New York University Public Law and Legal Theory Working Papers

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This paper casts doubt on the prospects for legitimizing what is known as “targeted killing” - the use of assassins, death squads, or other murderous techniques - against identified civilians whose continued existence is thought to pose a serious threat of some kind to a given community and its members. We are familiar with the use of such techniques by Israel against Palestinian terrorists and also by the United States against Taliban and other jihadist leaders in Afghanistan and Pakistan. Many other countries use death squads against internal and external enemies, but do not seek to sanitize their characterization with the terminology of “targeted killing.” Whatever the terminology, my paper considers whether these actions could possibly be supported by “neutral principles” of the kind that figure in most accounts of ius in bello - i.e. principles (like the principle requiring discrimination between military and civilian targets) that can be used by both sides and whose use and application does not presuppose judgments about who is waging a just war etc. In particular I examine the prospect of abuse of such principles, not only by our enemies but also by our own governments. We have to imagine, based on our experience over the past 50 years - how our governments would be likely to use such powers - or how they would have been likely to use such powers in the past if they had been endowed with them. In other words, the paper considers how war, the management of insurgency, the pursuit of national security, and international relations generally might be transformed by licensing every government to arrange for the killing of named civilians (either its own citizens or foreigners) whose existence it regards as particularly threatening. It argues that the potential for abuse is inherent in principles of the sort that are envisaged to legitimaze targeted killing. And it puts forward the proposition that arguments of the sort that philosophers and lawyers bring forth to justify such principles are particularly troubling, inasmuch as they represent an unraveling of the central norm against killing on the basis of dubious analogy and moral opportunism.

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