On the Sunday morning of 27 October, President Trump sent out a flurry of tweets, announcing to the world the death of one of the most hunted terrorists: ISIS leader Abu Bakr al-Baghdadi. The full detail of the assault is still emerging, as is expected with any covert operations. One thing is clear. The US and allies view al-Baghdadi’s killing as a positive news. I, however, think we should be cautious in uncritically celebrating his death. By this, I mean we should first assess this act of killing through a critical lens. In other words, we should ask: was this act of killing permissible?

In asking if any particular act of killing is permissible, we ask for the reason(s) that underpins that act of killing and assess if the reason is morally justified. Anyone can provide a reason for why she kills a person but what morally relevant is whether that reason stands up against scrutiny. And this is the first problem with al-Baghdadi’s killing, namely it’s not entirely clear what justification was given for this act of killing?

The first possible answer is to think of al-Baghdadi’s killing as the killing of a combatant. The International Humanitarian Law (IHL) allows for the killing of all combatants at any time during the conflict (this also commits supporters of this view to conceptualise the ‘war on ISIS’ as a conventional war). Insofar as al-Baghdadi was regarded as a combatant then it doesn’t matter what he was doing when he was killed. He was targeted and killed by virtue of his status as a combatant. This is very different to acts of killing taking place outside of the theatre of war which demand more stringent conditions of liability to defensive killing (those who reject the status-based account of killing in war as outlined by the orthodox view and the IHL are broadly called revisionists. I do not wish to get into this debate here so I’ll side with the IHL to keep things simple). Since combatants can be targeted and killed at random, al-Baghdadi could be targeted and killed even if he wasn’t participating in any attack (or planning on some). This seems to be the case as al-Baghdadi was ambushed in his own hiding place, with family members nearby.

But it’s doubtful whether al-Baghdadi and members of ISIS can be conceptualised as combatants. For one thing, they do not fulfil the requirements of being combatants (e.g. wear uniform, insignia, carry name tags, etc.). They even routinely violate the IHL by deliberately targeting civilians. In fact, the effectiveness of terrorism is inextricably linked to the intentional killing of innocent civilians. This is problematic since the granting of the combatant status is conditional on reciprocity. Combatants gain legal protection for what they do (e.g. the right to be humanely treated, the right not to be prosecuted insofar as their conduct conform to the IHL, etc.) but they also acquire certain duties (e.g. wear uniforms, insignia, respect the IHL, etc.). Since terrorists like al-Baghdadi violate all these duties, it’s not clear why they should be granted combatant status.

If al-Baghdadi was not a combatant then he could not be killed as one. This means that the IHL justification cannot work. Another possible justification is offered by the law enforcement model. Here, the justification would be that al-Baghdadi was a dangerous criminal and he needed to be captured to stand trial. But because he resisted arrest, and given how dangerous he was (if he was allowed to escape), he was eliminated. Dangerous criminals who resist arrest and pose a threat to the wider society if they escape can be stopped with lethal force. Initial reports of the operation suggest that this was indeed how it happened. The US Special Forces called for al-Baghdadi to surrender to which he refused. He was then chased and subsequently detonated his explosive vest. Admittedly, al-Baghdadi killed himself but even if he didn’t detonate his suicide vest, an argument could still be made that al-Baghdadi could be stopped with lethal force if that was the only way to stop him from escaping.

The question then becomes if this was actually a capture mission? The raid that killed Osama bin Laden was first reported as a capture mission but it later became clear that this was a kill mission. We should, of course, not draw any conclusion from this. Meanwhile, however, we should wait for further details of the al-Baghdadi raid to emerge (unofficial accounts are sometimes more reliable than official ones since no one from the administration would publicly claim that al-Baghdadi could have been captured at a later time without putting innocent lives at risk. Note that he killed three children with him when he died).

The exuberant language with which President Trump describes the death of al-Baghdadi casts doubt on the law enforcement justification (and whether this was a capture mission). Specifically, the President makes the argument that al-Baghdadi was eliminated for all the evil acts he committed. In short, the President appeals to a version of retributive justice as a justification. In this vein, al-Baghdadi was eliminated because that was the only fitting punishment for what he did. This is a problematic claim because even if al-Baghdadi deserved to die for his crimes, that punishment can only be decided in a fair trial. Criminal justice demands due process. This means that the offenders should be arrested, given a fair trial and, if found guilty, given the proportionate punishment (which might be capital punishment). By appealing to retributivism without-due-process, the retributivist argument advanced by President Trump loses its justificatory power. This is even more evident when the President told reporters: ‘last night was a great night for the US and the world. A brutal killer… has been violently eliminated’. The claim here is not that al-Baghdadi cannot be eliminated. Rather, it’s that this is something that should be decided in the court of law.

Anh Le

I’m a PhD researcher based at the University of Manchester. My research focuses on the ethical space between war and law enforcement.

Other interests include ethics of self-defence, all things Hannah Arendt’s and British Politics.

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