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Targeted Killing and Its Law: On a Mutually Constitutive Relationship

Published online by Cambridge University Press:  30 July 2012


Although initially perceived as illegal and illegitimate, targeted killing has gained legal approval and greater acceptance as a tactic in the US fight against terrorism. Rather than being accomplished extra-legally or gradually normalized as an exception to the rule, as critics proclaim, targeted killing becomes inscribed into a law that was, and is, prepared to accept it as a practice. Conceiving of law as a practice renders the mutually constitutive relationship between targeted killing and the law visible. As a practice, law is indissoluble from the forms of knowledge both that enact it and that its enactment invokes. Targeted killing could assert itself as a security dispositif that displaces and relocates political notions underlying and defining international law.

Copyright © Foundation of the Leiden Journal of International Law 2012

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1 M. Mazzetti, H. Cooper, and P. Baker, ‘Bin Laden Is Dead, Obama Says’, New York Times, 1 May 2011, available at

2 President Obama pointedly dissociated the administration's commitment to legality from the previous White House position, for example, when outlining the new national security policy in a speech at the White House on 21 May 2009: ‘Now let me be clear: we are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability’, available at

3 M. Lederman, ‘The U.S. Perspective on the Legal Basis for the bin Laden Operation’, 24 May 2011, available at

4 Press Briefing by Press Secretary Jay Carney at the White House, 4 May 2011, available at

5 M. Mazzetti, H. Cooper, and P. Baker, ‘Behind the Hunt for Bin Laden’, New York Times, 2 May 2011, available at

6 White House Press Briefing by Senior Administration Officials on the Killing of Osama bin Laden on 2 May 2011, available at

7 Deliberation alludes to the fact that the killing is the aim of the operation, which involves intention and premeditation; see, on these three defining moments, N. Melzer, Targeted Killing in International Law (2008), 4.

8 Dyzenhaus, D., ‘The Compulsion of Legality’, in Ramraj, V. V. (ed.), Emergencies and the Limits of Legality (2008), 33CrossRefGoogle Scholar, at 52–6.

9 Arts. 2(4) and 51 of the UN Charter.

10 See Byman, D., ‘Do Targeted Killings Work?’, (2006) 85 FA 95Google Scholar, at 106–7; for a further problematization, see J. Waldron, ‘Can Targeted Killing Work as a Neutral Principle?’, (2011) New York University School of Law, Public Law & Legal Theory Research Paper Series No. 11–20, draft 16 March 2011, available at

11 See, e.g., the International Covenant on Civil and Political Rights, which enshrines the right to life (Arts. 6, 1) and key procedural safeguards (Art. 9), UN Doc. A/6316 (1966).

12 See, e.g., on extra-judicial execution, Amnesty International, ‘United States of America: An Extrajudicial Execution by the CIA?’, AMR 51/079/2005, 18 May 2005, available at; on revenge, see Tomuschat, C., ‘Gezielte Tötungen (Targeted Killings): Zugleich ein Kommentar zum Gutachten des Internationalen Gerichtshofs vom 9. Juli 2004’, (2004) 52 Vereinte Nationen 136CrossRefGoogle Scholar.

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14 Melzer, supra note 7.

15 Foucault decoupled security from the paradigm of sovereignty and, instead, linked it to the notion of governmentality. Government, in this neologism, is understood in a broad sense of techniques and procedures that conduct human behaviour. Analytics of governmentality aim at scrutinizing the rationality of governmental practices and their truth effects. Rather than a concern of the state, a matter of national security, or of policing, security, within this perspective, first of all is a form of future-oriented management of contingencies. ‘Dispositifs’ of security then employ certain rationalities and technologies of government that are concerned with the management of distributions and circulations; see M. Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–78 (2007), 45–9. Obviously, the politico-legal discourse on targeted killing refers to security matters in the traditional sense. With the conception of targeted killing as a dispositif, by contrast, focus is on a security technology that itself shapes state formation.

16 M. Foucault, ‘Le jeu de Michel Foucualt’, in Dits et écrits, Vol. 3 (1994), 298; Foucault, M., ‘The Confession of the Flesh’, in Gordon, C. (ed.), Michel Foucault: Power/Knowledge: Selected Interviews and Other Writings (1980), 194Google Scholar.

17 Taking the juridical discourse on targeted killing as subject of study, the following considerations do not claim to provide a comprehensive overview of the legal arguments, but analyse some of these exemplarily.

18 See Melzer, supra note 7, at 9.

19 See Foucault, supra note 15, at 262.

20 A. R. Pearlman, ‘Legality of Lethality: Paradigm Choice and Targeted Killings in Counterterrorism Operations’, 23 March 2010, available at Para. 2.11 of Executive Order 12.333, as amended until 2008, simply reduces to the statement of a ‘prohibition’, without providing any specified definition of assassination: ‘No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.’ The executive order, originally issued by President Ford, was designated to ban ‘political assassination’. Harder, T. J., ‘Time to Repeal the Assassination Ban of Executive Order 12333: A Small Step in Clarifying Current Law’, (2002) 172 Mil. LR 1Google Scholar; Ulrich, J., ‘The Gloves Were Never On: Defining the President's Authority to Order Targeted Killing in the War against Terrorism’, (2005) 45 Virg. JIL 1029Google Scholar. Whereas the more ample definition may be understood as prohibiting any assassination, equally it leaves more space for the question of what conduct would ‘escape the scope of the ban’; Melzer, supra note 7, at 46.

21 P. Alston, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: Study on Targeted Killings’, UN Doc. A/HRC/14/24/Add.6, 28 May 2010, at 4, available at

22 See S. R. David, ‘Fatal Choices: Israel's Policy of Targeted Killing’, (2002) Mideast Security and Policy Studies No. 51, 1, at 3.

23 Alston, supra note 21, at 4.

24 See Ulrich, supra note 20, at 1039; Blum, G. and Heymann, P., ‘Law and Policy of Targeted Killing’, (2010) 1 Harvard National Security Journal 145Google Scholar, at 150, available at

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26 See Tams, C. J., ‘The Use of Force against Terrorists’, (2009) 20 EJIL 359CrossRefGoogle Scholar, at 389–90. Both terms were used interchangeably by the Bush administration, although legally they are not. Addressing the question of legitimate anticipatory self-defence, they denote actions taken in the face of imminent threats of armed attack that, in a temporal sense, differ in the degree of remoteness or immediacy, respectively. However, as will be demonstrated later on, it is precisely the criterion of imminence that has come under dispute recently and particularly in the legal debate on targeted killing.

27 Authorization for the Use of Military Force (AUMF), Pub L. 107–40, 115 Stat. 224 (2001).

28 UNSC Res. 1368 (12 September 2001) UN Doc S/RES/1368; UNSC Res 1373 (28 September 2001) UN Doc. S/RES/1373.

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31 See, in particular, the website

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33 Statement at the Annual Meeting of the American Society of International Law on 25 March 2010, available at

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36 See Kessler and Werner, supra note 13, at 290.

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45 The state, according to Foucault, is always in a state of formation: ‘it is nothing else but the mobile effect of a regime of multiple governmentalities’: M. Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978–79 (2008), at 77.

46 Foucault, supra note 15, at 99.

47 Foucault, supra note 42, at 38–9.

48 Tadros, V., ‘Between Governance and Discipline: The Law and Michel Foucault’, (1998) 18 Oxford Journal of Legal Studies 75CrossRefGoogle Scholar; see, for further references on that critique, Krasmann, S., ‘The Right of Government: Torture and the Rule of Law’, in Bröckling, U., Krasmann, S., and Lemke, T. (eds.), Governmentality: Current Issues and Future Challenges (2010), 115Google Scholar, at 118.

49 Foucault, supra note 42.

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51 P. Veyne, Foucault: His Thought, His Character (2010), 11.

52 See Gordon, C., ‘Afterword’, in Foucault, M. (ed.), Power/Knowledge: Selected Interviews and Other Writings (1980), 229Google Scholar, at 248.

53 Foucault, supra note 15.

54 Valverde, M., ‘Specters of Foucault in Law and Society Scholarship’, (2010) 6 Annual Review of Law and Social Science 45CrossRefGoogle Scholar.

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56 Vogel, supra note 29, at 137.

57 Bussolini, J., ‘What Is a Dispositive?’, (2010) 10 Foucault Studies 85CrossRefGoogle Scholar.

58 Vogel, supra note 29, at 111.

59 The Obama administration adopted this conception in accordance with the Supreme Court's decision in Hamdan v. Rumsfeld, 548 US 557, 630, 633 (2006), quoted in Vogel, supra note 29, at 113.

60 Vogel, supra note 29, at 113.

61 Mayer, supra note 30.

62 See Law, J., ‘Seeing Like a Survey’, (2009) 3 Cultural Sociology 239CrossRefGoogle Scholar, at 240–1.

63 Derrida, J., ‘Before the Law’, in Derrida, J. and Attridge, D. (eds.), Acts of Literature (1992), 181Google Scholar.

64 See Anderson, supra note 32, at 19; Vogel, supra note 29, at 107–8.

65 Supra note 33.

66 See, for further references, P. Alston, ‘The CIA and Targeted Killing beyond Borders’, (2011) New York University School of Law, Public Law & Legal Theory Research Paper Series No. 11–64, at 6, available at

67 Whereas the Caroline doctrine provided for self-defence in the case that the threat to national security ‘is reasonably believed to be imminent’, Art. 51 of the UN Charter authorizes self-defence only ‘if an armed attack occurs’; see Guiora, A. N., ‘Anticipatory Self-Defence and International Law: A Re-Evaluation’, (2008) 13 JCSL 3Google Scholar, at 9–10. See, for varying contemporary interpretations of the legality of self-defence operations taking either the presence of an armed attack or the immediacy of a threat as a precondition, Downes, C., ‘Targeted Killings in an Age of Terror: The Legality of the Yemen Strike’, (2004) 9 JCSL 277Google Scholar, at 288; Gill, T. D., ‘The Temporal Dimension of Self-Defence: Anticipation, Pre-Emption, Prevention and Immediacy’, (2006) 11 JCSL 361Google Scholar, at 367; Tams, supra note 26, at 370.

68 M. E. O'Connell, ‘Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009’, (2010) Notre Dame Law School, Legal Studies Research Paper No. 09–43, available at

69 Blum and Heymann, supra note 24, at 146.

70 Kessler and Werner, supra note 13, at 298.

71 See Alston, supra note 66, at 31.

72 Statman, supra note 39.

73 Nolte, G., ‘Preventive Use of Force and Preventive Killings: Moves into a Different Legal Order’, (2004) 5 Theoretical Inquiries in Law 111CrossRefGoogle Scholar. This is not to say that prediction is impossible. A relatively certain anticipation of future events may be derived from the identification of familiar patterns of terrorist action and appropriate narratives; see Rijsdijk, E., ‘The Politics of Hard Knowledge: Uncertainty, Intelligence Failures, and the “Last Minute Genocide” of Srebrenica’, (2011) 37 RIS 2221Google Scholar. The problem, however, starts with the use of intelligence as a justification for the exercise of lethal force. This is true, even though ‘acts’ of participating in activities of a terrorist group or of facilitating actions of recruitment and training for terrorism, etc., which are rather ancillary or preparatory acts, have been criminalized after 9/11; see, on the problem of intelligence's being taken for granted within the legal discourse, Alston, supra note 21, at 13; see, on the problem of a precautionary logic tending to be accepted by the judiciary, Gelev, F., ‘Checks and Balances of Risk Management: Precautionary Logic and the Judiciary’, (2011) 37 RIS 2237Google Scholar.

74 Massumi, B., ‘Fear (the Spectrum Said)’, (2005) 13 Positions 31CrossRefGoogle Scholar, at 35.

75 ‘If we wait for threats to fully materialize, we will have waited too long,’ President Bush paradigmatically asserts when explaining the role pre-emptive war would play in the future of American foreign policy and national defence on 1 June 2002: ‘President Bush Delivers Graduation Speech at West Point’, available at–3.html. President Obama's revised strategic guidance, released in January 2012, reads like this: ‘For the foreseeable future, the United States will continue to take an active approach to countering these threats by monitoring the activities of non-state threats worldwide, working with allies and partners to establish control over ungoverned territories, and directly striking the most dangerous groups and individuals when necessary’, available at

76 Massumi, B., ‘Potential Politics and the Primacy of Preemption’, (2007) 10 Theory and EventGoogle Scholar, para. 13 (emphasis added). I prefer the notion of threats instead of risks here. Being defined by uncertainty, catastrophic threats are no longer risks that are deemed to be (statistically) calculable. Their anticipation rather relies upon imaginative techniques that are able to address the unexpected; see Opitz, S., ‘Conflicting Temporalities: Law in Times of Risk’, (2011) 4 Behemoth 59Google Scholar; Anderson, B., ‘Preemption, Precaution, Preparedness: Anticipatory Action and Future Geographies’, (2010) 34 Progress in Human Geography 1CrossRefGoogle Scholar; similarly, Kessler, O., ‘The Same As It Never Was? Uncertainty and the Changing Contours of International Law’, (2011) 37 RIS 2163Google Scholar, at 2168, though still referring to the notion of risk.

77 S. Weber, Targets of Opportunity: On the Militarization of Thinking (2005).

78 See Kessler and Werner, supra note 13, at 290.

79 Aradau, C. and Munster, R. V., ‘Governing Terrorism through Risk: Taking Precautions, (Un)Knowing the Future’, (2007) 13 EJIR 89Google Scholar.

80 J. Waldron, ‘Vagueness and the Guidance of Action’, (2010), available at

81 Foucault, supra note 45, at 31–5; Foucault, supra note 50, at 79.

82 ‘Press Conference by US Secretary of Defence Donald Rumsfeld’, NATO HQ, Brussels, 6 June 2002, available at

83 Chesney, R., ‘Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force’, (2011) 13 YIHL 3Google Scholar, at 20.

84 See Pearlman, supra note 20, at 8.

85 Statman, supra note 39, at 183–4.

86 Dyzenhaus, supra note 8.

88 Alston, supra note 21, at 26–7.

89 HCJ 769/02 The Public Committee against Torture in Israel vs. The Government of Israel – Judgment of 14 December 2006, available at, quoted in Werner, W. G., ‘The Changing Face of Enmity: Carl Schmitt's International Theory and the Evolution of the Legal Concept of War’, (2010) 2 International Theory 351CrossRefGoogle Scholar, at 369.

90 Ibid., at 374.

91 See, on international human rights law serving as a framework both of critique and of assessing the legality of targeted killing operations, also Anderson, supra note 32. The Israeli practice of ‘knocking on the roof’, for example, is a tactic of forewarning civilians in advance of a drone strike that aims to evade or minimize civilian casualties. Thus, complying with the requirement of the Israeli High Court decision, it is, as Karin Loevy has shown, also a legal response to the tactics of the enemy, ‘Knocking on the Roof and the Dynamic of Compulsion’ (2009), paper presented at the book launch of V. Ramraj, Emergency and the Limits of Legality (2008).

92 See, exemplarily, Ulrich, supra note 20, at 1050–4.

93 Ibid., at 1053; similarly, Vogel, supra note 29, at 124.

94 !!Cohen, A. and Shany, Y., ‘A Development of Modest Proportions: The Application of the Principle of Proportionality in the Targeted Killings Case’, (2007) 5 JICJ 310Google Scholar, at 314.

95 Ramsden, M., ‘Targeted Killings and International Human Rights Law: The Case of Anwar Al-Awlaki’, (2011) 16 JCSL 385Google Scholar, at 402.

96 See Foucault, supra note 50, at 77.

97 Macherey, P., ‘Towards a Natural History of Norms’, in Armstrong, T. (ed.), Michel Foucault Philosopher (1992), 176Google Scholar. As Martti Koskenniemi has pointed out: ‘rules are no more important than the purposes for which they are enacted’, Koskenniemi, M., ‘“By Their Acts You Shall Know Them . . .” (And Not by Their Legal Theories)’, (2006) 7 German Law Journal 155Google Scholar, at 170.

98 K. Anderson, ‘Should John Brennan or Eric Holder Simply Have Quoted Harald Koh?’, 5 May 2011, available at

99 See, e.g., Human Rights First's pondering about the event: ‘While the legality of lethal force is a closer question outside of armed conflict than in it, the totality of circumstances make it difficult to claim that the killing was arbitrary, even if bin Laden was not actively resisting or fleeing’, available at

100 See, for a nuanced argumentation considering the degree of organization of a terrorist network, Byman, supra note 10.

101 See S. Weber, supra note 77, at 101.

102 G. Agamben, State of Exception (2005), 40.

103 Ibid.

104 G. Agamben, Homo Sacer: Sovereign Power and Bare Life (1998), 18.

105 See, on this concept, O. Gross und F. N. Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006).