How are targeted killings different from assassinations – and are they legal?

After Israel’s strike on Hezbollah’s leader Hassan Nasrallah last month, President Joe Biden and other world leaders called it a measure of justice. But retribution and even justice, some analysts note, are not sufficient grounds for killing under the laws of warfare.

The dozens of targeted strikes by Israel to take out senior operatives within Hezbollah and Hamas since the latter group’s brutal Oct. 7 attack on Israeli civilians last year come with almost dulling frequency today.

They are part of a global expansion of what have been called “signature” or “decapitation” killings that go back to the U.S. war on terror. In the past decade alone, a dozen countries, including Iraq, Iran, Egypt, and Turkey, have launched programs to carry out such hits on enemies of their own.

These strikes alarm many humanitarian law experts who urge proportionality and protection of civilians, too: Mr. Nasrallah’s death involved multiple 2,000-pound bombs and razed several apartment buildings.

In the cold calculus of military advantage, even the seasoned strategists who carry out these operations sometimes wonder aloud whether they actually work – or whether they create more terrorists than they kill.

Don’t the U.S. and other countries have laws against assassination?

Take Israel, for example, the country most recently in the news for targeted killings. Israel’s Supreme Court in 2006 ruled that targeted killings are a legitimate form of self-defense against terrorists, though it cautioned that these assassinations should be weighed against harm to innocent bystanders. Both Israel and the United States designate Hezbollah and Hamas as terrorist organizations.

The U.S. government has since reached a similar conclusion in a legal journey that started in the mid-20th century. In the days when it viewed communism as an existential threat, the U.S. orchestrated coups to overthrow left-leaning governments. This included Guatemala in 1954 after its president was deemed unfriendly to American businesses like the United Fruit Company, which owned 42% of the country’s lands.

This operation and others came to light during the 1975 U.S. Senate Church Committee hearings. So, too, did the torture and killing committed by these CIA-backed regimes that seized power through military force.

On the heels of these revelations, President Gerald Ford in 1976 signed an order banning anyone working for the U.S. government from carrying out political assassinations. Further orders from Presidents Jimmy Carter and Ronald Reagan removed the word “political” and added that no one working on behalf of the U.S. government could engage in assassinations, either.

The orders didn’t define assassination – no federal law does – but it’s widely understood to mean murder for political purposes. The word itself implies illegality, notes Tom Porteous, deputy program director at Human Rights Watch, a New York-based advocacy group.

Up until the 9/11 attacks, U.S. officials steered clear of any intimation of it. In the 1990 run-up to America’s first Gulf War, then-Secretary of Defense Dick Cheney fired the Air Force’s top officer for saying that the U.S. planned to target then-Iraqi President Saddam Hussein.

The general’s remarks were “potentially a violation of the standing presidential executive order” prohibiting assassination, Mr. Cheney said at the time. It was “inappropriate for U.S. officials to talk about targeting specific foreign individuals.”

How did this change?

Just before the 9/11 attacks, the American ambassador to Israel criticized its policy of picking out Palestinian militant leaders to kill.

The U.S. “is very clearly on the record as against targeted assassinations,” Ambassador Martin Indyk said in July of that year. “They are extrajudicial killings, and we do not support that.” Israel defended it as “active self-defense” or “interception.”

Then came America’s global war on terror. Not including the battlefields of Iraq and Afghanistan, President George W. Bush ordered some 55 targeted killings of Al Qaeda leaders in the ungoverned tribal areas of Pakistan. President Barack Obama ordered some 560 of them in Pakistan, Somalia, and Yemen, including of Anwar al-Awlaki, a New Mexico-born Muslim cleric accused of being an Al Qaeda leader. Critics labeled it an extrajudicial killing and a potential assassination.

The essence of the legal arguments that have been made by the U.S. officials who green-light targeted killings is that they are acts of self-defense in a war against a terrorist group. This reasoning mirrors Israeli jurisprudence decried by the U.S. prior to 9/11, some analysts note.

But it was the Trump administration’s 2020 strike on Maj. Gen. Qassem Soleimani, commander of the elite Quds Force unit of Iran’s Revolutionary Guard, that prompted particular alarm among international law experts. General Soleimani was on an official state visit to Iraq, whose officials said they’d received no prior warning and decried the violation of their sovereignty.

General Soleimani’s killing “was unlawful,” according to a report by the United Nations special rapporteur on extrajudicial, summary, or arbitrary executions, prepared for the U.N. Human Rights Committee. This was in large part because the operation targeted a state official away from a battlefield. The U.S. had in other killings argued they were part of America’s war against Al Qaeda, but this was a tough legal case to make with General Soleimani, given Shiite Iran’s historic hostility to Al Qaeda, a Sunni group.

U.S. officials instead argued that it was a “defensive action” against someone “actively developing plans to attack American diplomats and service members in Iraq and throughout the region.”

Then-President Donald Trump, for his part, said he was trying “to stop a war.” It was reported that although Presidents Bush and Obama had contemplated a strike against General Soleimani, they ultimately decided against it. The concern was that rather than forestalling wider conflict, the strike could accelerate it.

Iran responded with missile strikes on two U.S. bases in Iraq, wounding 100 U.S. troops, including 34 who were diagnosed with traumatic brain injury.

So are targeted killings legal or not?

In the case of General Soleimani and others, that was – and remains – a matter of intense debate.

Arguing self-defense in a preemptive attack away from the battlefield, as the Trump administration did, generally requires that the attack be imminent – specifically, a threat that is, as the U.N. report put it, “instant and overwhelming.”

But U.S. officials since the Obama administration have called, as the U.S. counterterrorism adviser did in 2011, for a “more flexible understanding of imminence.” Critics call it an “expansionist” definition, and it includes preemptive strikes against not just confirmed but also “perceived” threats.

The strike against General Soleimani raised “genuine uncertainty,” the report concluded, “as to how to interpret its lawfulness.”

There is, too, international law surrounding the death of innocents. In a conflict zone, the legal rule of thumb is that the greater the military advantage conferred by a targeted killing, the greater the permissible civilian harm.

But while military advantage is relevant in determining excessiveness, proportionality still matters. In other words, it’s about more than the least amount of harm that commanders can cause in pursuing their goals.

“Ultimately, there’s still a limit,” says Tom Dannenbaum, associate professor of international law at Tufts University’s Fletcher School of Law and Diplomacy. “It’s a judgment call in each case. But I can’t think of an instance where the elimination of a single individual has been understood to justify the collateral killing or injuring of hundreds of civilians.”

In many cases, states have stopped bothering to make legal justifications at all, the Human Rights Committee report warned. “What is especially troubling is the absence of public discussion about ethics, legality, and effectiveness of the ‘decapitation’ strategy’ at the heart of targeted killings.”