JURIST Guest Columnist Kevin Govern of Ave Maria School of Law says that the death of Muammar Gaddafi and one of his sons exemplifies an emerging trend towards the use of targeted and extrajudicial killings instead of attempts to capture and prosecute…

The death of Libyan leader Muammar Gaddafi officially brought his rule to an end on October 20, 2011. This was met with the acclaim of governments around the world and the relief of the Libyan people. Apparently injured during a combined NATO aircraft and US Predator drone strike on his convoy in Sirte, Gaddafi was then captured by National Transitional Council (NTC) rebels and subsequently killed. Reports from NTC officials also confirmed Gaddafi’s son Muatassim was killed in Sirte.

It has been a continuing political and legal trend to kill, rather than capture, those suspected of terrorism. Since the death of Osama Bin Laden, this trend has been strongly influencing international responses to terrorism as well as that in the US. Significantly, on May 16, 2011, the UK House of Commons indicated that the Bin Laden killing portends not only US trends, but also an emergent international political and operational orientation towards intractable terrorist regimes and individuals. The House of Commons Library recently prepared a report charting future politico-military and legal approaches to terrorism, noting that Bin Laden’s “targeted killing” had “significant implications” for how the US and other countries deal with terrorist suspects. Such methods could be seen to be “accepted politically,” it argues, with a trend in customary international law emerging with the “wider implication … that the killing may be seen as a precedent for targeted killings of individuals by any state, across international boundaries, at least where terrorism is involved. The more states act in this way, the more likely it is to become accepted, at least politically if not as a matter of international law.” This trend towards killing instead of capturing following the death of Bin Laden is seen in the targeted killings of Anwar al-Awlaqi, Samir Khan, Ibrahim al-Bana and Al Abdul-Rahman al-Awlaqi.

The forces targeting Gaddafi acted under Chapter VII of the UN Charter, using force under the guise of UN Security Council Resolution 1973 and UN Security Council Resolution 2009 rather than seeking prosecution using warrant-based targeting to bring terrorists to justice before a domestic tribunal or the International Criminal Court (ICC). The UN-authorized intervention in Libya allowed UN member states to “take all necessary measures … to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya.” Much of the over $1 billion invested by the US in Operation Odyssey Dawn missions have been used to carry out 7,725 air sorties. This is including more than 145 predator drone strikes, such as the ones on Gaddafi’s convoy that set the conditions for his demise. This brought to fruition what President Ronald Reagan had attempted with the 1986 Operation El Dorado Canyon retaliatory strikes on Libyan command and control structures, which killed Gaddafi’s adopted daughter.

Another example of this is the fact that President Obama has authorized nearly four times the number of targeted killings in Pakistan in his first two years in office as President Bush did in his eight years. This trend includes drone strikes and special operations raids. These have increased from 675 covert raids in 2009 to 1,879 so far this year. Pentagon reports have found that approximately 84 to 86 percent of these night raids end without violence. NATO reports further clarify those ambiguous statistics, stating that in such raids, the target is successfully killed or captured 50 to 60 percent of the time.

According to media accounts of attacks, between 1,100 and 1,800 militants have been targeted since 2009. This of course does not account for casualties not involving deaths. Under this escalation of targeted killings, some 1,100 militants and non-combatant civilian deaths may have occurred in Pakistan alone. As conventional US forces begin to draw down and redeploy to their home stations from Iraq and Afghanistan, “the role of counterterrorism operations, and in particular these kinds of special missions, will become prominent,” according to International Security Assistance Force (ISAF) commander General John Allen.

The way ahead seems distantly removed from the peaceful deposing of dictators, as has occurred during the Arab Spring. Extensive tracking, investigation and a lengthy trials process for trying tyrants and terrorists may be supplanted by the trend of foreign intervention, targeted killings and domestic extrajudicial sanctions, as was seen with Osama Bin Laden’s death and those that followed. Who will be next in this cycle of expedient justice?

Kevin Govern is an Associate Professor of Law at Ave Maria School of Law. He began his legal career as a US Army Judge Advocate. He has also served as an assistant professor of law at the United States Military Academy and has taught at California University of Pennsylvania. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the US government, Department of Defense or Ave Maria School of Law.

Suggested citation: Kevin Govern, Expedited Justice: Gaddafi’s Death and the Rise of Targeted Killings, JURIST – Forum, Oct. 25, 2011, http://jurist.org/forum/2011/10/expedited-justice-the-trend-to-kill-over-capture.php.