The U.S. military has released post-mortem photos of Odai and Qusai Hussein, the two sons of Saddam who were slain Tuesday. Since the pair were major political figures in Iraq, do their killings count as assassinations, which are prohibited by the United States?
Not even close. The prohibition dates back to President Gerald Ford, who issued a 1976 executive order banning political assassinations after embarrassing revelations about U.S. efforts to kill Fidel Castro. President Reagan extended the ban with Executive Order 12333. But that ban doesn't apply to combat situations. According to most accounts of the Mosul raid, the American soldiers were fired upon when they entered the house. The moment gunfire was exchanged, the operation became a combat engagement, and anyone involved in the hostilities was legally fair game.
Yet even if the Hussein brothers had not engaged the American forces, their killings still might not have qualified as assassinations. During wartime, it is generally acceptable to attack figures who are involved in military operations, and it is widely believed that Odai and Qusai were helping to coordinate resistance to the American occupation. As long as the brothers weren't killed by treacherous means—say, by luring them to a peace conference, then shooting them—they are legitimate targets. A close parallel is the 1943 killing of Japanese Adm. Isoruku Yamamoto, who planned the attack on Pearl Harbor. When U.S. aircraft * ambushed his plane, Yamamoto was the mission's sole target. However, because the admiral oversaw military operations against the United States at the time, the killing is generally not considered to have been an assassination.
Since Ford's order, the United States has occasionally targeted foreign heads of state for purposes of self-defense, most notably when American warplanes bombed Libyan leader Muammar Qaddafi's personal quarters in 1986. The attack was in retaliation for the Libyan-orchestrated bombing of a Berlin disco in which two U.S. soldiers were killed. According to the Reagan administration, the United States had the authority to launch an attack under Article 51 of the United Nations Charter, which states that nothing "shall impair the inherent right of individual or collective self-defence if an armed attack occurs." By this logic, Qaddafi was a combatant who was planning military operations and could be targeted just like Yamamoto.
A thornier question is whether the United States can legally kill terrorists, who lack formal affiliation with a particular nation. It's unclear whether war can be declared against a terrorist group, as opposed to a sovereign country, and that muddles the issue of what qualifies as combat or self-defense. But the ban on assassinations may be lax enough to render these concerns moot. Unlike a law passed by Congress, an executive order like 12333 can be amended by the president at any time. And since this one deals with national security, the president can make that change secretly.
The military claims that the publication of Odai's and Qusai's photos was necessary in order to prove to the Iraqi public that the pair were dead. But as Explainer noted in March, the Geneva Convention prohibits the public airing of pictures that might humiliate a combatant—the same justification the United States used to object to broadcasting interrogations of American POWs.
Explainer thanks Robert F. Turner of the University of Virginia School of Law.