Criminalizing Extrajudicial Killings

Article excerpt

I. INTRODUCTION

If those who committed torture abroad come to the United States, they can be prosecuted as torturers, (1) or deported under human rights provisions of U.S. immigration law. (2) But our ability to criminally punish extrajudicial killings--often very closely linked to the crime of torture--is less. For example, if a state official commits an extrajudicial killing by torturing and ultimately killing an individual, and later comes into the jurisdiction of the United States, punishment options are limited to those described above. (3) Why is this?

There are a few reasons for the difficulty in bringing individuals that have committed extrajudicial killings to justice. The biggest obstacle is that an extrajudicial killing is not criminalized under international law in as broad a manner as torture. Even though torture seems less severe than death, torture is an action that is never excusable under international law. Yet states are permitted to intentionally kill individuals in a number of circumstances. They may execute them after due judicial process, they may incapacitate them in a valid exercise of law enforcement, or they may target them pursuant to the laws of armed conflict. Even the term "extrajudicial killing" does not perfectly reflect the situations in which a state may kill--war and law enforcement operations are both extrajudicial, yet killing is and should be permitted in both cases.

Nonetheless, even though intentional killing, unlike torture, can sometimes be lawfully done, there exists a vast class of killings committed by public officials of states that are done pursuant to or motivated by the same illiberal motives as torture: to suppress dissent, to eliminate political rivals, and to frighten civilian populations. These killings should be outlawed and prosecutors given the tools to fight them.

The primary goal of this paper is to suggest the adoption of a statute that criminalizes extrajudicial killing, one that may be based on an international convention. To do so, this paper defines the crime of these killings carefully, separating them from lawful exercises of force and distinguishing their illiberal and vindictive nature. First, this paper begins by providing a brief background on extrajudicial killings and torture, as well as the current failure of international criminal law to criminalize extrajudicial killings sufficiently. Next, this article analyzes a crime closely related to extrajudicial killing--the crime of torture--nearly three decades after the entry into force of the seminal human rights crime treaty, the Convention Against Torture ("CAT"). This convention may provide the model for a new international ban on killings. Finally, the article concludes with a proposed U.S. law criminalizing extrajudicial killings, whether underpinned by an international convention, or not.

Considering the differences between torture and extrajudicial killings, but taking account of their many similarities, this article analyzes whether the structure of the CAT can be adopted to suit the new, heretofore neglected, purpose of criminalizing extrajudicial killings through the creation of a new convention. This article determines whether the structure and provisions of CAT, successfully widely adopted by the international community, can be adapted into a convention for extrajudicial killing that has a strong likelihood both of being adopted by states, and effectively suppressing these illiberal killings. In conclusion, this article considers how to draft a domestic criminal law for the U.S., a statute that grants both jurisdiction and the ability to allow prosecutors to charge these types of criminals, whether or not a convention against extrajudicial is created.

II. THE STATUS QUO: THE CRIME OF TORTURE AND THE FACT OF KILLINGS

Both extrajudicial killing and torture had a place in the ancient world. Towards the end of the 20th century, however, there emerged a consensus that torture was not a legitimate tool of the state, and corresponding legal regimes followed. …