Assassination, Extrajudicial Execution, or Targeted Killing—What’s the Difference?

The premeditated killing of Iranian military commander Qassem Suleimani on Jan. 3 has sown confusion in the foreign-policy community about the legality of the act. Was it an assassination, an extrajudicial execution, or a targeted killing? How are these terms different, and what does it matter what we call it? Are any of these acts ever legal?

Perhaps no foreign-policy concept causes—indeed relies on—more confusion about the nature of international law than the practice of targeted killings, which is what the United States often calls its strikes against alleged terrorists abroad. That is because, in contrast to assassination and extrajudicial execution, there is no such concept in international law. The term was originally coined by a human rights organization to distinguish El Salvador death squads’ assassination of individuals from the squads’ wider indiscriminate killings of civilians. Both acts, Americas Watch correctly argued, violated human rights standards as well as the international laws surrounding war.

Throughout the 1980s and 1990s, the United States agreed with Americas Watch’s assessment. It even condemned its ally Israel’s political targeting of Hamas leaders as illegal. But more recently, the term “targeted killings” has seeped into political and public discourse to legitimize the United States’ use of the very same tactic: the extrajudicial execution of nonstate political adversaries.

The rhetorical sleight of hand has been convenient; political assassination has long been seen as taboo in war and is explicitly prohibited by the 1907 Hague Convention, which set out the basic laws for the conduct of hostilities, and 1998 Rome Statute, which articulated which war crimes could be prosecuted by the International Criminal Court. In peacetime, too, the extrajudicial execution of political opponents—or anyone else—is illegal. It is considered a violation of the human right to life enshrined in Article 6 of the International Covenant on Civil and Political Rights.

The term “targeted killing,” though, implies that U.S. counterterrorism strikes are something different—something not covered by existing norms. The Suleimani killing, however, may put that idea to rest while also demonstrating precisely why political murder is simply a terrible idea.

Americans often think about the legality of specific targeted killings in terms of congressional approval or the sovereignty of foreign governments. Republican Sen. Tom Cotton made his argument for the Suleimani killing in these terms in a Jan. 10 New York Times op-ed. But even in cases where both the U.S. Congress and a foreign government give consent for such an operation, the legality of kill missions against specific individuals is hotly contested. There is a variety of international treaties against them that the United States is bound to follow under Article 6 of the U.S. Constitution. The problem is that these treaties apply in different contexts.

In times of peace, the extrajudicial killing of citizens is prohibited as a fundamental tenet of human rights. Criminals, terrorists, and gang members must be properly arrested, tried, and convicted of a capital offense before they can be put to death. According to human rights experts, any extrajudicial killings in peacetime thus violate the human right to life, except in situations where there is an imminent threat and no arrest is possible, such as a SWAT team shooting a hostage-taker. Even so, in such law enforcement situations, targets are not selected in advance or placed on kill lists. Police officers begin their missions with an aim to capture and put suspects to a fair trial. On these grounds, organizations like Human Rights Watch, Amnesty International, and the United Nations Office of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions have repeatedly stated that targeted killings violate international human rights law.

In times of war, however, different rules prevail. For parties to an armed conflict, within some limits, the premeditated killing of adversaries without trial is permitted. But here, it depends on what kind of war. In interstate wars, the parties may kill only armed forces of the enemy state who are neither sick, wounded, detained, or surrendering. In noninternational wars, fought by or against nonstate adversaries who may live civilian lives when not fighting, killing is permitted only when the targets are directly engaged in hostilities. Hunting them down when they are going about their everyday business is prohibited—targeting particular individuals rather than armed groups in general, even more so.

In short, in neither times of peace nor times of war is assassination—what the United States now labels targeted killings—generally considered acceptable. U.S. domestic law bans the practice in peacetime, and it has long been viewed and treated as a violation of the laws and norms of war as well.

To be sure, there is some ambiguity. Assassination per se is not defined in international treaty: The prohibition found in the Hague Conventions is against “treacherously killing or wounding individuals belonging to the hostile nation or army.” In military manuals, that rule has long been interpreted as banning assassination, but different nations define it slightly differently. In the 1956 U.S. Army Field Manual, for example, the definition hinged on whether a specific individual was selected for execution; soldiers must be targeted not because they are personally guilty but only because and as long as they pose a threat to the enemy army.

Prohibitions against assassination began to break down after 9/11, when the George W. Bush administration conceptualized the fight against a group of terrorists as a war. In such a battle, fought not against states but networks, the old rules of war—including policies about prisoners of war and prohibitions on torture—were argued not to apply. Similarly, the United States began to argue that the ban on assassination applied only to political leaders and only in peacetime. Thus, the first counterterrorism drone strike was carried out by Bush in 2002 in Yemen against Qaed Salim Sinan al-Harethi, a suspect in the bombing of the USS Cole. His guilt had never been established in a court of law. Five other suspected al Qaeda members died with him.

On assuming office, the Barack Obama administration reaffirmed the U.S. commitment to international law but picked up on Bush-era logic to articulate a legal rationale for expanding his targeted killing policy. Obama lawyers argued that a conflict zone existed everywhere states were unable or unwilling to arrest jihadis. Allowing suspected militants to live posed a continuing, imminent danger to civilian life and limb. In short, targeted killings were, in Obama’s mind, not extrajudicial executions because wartime law, not human rights law, applied. They were not assassinations, either, according to an internal memo leaked to the press in 2013. The reason for that determination is not made clear, but perhaps it was based on the administration’s assertion that the rules of noninternational armed conflict—rather than international armed conflict—applied, whereas the ban on treacherous killing is found primarily in the interstate law of war.

Yet human rights activists and scholars have repeatedly critiqued these formulations. They argue that terrorists should not be dealt with as war combatants but as criminals, using a law enforcement paradigm. Obama’s overly broad definition of imminent danger also troubled his critics. And even if he was correct that the war on terrorism was a global, never-ending, noninternational armed conflict during which taboos against assassination don’t apply, other laws of noninternational armed conflict would still be at play. According to those, only the very highest-ranking militia leaders could be considered combatants at all times—and even then, under Common Article 3 of the Geneva Conventions, those people should not be attacked when sick, wounded, or surrendering. This standard was likely not met during the mission that killed al Qaeda leader Osama bin Laden: He died unarmed in front of his family.

For lower-level militants, the relevant rules say they can be attacked only when directly participating in hostilities, not when they are going about their daily civilian business or supporting hostilities indirectly. The drone killing in 2011 of U.S. citizen Anwar al-Awlaki was likely illegal on these grounds. Awlaki’s propagandizing for al Qaeda does not fit the International Committee of the Red Cross’s definition of “direct participation” in armed conflict, and at any rate, he was simply riding down the highway in a car with his son in Yemen when he died. Many other targets of drone strikes in Pakistan, Somalia, and Yemen were young men who happened to fit the description or profile of terrorist suspects but who were in reality civilians going about their business—like Tariq Aziz, a teen Pakistani soccer player and human rights activist who died when his car was hit by an American missile in 2012.

A final problem is that, even if these particular men and boys had all been legitimate combatant targets in a bona fide global war, the laws of war require proportionality: a balance between the military value of a killing and the incidental harm to civilians as a result. The language of targeted killings implies precision and accuracy, but in reality an estimated 90 percent of the deaths they cause are among civilians. One strike in October 2006 killed 69 children—and while Obama reduced civilian casualties with more stringent rules of engagement, they have risen under President Donald Trump. All this for a strategy whose military value is disputed: As the political scientist Stephanie Carvin and the criminologist Jennifer Carson show, evidence is quite mixed as to whether targeted killings are effective or in fact counterproductive, which further undermines the proportionality principle.

Ultimately, many human rights groups and scholars have concluded that targeted killing is generally problematic if not outright illegal. But perhaps because of the rhetoric surrounding the practice, many in the United States believe that it is a legitimate tactic. Polls as recent as 2015 show majority support among the U.S. public for targeted killing policy.

As the political scientist Simon Pratt has argued, Obama’s rhetorical arguments shifted Americans’ understanding of assassination just far enough to accommodate targeted killings as something different. Until this month, the popular understanding was that assassination was only assassination if directed at state political leaders; strikes were only extrajudicial execution if they occurred in peacetime not in war; and that the U.S. war on terrorism extended everywhere at all times, even to nonconflict zones like Pakistan, Somalia, Yemen, and certainly to Iraq.

The killing of Suleimani shuffled the deck. First, as a high-ranking official of an actual government, he cannot as easily be cast as a terrorist renegade as nonstate actors like bin Laden. Second, in wartime, a military official such as Suleimani could arguably be lawfully killed but only if an international armed conflict already existed between Iran and the United States. And even then, it would not be legal to single him out as an individual, least of all in a third country not party to the war.

To be sure, as the political scientist Ian Hurd argues, international law is flexible enough for savvy lawyers to justify almost any act: The “self” in “self-defense” in the U.N. Charter has been stretched over time, as has the concept of imminence. But that doesn’t mean such justifications will convince others. Bush attempted to reinterpret the meaning of “torture” to excuse his interrogation policy, but as the political scientist Jamal Barnes shows, he convinced no one. Similarly, Americans may be willing to tell pollsters they think targeted killings are legal, but global public opinion skews the other direction. The way that Obama carefully sidestepped the assassination taboo without contesting it indicates that the taboo still has power, including in the United States. That the Trump administration and its supporters have tried to frame Suleimani’s death as a “targeted killing” of a “terrorist” analogous to Obama-era drone strikes suggests they hope for the same cover. That strategy is unlikely to work. Already new reports cast doubt on this claim.

Overall, the Suleimani killing (and reactions to it) shows why we have rules against political murder in the first place. As the political scientist Ward Thomas points out, the ethics of the ban on political assassination have long been sketchy—it might seem odd to forbid the targeting of a culpable leader but condone the slaughter of conscript multitudes in war. But ethics aside, the taboo against the assassination of political leaders in war or peace has served an important political function: It has protected the leaders of powerful states against harm by weaker adversaries, who may be tempted to deploy assassination because they could not defeat more powerful armies in the field. As such, until recently, powerful countries have been loath to use assassination as a tool themselves, even where it may well have benefited their interests and forestalled greater bloodshed—because the norm protects U.S. officials as well.

But the norm is slowly weakening, creating a slippery slope. The United States should not be surprised if other nations pick up the practice, too.