Summary Judgment

When are extra-judicial killings justified?

What is the legitimate purpose of the nation-state? Surely its chief function is to protect the lives and property of its citizens. At least that's the best justification for taxing citizens to support a police force and courts and a military. "Nation-state" is in many ways a fancy term for what is essentially a tribe with a flag. The police are supposed to catch and the courts to punish tribe members who violate personal and property rights of their fellow tribe members. The relatively modern innovation of police and courts has the salutary effect of derailing the ever-escalating blood-feuds that bedeviled earlier tribes. Meanwhile the military is supposed to stomp on tribes who attack or threaten the home tribe. But what about attacks on the life and property of tribe members by outsiders who are not sponsored by another tribe? Non-state freelance aggressors, if you will.

Of course, non-state freelance aggressors usually justify their actions as defending their tribes' interests from earlier aggression by the tribe they are attacking. After all, it is said that "one man's terrorist is another man's freedom fighter." Surely, the Irish Republican Army, the Basques' Euzkadi Ta Askatasuna, Maoist rebels in Nepal, the Islamist Abu Sayyaf in the Philippines, and more, all argue that they are fighting to defend their own tribes' interests.

Without judging the merits of their causes (though I certainly do), such groups of non-state aggressors have claimed for themselves the right to engage in what has been called "extra-judicial killing." That is, to kill people without any official determination of their personal guilt or innocence. In fact, since many of these groups regularly explode bombs in public places, they claim the right to kill people who are personally innocent or whose only "crime" is that they belong to the wrong tribe.

Earlier this week, the United States blocked the United Nations' Security Council from condemning Israel's killing of Hamas leader Sheik Ahmed Yassin. Annoyed, Gunter Pleuger, Germany's envoy to the UN, asserted, "Germany as well as the European Union have always strongly opposed extra-judicial killings. They are, in my government's view, unacceptable." Never mind that the EU rarely protests the extra-judicial killings of Israeli citizens by suicide bombers.

So when are extra-judicial killings acceptable, if ever? Although, our former and current foreign affairs, intelligence, and military officials are busily trying to exonerate themselves for failing to stop the 9/11 atrocities, they all admit that both the Clinton and Bush Administrations were considering ways to extra-judicially kill Osama bin Laden. If Osama bin Laden had been killed in 1998 by the air strikes on his Afghanistan training camps ordered by President Clinton, the World Trade Center towers could well still be standing. In any case, the U.S. resorted to judicial proceeding against bin Laden later in 1998, when a U.S. Federal grand jury did indict him for the murders of 244 people who died when the American embassies in Kenya and Tanzania were bombed by his confederates.

Most of us are rightly concerned about giving the power to determine whether or not to kill someone who poses a grave threat to U.S. security to shadowy and largely unaccountable intelligence and military officials. Of course, if non-state aggressors are captured inside our borders, they are subject to our normal judicial process. For those beyond our borders, why not adapt the judicial innovations of the modern civilized nation-states to handle them? For example, we could establish a formal transparent judicial procedure, perhaps a special court, in which non-state freelance aggressors accused of murder can be tried and if found guilty, convicted in absentia. If convicted, federal agents, including, most especially, the military would be duly authorized to capture or even kill the killer. Other nation-states may not agree with our determinations, but they would be open for all the world to scrutinize. This may sound utopian, but what's the alternative? Unending global blood-feuds?