The law gives license to belligerents to shoot and bomb each other with legal impunity. When a legitimate combatant (i.e., a member of the military within a chain of command, who wears a uniform with rank insignia and carries arms openly) slays his foe, he is not committing a crime. His lethal activity is neither “assassination” nor “murder,” nor is it an offense to the customary and codified rules of international law. In short, all enemy combatants are lawful “targets,” including commanders in chief.
The president of Iraq is the uniformed commander of all Iraqi forces, as well as a head of state. As the No. 1 military man in Iraq, he is, in military jargon, the most “lucrative” of targets for the allied coalition in the gulf war. It could be argued that his death or capture would bring the Iraqi defiance of U.N. mandates to a stunning and abrupt halt. At a minimum, Saddam’s removal from the scene would disable his country’s command structure.
President Bush and others have said the coalition has not singled out the enemy’s commander as an assigned target. In Mr. Bush’s words, “We’re not in the business of targeting Saddam Hussein,” but “no one will weep when he’s gone.” And as recently as last week at a news conference the president made the point again, saying, “There would be no sorrow if he’s not there.” Defense officials have said they would be pleased if Saddam happened to be in the vicinity of an exploding bomb directed at an appropriately anonymous objective, like a command-and-communications bunker.
Perhaps all this fastidious language about how Saddam might be killed serves some political ends. The explicit targeting of an individual combatant, no matter how venal that individual appears to be, could offend the American public’s sense of morality. Or, some of the allies might still hope that Saddam’s survival will actually further a postwar return to normality. Or, as a number of observers have already suggested, his death could trigger long-term destabilization, revolution or a greater war throughout the gulf region. But, given the environmental catastrophe, i.e., the poisoning of the gulf, the administration could reach a political determination that the targeting of Saddam is now appropriate. Even before the onset of “environmental terrorism,” the president admonished Iraq repeatedly about the specter of war-crimes trials, which of course, likely would end with the execution of Saddam. The Army recently announced the mobilization of reserve war-crimes investigation units. Meanwhile, a parade of spokespersons has wished out loud for Saddam’s demise. But the United States does not have to wait for a trial. From a legal point of view, there is no difference in bombing the Republican Guard and aiming for its leader; and targeting Saddam would be consistent with the U.N. resolutions.
But there seems to be substantial confusion about going after Saddam. Last month, Secretary of Defense Dick Cheney turned aside a question about targeting Saddam and voiced a general distaste for “assassination.” The preoccupation with assassination stems from President Reagan’s Executive Order 12333, which reiterated the U.S. policy against the practice of assassinating foreign nationals in covert operations. According to a 1989 government opinion, the order does not apply to the attack of enemy military officers in time of war. We’re at war now. The law says that Saddam Hussein, commander in chief of all Iraqi forces, is a legitimate target for any form of military action his enemy elects to take, whether he is killed on the battlefield or in his bathtub. As the Senate Intelligence Committee staff concluded last month, “When you are dealing with someone who’s wearing a military uniform and is the commander of the other side’s forces, you can kill him during a war and that’s not assassination.”
In fact, American forces and U.S. allies have targeted high-ranking enemies before. The ambush by Army Air Force pilots of Japanese Combined Fleet Adm. Isoroku Yamamoto (the architect of the Pearl Harbor raid) on April 18, 1943, offers a useful precedent. After the Navy intercepted and decoded a message indicating Yamamoto’s flight plan, the Air Force launched P-38 aircraft to intercept and shoot down the admiral. This successful mission, against a named individual, was well within the bounds of the law of war. Likewise, the unsuccessful Nov. 18, 1941, British commando raid against Field Marshal Erwin Rommel’s Libyan headquarters was lawful. A decision to order a specific mission against Saddam would be consistent with international law. And, as Iraq’s violations of all applicable conventions mount, the arguments to do so become more compelling.
