Prosecuting Assassins in U.S. Courts

By Walsh, Brendon L. | The Review of Litigation, Spring 2019 | Go to article overview

Prosecuting Assassins in U.S. Courts


Walsh, Brendon L., The Review of Litigation


INTRODUCTION.................... 417

I. ASSASSINATION AND TARGETED KILLINGS.................... 418

II. LEGITIMACY OF THE TARGET.................... 420

A. Law of Armed Conflict Targets.................... 420

B. Article 51 or "Self-Defense" Targets.................... 425

C. International Human Rights Law Targets.................... 426

III.OPERATIONAL CONSIDERATIONS.................... 426

A. Wartime and Peacetime.................... 426

B. Intentionally.................... 427

C. Method or Means of Killing.................... 427

IV.PROSECUTION OF U.S. ARMED FORCES.................... 427

V. PROSECUTION OF U.S. NATIONALS.................... 429

A. Prosecution of Assassinations Conducted Domestically 430

B. Prosecution of Assassinations Conducted Abroad.................... 431

VI. PROSECUTION OF ENEMY COMBATANTS.................... 433

A. Prosecution of Privileged Combatants.................... 433

B. Prosecution of Unprivileged Combatants.................... 434

VII.PROSECUTION OF FOREIGN NATIONALS.................... 436

VIII. THE GAP BETWEEN THE POLICY DEFINITION OF ASSASSINATION AND PUNISHABLE OFFENSES.................... 437

CONCLUSION.................... 439

INTRODUCTION

Since there has been recorded warfare, there have been assassinations. The demise of Nicanor and Philip of Macedón at the hands of the emperor Chandragupta, the failed attempt on the Qin king's life in the Warring States period, and the assassination of Holofernes by the Israelites all illustrate that assassination was a pervasive tactic well before the modernization of war. The assassination of leaders by nonstate actors also has a lengthy history, with the actions of the Hebrew Sicarii against Roman military leaders and Hebrew public figures sympathetic to Roman aims beginning in the early years of the Common Era.

Despite this long history, the legal definition of assassination has long been disputed. This lack of definitive statutory language regarding assassination has contributed to a shortage of case law. Domestic courts seldom show interest in specifically prosecuting assassinations. This past April, after the poisoning of Kim Jong-nam in a Malaysian airport, Congress even hesitated to label this obviously targeted political killing as an assassination-referring to it instead as the "killing" of Kim Jong-nam.1

This paper will first explore the principal factors in identifying an assassination and distinguishing it from a permissible military operation under the Law of Armed Conflict (LOAC) and other international norms.2 After discussing these factors and establishing a baseline definition for an assassination under international law, this paper will examine the options for prosecuting assassins in U.S. courts based on the following identifying factors: the national identity and combatant status of the alleged assassin, and the location of the assassination. This paper will end by briefly discussing the potential gaps between the policy definition of assassination and the domestic criminal statutes available to prosecutors, and whether reexamination should take place in order to better align the criminal statutes available with public policy.

I. ASSASSINATION AND TARGETED KILLINGS

To start, a workable definition of assassination must be determined for use within this paper. While assassination is commonly understood as the murder of a famous person or political figure (e.g. the assassination of John Lennon), this definition is not legally accurate. As alluded to above, however, the legal definition of assassination is vague in itself. Notably, the definition of "terrorism" is another imprecise concept in national security. Unlike terrorism, however, assassination is an etymologically ancient term. The word assassin derives from an Arabic word that dates back to the 12th century,3 making the Jacobin origin of terrorism-and the more recent emergence of the contemporary international utility of the term-comparatively juvenile. …

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