclopedic Dictionary of International Law states:

“(1) Under Customary International Law, it is generally understood that the correspondence between the USA and UK of 24 April 1841, arising out of The Caroline Incident… expresses the rules on self-defense.” [6]

It should be restated that the said correspondence was a condemnation rather than a justification of the incident.[7]

However, after the Caroline case, the circumstances under which the use of force in international law can be justified changed drastically. Prior to this period, recourse to war was considered open to all, against all, and for any reason.[8] Sovereignty was the focal point of discussion which made it absolutely unnecessary to justify the use of force by a state on its own territory against invading forces of another state.[9] It would be out of place to contend that the principles enunciated in Caroline envisaged the indiscriminate way anticipatory self defence is presently being invoked to justify targeted killing and put highest disregard to territorial sovereignty of the “targeted states.”

It is a misapplication of this doctrine, the widespread application to cases of self defence outside the territory of the country acting in anticipatory self defence. Under Article 51, an attack must be underway or must have already occurred in order to trigger the right of unilateral self-defense. Any earlier response must be approved by the Security Council according to Article 51. It could be seen from this that there is no unilateral right to attack another state because of fear that the state is making plans or developing weapons usable in a speculative campaign.[10]

Pakistan: The Killing of Osama Bin Laden

Osama Bin Laden (hereinafter, OBL), the acclaimed leader of Al-Qaida has been the focal point of America’s fight against terrorism since the 9/11 incident which is alleged to have been masterminded by him and his group. Several measures had been taken up by America for the capture of OBL without result, until the recent exploit by the Navy SEALS which snuffed the life out of him at his home in Pakistan. America justified their act and argued that Pakistan compromised their sovereignty by consenting to the attack and that there were lapses in their collaborative efforts to ensure the capture of the terrorist leader.

It is debatable whether the alleged previous tactical lapse by Pakistan in denying safe haven to OBL and a subsequent inability or lack of will to apprehend him as reported unofficially in some media would justify a preemptive act of self defence by America with disregard of Pakistani sovereignty. Resolution 1373 of the Security Council passed just after the 9/11 incident in line with other global terrorism instruments urges states’ cooperation in the fight against terrorism; in a way that global battlefield against terror was almost ordered. Pakistan was obligated under these instruments to deny any form of safe havens to OBL and his group. Various media reports show that America’s previous efforts to capture OBL had been botched by Pakistani authority’s laxity in this regard. But, since Pakistan has not reasonably acted in a way to beat OBL and his group, it meant that it apparently had “joined them.” President Obama’s chief counterterrorism advisor, John Brennan, told reporters it was “inconceivable that Osama bin Laden did not have a support system” in Pakistan.[11]

It is obvious to me that America had a deliberate intention to violate the territorial sovereignty of Pakistan in the attack. In order to be more tactical, the Navy SEAL had to infiltrate Pakistan undetected. According to a statement by Pakistan Air Force Chief Marshall Rao Qamar Suleman, there had been an air-surveillance failure. Qamar covered the inquiry by saying that the air space was unable to detect the American helicopters because the radar installed on the western borders were inactive on the day of the incident. The U.S. helicopters also reportedly used radar-evading measures, such as stealth technology, to avoid detection. It was obvious that the Pakistani authority or relevant agencies thereof were not aware of the attack and, according to America, since Pakistan had considerably harboured OBL, America’s attack contemplated any hindrance that would be posed by them.

The right of a State to use force in response to an armed attack by terrorists will depend on the degree of responsibility of the harbouring state for the attack, and possibly on its willingness or capability of acting to apprehend the terrorists and prevent them from carrying out further attacks. It has to be again, emphasized that when the host state is not directly sponsoring a terrorist group in its territory, or is unable or incapable of preventing their activities, the right of self defence of the victim state under Article 51 UN Charter does not reasonably crystallize, the right to sovereignty of the host state remaining intact. In its Advisory Opinion on the Legal Consequences of the Wall, the ICJ opined that only an attack by a state can constitute the type of armed attack contemplated by Article 51 of the UN Charter.[12] Though, numerous scholars have different views,[13] and three of the judges on the Court disassociated themselves from the Court’s opinion on this issue,[14] the basis of this judgment is quite telling; holding otherwise would engender a system where countries will be incessantly invaded in any specter of threat by a perceived enemy or terrorist group. Of great importance is the fact that numerous criminal groups come under the guise of known terrorist groups to perpetrate heinous acts in order to go undetected. The alleged unwillingness by the Pakistani authorities has not been substantiated over the years in the way that the Security Council would urge other states through the General Assembly to employ different measures towards compelling the Pakistani authority for better cooperation.[15]

However, Security Council Resolutions adopted on 12 and 28 September, 2001 were carefully worded to affirm, within the context of a broader response to terrorism, the right of self defence in customary international law. A passage in Namibia Advisory Opinion states that the language of the Security Council Resolution should be carefully analysed having regards to the terms of the resolution to be interpreted, the discussions leading to it, the charter provisions invoked, and in general, all circumstances that might assist in determining the legal consequences.[16] Taking this guide into consideration, it is obvious that the context of Resolution 1373[17] and the kind of steps identified, suggests an interpretation that does not contemplate a chapter VII kind of authorization for the use of force.[18] The diplomats who drafted this resolution later admitted that they did not take into consideration possible consequences of the resolution.[19] In my view, in the wake of the 9/11 incident and in disregard of some due procedural niceties involved in seeking the permission of Security Council in invoking the right to self defence under Article 51 of the Charter and getting the cooperation of the state habouring a suspected terrorist which involves the submission of culpability evidence to such state, the drafters of Resolution 1373 became so liberal in their draftsmanship with utter disregard of the right of sovereignty of states.

The conclusion drawn on February 2001 that there was a “sound intelligent basis” for pursuing Bin Laden and the March and April (2011) National Security Council meetings in America “to develop courses of action to bring justice to Osama Bin Laden” were somehow erroneous. The public opinion encapsulated in several media reports showed that Bin Laden masterminded the 9/11 incident. Also, other pieces of evidence abound in terms of his video broadcast across the world where he admitted such acts. First, in order to show transparency in the war against Bin Laden, there ought to have been other independent corroborative evidence in the form of a report from an independent body not based in the USA but representing a global interest. Second, such corroborative report would have been made known to the Security Council under Article 51 UN Charter obligations and then to Pakistan in respect of her sovereignty and invariably beefing up better collaborative measures. Furthermore, the fundamental basis of self defence is that the victim state will be authorized to act against terrorists who present a real threat prior to the threat materializing, based on sound, reliable and corroborated intelligence information or sufficient substantial evidence rather than reacting to an attack that already occurred.[20]

It was equally reported that US briefed Pakistan and other world leaders after the raid. It is yet to be known whether such briefing was in compliance with respect to Pakistani sovereignty under Article 2(4) of the UN Charter. It is equally to be known whether the alleged agreement between George W. Bush and then-Pakistani leader Pervez Musharraf nearly a decade prior to the raid, and renewed during the civilian government elections of 2008, authorising a unilateral raid with little or no notice should OBL be located on Pakistani soil[21] ultimately compromised the territorial sovereignty of Pakistan. Also the issue of Pakistan waiving their sovereignty initially by applauding the attack, and later accused the USA on the basis that such act forming a precedent should be avoided has remained controversial.

Following Israel’s capture of Adolf Eichmann, the Nazi war criminal, in Argentina and after unsuccessful secret negotiations with Israel, Argentina requested an urgent meeting of the United Nations Security Council, to protest what Argentina regarded as the “violation of the sovereign rights of the Argentine Republic.”[22] In the ensuing debate, Israeli representative Golda Meir claimed that the abductors were not Israeli agents but private individuals, so that the incident was only an “isolated violation of Argentine law.”[23] Eventually the Council passed Resolution 138, which requested Israel “to make appropriate reparation”, while stating that “Eichmann should be brought to appropriate justice for the crimes of which he is accused” and that “this resolution should in no way be interpreted as condoning the odious crimes of which Eichmann is accused.”[24] After further negotiations, Israel and Argentina agreed to end their dispute with a joint statement that “the Governments of Israel and the Republic of Argentina, imbued with the wish to give effect to the resolution of the Security Council of June 23, 1960, in which the hope was expressed that the traditionally friendly relations between the two countries will be advanced, have decided to regard as closed the incident that arose out of the action taken by Israel nationals which infringed fundamental rights of the State of Argentina.”[25] In the subsequent trial and appeal, the Israeli courts avoided the issue of the legality of Eichmann’s capture, relying instead on legal precedents that the circumstances of his capture had no bearing on the legality of his trial. The Israeli Court also determined that because “Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied.”[26]

The raid in Pakistan by the US Navy SEAL that killed OBL under the command of President Obama, which he initially revealed in his presidential campaign in 2008, obviously violated Pakistani sovereignty. In the case of Eichmann, Resolution 138 mandated Israel to pay reparation for the said violation; whether this should have applied in the case of Pakistan is a question no one has raised. Targeted killing policies, if not curtailed under a definite legal framework could breed catastrophe of unimaginable dimension as states hide under its cloak to violate the sovereignty of other states in attempt to crush perceived enemies. The world through the United Nations should rise up against this misuse of force in violation of the sovereignty of states.


[1] Elias Offor obtained his  Master’s Degree International Crime and Justice from University of Torino and UNICRI.

[2] Thomas Hunter, Targeted Killing: Self Defence, Preemption and the War on Terrorism 11 (2009).

[3] Timothy Kearly, Raising the Caroline, 17 Wis.Int’L.J. 325, 325 (1999).

[4] The Facts of the case are taken from: D.J. Harris, Cases and Materials on International Law, 894 (5th ed., 1998).

[5] Extracts from Mr. Webster’s letter of April 24, 1841, taken from D.J. Harris supra, note 87 at. 895.

[6] Clive Parry et. al. eds., Encyclopedic Dictionary of International Law 361 (1988).

[7] Timothy Kearly, supra note 86 at 332.

[8] Yoram Dinstein, War Aggression and Self-Defense 176 (3rd ed. 2001).

[9] See id.

[10] Mary Ellen O’Connell, The Myth of Preemptive Self-Defense, Paper for the American Society of International Law, August 2002 at 5.

[11] Brennan, Osama Bin Laden Killed in U.S. Raid, Buried at Sea, Washington Post, May 2, 2011.

[12] ICJ, Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory, 43 ILM (2004) 1009, at para. 139.

[13] Y. Dinstein, War, Aggression and Self-Defence 214 (3rd ed, 2001).

[14] See Separate Opinion of Judge Higgins, at paras. 33–34; Separate Opinion of Judge Kooijmans, at paras. 35–36; Declaration of Judge Buergenthal, at paras. 5–6.

[15] Karin Brulliard & Karen DeYoung, U.S.-Pakistan Cooperation Has Led to Capture of Afghan Taliban Insurgents, Washington Post February 19, 2010.

[16] Namibia Advisory Opinion (1971) ICJ Reports 15.

[17] UN DOC SC/7158 http:www.un.org/documents/scres.htm.

[18] Michael Byers: Terrorism, the Use of Force and International Law after 11 September, (2006).

[19] See Financial Times (US Edition) 4th October, 2001.

[20] Amos Guiora, Targeted killing as active self defence, 36 Case W. Res. J. Int’l L. 319, 14 (2004).

[21] Walsh, Declan, Osama Bin Laden Mission Agreed in Secret 10 Years Ago by US and Pakistan, The Guardian (London) May 9, 2001.

[22] M. Lippmann, The trial of Adolf Eichmann and the Protection of Universal Human Rights Under International Law, Houston Journal of International Law, 1-34 (1982).

[23] Security Council resolution 138, June 23, 1960 (Symbol S/4349) Un.org. Retrieved 2012-05-14.

[24] L. C. Green, Legal Issues of the Eichmann trial, Tulane Law Review 641, 634- 683 (1962–3).

[26] Eichmann trial: Opening speech of Attorney General Gideon Hausner at Youtube.com.