The dust of the impact of a NATO bomb on the compound of Colonel Gaddafi in Libya – leaving some of his family members dead – has hardly dwindled, or the triumphant news of the assassination of Osama Bin Laden in Pakistan is proudly announced by the American president. Whereas the NATO spokesman denied a purposely targeting of the Libyan head of state using the commonly used argument in such cases that the targeted object had a military strategic function, the undercover operation of targeting and killing of Bin Laden – who is not a head of state and is considered an international outlaw – was proudly admitted by President Obama. Would Gaddafi have been killed in the NATO attack, it would have been classified as “a case of collateral tyrannicide.”
SECURITY COUNCIL APPROVES ‘NO-FLY ZONE’ OVER LIBYA, AUTHORIZING ‘ALL NECESSARY MEASURES’ TO PROTECT CIVILIANS, BY VOTE OF 10 IN FAVOUR WITH 5 ABSTENTIONS
That is what “Resolution 1973″ of the Security Council in it’s 6498th meeting on March the 17th 2011 says. Who reads through the details sees: protection of civilians; No-fly zone’ ; enforcement of arms embargo; ban on flights; asset freeze; but nowhere is the option of disposal of the head of state, let alone targeting his life mentioned. On the contrary – in the same document – the Prosecutor of the International Court of Justice in The Hague is alerted about the possible targeting of the Libyan civilian population by its authorities, this in order to call them to justice. Our modern courts do not practice anymore justice on accused that are dead.
‘Mission creep’ has become a household word in todays international politics: half a war is started on a quarter of evidence whipped up in ‘the news’ and those who may have a good historical insight in any of these turmoil areas are the last to be consulted, as diplomatic options are cast aside in haste and overridden by military solutions. Politicians – with their own national and international agenda – are even competing in proposing the military approach as faster and more efficient. What started of as a temporary interventions to prevent mass killings, pre-emptive strikes against the employment of mass murder weapons, and other direct threats against humanity, prove – on a longer term – to be operations that are more ‘problem makers’ than ‘problem solvers’. The military are saddled with practical questions diplomats were not able or not allowed to solve: is there a rational basis to decide who is going to be supported, who needs to be attacked, who to be protected and what about bloody revenge in the aftermath of a state collapse?
On the one hand there is notion of sovereign states and the principle of non-intervention under international law and, on the other, the aim to protect human rights and prevent mass violence. “Protection of civilians by all necessary means” is the mission in the case of Libya. One should read the “all necessary” as acts that still need to be within the legal bounds of laws, agreements and regulations that form the foundation of the United Nations. The United Nations does not endorse the killing of a head of state, even when she or he is labelled as someone acting against their own population, is known as a tyrant. Head of states do not have (anymore) full impunity, they can be called to justice, an International Criminal Court has been set up in The Hague which is supposed to pursue such persons. The killing of a tyrant – tyrannicide – is not supported by international law, however beneficent it may seem to be in short range. But, in law, one needs always to reverse the logic and ask the question: “but, is it explicitly forbidden and if so where and in how is that prohibition formulated?”
Two years ago this question has also been raised in a thorough article by the scholar Shannon Brincat in the ‘Australian Journal of Legal Philosophy’ under the title “Legal Philosophy of Internationally Assisted Tyrannicide.” Brincat is not a lawyer but a political scientist and rightly focusses on the underlying historical principles of the practice of international law and tyrannicide as he looks back a few centuries and cites Gentili (1522-1608), Grotius (1583-1645) and Vattel (1714-1767) on the issue of acceptability of the killing of a tyrant, a person belonging to the classical legal category of ‘hostis humani generis’ (common enemies of mankind). Brincat shows the historical acceptance of ‘tyrannicide’ as a way to get rid of a despotic and cruel ruler abusing the public power. The legitimacy of a ruler was thought to be based on a common bond with his subjects. When a ruler failed to work for the welfare of all, the bond would be nilled and murder could be envisaged to put an end to tyranny. Murder of a tyrant has been often an act of a private citizen for the common good of his fellow citizens. In some cases it has been classified as ‘an act of self-defence’.
There is also the planned assassination of a tyrant of one state by those governing another state, in support of oppressed people trying to revolt. This needs to be clearly set apart from all kind of inter-state conspiracies to bring down another power by treacherous acts. Brincat tries to distinguish all kind of murders arranged for political gain -assassinations – from the act of tyrannicide. He points to the context in which a murder is committed and how that can change its status, from being ‘a war crime’ , a ‘terrorist act’, ‘aggression against a state’, or ‘intervention in internal affairs’. International regulations of war are documented in some detail in the article, like the many conventions of The Hague and Geneva over a period of one and a half century, whereby the ‘treacherous killing of citizens’ has been formally forbidden, and lately also the use ‘military covert action’ has been restricted. In spite of all this, military practice always has it in it’s own way, as it can not work without using treacherous tactics, hence the constant trespassing of all what is laid down in whatever convention. In the theatre of war the old adagio rules: “everything is lawful against enemies.”
The United Nations ‘New York Convention’ – as it is known – in full Prevention and Punishment of Crime Against Internationally Protected Persons, dating from 1973, does give protection to heads of states, ministers, diplomats and their family outside of their country, this to support international diplomacy, but does not speak about the attempts on the lives of these same persons within their own country.
The States Parties to this Convention, Having in mind the purposes and principles of the Charter of the United Nations concerning the maintenance of international peace and the promotion of friendly relations and cooperation among States, Considering that crimes against diplomatic agents and other internationally protected persons jeopardizing the safety of these persons create a serious threat to the maintenance of normal international relations which are necessary for cooperation among States, Believing that the commission of such crimes is a matter of grave concern to the international community, Convinced that there is an urgent need to adopt appropriate and effective measures for the prevention and punishment of such crimes (…) [Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons..; 14 December 1973]
This omission creates a a window of opportunity for legal advisers to military commanders as to the repercussions to be feared when targeting heads of state and their governmental echelon at home. In the recent case of the alleged targeting of Gaddafi and his family by NATO, this can still be seen as a ‘hostile act of intervention in the internal affairs of a state’, but there are loopholes in the UN ‘Resolution 1973’. When an attack will be classified as an operation necessary to keep the forces of Gaddafi from attacking civilians, it suddenly is not illegal anymore. That the great leader or his family are hurt on the side is just “their” bad luck. Even when seated peacefully in his berber tent in an oasis next to a swimming pool, not Gaddafi himself but his nearby entourage with all kind of communication equipment busy in commanding operations, can still be marked as a legitimate military target and Gaddafi being just a collateral victim.
“All NATO’s targets are military in nature … We do not target individuals” [NATO spokesman the Canadian Lieutenant-General Charles Bouchard, Brussels May 1, as reported by Reuters]
Heads of states – metamorphosed into tyrants or not – do not have international legal protection against attacks by other nations on their lives in their own country, as it has been thought obvious that local laws do protect them sufficiently, any constitution secures the safety of its head of state. A situation that brought President Ronald Reagan and his advisers to the cowboy tactics of “Operation El Dorado Canyon” in 1986, bombing the headquarters of Colonel Gaddafi in retaliation of the alleged Libyan support for several urban guerrilla actions in the period 1985-86, the latest one being a bomb attack on a dancing in West-Berlin in April 1986 (frequented by American soldiers; 3 death and 230 people injured). The number of people that died in the USA revenge bomb attack vary in different sources, from 15 to 60, among which an adopted daughter of Gaddafi (some say it was a post-mortum adoption for propaganda reasons). The American cowboy action was condemned by many countries and lead to a resolution in the General Assembly of the United Nations (79 in favour, 28 against, 33 abstentions). There was also a condemning ‘Declaration of the Assembly of Heads of State and Government of the Organization of African Unity’.
Declaration of the Assembly of Heads of State and Government of the Organization of African Unity on the aerial and naval military attack against the Socialist People’s Libyan Arab Jamahiriya by the present United States Administration in April 1986: 1. Condemns the military attack perpetrated against the Socialist People’s Libyan Arab Jamahiriya on 15 April 1986, which constitutes a violation of the Charter of the United Nations and of international law; 2. Calls upon the Government of the United States in this regard to refrain from the threat or use of force in the settlement of disputes and differences with the Libyan Arab Jamahiriya and to resort to peaceful means in accordance with the Charter of the United Nations (…) [A/RES/41/38 20 November 1986 78th plenary meeting]
The Iraq war of 2003 saw a repetition of such cowboy tactics, whereby at first a plan to murder Saddam Hussein had been devised and when that did not work, tons of bombs and missiles have been dropped on palaces and bunkers of the ‘head of state’, while the mission was officially not aimed at a change of regime, or the killing of the ‘tyrant’. Mission creep on grand scale…
At the other end of the international juridical spectrum are ‘the people’, the whole population, and how they are protected by international law against their own government when it turns against them. They are not protected, we all know it, as the principle of our international community in its actual form, the United Nations, is based on its Charter that defines the association of sovereign states as the most basic principle. Any intrusion of this sovereignty of an existing government by an outer force can be labelled as ‘intervention in internal affairs’.
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. [UN Charter article 2 (4)]
There are of course, since the 1948 ‘Convention on the Prevention and Punishment of the Crime of Genocide…’, all kind of mechanism to protect human rights and human lives, but the enforcement of these rights remain problematic. The Genocide Convention itself is limited by its origin to prevent repetition of the racial based extermination policy of the Nazis and has proven useless when it came to mass killings with political or ‘social class’ motives be it in China , Cambodia, or elsewhere.
The principle of the right to ‘self defence’ of individuals against an attacker is seen as customary and has found its way in all national laws, though many persons or groups that have been attacked by adversaries – be they local or national – and defended themselves, have found themselves categorised and treated as insurgents and outlaws by their local government.
The right of self-defence has been purported to states as sovereign entities also and laid down in international law, be it in a limited form, as the arbiter of inter state conflicts, the Security Council of the United Nations, needs to be alarmed and once they have undertaken measures this self-defence right should not anymore be practiced.
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. [Article 51 of the UN Charter]
Not everyone reads this UN Charter article in the same way. Niaz A.Shah has written a thirty page long article in 2007 in the ‘Journal of Conflict and Security Law’ on the raging debate between international law professors and the different state and government bodies that pick from these academic deliberations, what serves them best. “Self-defence, Anticipatory Self-defence and Pre-emption: International Law’s Response to Terrorism” is the title of his overview of this battlefield of law and it becomes clear that two main schools of interpretation can be distinguished: the ‘restricted’ and ‘expanded’. It starts with the question when self-defence begins and even more important when it ends, whereby the development of ever more deadly and extreme rapid delivery of weaponry effects, has shifted some of the initial argument, that a state could not react before it had been actually attacked, to a situation whereby suspicion of imminent attack is sufficient . The interpretation of what must be understood by the two words “armed attack” has also changed since the UN Charter has been drafted and signed in 1945, its intention being “to save succeeding generations from the scourge of war.”
Some states do see ‘anticipatory self-defence’ as a statutory right and greatly widen its interpretation, like the ‘pre-emptive strike against terrorism strategy of US President George Bush. The impotence of the UN Security Council, its constant failure to act swiftly, its awkward system of five big states that can pronounce a veto over any proposal, is mentioned as the main reason why the idea of “peaceful settlement” of conflicts and the internationally controlled used of force by the United Nations constantly fails. The right to self-defence may thus – by some states – be put above international law.
At the time of the writing of the UN Charter international conflicts were solely seen as between states, but the non-state based phenomenon of international terrorism have altered that view. Does article 51 of the UN Charter also apply to non-state actors like al-Qaeda and when can one state be hold responsible for such non-state terrorist actors and can the principle of self-defence of a state be stretched to such an extend that a supposed host of terrorists can be attacked, either in reactive self-defence, or as a pre-emptive strike to prevent suspected future attacks? “We can not let our enemy strike first” or “We can not just wait and accept our fate like a sitting duck”, the arguments are known and do sound convincing at first.
Niaz A.Shah cites a counter argument by Professor J. Lobel who refers to the bombing of Sudan and Afghanistan in response to terrorist attacks in an article in Yale Journal of International Law published in 1999:
It is untenable for international law to permit one nation to attack another merely because it alone claims that a group operating in the other country is launching terrorist attacks against it. Such a rule would obliterate the prohibition against the use of force, as unsubstantiated claims by a single state would become the new legal predicate for the use of force. Those who urge a looser interpretation of Article 51 have yet to prescribe a viable method of ensuring that self-serving characterisations of facts are subject to some clear legal standard and international oversight.
The Security Council issued in 2001 Resolution number 1368 as a reaction on the 9/11 terrorist attack: “to bring to justice the perpetrators.” Has justice been done now, since Osama Bin Laden has been shot dead in an undercover operation in Pakistan? A great nation like the United States of America at war with a non-nation like al-Qaeda, does that mean that on the one hand legality of ‘self defence’ based on article 51 of the UN Charter is used, while on the other no ‘rule or law of war’ seem to apply in the way this new kind of anti-terrorist battle is fought.
It dawned on me that the supposed killing in battle of Osama Bin Laden, applauded worldwide as a victory of justice, has all the aspects of a classical act of ‘tyrannicide’. David George of Cambridge University published in 1988- in the year that al-Qaeda has been founded and was not yet widely known – an article entitled “Distinguishing Classical Tyrannicide from Modern Terrorism” in ‘The review of Politics’. In his summary is this concluding statement: “Terrorism, in short, is a form of tyranny of which tyrannicide is a negation.” George sees ‘terrorism’ and ‘tyrannicide’ as different antagonistic categories even when some of the assassinations perpetrated by modern terrorists are be seen – by some – as ‘self-denying acts for the public good’ (“one man’s terrorist is another man’s hero”). Bin Laden thus has become the emperor reigning a non-state imperium, whose death has liberated us from a cruel reign.
US Attorney General Eric Holder speaking to the Senate Judiciary Committee on May 4th. said it was “an act of national self-defense” and “lawful.” Tyrannicide as an act of state self-defence? The tyrant killed in battle ending his unjust cause. In the case of Bin Laden one can hardly speak about a pre-emptive strike or ‘bringing someone to justice’, though the distinction between “Enemy Killed In Battle” and ‘summary execution‘ has – in practice – always been hard to make. The internationally approved rules do in no way allow a killing on the spot without judgement. The Geneva Convention of 1977 has a special paragraph forbidding it.
“Every human being has the inherent right to life. This right shall be protected by law. No man shall be deprived of his life arbitrarily.” “[The Death] penalty can only be carried out pursuant to a final judgment rendered by a competent court” – ICCPR Articles 6.1 and 6.2.
One of the most classical cases of tyrannicide is by a group of senators, jointly stabbing emperor Julius Caesar to death in the hall of the Senate. It is more an example of a ‘preemptive strike’ than an execution or revenge. The royal ambitions and proposed absolute rule of the ‘dictator perpetuo’ of the Republic of Rome, had to be halted. The conspirators abandon the corpse of Caesar on the spot where he has been killed and ran through the streets of Rome shouting “People of Rome, we are once again free!.” Not many responded and curious enough the fact that they left the body of Caesar was also to their disadvantage as it became a symbol for his followers later. The dropping of the body of Bin Laden right after his violent death may point to some classicists on the team preparing the operation in Pakistan.
Humanitarian intervention by other states or international associations of states may be the only way to alter an unbearable state of suffering of main parts of a population, but however noble the incentive, practice may prove to be different in many cases. Imposed change of regime from the outside, invasion to establish democracy, we have seen how such undertakings can develop in yet another human disaster in Somalia, Iraq and Afghanistan. The question remains if imposed change of regime, is aimed just at a dictator or a set of rulers, or if it is ‘the system of government’ which is targeted. Who is to judge and on what premises?
Brincat mentions recent proposals for possible legal endorsement – in special cases – of the act of tyrannicide, in order to halt extreme suffering of a population, and he also notes its drawbacks.
“As many have warned the danger is that a unilateral assessment of tyranny could become a Trojan horse and may corrupt tyrannicide to an asymmetrical right only of powerful states.” [page 182 of his article]
Is that not, what we observe these days? Who makes the so called ‘tyrant hit list’, who will be on it? Who will have enough power to execute it? What about all those who do not agree with such irrevocable acts? High technology aerial attacks on a head of state – or premises that are felt to be symbolic for the nation’s proud – by an outside force can also have a counter effect of rallying a nation around a national leader in demise, like it was the case after the NATO bombardments on Serbia in 1999 and the increase of support it created for President Slobodan Milošević, who could play out his new role as a victim of NATO aggression. It is not surprising that till this day this NATO bombardment, that was meant to protect the Albanians in Kosovo, is not forgotten in Serbia and remains a political rallying point for ultra nationalists like the Serbian ‘Radical Party’ of Vojislav Seselj (who is on trial at the Yugoslav Court in the Hague) a party who staged a pro-Gaddafi deomonstration in Belgrade on March 27th this year.
There are other aspects against the act of ‘tyrannicide’ especially when arranged or perpetrated from the outside, by other nations and other interest groups (like multinationals), not part of the nation that suffers tyranny. It distorts the social relations of a society – already in turmoil – with a foreign element which tends to be outside the scope of control of the population in question. It hinders the social revolution, apparently on its way. In the process of shifting of power it puts its weight only on one scale and thus disfavours genuine equalitarian forms of change.
It also puts too much emphasis on ‘the one supreme leader’ whereas each tyrant is a complex social system of alliances, with many collaborators that will be all too happy that the head of the tyrant is cut while the social body of the tyrant may life on for quiet a while or never vanish.
We should be aware that there is no great difference between ‘tyrannicide’ and ‘revenge judgement’. The hurried execution of the Rumanian dictator Ceausescu and his wife and the speedy trial and hanging of Saddam Hussein and only a selected group of his associates, are examples to bear in mind. When we think about long lived regimes like the one of Saddam Hussein, the Assad family and Gaddafi, there must be all kind of entangled social layers related in many ways to the ruling system. For such societies to reassess themselves is a cumbersome and long process and the concept of ‘Voluntary Servitude’ as formulated by Etienne de la Boétie (1530-1563) already centuries ago, must be born in mind. The text is also known in French as “Le Contr’un” which translates in English as the AntiDictator. Any usurper of power needs enough willing people to make him the ruler he is. A society must come to recognize how this process of mental and physical enslavement took place in order to find the right remedies to heal its historical wounds.
As with the tyrants of the family Assad, Saddam Hussein (*) and Colonel Gaddafi, world leaders have been supportive of their regimes for decades for all kind of reasons: the stability of the Middle East and the position of Israel, a state opposing the Iran and its ambitions after the fall of the Western oriented Shah leading to indirect support of one of the most bloody post World War II wars, the one between Iraq and Iran. Other reasons are oil, gas and nuclear power contracts some of them signed only recently by the same political leaders of the Coalition Forces now involved in the military containment and overthrow of Gaddafi’s state. What about the economic interests colouring their vision? One can observe that shifts of power also imply shifts of political relationships, like a most recent visit of a trade mission of the People’s Republic of China to Cairo, after the fall of Mubarak.
The choice for military force, the attempts at collateral killing of Gaddafi, leaves no space for the later appearance in any court – be it Libyan or International – of Gaddafi. Imagine this: Gaddafi taking the stage to defend himself, what would he say, what would he tell about his former powerful friends? Just the idea… better have him dead! Images of the process of Saddam Hussein come to mind of a judge hammering off his public statements.
Are we ready yet for a real functioning of an International Criminal Court that prosecutes individuals and their crimes in an impartial fashion? A process of judgement that will create the space necessary for rebuilding in a nation that what has been destroyed, giving time to recreate a minimal common bond between the people and its government. On the international stage of politics many speak of human rights protection and the necessity of some form of democracy. In practice this is deliver through the use of high-tech military power. Are these the right means to such an end? Will it serve Libya now, Syria later? It is doubtful that long distance military force through the air, ‘Big Stick Policy’ of the 21st century, will help to establish peace. Many of the perpetrators that should be judged will be dead before they can face their judges, here on earth.
Will peace be served by state lead tyrannicide and assassination? I do not think so. The way a regime is changed determines the next one to come. There is now more than half a century of experience of how to apply international justice. The limitations of the victor courts of justice of Nuremberg and Tokyo after World War II have long been surpassed. The examples of national and international courts for Yugoslavia, Uganda, Cambodia, Sudan, Congo, and so on – whatever their shortcomings – point the way to go. The emphasis should be on the suppression of tyranny by the rule of law. (**)
*) See my interactive Meta-Map of Saddam Hussein 1927-2007 (published in the Dutch Daily de Volkskrant in the year 2006)
**) Jackie Ashley wrote a comment in the Guardian of Sunday May 1. “Few would weep for Colonel Gaddafi, but targeting him is wrong In war, international law is all we have. If we cast it aside, there’ll be nothing left but might-is-right, arms, oil and profits.”