"Enthauptungsschläge"- ist das Töten von Staatsoberhäuptern illegal? - 500 Beiträge pro Seite

[Heizkessel]

Ich habe irgendwo mal gelesen, daß es in England gesetzlich verboten sein soll, ausländische Staatsoberhäupter zu töten. Ich habe mal einen Artikel gekürzt hier reingestellt. Leider nur in Englisch. Wer kennt sich mit dem Völkerrecht aus? Ist es völkerrechtlich illegal, mit Absicht "Enthauptungsschläge" durchzuführen? Wo ist die Grenze für solche Attentate?

Assassinating Saddam: The View From International Law
25 March 2001


With a new Iraqi crisis just around the corner - a crisis that may involve Baghdad`s newest weapons of mass destruction - President Bush will surely look with interest to enduring solutions. One such prospect will likely be the assassination of Saddam Hussein. Whether or not such high-level political killing would be in the overall best interests of the United States or its allies is certainly a vital question, but one I will now leave for others. The question to be considered here asks only if such assassination could be permissible under international law.
Understood as tyrannicide (killing a tyrant) within a country, assassination has often been accepted as lawful. Support for such a form of assassination can be found in Aristotle`s POLITICS, Plutarch`s LIVES, and Cicero`s DE OFFICIIS. According to Cicero: "There can be no such thing as fellowship with tyrants, nothing but bitter feud is possible: and it is not repugnant to nature to despoil, if you can, those whom it is a virtue to kill; nay, this pestilent and godless brood should be utterly banished from human society. For, as we amputate a limb in which the blood and the vital spirit have ceased to circulate, because it injures the rest of the body, so monsters, who under human guise, conceal the cruelty and ferocity of a wild beast, should be severed from the common body of humanity."

The 18th Century Swiss scholar, Emmerich Vattel, in his THE LAW OF NATIONS recalls "the essential object of civil society" is to "work in concert for the common good of all." Hence, he inquires: "Could the society make use of its authority to deliver irrevocably itself and all its members to the discretion of a cruel tyrant? Surely not, since it would lose all rights of its own if it undertook to oppress any part of the citizens. When, therefore, it confers the supreme and absolute power of government without express reserve, there is necessarily an implied reserve that the sovereign will use that power for the welfare of the people and not for their destruction. If he makes himself the scourge of the State, he disgraces himself; he becomes no better than a public enemy, against whom the Nation can and should defend itself. And, if he has carried his tyranny to the extreme, why should the life itself, of so cruel and faithless an enemy, be spared?"

[...]

In the 19th century, a principle of granting asylum to those whose crimes were "political" was established in Europe and in Latin America. This principle is known as the "political offense exception" to extradition. But a specific exemption from the protection of the political offense exception--in effect, an exception to the exception--was made for the assassins of heads of state and for attempted regicides. At the 1937 Convention for the Prevention and Repression of Terrorism, the murder of a head of state, or of any family member of a head of state, was formally designated as a criminal act of terrorism.

The so-called attentat clause, which resulted from an attempt on the life of French Emperor Napoleon III, and later widened in response to the assassination of President James Garfield in the U.S., limited the political offense exception in international law to preserve social order. Murder of a head of state or members of the head of state`s family was thus designated as a common crime, and this designation has been incorporated into Article 3 of the 1957 European Convention on Extradition. Yet, we are always reminded of the fundamental and ancient right to tyrannicide, especially in the post-Holocaust/post-Nuremberg world order. It follows that one could argue persuasively under international law that the right to tyrannicide is still overriding and that the specific prohibitions in international treaties are not always binding.

From the standpoint of international law, assassination can become an international crime (possibly an instance of terrorism), when it is carried out against a state official, by a national of the same state and within the territory of the state, only where the assassin flees to another state and requests for extradition are issued. If, however, the assassination is carried out by a national of another state, whether the location of the killing is the territory of the victim, the territory of the perpetrator or some other state altogether, it is immediately a matter of international law. Although, as we shall soon see, such an assassination is almost always a crime under international law it could conceivably be an instance of a very limited right of "humanitarian intervention." For this to be the case, however, it would be necessary, inter alia, that the victim had been guilty of egregious crimes against human rights, that these crimes were generally recognized and widely-documented, and that no other means existed to support the restoration of basic human rights.

To this point, we have been dealing with assassination as tyrannicide, with the killing of a head of state or high official by a national of the same state. We have seen that the support for such forms of assassination can be found in certain established traditions in political philosophy but that there is virtually no support in the prevailing international law of extradition. Although some treaties are vague enough that such assassination might be interpreted as a political offense, and therefore not subject to extradition requests, others subscribe to the attentat principle which provides a specific exception to the exception--in cases involving assassination of heads of state or their families.

Another possible line of support for assassination as tyrannicide can be extrapolated from the current international law of human rights. Despite the existence of a well-developed, and precisely codified regime of human rights protections, victims of human rights abuse in particular states have little, if any, redress under international law. Indeed, in the absence of an effective centralized enforcement capability, international law relies upon insurgency and humanitarian intervention as the ultimate guarantors of essential human rights. It follows that where humanitarian intervention cannot be reasonably expected, individuals within states have only themselves to provide for proper enforcement of their codified human rights.

What about "humanitarian intervention" and assassination? Can agents of one state legally assassinate officials of other states under the rules of humanitarian intervention? Or is such assassination always a self-evident violation of international law?

To a certain extent, the answers to these questions depend upon the absence or presence of a condition of belligerency (war) between the states involved. In the absence of this condition, assassination of political figures in another state may represent the crime of aggression or the crime of terrorism. Regarding aggression, Article 1 of the 1974 U.N. Resolution on the Definition of Aggression defines this crime, as ". . .the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition." In view of the binding rule of nonintervention codified in the Charter that would normally be violated by transnational assassination, such killing would generally qualify as aggression. Moreover, assuming that transnational assassination constitutes an example of "armed force," the criminalization, as aggression, of such activity may also be extrapolated from Article 2 of the Definition of Aggression: "The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances. . . ."

Let us now turn to the status of transnational assassination under international law when a condition of war exists between the states involved. According to Article 23(b) of the regulations annexed to Hague Convention IV of October 18, 1907, respecting the laws and customs of war on land: "It is especially forbidden. . . to kill or wound treacherously, individuals belonging to the hostile nation or army." U.S. Army Field Manual 27-10, THE LAW OF LAND WARFARE (1956), which has incorporated this prohibition, authoritatively links Hague Article 23(b) to assassination at Paragraph 31: "This article is construed as prohibiting assassination, proscription or outlawry of an enemy, or putting a price upon an enemy`s head, as well as offering a reward for an enemy `dead or alive.`"

From the point of the convergence between international and U.S. municipal law, the Hague Convention IV is a treaty of the United States that has received the advice and consent of the Senate and is, therefore, the "supreme law of the land" under Article 6 of the Constitution (the "Supremacy Clause" ). Indeed, even if Congress were to enact a statute that expressly repealed the rule found at Hague Regulation Article 23(b), that would not permit U.S. officials to legalize assassinations. This is because, among other things, the Nuremberg Tribunal (1945) expressly ruled that the obligations codified at the Hague Regulations had entered into customary international law as of 1939.

It appears, then, impossible for any state to legalize assassination, and the leaders of any recalcitrant state would be subject to prosecution (as hostes humani generis, "common enemies of mankind" ) in any state that claimed appropriate jurisdiction. Significantly, U.S. law recognizes and reinforces these obligations under international law. According to Paragraph 498 of Field Manual 27-10, any person, whether a member of the armed forces or a civilian, who commits an act that constitutes a crime under international law, is responsible for the crime and is liable to punishment. Paragraph 501 of the same Manual, based upon the well-known judgment of Japanese General Yamashita, stipulates that any U.S. government official who had actual knowledge, or should have had knowledge, that troops or other persons under his control were complicit in war crimes and failed to take necessary steps to protect the laws of war was guilty of a war crime. And Paragraph 510 denies the defense of "act of state" to such alleged criminals by providing that, though a person who committed an act constituting an international crime may have acted as head of state or as a responsible government official, he is not relieved, thereby, from responsibility for that act.

These facts notwithstanding, there are circumstances wherein the expectations of the authoritative human rights regime must override the ordinary prohibitions against transnational assassination--both the prohibitions concerning conditions of peace and conditions of war. The most apparent of such circumstances are those involving genocide and related crimes against humanity. If, after all, the assassination of a Hitler or a Pol Pot could save thousands or even millions of innocent people from torture and murder--it would be a far greater crime not to attempt such an assassination than to actually carry it out.

But let us be frank. Our real objection to Saddam Hussein has little or nothing to do with his brutal pre and post-war reigns of terror in Iraq. When Saddam destroyed large numbers of Kurds and other allegedly dissident Iraqis before and after his takeover of Kuwait, there was barely a murmur in Washington. Indeed, the first Bush administration and certain members of Congress deliberately overlooked these monstrous violations of human rights in the presumed interests of an American Realpolitik.

Why, precisely, might we now seek to rid the world of this particular tyrant? Since "humanitarian intervention" does not apply, what grounds for assassination, if any, exist under international law? To answer this question authoritatively, we should now consider the idea of assassination as anticipatory self-defense.

International law is not a suicide pact. The right of self-defense by forestalling an attack was already established by Hugo Grotius in Book II of THE LAW OF WAR AND PEACE in 1625. Recognizing the need for "present danger" and threatening behavior that is "imminent in a point of time," Grotius indicates that self defense is to be permitted not only after an attack has already been suffered, but also in advance - where "the deed may be anticipated." Or as he says a bit further on in the same chapter: "It be lawful to kill him who is preparing to kill...." Let us recall here also Pufendorf`s argument in ON THE DUTY OF MAN AND CITIZEN ACCORDING TO NATURAL LAW:


Where it is quite clear that the other is already planning an attack upon me, even though he has not yet fully revealed his intentions, it will be permitted at once to begin forcible self defense, and to anticipate him who is preparing mischief, provided that there be no hope that, when admonished in a friendly spirit, he may put off his hostile temper; or if such admonition be likely to injure our cause. Hence, he is to be regarded as the aggressor, who first conceived the wish to injure, and prepared himself to carry it out. But the excuse of self-defense will be his, who by quickness shall overpower his slower assailant. And for defense, it is not required that one receive the first blow, or merely avoid and parry those aimed at him.
But what particular strategies and tactics may be implemented as appropriate instances of anticipatory self-defense? Do they include assassination? The customary right of anticipatory self-defense has its modern origins in the Caroline incident, which concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule (a rebellion that aroused sympathy and support in the American border states). Following this case, the serious threat of armed attack has generally been taken to justify militarily defensive action. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then U.S. Secretary of State Daniel Webster outlined a framework for self-defense that did not require an actual attack. Here, military response to a threat was judged permissible so long as the danger posed was "instant, overwhelming, leaving no choice of means and no moment for deliberation."

Today, some scholars argue that the customary right of anticipatory self defense articulated by the Caroline has been overriden by the specific language at Article 51 of the UN Charter. In this view, Article 51 fashions a new and far more restrictive statement of self defense, one that does rely on the literal qualifications contained in the expression "if an armed attack occurs." This interpretation ignores that international law cannot compel a state to wait until it absorbs a devastating or even lethal first strike before acting to protect itself. The argument against the restrictive view of self defense is reinforced by the apparent weakness of the Security Council in offering collective security against an aggressor -a weakness that is especially apparent in the case of Iraq.

But we are still left with the problem of demonstrating that assassination can be construed, at least under certain very limited circumstances, as an appropriate expression of anticipatory self-defense. To an extent, the enhanced permissibility of anticipatory self defense that follows generally from the growing destructiveness of current weapons technologies may be paralleled by the enhanced permissibility of assassination as a particular preemptive strategy. Indeed, where assassination as anticipatory self-defense may actually prevent a nuclear or other highly destructive form of warfare, reasonableness dictates that it could represent distinctly or even especially law-enforcing behavior.

Of course, for this to be the case, a number of particular conditions would need to be satisfied. First, the assassination itself would have to be limited to the greatest extent possible to those authoritative persons in the prospective attacking state (in our deliberations, Saddam Hussein). Second, the assassination would have to conform to all of the settled rules of warfare as they concern discrimination, proportionality and military necessity. Third, the assassination would need to follow intelligence assessments that point, beyond a reasonable doubt, to preparations for unconventional or other forms of highly destructive warfare. And fourth, the assassination would need to be founded upon carefully-calculated judgments that it would, in fact, prevent the intended aggression, and that it would do so with substantially less harms to civilian populations than would alternative forms of anticipatory self-defense.

Should Saddam Hussein be assassinated? In view of the persistent failure of the international community to secure his compliance with indispensable Security Council expectations regarding weapons of mass destruction, the only alternative to such extreme methods might well be Iraqi aggression involving chemical, biological or nuclear arms. Unless we are willing to accept such aggression against certain other states in Saddam`s "neighborhood" (an acceptance that would not really be ours to offer), assassination of Saddam - however odious it might seem - would generally be the least injurious option.

It is often necessary, under international law, to offend certain norms in order to implement others. There are circumstances wherein assasination, usually regarded as a violation of myriad customary and conventional rules, represents the only impediment to Nuremberg-category crimes. These circumstances are important, and need to be considered carefully, in the ongoing matter of Saddam Hussein.

Abhorrent as it may seem, assassination does have a proper place in the enforcement of international law. To be sure, this place is small and residual, but it must be acknowledged nonetheless. Although an ideal world legal order would contain neither victims nor executioners, such an arrangement of global power and authority is assuredly not yet on the horizon.

Assasination, like war, will not simply go away. The point, therefore, is not to pretend and to manipulate, but to try to operate within clear constraints and jurisprudentially correct standards. Ideally, our leaders, in conjunction with others in the United Nations, would soon set to work on a "Draft Code" concerning assasssination. An expected outcome of such a codification effort, which would have substantial precedent in international law, could be a stricter regulation of assassination as a transnational activity and corollary reductions in associated peripheral harms (reductions bringing assassination within the ambit of humanitarian international law).

The only alternative is "business as usual," pretending that assassination is not a juridical matter of concern. Such pretense will not inhibit the incidence of assassination and it will ensure a continuing incapacity to bring such forms of killing under effective legal guideleines and controls. If we can accept that so intrinsically an ungovernable activity as war should be regulated by law, we should also be able to accept codified regulations for assassination.

In the matter of Saddam Hussein, assassination options should be conceived and deliberated very narrowly with respect to peremptory expectations of anticipatory self-defense. Its only proper function must be to save lives. Acknowledging that this is not yet the "best of all possible worlds," we must understand that sometimes the reluctance to use such seemingly extreme options would only produce more corpses.

http://www.tzemach.org/fyi/docs/beres/saddam.htm
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[Fanessa]

Nix für ungut, im Gegenteil,
aber der Satz:

"Ich habe irgendwo mal gelesen, daß es in England gesetzlich verboten sein soll, ausländische Staatsoberhäupter zu töten."

Würde im "Hohlspiegel" gar manchen zum Schmunzeln bringen,
impliziert das doch, dass dieser gesetzliche Schutz für die restlichen, lebenden 6 Mrd. Erdenbürger eben NICHT gilt. Das ist aber kein fair play; irgendwie unenglisch.

Fanny

[DBrix]

Für die meisten Ländern der Erde ist Mord in allen Fällen illegal.
In einigen weniger zivilisierten Gegenden (China, Saudi-Arabien, Teile der USA)
ist das Morden von Staats wegen noch zugelassen.

[Gul Dukat]

Man tötet aber kein Staatsoberhaupt, sondern den höchsten Militär des Landes Und als solcher will er auch gehalten werden. seine Uniform zieht er wohl nie aus ...