Juridical warfare: the neglected legal instrument

Joint Force Quarterly, Jan, 2008 by Harvey Rishikof

Colonel Peter Cullen, USA, in his Campaign against Terror," analyzes what some have contended is an indispensable tool for the war on terror: targeted killing, or the "intentional slaying of a specific individual or group of individuals undertaken with explicit government approval." For Cullen, a circumscribed policy for targeted killings can be legal, moral, and effective, and he proposes specific procedures to that effect. For critics, these killings are extrajudicial and prohibited by international law. Cullen states several reasons by which both international and domestic law justify targeted killing:

* The United States has an inherent right of self-defense under Article 2(4) of the United Nations (UN) Charter and jus ad bellum.

* Under Additional Protocol II and Article 13(2) of the UN Charter, since the United States is in an armed conflict with al Qaeda and associated movements (AQAM), members and operatives are combatants and may be lawfully targeted at will under jus in bello.

* Proper designation of AQAM targets will turn on intelligence, proportionality, and a cost/benefit analysis.

* Domestic law such as Executive Order 12333 does not apply in war to the military, and the authorization of the use of military force by the Congress granted legal authority for the practice.

* The National Security Act of 1947 contemplates findings for killing operations.

As for moral considerations, in Cullen's view this tool complies with Just War theory as long as all efforts are taken to minimize noncombatant casualties, ensure the accuracy of the intelligence, and use the tool sparingly. As for its efficacy, for Cullen targeted killing has contributed to our safety, despite the critics who argue that it is counterproductive since it produces martyrs, undermines the battle of ideas and rule of law arguments, reduces the possibility for more intelligence, and is prone to misidentification. Cullen's guidelines establish whom to target, what circumstances authorize an operation, who should approve an operation, who should conduct the operation, and how an operation should be conducted.

Cullen concludes that the success of targeted killing will turn on two factors: obtaining actionable intelligence and persuading domestic and international communities that this tool is legal, moral, and effective. In other words, the United States must win the juridical warfare debate and not be perceived as conducting extrajudicial killings and assassinations. This will require transparency, minimizing collateral damage, checks and balances to ensure proper targets, and accurate intelligence. When targeted killing is used as a tool, however, mistakes will be international juridical warfare causes celebres.

The essay, "Rendition: The Beast and the Man," by Colonel Kevin Cieply, USA, reviews another controversial technique of the war on terror: the capturing of suspected terrorists and their transportation to undisclosed locations. Cieply defines rendition as "the practice of capture and transfer of an individual from one nation to another for the purpose of subjecting the individual to interrogation without following the normal process of extradition or removal." The purest defense of the practice is the Machiavellian rationale that the "end justifies the means." Rendition is the form of Machiavellian combat that does not follow laws but rather force. This philosophy of results is contrasted with the more idealist position of George Kennan, the preeminent international relations theoretician of the Cold War, who opposed techniques of rendition on principle since they conflicted with American traditional standards and compromised our diplomacy in other areas.