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ASSASSINATION AND DISPLAY IN IRAQ:
THE KILLINGS OF UDAY AND QUSAI HUSSEIN IN INTERNATIONAL LAW

Professor Marjorie Cohn
Thomas Jefferson School of Law
JURIST Contributing Editor

Last week the US military assassinated Uday and Qusai Hussein in a villa in Mosul, Iraq. Hundreds of troops armed with automatic weapons, rockets, rocket-propelled grenades, and tow missiles, and dozens of vehicles and aircraft, attacked four people armed with AK-47 automatic rifles. Mustapha, the 14-year old son of Qusai, was also killed in the operation, along with another individual who was apparently a bodyguard.

The subsequent firestorm of media coverage momentarily diverted public attention from the Bush administation's failing Iraq war - its vain attempts to find any weapons of mass destruction or link between Saddam Hussein and Al Qaeda, the White House's admission that the President used false information in his State of the Union address, and the continuing deaths of American soldiers in an occupation with no end in sight.

The assassinations prompted chest-thumping and back-slapping all around. Even Senator Ted Kennedy joined British Prime Minister Tony Blair, The New York Times and the Washington Post, in congratulating Bush on the good news. Then, after reportedly reflecting on the pros and cons, Secretary of Defense Donald Rumsfeld gave the go-ahead to display the grisly photographs of the Hussein brothers' reconstructed bullet-riddled faces. The Pentagon didn稚 want to appear to be 堵loating, but Rumsfeld thought the photos would convince skeptical Iraqis that Uday and Qusai were indeed dead, which would reduce the attacks on U.S. troops and encourage informants to come forward without fear of retaliation by the old regime.

Both the targeted assassinations and the photographic display violated well-established principles of international law. Targeted, or political, assassinations are extrajudicial executions. They are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework. Extrajudicial executions are unlawful, even in armed conflict. In a 1998 report, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions noted that 兎xtrajudicial executions can never be justified under any circumstances, not even in time of war.

The International Covenant on Civil and Political Rights, a treaty ratified by the United States, prohibits the arbitrary denial of the right to life, a right so fundamental, there can be no derogation from it even in 鍍ime of public emergency which threatens the life of the nation." The U.N. General Assembly and Human Rights Commission, as well as Amnesty International, have all condemned extrajudicial executions.

After the Senate Select Committee on Intelligence disclosed in 1975 that the CIA had been involved in several murders or attempted murders of foreign leaders, President Gerald Ford issued an executive order banning assassinations. Although every succeeding president has renewed that order, the Clinton administration targeted Osama bin Laden in Afghanistan, but narrowly missed him.

In July 2001, the U.S. Ambassador to Israel denounced Israel痴 policy of targeted killings, or 菟reemptive operations. He said 鍍he United States government is very clearly on the record as against targeted assassinations. They are extrajudicial killings, and we do not support that.

Yet after September 11, former White House press secretary Ari Fleischer invited the killing of Saddam Hussein: 典he cost of one bullet, if the Iraqi people take it on themselves, is substantially less than the cost of war. Shortly thereafter, George W. Bush issued a secret directive, which authorized the CIA to target suspected terrorists for assassination when it would be impractical to capture them and when large-scale civilian casualties could be avoided. In November 2002, Bush reportedly authorized the CIA to assassinate a suspected Al Qaeda leader in Yemen. He and five traveling companions were killed in the hit, which Deputy Defense Secretary Paul Wolfowitz described as a 砺ery successful tactical operation.

Nearly sixty years ago, the U.S. government opposed the extrajudicial executions of Nazi officials who had committed genocide against millions of people. U.S. Supreme Court Justice Robert H. Jackson, who served as chief prosecutor at the Nuremberg War Crimes Tribunal, told President Harry Truman: 展e could execute or otherwise punish [the Nazi leaders] without a hearing. But undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would not set easily on the American conscience or be remembered by children with pride.

Americans should not feel pride in the public display of the gruesome photos of the assassinated Hussein brothers. The First Geneva Convention requires combatants to ensure that the dead are not despoiled. Reconstruction of their faces violates this treaty, which also provides that the dead be honorably interred; Islamic law requires immediate burial. When Iraqis displayed images of captured U.S. troops, Bush demanded that the POWs be treated humanely, and he warned that anyone who mistreated them would be tried for war crimes. But Bush didn稚 complain when American media outlets featured Iraqi prisoners down on their knees, blindfolded and handcuffed. What痴 good for the goose is good for the gander.

Uday and Qusai Hussein should have been arrested and tried in Iraqi courts or an international tribunal for their alleged crimes. George W. Bush cannot serve as judge, jury and executioner. This assassination creates a dangerous precedent, which could be used to justify the targeted killings of U.S. leaders. The display of the photographs may backfire and turn the brothers into martyrs who stood against the foreign invaders. It could also result in even more violence against U.S. troops.


Marjorie Cohn, a professor of law at Thomas Jefferson School of Law in San Diego, is executive vice president of the National Lawyers Guild.

July 29, 2003

CONTRIBUTING EDITOR

JURIST Contributing Editor Marjorie Cohn is a professor at Thomas Jefferson School of Law in San Diego, where she teaches Criminal Law, Criminal Procedure, Evidence, and International Human Rights Law. A news consultant for CBS News and a commentator for Court TV, she has co-authored a book on cameras in the courtroom with former CBS News Correspondent David Dow. Professor Cohn has also published articles about criminal justice, international human rights, U.S. foreign policy and impeachment. She is executive vice president of the National Lawyers Guild, editor of the Guild Practitioner and is on the Roster of Experts of the Institute for Public Accuracy. A criminal defense attorney at the trial and appellate levels for many years, Professor Cohn was also staff counsel to the California Agricultural Labor Relations Board. She has lectured at regional, national and international conferences, and was a legal observer in Iran on behalf of the International Association of Democratic Lawyers.

Professor Cohn is a graduate of Stanford University and the Santa Clara University School of Law.