The debate has raged for some days now … was the killing of al-Awlaki in Yemen illegal?
Rep. Ron Paul says it was, but he says everything is illegal.
There are two primary arguments alleging the illegality of al-Awlaki’s killing.
First, he was a US citizen, and as such, was due a trial.
Second, the US violated international law by assassinating him in Yemen.
Neither argument holds up, both morally or legally.
First I’ll address international law.
Neither the Hague Convention of 1899, or the Protocol Addition to the Geneva Convention of 1949 forbid al-Awlaki’s killing by international law. Right off the get go, proponents of this argument are off to a bad start. In fact, the international law community has often taken the stance that killing an adversary can often fall within the confines of international law.
Harvard Law addressed the issue a few years back.
The clauses that traditionally have been construed as prohibiting “targeted killings” are far from clear prohibitions. In the Hague Convention (II) with Respect to the Laws and Customs of War on Land (29 July 1899), Article 23b states that it is prohibited “to kill or wound treacherously individuals belonging to the hostile nation or army.” Treachery is not explicitly defined, and it can be argued that using missiles to attack a car in which a target is traveling, while brutal and having a high probability of injuring bystanders, does not fall within the purview of treachery. Similarly, targeted killings can be argued to fall outside the Protocol I Article 37 prohibition on killing, injuring, or capturing “an adversary by resort to perfidy”—described as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Article 37 gives examples of perfidy including “the feigning of an intent to negotiate under a flag of truce or surrender” and “the feigning of civilian, non-combatant status.”
Basically, you can’t ‘assassinate’ under false-flag circumstances. No such circumstance existed with the al-Awlaki killing. It should be noted that this provision addresses someone belonging to a hostile nation OR army. While al-Awlaki did not belong to a hostile nation, he did belong to a hostile army. This is important later when I argue the relevance of his US citizenship.
In addition to this international law, the US has NO LAW forbidding foreign assassinations. We do, however, have a policy of not undertaking assassinations. Policy does not equal law.
The second component to this operation is that Yemen fully approved, and supported the killing of al-Awlaki. So no argument can be made that we violated the sovereignty of a foreign nation.
The other argument making its way around is that al-Awlaki’s killing was illegal because he was a US citizen. As such, an assassination order by the President of the United States would violate his constitutional right of due process. It should also be noted that al-Awlaki was not the only American killed in the attack.
Al-Awlaki’s ties to terrorism are not in dispute, his actual influence is. So can the president order his killing, or not?
8 U.S.C. § 1481 addresses the issue of US citizenship in situations like this.
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality -
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen
The law also addresses taking up arms against the United States in section 7. Considering al-Awlaki’s Yemeni citizenship, which does not recognize dual-citizenship, and his taking up arms against the US, it would appear that he renounced his US citizenship long ago.
Section 7 automatically revokes his citizenship because of his terrorist activities, but requires capture and tribunal. Since he was in Yemen, we revert to international law which permits his killing in order to prevent a further loss of life. More relevant is local Yemen law. Again, they assisted in the killing of al-Awlaki.
Is his killing a gray area? Only in the perpetually unrefined laws of US citizenship. Laws that most Americans agree need to be revamped, but the law nonetheless.
The only component missing to classify al-Awlaki as a non-citizen appears to be a mere formality of choreographed theater that would only serve to satisfy the selfish needs of third party citizens, not the parties directly involved. It’s pretty clear that al-Awlaki, the US, and Yemen were all on the same page.
Both al-Alwaki and Yemen agree that he is a citizen of Yemen. The US agrees that he revoked his citizenship. Who are you to swoop in and negate those facts?
The only sources of outcry appear to come from the ignorant, and those with a vested interest in ideological pacifism. Not from a position of morality or legality.
Ultimately, this is a debate that will fall upon opinion. If you think al-Awlaki’s killing was illegal, you’ll likely never change your mind. Same goes for those who think it was legally justified. Each individual will have to decide for themselves if international law, US law, or Yemeni law should reign supreme.
Of course, you can always consider al-Awlaki’s wishes too.