Leaders Legitimate Targets, Experts Say

It is clearly legal for the United States to attempt to kill Iraqi President Saddam Hussein now that armed conflict has begun, international law experts said Thursday.

In turn, it would be legitimate under the laws of war for Iraqi soldiers to attempt to kill President Bush, the experts said.

“When you move into a state of recognized armed conflict -- and we clearly are there now -- and you are dealing with a head of state who has tactical control over his armed forces, he becomes a legitimate military target,” Duke University law professor Scott Silliman said.

Determining whether a head of state is a legitimate target “is not dependent on whether there was just cause or authorization for the war,” said Robert K. Goldman, an international law professor at American University in Washington.

Moreover, the legal standard is that there need not be a formal declaration of war for the laws of war to be applicable, Santa Clara University law professor Beth Van Schaack said. “What the law cares about is the factual situation on the ground. If there is an armed conflict, the laws of war are applicable.”

Silliman, who was an Air Force lawyer for many years, emphasized that the missile strike apparently aimed at Hussein and other Iraqi leaders Thursday presented a distinct contrast to any peacetime effort to kill a foreign leader, such as U.S. attempts to assassinate Cuban President Fidel Castro 40 years ago.

The U.S. has had a policy for nearly three decades prohibiting assassination of a foreign leader -- but that is not applicable during a war, Silliman said. Goldman, Van Schaack and UC Davis international law professor Diane Amann all agreed.

“The concept of assassination” has no relevance to a head of state once war has begun, Amann said.

Asked about the missile strikes, Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, said, “Leadership command and control is a legitimate target.”

The issue was also raised at White House spokesman Ari Fleischer’s briefing Thursday.

“Ari ... you assert that the United States has the right to target the Iraqi leader and his inner circle as part of command and control. Does that make the president and the White House a legitimate target of the Iraqis?” a reporter asked.

Fleischer responded: “You know, somebody, a reporter, asked me that question a few weeks ago, and my answer then is my answer now: You can tell anybody who wants to know the answer to that to get their own international lawyer; I won’t do it for them.”

Silliman said the one exception to the general rule that it is legal to kill a foreign head of state during wartime is that it cannot be done by stealth. For example, it would be illegal for an agent of the U.S. government to pose as a member of the International Red Cross in order to kill Hussein.

British Prime Minister Tony Blair, who also has sent his forces into battle, also is now a legitimate target, experts say.

Still, not all members of a warring state are legitimate targets, Van Schaack said. Although the secretary of Defense could be a target, those with purely civilian functions, such as the secretary of Health and Human Services or the secretary of the Interior, are exempt.

Sheik Jabbar al Ahmed al Sabah, the emir of Kuwait, also is not a legitimate target, even though he has allowed his nation to serve as a staging ground for the war. That’s because Kuwait is not considered a “belligerent” party, Silliman said.