How Our Governments Can Kill Us: Targeting Citizens and International Law

• In Event: Domestic Politics of Terrorism

Abstract

In liberal democracies citizenship has been seen as an effective shield against being deliberately killed by one’s own government without judicial process; however, led by the U.S. and the U.K., times may be a-changing. This paper documents and evaluates an emergent state practice with the potential to re-shape customary international law – that is, the deliberate killing of countries’ own citizens abroad without judicial process if they are deemed to pose a sufficient threat. This change, which is being driven by leading liberal democracies, is rapidly being adopted by illiberal states like Russia and China, and could be forming the basis for a new international norm.

Two key cases illustrating this novel practice among liberal democracies are already acknowledged and defended by the relevant governments. It was the intentional targeting of American Anwar al-Awlaki by the American government and Briton Reyaad Khan by the British government that have most clearly called into question the assumption that citizenship, particularly in a liberal democracy, protects one from being targeted for death without judicial process. Liberal democracies have previously killed their own citizens with armed drones as collateral damage, including American Samir Khan and Briton Ruhul Amin, and liberal democracies have also used their own intelligence to facilitate the deaths of their own citizens, as England did when the US used a drone to kill Britons Junaid Hussain and Mohammed Emwazi based on British-fed intelligence. However, al-Awlaki and Khan represent a significant new departure from precedent in that they are the first citizens intentionally targeted with lethal force outside areas of active hostilities that have been publicly recognized by the nations that targeted them.

These two cases were thus monumental and policy-defining within their respective countries. Public controversy compelled both the U.S. and the U.K. to officially justify the deaths of al-Awlaki and Khan, which revealed the governments’ litmus tests for when lethal force may be used outside areas of active hostilities and why citizenship alone does not immunize a person from being attacked by their governments. The striking parallels between the American and British policy standards and public justifications, and their alignment with laws recently adopted elsewhere, have significant implications for the international law governing the use of lethal force in counterterrorism operations.

Evidently, the reasons that the two governments offered for targeting their own citizens were critical to their public justifications of their extraordinary actions. Al-Awlaki and Khan were both infamous for their recruitment and propaganda activities for al-Qaeda in the Arabian Peninsula and the Islamic State respectively, but the American and British Administrations firmly denied that they targeted their citizens because of their propagandist actions. Instead, both governments professed that their citizens were killed because there was reliable intelligence that both men had participated in failed terrorist attempts, in an operational capacity, and because there was evidence that both men were aiding in the planning of future attacks at the time of their deaths.

These rationales offered by the targeting governments were sharply criticized in terms of compliance with both domestic and international law, but it is in regard of the latter that they may have the most important and long-lasting effects. International law is more amorphous than domestic law, and less amenable of quick and decisive correction. While domestic law is the result of an established process giving rise to formally approved constitutions and statutes (and sometimes common law) with its implementation overseen by institutions empowered to give authoritative interpretation (domestic courts), international law is the result of either formal conventions or common state practices, and to a lesser degree the jurisprudence of international courts and the writing of the most highly qualified publicists. This diversity of sources makes international law frequently less clear and more malleable than domestic law, especially where powerful states decide to establish their own precedents, and they are followed by other important states. This paper argues that something like this is already occurring with the U.S. and U.K. decisions to target their own citizens. The paper relies almost exclusively on official documents and speeches from the people and organizations that were most intimately involved in the planning, execution, and judgment of the attacks on al-Awlaki and Khan (including the American Department of Justice, the British Ministry of Defense, etc.), and official statutes adopted elsewhere (including Russia and China), in order to demonstrate the embryonic development of new customary law concerning the use of lethal force against a state’s own citizens.

Authors

• Avery Elias Plaw, University of Massachusetts, Dartmouth

• Elizabeth Santoro, Institute for the Study of Counterterrorism and Unconventional Warfare