The
Folly of Comparing Al-Awlaki to Admiral Yamamoto
by
Kevin Jon Heller , October 1st, 2011
It
appears the right-wing has settled on a shiny new historical comparison to justify the targeted killing
of Anwar al-Awlaki. Here is
Jack Goldsmith in the New York Times:
An attack on an enemy soldier during war is not an assassination.
During World War II, the United States targeted and killed Adm. Isoroku
Yamamoto, the architect of the Japanese attack on Pearl Harbor.
And here is
John Tobin in the American Spectator:
Anwar
al-Awlaki was actively recruiting terrorists to attack the U.S. He was, in
effect, a battlefield commander, and the operation to kill him was in that
sense well-grounded in the laws of war — little different from Operation Vengeance,
in which the US military targeted and killed Admiral Isoroku Yamamoto
during World War II. If Yamamoto had been an American-born traitor, Operation
Vengeance would have been no less legitimate.
It
genuinely amazes me that anyone could compare Al-Awlaki to Yamamoto with a
straight face.
nature of armed conflict
World
War II was an international armed conflict (IAC), while the U.S. war on
al-Qaeda is at most a non-international armed conflict
(NIAC). (The correct position is that it is not an armed conflict at all.) That is a
critical distinction, of course, because the targeting rules in IAC and NIAC
are completely different.
combatant
vs. non-combatant
Admiral
Yamamoto was the Commander in Chief of Japan’s Combined Fleet, the prototypical
combatant who was targetable at any time by the U.S. Al-Awlaki was a
radical cleric whose targetability depended on whether he assumed a “continuous combat function” in
AQAP (in which case he was, like Yamamoto, targetable at any time),
or whether he was a
civilian who directly
participated in hostilities on various occasions (in
which case he was targetable only for the duration of his direct
participation). Which is it? I frankly don’t know — but I do
know that determining al-Awlaki’s targetability is vastly more legally and
factually complicated than determining whether it was legal to kill an enemy
Admiral in a formally-declared war.
Not
so, of course, for Goldsmith and Tobin. For them, that pesky
international-law distinction between international and non-international armed
conflict is irrelevant. (Except, of course, when it comes to things like
combatant’s privilege and POW status; the rules of IAC and NIAC are
interchangeable only when interchangeability works in the United States’
favor.) The U.S. once killed a bad guy during World War II, so of course
it can kill a bad guy during the war on terror. What could be more
obvious?
-,
- - - - - -
-,
- - - - - -
DO
territorial
integrity
-
Where
did targeting and killing of Isoroku
Yamamoto take place? (suppose he were non-state actor)
-
If it took place in states in armed conflict, no
violation of territorial integrity
-
If in third party state,
o
peace time – extradition because of lack of
enforcement jurisdiction. ask the state of Yamamoto’s residency to extradite
him to the US
o
war time –
§
if the third party state is willing and able,
§
if the third party state is not “willing and able,”
·
ICJ - Article 51 of the UN Charter limits
self-defensive acts against non-state actors to situations in which the
non-state actor’s armed attacks are in some way imputable to the state whose
territorial sovereignty is being violated.
That was the ICJ’s position in Nicaragua, and the Court
reaffirmed that position in both the Palestinian Wall advisory opinion
and DRC vs. Congo
o
The
US citizenship
-
Threshold
question: is he still the US citizen?
-
Assuming
so, due process concern
o
Laws
of war seems to trump due process concern as long as he is deemed as “combatant”
o
At
best, due process is not clear during armed conflict
-
Self-defense
-
Posing
imminent threat ?
