Assassination, Covert Norm Violation, and Customary International Law

• In Event: Poster Session - Law and Courts & Federalism and Intergovernmental Relations
  In Poster Session: Poster Session - Law and Courts

Abstract

This article examines how states covertly violate legal norms, and how state practice and justification for these actions drive evolution in customary international law. Customary international law can be seen as continuum, comprised of both state practice and normative expressions. The legal norm of nonintervention has many components, but at its most general, it proscribes interference by one state into the domestic affairs of another state. States can intervene in other states in many ways, such as by using overt military force, cyberattacks, or covert action. I examine assassination as one type of covert action—one of the most extreme forms of paramilitary action. Specifically, I define assassination as the murder of state leaders with foreign sponsorship. I consider how variation in assassination attempts and the justifications for those acts can explain variation in the evolution of customary international law of nonintervention.

I develop a theory of how states engage in covert violation of norms and the circumstances under which normative constraints will present a larger cost to the pursuit of strategic interests. In the assassination context, I build from earlier work by Ward Thomas on the historical existence of the norm against assassination. I examine cases of assassination and the potential for the use of legal argumentation to avoid the consequences of violating the norm against assassination. The mechanism by which states give effect to their normative concerns can be seen in the strategy of “plausible legality,” which Rebecca Sanders defines as a type of “interpretive denial” in which argumentative maneuvers are used to permit illegal conduct without overtly violating the law, through reframing and renaming the conduct.

I test this theory using a comparative case study approach, drawing cases from those investigated by the 1975 United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, known as the Church Committee. This committee was one of a series of investigations during the 1970s into abuses by the federal intelligence agencies. In 1975, the Church Committee published an Interim Report that documented its findings on U.S. involvement in attempts to assassination foreign leaders, particularly Patrice Lumumba of the Congo, Cuba's Fidel Castro, Rafael Trujillo of the Dominican Republic, the Diem brothers of Vietnam, and General Rene Schneider of Chile.

I engage in process tracing of three incidents in which the United States implemented an assassination operation against foreign leaders: the death of Rafael Trujillo in 1961 by Dominican dissidents receiving support from the U.S. government; the killing of Patrice Lumumba, the first democratically elected Prime Minister of the Congo, in 1961; and the AMLASH operation against Fidel Castro involving Cuban general Rolando Cubela. Both Trujillo and Lumumba were, in fact, killed, although their deaths were not directly attributable to U.S. personnel or U.S. operations. Castro was not killed by this operation (or other U.S. operations seeking his death), but the AMLASH operation provides important variation in the outcome of interest, because that assassination plot was abandoned after John F. Kennedy’s assassination in 1963. To construct these case studies, I examine the Church Committee reports and attached documents, other declassified primary documents, and secondary histories and memoirs. At the time of these cases, the early Cold War, there were no domestic codifications against assassination in U.S. law, thereby separating the effect of the legal norm against assassination from being confounded with hard law banning the practice.

In sum, I argue that states engage in covert activity because their justifications would be insufficient if proffered to support engaging in that violative conduct in a more overt way. I conclude that assassination practices and justifications throughout (and following) the Cold War have driven an acceptance of assassination as less of a violation of nonintervention principles, thus changing the boundaries of customary international law.

Author

• Melinda Haas, University of Pittsburgh