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*[http://www.ejiltalk.org/on-preventive-killing/ Bhuta, Nehal (2015) On Preventive Killing, in: EJIL: Talk!] | *[http://www.ejiltalk.org/on-preventive-killing/ Bhuta, Nehal (2015) On Preventive Killing, in: EJIL: Talk!] | ||
:As Wilmhurst and Wood (AJIL 107:393-4) observed in response to Bethlehem’s note, the pin-prick theory remains controversial. But the framing of a series of planned terrorist attacks – far removed in this case from any territorially proximate armed conflict with a non-state armed group on the borders of the state claiming self-defence – is an extended version even of the pin-prick theory and goes beyond the concrete type of situation in respect of which it was invoked. As is well-known, the pin-prick theory had its origins in attempts by the US, Israel, Portugal and South Africa to justify what might otherwise have been a disproportionate use of force against national liberation movements or armed guerilla fighters operating across an adjoining international border (the US invoked this argument in respect of its claim to be engaged in collective self-defence on behalf of South Vietnam). To divorce the pin-prick theory from any dimension of territorial proximity and delimitation, seems to me to radicalize it in a way that dissolves any distinction between a domestic criminal act of terrorism (such the July 7, 2005 bombings in London or the 11 March, 2004 bombings in London) and a contribution to a casus belli under the jus ad bellum. Distinguishing between these two categories would become, then, a question of closely held intelligence about actual, planned, or perhaps even inchoately hoped-for attacks, making a state’s claims difficult if not impossible to objectively evaluate and verify. | :As Wilmhurst and Wood (AJIL 107:393-4) observed in response to Bethlehem’s note, the pin-prick theory remains controversial. But the framing of a series of planned terrorist attacks – far removed in this case from any territorially proximate armed conflict with a non-state armed group on the borders of the state claiming self-defence – is an extended version even of the pin-prick theory and goes beyond the concrete type of situation in respect of which it was invoked. As is well-known, the pin-prick theory had its origins in attempts by the US, Israel, Portugal and South Africa to justify what might otherwise have been a disproportionate use of force against national liberation movements or armed guerilla fighters operating across an adjoining international border (the US invoked this argument in respect of its claim to be engaged in collective self-defence on behalf of South Vietnam). To divorce the pin-prick theory from any dimension of territorial proximity and delimitation, seems to me to radicalize it in a way that dissolves any distinction between a domestic criminal act of terrorism (such the July 7, 2005 bombings in London or the 11 March, 2004 bombings in London) and a contribution to a casus belli under the jus ad bellum. Distinguishing between these two categories would become, then, a question of closely held intelligence about actual, planned, or perhaps even inchoately hoped-for attacks, making a state’s claims difficult if not impossible to objectively evaluate and verify. | ||
:The second debt to the Bethlehem principles (Principle 8) and the DOJ White Paper evident in the Prime Minister’s statement is an extended concept of imminence. The necessity of striking Khan is explained as the “only feasible means of effectively disrupting the attacks planned and directed by this individual.” Self-evidently, killing Khan was not the only way of disrupting his planned attacks because British security services are also stated to have foiled more than one attack on the UK or its allies. So the concept of imminence here is not in the sense of “interception” of an unfolding plot. Rather, the Prime Minister’s language intimates that killing Khan was necessary because it was the only way to stop him trying again. As such, evaluating the “imminence” of the threat posed by Khan would appear to be in the nature of a probabilistic risk assessment of his (high) propensity to plan and direct another terrorist attack in the UK; by virtue of his pattern of activity, his very continued life constituted an imminent risk. Also included in this extended concept of imminence is whether other opportunities to kill the target will present themselves, should he not be targeted now. The language of the DOJ White Paper is perhaps more explicit about this than the Bethlehem principles, but in my view they boil down to the same position: | |||
*Cox, Edward L. (2008) The Legality of U.S. Targeted Killings in the War on Terror. aufgerufen am 14.06.08 unter http://blog.left-handedelephant.com/wp-content/uploads/2008/06/the-legality-of-targeted-killings.pdf | *Cox, Edward L. (2008) The Legality of U.S. Targeted Killings in the War on Terror. aufgerufen am 14.06.08 unter http://blog.left-handedelephant.com/wp-content/uploads/2008/06/the-legality-of-targeted-killings.pdf | ||
*David, Steven R. (2002) Targeted Killing has its Place. Los Angeles Times, 25.07., S. 13. | *David, Steven R. (2002) Targeted Killing has its Place. Los Angeles Times, 25.07., S. 13. | ||