The very murky legal world when Australia wants to kill the “enemy”

My story in Crikey this week that alleged Australian soldiers are involved in the targeted killings of “terrorists” in Afghanistan and beyond has already drawn predictable hysteria from men who can’t think of anything better than a long and glorious “war on terror” against “them”.

A more mature response has appeared by Ben Saul, Sydney University’s Law Professor, though there is a virtual absence of any discussion over state terrorism, a far more serious threat than the rest:

A recent report that Australians may be involved in covert missions for a multinational counter-terrorism centre in Paris, Alliance Base, raises questions of law and accountability.

Little is known about the operations, such as whether they include killing suspected terrorists or whether Australians or their government are involved.

One hopes that allegations of Australian involvement in “assassinations” are not true. As one who specialises in the law of war, I am not aware of any such official role by Australian forces and it would be contrary to their rules of engagement. Of course, it is hard to know what private citizens, including former soldiers, may get up to when working overseas, including working as mercenaries or for foreign armies.

Whatever the truth of the report, it raises a broader public interest question of when it may be lawful to kill suspected terrorists. Their lawfulness of such killings depends on who is involved, who they work for, what they do, and where they act. If Alliance Base is simply coordinating western counter-terrorism intelligence sharing and training by national agencies (such as the CIA and Australia’s ASIS or military intelligence), then legal concerns would be fairly limited.

Intelligence cooperation must ensure, for instance, that privacy laws are not violated by the sharing of information obtained by surveillance in one jurisdiction with foreign agencies. Cooperation must not encourage or condone the obtaining of evidence by torture, or share evidence where it would expose a person to death or torture elsewhere.

If, however, Alliance Base is also involved in operations in the field, such as “assassinations” or the killing of terrorists, the legal questions become more acute. Would such operations be lawful killings – or illegal, extrajudicial assassinations? The answer depends on four key factors under the law of armed conflict.

First, the location and context of a killing matters. There is only a “license to kill” where an “armed conflict” exists – as in Afghanistan, where there are ongoing hostilities against Al Qaeda and the Taliban. Outside the theatre of hostilities, there is no lawful authority to kill (other than in the strict circumstances of self-defence under criminal law). That means, for instance, that killing suspected terrorists outside a war zone – whether in Dubai, or on an Australian street – could rightly be called an illegal, extrajudicial “assassination”.

Second, if the killings take place in an armed conflict, the target matters. A person who takes a “direct part” in hostilities can be attacked for so long as they participate in the fighting. Ordinarily “direct” participation means acts of physical violence against an adversary or civilians. That means “terrorists” can be targeted when mounting such attacks, or when immediately preparing attacks by, for example, placing explosives or rockets. Strong evidence of such participation is also needed before they are targeted.

But not any terrorist can be killed. Merely being a “member” of terrorist organisation, financing or recruiting terrorists, or providing political or spiritual leadership does not equate to “direct” fighting. Such acts may indeed be necessary to sustain the fighting capacity of the organisation, but they are not so dangerous in a direct military sense as to justify killing.

For the same reason, it is not lawful for an enemy to kill Australian taxpayers just because they finance our military, or to kill the Australian Prime Minister because she ultimately orders soldiers into battle. To so widen the zone of who may be killed is to go down the path of total war, where any civilian becomes fair game because they contribute to the war effort.

The law accordingly seeks to minimise civilian harm by distinguishing between those who pose an immediate risk of violence and those who provide indirect support for it. The latter can be dealt with through other, less violent means, such as through arrest and prosecution for terrorist crimes, or even by using emergency powers of administrative detention.

Third, only certain people enjoy a legal “privilege” or authority to lawfully kill on behalf of governments in war. Regular, uniformed members of national armed forces, acting for a government, may fight. So too may certain irregular forces belonging to a government, where the fighters wear a uniform or emblem, carry weapons openly, and respect the laws of war.

But a central requirement is always this: the legal authority of governments to fight wars is an essential characteristic of state power and sovereign responsibility. It cannot therefore be delegated or contracted out to private actors, including military personnel acting in a personal capacity, for profit or otherwise, for a foreign entity.

It is thus unlawful to use mercenaries to fight wars on our behalf, or to authorise “private security contractors” to perform combat functions. It is also unlawful to knowingly authorise another government to use one’s own forces to carry out unlawful acts.

Finally, anyone targeting terrorists must fight fairly and within the rules of combat. That means that those attempting to kill terrorists cannot, for instance, conceal themselves in civilian clothes while carrying out the attack, or use prohibited weapons (such as poison). Detainees must not be tortured and must be treated humanely and given access to the courts.

In sum, the legality of Alliance Base’s operations would depend on who is killing whom, on whose behalf, and where. As with president Obama’s drone wars in Pakistan or Israel’s targeted killings in Palestine, few of the legal or accountability questions can be adequately answered unless the public is provided with much more information.

Who is on the target lists and why? Where are they killed? Are Australians involved and in what capacity? Is it authorised by government? Are governments unlawfully assassinating people in our name – or are they only doing what is necessary, within the law, to ensure our safety? Australia’s answer is likely simple: we never assassinate, and we fight within the law.

Associate Professor Ben Saul is director of the Sydney Centre for International Law at the University of Sydney and a barrister.

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