Targeted Killings: How Precedents Can Become Practice – Analysis

By Col. (Dr) D.P.K. Pillay*

On November 27, 2020, Mohsen Fakhrizadeh, a Brigadier in the elite Islamic Revolutionary Guard Corps (IRGC) and a nuclear scientist who was heading the Iranian Research and Innovation Organisation, was killed through a remotely operated machine gun from a self-destructing truck. His death follows the killing of the charismatic and popular head of the IRGC, Gen. Qassem Soleimani, by a drone strike outside the Baghdad airport earlier in the year.

The elimination of such a high value target did not quite elicit a major retaliation by Iran.1 Iran insisted that despite repeated provocations, its restraint should not be seen as a sign of weakness. It does, however, beg the question whether their policy of ‘strategic patience’ was a sign of demoralisation, given the ease with which such high-profile targets were eliminated.2

Historical context

Targeted killing involves the intentional and deliberate use of lethal force, with a degree of pre-meditation, acting under authority of domestic law, against an individual or individuals who are not in the physical custody of the perpetrator.3 These acts are committed by governments and their agents in times of peace as well as during armed conflict. The methods used to kill from stand-off ranges include snipers, missiles, gunships, drones, car bombs, or even poison in closer proximity. Even if complex operational planning is required to eliminate targets, there are increasingly fewer risks to the human assets of the targeting state.

One of the most famous cases of targeted killing remains the operation apparently authorised by the then Israeli Prime Minister, Golda Meir, following the massacre of Israeli Olympic athletes in Munich in 1972. It is reported that nine out of the 11 members of the Palestinian group, Black September, who were apparently involved in the massacre, were killed by Israeli agents. The term gained further prominence after Israel made public its policy of ‘targeted killings’ in the Supreme Court, following a lawsuit against its policies in the Palestinian territories.4

The US Central Intelligence Agency (CIA) was engaged in efforts to assassinate several high value targets like Che Guevara, as well as Patrice Lumumba of the Congo and Fidel Castro.5 US President Gerald Ford issued an executive order in 1976 prohibiting the assassination, or conspiring to commit assassination, by employees of the US government, including those acting on its behalf. This executive order established a global consensus that targeted killing and assassinations were unacceptable.6

The US policy changed after the September 2001 terror attacks. ‘Predator’ and ‘Reaper’ drones, special operations forces and even civilian contractors, were used to carry out targeted killings in Afghanistan and in places like Yemen. The first ‘sanctioned’ killing was in November 2002, when Qaed Senyan al-Harithi, an al-Qaeda leader responsible for the USS Cole bombing, was hit by a Predator drone in Yemen.7

The legality of ‘targeted killing’

The targeted killing of individuals identified as threats to the security of a nation state are, at best, contentious. Pre-emptive targeted killings have been pursued by nation states as a viable policy option within the framework of the laws governing armed conflict, as a legitimate response to ‘terrorist’ threats and challenges of ‘asymmetric warfare’. The US government, for instance, justified its policy of targeted killings as flowing from right to self-defence, as the country was in an armed conflict with terrorist groups like the al Qaeda.

Whether or not a specific targeted killing is legal depends on the context in which it is conducted. Article 51 of the UN Charter allows states to act in self-defence.8 International humanitarian law (IHL) lets states take necessary steps to protect themselves. As per IHL, targeted killing is lawful when the target is a ‘combatant’ or ‘fighter’ or, if a civilian, only for such time as that person ‘directly participates in hostilities.’9

Given the principle of militarily necessity and proportionality, any anticipated military advantage has to be weighed against the purported harm to civilians. IHL does not permit reprisal or punitive attacks on civilians and will apply regardless of whether the armed conflict is between states (an international armed conflict) or between a state and a non-state armed group (non-international armed conflict), including with alleged terrorists.

Offensive actions such as targeted assassinations raise ethical questions but terrorism is a form of war — and in war, enemies can be attacked. While targeted killing could be considered as an option against terrorism, executed either within that nation state, or across borders, it should be within the ambit of international law.

India’s options

India has not been immune to the targeting of senior scientists working in sensitive positions by inimical forces. If the admissions of former CIA operatives are to be believed, the deaths of Indian scientists, Homi Bhabha (who was killed in a mid-air explosion aboard Air India 101 in 1965 10) and Vikram Sarabhai (killed at a beach resort in Kovalam in 1971 11), can be attributed to foreign agents intending to derail the country’s space and nuclear programmes.

Pakistan and China have provided shelter and support to trans-border terrorist activities. Dawood Ibrahim, India’s most wanted, along with designated terrorists like Hafiz Saeed and Masood Azhar, have all found safe haven in Pakistan. China has consistently supported and shielded Pakistan in international forums in this regard as well.12 If measures to extradite such individuals and bring them to justice for their misdeeds are not successful, then punitive strikes to take out the targets should be considered.

If India has to execute extra-territorial targeted killings, it should credibly establish that its intelligence inputs are based on a high degree of certainty, with failsafe procedures for confirming the targets. Utmost care should be taken to minimise civilian casualties. In the eventuality of drone attacks and airstrikes, decision makers on the ground should be able to abort or suspend the attack, if it comes to light that the collateral loss of life or property damage is in excess of the original assessment.

It is not as if Indian forces are incapable of executing high profile operations. Unconfirmed rumours have long held that the exploding consignment of mangoes in Pakistani dictator, Gen. Zia ul-Haq’s plane, was delivered by Indian agents.13 More recently, the interception of a high profile West Asian personality in Indian territorial waters, was successfully executed.14

Given the experience of Balakot airstrikes in February 2019 and the subsequent incident of fratricidal shooting down of an IAF helicopter in the fog of war that followed the shooting down of Wg.Cdr. Abhinandan’s MIG -21, the imperatives of maintaining the robustness of information flow in real time, cannot be over emphasised.

The concept of targeted killing to gain military advantage is not alien to Indian statecraft. In the Ramayana, for instance, Rama eliminates Bali to gain a strategic alliance with Sugreeva, in his war with Ravana. Ancient texts like Arthashashtra prescribe elimination of threats before they become tangible. They also prescribe the creation of a cadre of assassins.15

Eliminating inimical people bent on wrecking death and destruction on Indian nationals and interests, before they execute their evil intent, is an option India may explore more vigorously, within the confines of international law.

Views expressed are of the author and do not necessarily reflect the views of the Manohar Parrikar IDSA or of the Government of India.

*About the author: Col. (Dr) D.P.K. Pillay, SC is Research Fellow at the Manohar Parrikar Institute for Defence Studies and Analyses, New Delhi

Source: This article was published by Manohar Parrikar IDSA

• 1.Iran did fire about a dozen ballistic missiles at two Iraqi military bases housing US troops in Erbil and Ain -al Assad. Meg Wagner, Ivana Kottasová, Mike Hayes, Veronica Rocha and Fernando Alfonso III, “Iran attacks bases housing US troops,” January 9, 2020.
• 2.“US-Iran tensions: Timeline of events leading to Soleimani killing”, Al Jazeera, January 8, 2020.
• 3.“Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston,” United Nations General Assembly, Human Rights Council. May 29, 2010.
• 4.“Israel: The targeted killings case,” International Committee of the Red Cross, 2006; “Israeli targeted killings in Gaza and beyond: A timeline,” Al Jazeera, November 12, 2018.
• 5.Georges Nzongola-Ntalaja, “Patrice Lumumba: The most important assassination of the 20th century,” January 17, 2011; “Summary of facts: Investigation of CIA involvement in plans to assassinate foreign leaders,” Ford Library Museum, May 6, 1975.
• 6.“President Gerald R. Ford’s Executive Order 11905: United States Foreign Intelligence Activities,” February 18, 1976; Also see Andris Banka and Adam Quinn, “Killing norms softly: US targeted killing, quasi-secrecy and the assassination ban,” Security Studies, 27(4), July 2018, pp. 665-703.
• 7.John Diamond and Dave Moniz, “Missile takes out Cole attack suspect,” USA Today, November 5, 2002.
• 8.“Chapter VII: Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression,” Repertory of Practice of United Nations Organs.
• 9.“Direct participation in hostilities,” International Committee of the Red Cross.
• 10.Srinivas Laxman, “Operative spoke of CIA hand in 1966 crash: Report,” The Times of India, July 30, 2017.
• 11.“Mystery behind Vikram Sarabhai’s death,” The Times of India, November 30, 2008.
• 12.“China not committed to curbing terrorism but using Pakistan as tool against India: Report,” The Economic Times, October 23, 2020.
• 13.Mehmal Sarfaraza, “A case of exploding mangoes and nerve gas that ‘brought down’ Zia’s plane,” The Hindu, February 23, 2020
• 14.Jyoti Malhotra, “By returning Dubai princess Latifa, India’s hard-nosed realism paid off. But at what cost?” The Print, March 10, 2020.
• 15.The Arthashastra recommended that the Emperor needed to assassinate potential threats and needed operatives who were not just men but women (Vish Kanyas) trained to seduce, lure and kill.