the President of the
The objective of
this paper is to provide legal analysis and an answer to a hypothetical, yet
plausible scenario, in which the President of the
Part I of this
paper answers the question of whether the President has the power to order a
political assassination of a hostile foreign leader in furtherance of
Part II analyzes the potential consequences the President would face for ordering an assassination. It concludes that, in times of peace, an assassination order will likely never be issued due to the potential political backlash the executive would face. Part II also considers if executive immunity can shield the President for any charges faced in both times of peace and war, concluding that if the assassination is deemed a criminal offense, the President is not shielded by immunity. Part II then analyzes this power within the rules of armed conflict and discuss how the President as commander in chief may be more prone to order an assassination during armed hostilities, but must stay within the boundaries of long held principles of international law synonymous with the rules of war.
Finally, part III puts the President’s power to order assassinations within the context of the War Crimes Act of 1996, concluding that the War Crimes Act, by incorporating principles of international law into the federal legal system, can serve as a potential obstacle to the use of assassinations by holding the President criminally liable under federal law. Part III analyzes whether an assassination violates the War Crimes Act of 1996 if it does not take place within the context of an armed conflict. Finally, Part III looks into some of the potential defenses to a prima facie charge of a violation of the War Crimes Act, particularly examining the long held principles of self-defense under international law, determining if these defenses would absolve the President of any criminal liability.
Can the U.S.
President legally order the assassination of a foreign leader openly hostile to
(a) The power to order assassinations rests with the executive
What branch of
government is entrusted with the power to order assassinations? The Constitution makes the
President the "Commander in Chief" of the armed forces of the
Beyond the powers found in the Constitution, the past sixty years has seen the executive branch legally maneuver its position in support of the use of assassinations. Although actual assassination have been rarely used and require some oversight, the President indeed has the power to order an assassination of a foreign leader. Moreover, little legislative oversight exists to curb this power, and the only limitations are those put in place by the executive itself. If this comes to a surprise to readers, and given the questionable morality of the topic it may, an explanation of exactly how the executive came to have this power is needed.
To understand the
President’s power to order a political assassination, it is imperative to
understand the executive’s control over the domestic intelligence operations
since it would likely be members of the intelligence community which would be
utilized to carry out an act of assassination. The National Security Act of
1947 established the Central Intelligence Agency (CIA) as the primary
Among the duties assigned to the Director of Central Intelligence under the National Security Act of 1947 is an open-ended power to perform “such other functions and duties related to intelligence affecting national security as the National Security Council may direct.” This vague statement became knows as the “Fifth Function” after the subsection in which it appeared. The legislative intent behind the “Fifth Function” neither suggests nor refutes the belief that the vague language was put in place in order to authorize covert action or political assassinations. On its face, the language of the statute reading “activities be related to intelligence affecting national security” suggests that intelligence, and only intelligence gathering, as opposed to covert warfare or assassination is within the act. However, the definition of national security within the intelligence gathering functions also suggests that political assassinations can serve national security purposes, and are thus within the “Fifth Function” allotted to the Director of Central Intelligence under the act.
During the three
decades following the enactment of the National Security Act of 1947 the
open-ended language of the act was interpreted to allow for covert actions,
including political assassinations.
By 1975 the United States Senate began taking notice of the CIA’s actions and
began investigating the CIA’s attempted assassination plans.
The U.S. Senate Select Committee To Study Governmental Operations and Alleged
Assassination Plots Involving Foreign Leaders, or the Church Committee, as the
investigation came to be known, found five occurrences of direct
Committee findings, while laying the groundwork for a potential end to
Despite the Church Committee findings, no Congressional legislation specifically banning political assassinations was enacted in the wake of the Church Committee findings and recommendations. It is not fair to say however that the legislature removed itself completely from involvement in regulating CIA covert operations abroad. The Hughes-Ryan Amendment to the Foreign Assistance Act of 1974 (passed during the Church Committee investigations) stated that:
“No funds appropriated under the authority of this or any other Act may be expended by or on behalf of the CIA for operations in foreign countries, other than activities intended solely for obtaining necessary intelligence, unless and until the President finds that each such operation is important to the national security of the United States….
The Hughes-Ryan amendment
demonstrated nothing more than a legislative desire to be more involved and
have better communication with the executive when it came to covert CIA plots,
and possibly even assassinations.
At the most extreme interpretation, the amendment ended the executive’s
practice of plausible denial in it’s relations with Congress regarding these
types of operations.
Yet, nothing in the Hughes-Ryan amendment could be read to prohibit of
assassinations or covert activities. 
In fact, it can be argued that by acknowledging the CIA as more than just
collectors of intelligence, Congress publicly acknowledged that covert
operations could be legally conducted under
The result of the investigations and attempted reforms by Congress over the CIA’s power to use covert operations and assassinations produced nothing more than temporary legislation requiring more communication between the executive and legislature, and findings that “assassinations violate moral percepts fundamental to our way of life.” Thus, it seemed as though the executive’s power to utilize assassinations remained intact and the power to order assassinations could continue to be used as a tool of the executive.
(b) The Presidential Executive Orders prohibiting assassinations
Congress had done relatively little to check the executive’s ability to use
assassinations as a tool of foreign policy, in the wake of the Church Committee
findings and the Hughes-Ryan amendment, the executive branch began to take
steps officially to condemn assassinations. Indicating his intentions to
formally oppose any sort
Following the lead
of his predecessor, President Jimmy Carter issued Executive Order 12,306 in
1978 and slightly modified Ford’s previous language in the process. Carter’s executive order expanded the scope
of the coverage to anyone “acting on behalf of the
The language of the three executive orders prohibited assassinations, but still only pursuant to an executive order. As of 1980, the prohibitions on assassinations resided solely with the executive orders, which can be withdrawn by future President’s without legislative limitation. Nonetheless, given the executive’s monopoly on this power, Congress has not been able to pass any legislation aimed at curbing this Presidential power. Congress has been able to pass pieces of legislation requiring notice of any Presidential actions using assassinations, but none of the acts passes were aimed at specifically prohibiting assassinations, and some were only temporary.
As part of the
Intelligence Oversight Act of 1980, Congress imposed some procedural
requirements for the executive branch to follow regarding assassinations.
The legislative oversight imposed by the 1980 act require the President keep
intelligence committees “fully and currently informed of significant
anticipated intelligence activities”, but reserves the executive the authority
to limit or possibly withhold prior notice in “extraordinary” circumstances.”
The 1991 Intelligence Authorization Act for Fiscal Year 1991 broadened the 1980
act to include intelligence activities by any part of the government and added
more specific requirements for the regulation of covert actions.
Under the 1991 act, the President must submit written findings when he
determines that covert action is necessary for the national security of the
Again, nothing in the language of the 1991 act, as it amended the 1980 act, indicates that a ban on assassinations was the intended goal of the Congress. The 1991 act preserves the “extraordinary circumstances” clause on the 1980 act which allows the President to limit notice of his findings only to a small number of congressional committee leaders, and not the entire legislative body,  or even withhold his findings altogether in some instances. Thus, taken as a whole, these two legislative acts introduced nothing new that could be interpreted as a limitation on the Presidential power to withdraw or violate a previous executive order and use assassinations.
act that was passed and was aimed directly at prohibiting assassinations was
the1976 act prohibiting the “killing or attempted killing of a foreign
official, official guest, or internationally protected person.”
The law pertains only to situations when foreign officials or ranking cabinet
members are either present in the
(c) Some conclusions
The overview of
the domestic legal landscape pertaining to assassinations shows that the power
to order and carry out assassination has remained with the executive, and by
large, has gone unchecked by the legislature. Pursuant to the powers given to
the President through the “fifth function” of the National Security Act of
1947, the President is given authority to pursue acts such as assassinations,
and can utilize his intelligence and special operations forces to carry them
out. Surprisingly, the only prohibitions on what is seemingly an important
governmental power rest only with the three executive orders of Presidents
Ford, Carter, and Reagan. Beyond these prohibitive measures, which do not
address assassinations in wartime, the sum of the attempted legislative
oversight shows that Congress has not able to put a significant check on the
executive’s power to order assassinations. Nonetheless, given these powers,
will the President actually pursue an assassination in furtherance of
Based on the legal analysis in Part I regarding the domestic laws governing the prohibitions on assassinations, it is evident that in times of peace, the President is prohibited from carrying out an assassination order against a hostile foreign leader unless he or she either withdraws or violates executive order 12,333. If the President does indeed withdraw or violate 12,333, despite the somewhat restrictive measures designed to increase congressional oversight on these matters, assuming the President makes the required findings that a political assassination is critical to national security, and assuming Congress is appropriately notified, a covert operation targeting the assassination of a foreign leader, would not be illegal. The likelihood of a President actually doing so and the ramifications that would come with such action are analyzed later in Part II. As for times of armed conflict, it seems that the executive orders, although restrictive, do not specifically prohibit assassinations of enemy leaders. The limitations on this power in times of armed conflict is analyzed in Part III. But what about the penalties the President may face for ordering the assassination in violation of the executive orders? Section (a) of Part II discusses some of the potential penalties the President may face for ordering the assassination. Section (b) analyzes if the President can claim executive immunity for his actions.
(a) What penalties would a President face for withdrawing or violating the executive orders?
Pursuant to the analysis in Part I, in times of peace, if the President feels that a foreign leader poses an imminent foreign threat, and military action is not a plausible option, what options does the President have if he or she feels the assassination of the foreign leader is the best available foreign policy tool? The most likely options left to the President would thus be to either withdraw the three prohibitive executive orders, or to violate them. Nullifying the executive orders and issuing a new executive order also remains a plausible option. Although an executive order is binding on members of the executive branch, as long as it is not contrary to other law, it can be changed or revoked by the President, unlike a statute. Thus, the President can lift the assassinations ban, and under present law, could go ahead and order the execution pursuant to the narrow notice requirements required by legislative acts. If this was the case the political fallout from such an action could be a major deterrent for the President. Especially if the Congress at the time of the assassinations ban lift is controlled by the opposing political party, the President faces potential inquiries, including impeachment hearings, for what would surely be considered a drastic abuse of executive power.
alternative, the President can choose to just violate the applicable executive
orders and order an assassination if he or she feels the target poses an
imminent threat to the
The Administrative Procedure Act’s scope is to
require agencies to keep the public informed of their organization, procedures
and rules, and to establish uniform standards for the conduct of formal
rulemaking and adjudication.
The above goals would likely put the executive’s actions in ordering an
assassination in violation of the APA. The APA defines an "agency" as
"each authority of the Government of the
Civil damages against the President under the
Alien Tort Act could also be a possible remedy against a violation of an
executive order. The Alien Tor Act provides that “The district courts
shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the
Although he or she may not face liability, a violation of executive order 12,333 could likely lead to significant political fallout for the President, including potential impeachment hearings. Whereas a withdrawal of the executive order could at least be seen as a viable act, a direct violation would likely be seen as a gross violation of executive authority, and would subject the President to intense criticism both internally and from abroad. Thus, it is likely that a violation of the executive orders would be a last resort for the President wishing to carry out an assassination.
(b) Executive Immunity?
What impact would
the doctrine of executive immunity have on the President should he or she
choose to order an assassination? This section provides an analysis of
executive immunity in the
Domestically, the concept of executive immunity is legally vague since the Constitution does not address it. Legal precedent has seen claims of executive immunity invoked to protect confidential military or diplomatic operations and to protect the private discussions and debates of the president with close aides. On the other hand, executive immunity has not been found to shield the President from civil liability for acts prior to his taking office.
In Clinton v. Jones, 520 U.S. 681 (1997), the Supreme Court held that neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances. The Court further held that when the President of the United States takes official action, the court has the authority to determine whether he has acted within the law. Under this theory, the Supreme Court held that a sitting President of the United States has no immunity from civil law litigation against him for facts unrelated to his office that occurred prior to him taking office.
A significant consideration when analyzing executive immunity is that exists a major difference between immunity for civil liability and immunity from criminal liability. In Imbler v. Pachtman, the U.S. Supreme Court stated that it had never suggested that the policy considerations which compel civil immunity for certain government officials also place them beyond the reach of the criminal law. In denying immunity for criminal conduct, the Supreme Court in U.S. v. Isaacs also pointed out that “criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government.”
Nor are criminal charges eliminated from consideration if the President gets impeached while in office. Article I, Section 3, Clause 7 of the Constitution states: “Judgment in the cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Thus, a President who is impeached can still be prosecuted after leaving office. In other words, impeachment proceeding and criminal prosecution are two distinct, separate processes, although both can be related to each other.
International law recognizes two types of immunity for heads of state, functional and personal immunity. Functional immunity confers immunities on those performing acts of state and affords immunity for a foreign leader who while performing an act of state commits a criminal offence. Recent developments in international law show that this type of immunity, while it may be available as a defence to prosecution for local or domestic crimes or civil liability, is not a defence to an international crime.
Personal immunity provides immunity for people holding a particular high office, such as a Head of State. Persons who qualify as holding high offices are immune from prosecution for everything they do during their time in office. However, there exists no immnity from criminal acts, and the moment the accused high official leaves office, he or she is liable to be prosecuted for crimes committed while in office.
In conclusion, it is evident that nothing in international law, the U.S. Constitution, federal statues or court cases provides absolute immunity for an incumbent President or other federal officials from criminal prosecutions. What does this analysis suggest for the President who orders an assassination? In times of peace, if the President withdraws executive order 12,333 and orders an assassination, he or she would likely not face criminal charges, but may be prone to impeachment hearings. As for during times of armed conflict, the assassination order would likely violate the War Crimes Act of 1996, a federal law, subjecting the President to criminal liability. The War Crime Act of 1996 is discussed in Part III of this paper.
The power to order an assassination of a hostile foreign leader rests with the executive branch with surprisingly little congressional oversight. The only prohibitions on assassinations rest within the executive orders signed by Presidents Ford, Carter, and Reagan. Importantly, the prohibitions deal primarily with assassinations during times of peace and do not address situations where the U.S. is involved in an armed conflict. What options does the President have if during times of peace he wishes to order the assassination of a foreign leader deemed to be a threat to the U.S.? The president can either choose to withdraw the executive orders or violate them. Both options would likely subject the President to intense political backlash and international scrutiny, especially if he or she chooses to violate the prohibitive executive orders. The possibility of impeachment would likely curb any desire to order an assassination, but other than the threat of impeachment, it is unlikely that the President would face any civil damages under the Alien Tort Act, or face injunctive punishment under the Administrative Procedure Act. However, although likely immune from civil damages, the President is not immune from criminal charges.
As for times of armed conflict, given that the executive orders are vague on the prohibitions during times of hostilities between the U.S. and an enemy state, what limitations would a the President face if he or she ordered an assassination during armed conflict? Does international law matter? Are there federal prohibitions? Part III addresses the issue of assassination during times of armed conflict and discusses the limitations put in place by the War Crimes Act of 1996.
Part III of this paper examines the issue of assassinations and the repercussions the President may face for ordering an assassination in times of armed conflict. Part III looks to see if international law matter prohibits targeted killings, and if so, what affect, if any, international law has on the President’s power to authorize assassinations in times of war. Part III also examines if there are any domestic regulations that prohibit assassinations, particularly in times of armed conflict, and what affect those domestic prohibitions would have.
Section (a) of Part III analyzes the impact of the War Crimes Act of 1996 and examines the potential consequences that the War Crimes Act of 1996 poses for the President, including possible criminal liability. Section (b) discusses whether international law can restrict the domestic powers of the President to order assassinations if he chooses to violate his own restrictions, and if not, whether the War Crimes Act of 1996 incorporates international law’s prohibitions on assassinations within U.S. federal law. Section (c) then analyzes each provision of the War Crimes Act of 1996 and discusses what would constitute a violation of each provision. Section (d) discusses whether the act of assassination constitutes a war crime, concluding that in order for an assassination to be considered a war crime, it must occur within the context of an armed conflict. Finally, section (e) attempts to look into possible defenses that can be raised on behalf of the President against a prima facie charge of a federal violation of the War Crimes Act of 1996.
(a) The War Crimes Act of 1996
Originally intended to set high standards for the protection of military detainees worldwide, the War Crimes Act of 1996 was one of the first pieces of legislation which imposed criminal penalties in the United States for breaches of the Geneva Conventions, while granting access to injured civilians in U.S. courts for abuse perpetrated by U.S. military personnel and other U.S. nationals, including members of the government. The War Crimes Act of 1996 makes it a federal crime for any person inside or outside of the United States, to commit a war crime, if the person committing the war crime is a member of the U.S. Armed Forces or a national of the United States. The statute suggests that any person with the above description who commits a war crime as defined within subsection (c), shall be fined, or imprisoned for life or any term of years, and if death results to the victim, shall also be subject to the death penalty. The act goes on to define four violations which represent a war crime:
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.
The definition of a war crime as a grave breach of any of the international conventions signed at Geneva 12 August, 1949, includes the Geneva Conventions and the numerous protocols to the Geneva Conventions which includes plain language prohibiting political assassinations. Under a strict interpretation of article (c) of the War Crimes Act, it seems obvious that a Presidential order to assassinate that resulted in an assassination would constitute a violation of a federal law, subjecting the President to potential federal criminal charges after he or she leaves office. In view of the War Crimes Act of 1996, the President would be less likely to order an assassination in order to avoid potential criminal charges within the United States.
(b) International Law
One of the most significant aspects of the War Crimes Act of 1996 is that it represents one of the few attempts to codify public international law within the domestic law of the U.S. The prohibitions on conduct such as assassinations, although inherent in international law, were previously not found within the federal law. The difficulty in assessing the validity and relevance of customary international law within domestic law hinges on what interpretation to give international legal documents domestically. If principles of customary international law prohibiting targeted assassinations are incorporated into our legal system, could they still be nullified by either the President or Congress? Under the Supreme Court’s reasoning in the Paquete Habana case, if there exists no controlling executive or legislative act, resort must be given to customs and usages of civilized nations. So if the President withdraws or violates executive order 12,333, or creates a new order allowing for assassinations, could this act be one that supersedes customary principles of international law prohibiting assassinations? The International Court of Justice and numerous international legal scholars have concluded that some international legal documents serves as a “conspicuous example of a rule of international law having a character of jus cogens.” Thus it can be argued that such preemptory norms of customary international law as those prohibiting targeted killings such as assassinations cannot be superseded.
So to what extent can international legal principles hinder U.S. foreign policy decision to use targeted political assassinations? As long as principles of international law were not specifically incorporated within the U.S. legal system, it is likely that given the executive discretion allotted under U.S. law, a President could in fact have ordered a political assassination in furtherance of U.S. foreign policy if he had chosen to violate previous executive orders and face the potential political fallout. It can be argued that the passing of the War Crimes Act of 1996 clouded the rationale supporting a possible decision to pursue targeted assassinations by incorporating customary international law within the domestic law of the United States. The War Crimes Act of 1996, by specifically making it a federal crime to commit a grave breach of international law (an assassination would qualify) could potentially subject the President to federal charges.
(c) The prohibitions within the War Crimes Act
Section C(1) of the War Crimes Act of 1996 defines a “war crime” as “a grave breach of any of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party.” To determine whether one has committed a war crime within an armed conflict, it is necessary to analyze whether the violation committed represents a “grave breach” of the rules governing armed conflict. Article 50 of the First Geneva Convention, and article 51 of the Second Geneva Convention defines grave breaches as “those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” Further, Article 85 of the Additional Protocol to the Geneva Conventions states that “Acts described as grave breaches in the Conventions are grave breaches of this Protocol if committed against persons in the power of an adverse Party protected by Articles 44, 45 and 73 of this Protocol, or against the wounded, sick and shipwrecked of the adverse Party who are protected by this Protocol, or against those medical or religious personnel, medical units or medical transports which are under the control of the adverse Party and are protected by this Protocol.”
Based on the above definitions, a targeted assassination of the leader of a foreign sovereign engaged in armed conflict, defined as a willful killing, would violate the prohibitions under C(1) of the War Crimes Act of 1996 since under international law it is clear that a war crime, or grave breach of the international law governing the rules of war, can occur only in times of armed conflict. (See section d).
Section(C)(2) of the War Crimes Act of 1996 defines a war crime as anything “prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907”. An examination of the language within articles 23, 25, 27, or 28 of the Annex to the Hague Convention IV, presents a further obstacle for the President in his or her pursuit of an assassination in times of war. As pertaining to assassinations, Articles 23 and 25 are the most relevant prohibitions. Article 23(b) states that in addition to the prohibitions provided by special Conventions, it is especially forbidden to kill or wound treacherously individuals belonging to the hostile nation or army. The possibility exists that an assassination attempt by a CIA or special forces operative could utilize treacherous means, and thus would be illegal under the War Crimes Act of 1996. Article 25 prohibits the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended. This language would likely prohibit any targeted bombardments of high ranking officials’ offices or presidential estates.
Section (c)(3) of the War Crimes Act of 1996, pertaining to violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949 is not applicable to the assassination scenario at hand since common article 3 addresses cases of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. Section (c)(4) of the War Crimes Act of 1996, pertaining to the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996, to which the U.S. is a signatory to, does deal with international armed conflicts and would likely prohibit the use of certain devices in the carrying out of the assassination. In particular, the assassination attempt could not utilize other devices, defined as “manually-emplaced munitions and devices including improvised explosive devices designed to kill, injure or damage and which are actuated manually, by remote control or automatically after a lapse of time.”
(c)(4) Can a foreign leader deemed a lawful combatant be assassinated?
It is evident from the above analysis that any attempt by the President to assassinate the foreign leader of a sovereign nation engaged in hostilities against the United States would be deemed both a violation of international law, and a violation of the War Crimes Act of 1996. However, this conclusion is only correct if the foreign leader is not classified as a “participant” or “combatant” of the armed conflict under international law. If the target of the assassination, the foreign leader, is a participant or legitimate combatant, then the assassination could not be classified as a willful killing. So what exactly constitutes a combatant or participant?
Under the Third Geneva Convention, a combatant is a person who takes a direct part in the hostilities of an armed conflict who upon capture qualifies for prisoner of war status. The Third Geneva Convention identifies lawful combatants, entitled to prisoner of war satatus, as members of the armed forces of a party to the conflict, members of militias not under the command of the armed forces, but have distinctive signs, carry arms, and conduct operations according to the rules of war, or are members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. Accordingly, if the foreign leader targeted for assassination serves in a military capacity and takes a direct role in the armed hostilities, he could be qualified a lawful combatant and thus a legitimate target for elimination within the armed conflict.
The determination of enemy combatant status has traditionally resided with the military commander who is authorized to engage the enemy with deadly force. In this regard, the task ultimately falls within the President’s constitutional responsibility as Commander in Chief to identify which forces and persons to engage, capture, or detain during an armed conflict. Given the status of a foreign head of state as an elected official protected under international law, classifying the targeted foreign leader a lawful combatant could be a difficult task, unless he or she is clearly engaged as a participant in the conflict. On the other hand, killing a foreign leader who directs his state’s armed forces in an armed conflict would not be a war crime and would not violate the War Crimes Act of 1996.
(c)(5) Some conclusions
The analysis thus far suggests that the War Crimes Act of 1996 acts as an impediment to the President’s ability to order an assassination. So what options are then left to the executive branch when contemplating the use of a targeted assassination of a foreign leader? This paper has already concluded that although technically possible, the President would not likely order a political assassination in times of peace for fear of political backlash. However, in times of war it seems that the Presidential authority to order assassinations is not restricted by any prior executive orders. Does the War Crimes Act of 1996 change that? The answer is yes.
Clearly the War Crimes Act of 1996, and its incorporation of international law into the U.S. federal system serves as an impediment to political assassinations. To order an assassination would violate the War Crimes Act of 1996 and likely subject the President to federal charges after he leaves office. Is there a way for the President to then overcome the barriers presented by the War Crimes Act? To overcome the potential penalties he or she faces and to be able to utilize the presidential power of assassination, the President will need to pursue the assassination and defend it within the rules of armed conflict, specifically within the principles of the law of self-defense. It has already been established that labeling the targeted foreign leader as a lawful combatant or participant to the conflict would make him a legitimate target, but to be able to do so, the assassination must be carried out within the rules of an armed conflict. The following section addresses the background for analyzing whether an assassination is indeed a war crime under the rules of armed conflict.
(d) Its not a war crime if its not in the context of armed conflict
Having concluded that the scope of the War Crimes Act of 1996 would likely hold liable a the president for the order of an assassination against a foreign leader during times of armed conflict, the question that then must be answered is under what circumstances can a war crime occur? That is, to be considered a war crime, does the order of the assassination have to occur within a formal armed conflict? If so, what exactly constitutes an armed conflict under international law? This section presents a brief overview on the law of armed conflict and discuss whether an act can be construed as a war crime without formal armed hostilities.
The first step in analyzing whether a war crime has occurred is to define whether the crime occurred within the context of an armed conflict. International law traditionally has divided the law of warfare into two categories: laws governing whether states may resort to war, or jus ad bellum, and laws regulating how states must conduct themselves prior to the war beginning, jus ad bellus, and after the war has begun, jus in bello. Within these rules there are some definitions of what exactly constitutes an armed conflict of international nature.
Common article 2 of the Geneva Conventions of 1949 states that the scope of the regulations of each convention applies only to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” Additional Protocol II to the Geneva Conventions, which the United States is not a signatory to, develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949, and classifies an armed conflict as that “which takes place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” Supplementing the Geneva conventions and their protocols, recent decisions of international criminal courts and tribunals further defines armed conflicts of an international nature. In Prosecutor v. Tadic, the International Criminal Tribunal for the former Yugoslavia stated that “An armed conflict exists whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”
The conclusions that can be drawn under international law is that an armed conflict is the armed strife between two or more political entities, either international in nature (state versus state), or within the borders of one state (insurgency warfare). Within an international context, two political entities or states with defined borders, who engage in hostile activities with the intention to use militarized force against each other, can be defined as engaging in an armed conflict. Further, for an armed conflict to exist, each side participating in the hostilities must have a leadership or command structure, territorial sovereignty, and the hostilities must be intense in nature.
From the above, it can thus be determined that an assassination attempt on a foreign leader during an armed conflict would be illegal under the prohibitions presented in the War Crimes Act of 1996. So what other options are left to the executive branch if an assassination is deemed the most appropriate course of action within an armed conflict? The following section will analyze what possible defenses the President can argue in order to combat the federal charges he or she would likely face after leaving office for violating the War Crimes Act of 1996.
(d) Defenses to prima facie violation of war crimes act
When targeting a specific individual for assassination is based on principles of self-defense, the law of international armed conflict provides potential defenses which may justify the assassination and help the perpetrators escape liability. To present defenses to a prima facie charge of assassination under the War Crimes Act of 1996, the President must define the assassination as being privileged by the rules of armed conflict, specifically within the laws of self-defense. The proper step for the executive would be to interpret Article 51 of the United Nations charter, which provides for the right to use self-defense and provides an exception to the prohibitions related to acts of aggression when the illegal action is justified. Thus, if the President can show that the assassination was conducted within proper guidelines and justifications within the laws of self-defense, he or she may be able to defeat a charge under the War Crimes Act of 1996 if tried after leaving office.
Article 51 of the U.N. Charter states that: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” Pursuant to Article 51, a state has a privilege to self-defense and can use force when the action is justified although usually illegal. The United States interprets the concept of “armed attack” as harmonious with the customary practice that allows a state to protect itself and its citizens from hostile force. Accordingly, a specific targeted assassination of a foreign leader in self-defense would not be illegal under international law. Within the rules of armed conflict, customary international law allows for self-defense against all attacks of aggression. The United States assertss that the right to self-defense may be applied against any illegal aggression, which may come from any group or state. To satisfy self-defense, the President must present the satisfaction of two key principles, necessity and proportionality, in order to justify acts such as assassinations.
The principle of necessity requires that any use of force contribute to the submission of the enemy as quickly as possible with the minimal expenditure of resources. When targeting an individual such as a foreign leader for assassination, the principle of necessity would seeks to justify the argument that the elimination of the foreign leader would severely hinder the enemy state’s ability to wage war. In other words, the assassinations of the foreign leader would need to accomplish a significant goal, one that cannot be accomplished otherwise.
The principle of proportionality requires that the means to achieve the necessary objective must be proportional to the anticipated military goal, in other words, the self-defense response must be in proportion to the armed attack and must be proportional to the force used. In the context of assassinations, the proportionality of self-defense would require that the assassination equate with the removal of the main danger. Any action beyond the elimination of the danger would be seen as retaliation. Moreover, proportionality stresses that the physical suffering and destruction of the attack cannot be excessive in relation to the expected military gain.
In order to be able to argue that the assassination was justified, the President would need to be able to show that the assassination was carried out in self-defense pursuant to article 51 of the U.N. Charter, and that it was carried out within the guidelines of the principles of necessity and proportionality. Thus, to assassinate the leader of a foreign state that engaged in armed conflict with the United States, the President would need to prove that the assassination was the best means of striking a severe blow to the enemy without using excessive force. To use this defense, the target of the assassination would have to be someone of extremely high importance who’s elimination would cripple the enemy state. The assassination of this target would also be justified if it was done with minimal expenditure of armed resources, thus a mass bombing of a Presidential compound which would destroy five city blocks would likely be seen as excessive. Finally, the assassination can be defended if it can be proven that the death of the foreign leader and would result in either cessation of hostilities or even a brief reduction in the violence of the conflict.
(f) Some Conclusions
It is clear that in lieu of the War Crimes Act of 1996, the President’s ability to carry out an assassination order in times of armed conflict faces severe obstacles. Whereas principles of international law that prohibit assassinations would not ordinarily limit the Presidential authority to use assassinations, the War Crimes Act of 1996 incorporated international legal principles and made assassinations a federal crime if committed during an armed conflict. Thus, if the U.S. was to be engaged in intense armed hostilities with a sovereign state which has recognized boundaries and political leadership, the President would be committing a federal crime if he ordered an agent of the U.S military or intelligence to assassinate the leader of the foreign country. However, if the assassination was carried out under the recognized principles of self-defense within international law, and pursuant to principles of necessity and proportionality, the President would have a probable defense to the federal charge that he committed a war crime in violation of the War Crimes Act of 1996.
The analysis in this paper has provided some answers to legal question regarding whether the President can order an assassination that is carried out against a foreign leader. First, it is clear that the legal authority to order an assassination rests solely with the President, with little if any legislative oversight. The only substantive limitations that exist are the Presidential Executive Orders which can be either withdrawn or violated by the President. Second, by ordering the assassination, at least in times of peace, the President may face large scale political fall out and even impeachment proceedings, but will likely avoid any civil or administrative penalties. However, the President will not be shielded by executive immunity from criminal charges if he orders the assassination during an armed conflict and the assassination is deemed to be a war crime in violation of the War Crimes Act of 1996. The War Crimes Act of 1996, by incorporating principles of international law within the federal system presents the President with a substantial legal hurdle when contemplating an assassination order. To be classified a war crime and subject the President to criminal charges after he or she leaves office pursuant to the War Crimes Act of 1996, the assassination must be a grave breach of international law, occur within the rules of armed conflict, and the target must be deemed to not be a legitimate combatant. Finally, even if the assassination occurs within the context of an armed conflict and violates the War Crimes Act of 1996, the President may defend his actions through principles of self-defense inherent in international law.
 JD candidate, May 2007, Chicago-Kent College of Law. The author wishes to thank Professor Henry H. Perritt Jr. for his assistance in the completion of this text.
 18 U.S.C. 2441
 18 U.S.C. 2441
 U.S. Const. art. II, § 2, cl. 1; see also Hamden v. Rumsfeld, 548 U.S.____ 2006.
 Presidents have shown this power in several examples, including Harry Truman bypassing Congress to go into Korea, and Presidents Lyndon Johnson and Richard Nixon bypassing congress in going to war with Vietnam.
 Jules Lobel, Covert War and Congressional Authority: Hidden War and Forgotten Power, 134 U. Pa. L. Rev. 1035, 1070 (1986).
 50 U.S.C. 403 (2000).
 50 U.S.C. 403 (a) (2000).
 William C. Banks & Peter Raven-Hansen, Symposium Article: Targeted Killing and Assassination: The U.S. Legal Framework, 37 U. Rich. L. Rev., 667, 697 (2003).
 Id at 698, See also 50 U.S.C 403-3(d)(5) (2000).
 Banks & Hansen, supra note 10 at 698.
 National Security Council Directive on Office of Special Projects: NSC 10/2 (June 18, 1948)
 U.S. Senate Select Comm. To Study Governmental Operations, Alleged Assassination Plots Involving Foreign Leaders, S Rep. No. 94-465 (1975).
 The five plots discovered were assassination attempts on: 1) Patrice Lumumba of Congo; 2) Fidel Castro of Cuba; 3) Rafael Trujillo of Dominican Republic; 4) Njo Dinh Diem of South Vietnam; and 5) Rene Schneider of Chile; see S. Rep No. 94-465 (1975)
 Church Committee Report, supra note 13 at 257.
 Id at 258.
 Michael N. Schmitt, State-Sponsored Assassination In International and Domestic Law, 17 Yale J. Int’l L. 609, 660-661 (1992).
 Church Committee Report, supra note 13, at 283-284
 Hughes-Ryan Amendment, Pub L. No. 93-559, 32, 88 Stat. 1795, 1804 (1974) (codified as amended at 22 U.S.C. 2422 (1975)).
 Banks & Hansen, supra note 10, at 711-712.
 Final Report of the Select Committee to Study Governmental Operations with respect to Intelligence Activities, S. Rep. No. 94-755, at 58 (1976).
 Banks & Hansen, supra note 10, at 712
 Id. at 712-713, see also 50 U.S.C 403-3(d)(5) (2000).
 Church Committee Report, supra note 13, at 257.
 Michael C. Wiebe, Comment: Assassination in Domestic and International Law: The Central Intelligence Agency, State-Sponsored Terrorism, and the Right of Self-Defense, 11 Tulsa J. Comp. & Int. L. 363, 381 (2003).
 Exec. Order No. 11,905, 3 C.F.R. 90 (1976), reprinted in 50 U.S.C.A. § 401.
 See Exec Order No. 11,905 5(g), 3 C.F.R. 90, 101 (1976), reprinted in 50 U.S.C.A. § 401 at 845.
 Church Committee Report, supra note 13, at 289.
 Banks & Hansen, supra note 10, at 719.
 Exec. Order No. 12,036 3 C.F.R. 112 (1978), reprinted in 50 U.S.C.A. § 401 (1978).
 3 C.F.R. 112, 129 (1978), reprinted in 50 U.S..C.A. § 401 at 1576, 1583 (1978).
 Executive Order No. 12,333 3 C.F.R. 200, 213 (1981), reprinted in 50 U.S.C.A. § 401 (1981).
 3 C.F.R. at 213 (1981), reprinted in 50 U.S.C.A. § 401 (1981).
 Intelligence Oversight Act of 1980, Pub. L. No. 96-450, 407(b), 94 Stat. 1981 (Oct. 14, 1980), (modified and supplemented by the Intelligence Authorization Act for Fiscal Year 1991).
 Intelligence Authorization Act for Fiscal Year 1991, 50 U.S.C. 413-414 (2000).
 Banks & Hansen, supra note 10, at 728.
 50 U.S.C. 413b(c)(1)-(2)
 18 U.S.C 1116 (1976); enacted as part of execution of the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, see 28 U.S.T. 1975
 18 U.S.C 1116 (a), (b)(3)-(4)
 Banks & Hansen, supra note 10, at 730-731.
 Banks & Hansen, supra note 10, at 730.
 See generally, 5 U.S.C. 551
 5 U.S.C. 551(1)
 See Franklin v. Massachusetts, 505 U.S. 788 (1992)
28 U.S.C. § 1350.
 Filartiga v Pena-Irala, 630 F.2d 876 (2nd Cir. 1980)
Filartiga, 630 F.2d at 878
 Sanchez‑Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985).
 Sanchez-Espinoza, 770 F. 2d at 206
 U.S. v. Nixon, 418 U.S. 683 (1974)
 Clinton v. Jones, 520 U.S. 681 (1997).
 Clinton, 520 U.S. 681, 704
 Id. at 703
 Clinton, 520 U.S. at 708, 709.
 Imbler v. Pachtam, 424 U.S. 409 (1976)
 Imbler v. Pachtam, 424 U.S. 409, 429; See also Gravel v. U.S., 408 U.S. 606, 627 (1972)
 U.S. v. Isaacs, 493 F.2d 1124 (1974)
 U.S. v. Isaacs, 493 F.2d 1124, 1144
 See U.S. Constitution, Article I, section 3, clause 7
 See U.S. v. Isaacs, 493 F.2d at 1144, holding that Article I, Section 3, Clause 7 “does not mean that a judge may not be indicted and tried without impeachment first. The purpose of the phrase may be to assure that after impeachment a trial on criminal charges is not foreclosed by the principle of double jeopardy.”
 Prosecutor v. Milosevic, No. IT-02-54
 ex parte Pinochet Ugarte (No 3)  1 AC 147, House of Lords)
 For example, an English court held that a warrant could not be issued for the arrest of Robert Mugabe on charges of international crimes on the basis that he was a presently serving Head of State at the time the proceedings were brought: see Mugabe, reported at (2004) 53 ICLQ 789
 ex parte Pinochet Ugarte (No 3)  1 AC 147, House of Lords)
 18 U.S.C. 2441 (1996).
 18 U.S.C. 2441
R. Jeffrey Smith, Detainee Abuse Charge Feared, Washington Post, Friday, July 28, 2006 at A01
 18 U.S.C. 2441 (a), (b)
 18 U.S.C. 2441 (a)
 18 U.S.C. 2441 (b)
 18 U.S.C. 2441(c)
 18 U.S.C. 2441(d)
 The likely assassin or assassin could also be charged under the War Crimes Act of 1996. Although this Paper focuses on the liability faced by the President, the assassin who carried out the crime could be subject to the similar punishments, and can raise similar defenses as discusses in this Paper. However, the defense of “The President ordered me to do it” would likely not qualify as a legitimate defense, as this defense has never been recognized under international law.
 See Part I, infra.
 For a thorough discussion on International Law and its limits domestically, see: Jack L. Goldsmith & Eric A. Posner, The Limits of International Law, (2005)
 Banks & Hansen, supra note 10 at 681,682
 The Paquete Habana, 175 U.S. 677 (1900)
 The Paquete Habana, 175 U.S. 677, 700
 Nicaragua v. United States, 1986 I.C.J. 4, 90 (June 27)
 18 U.S.C 2441
 18 U.S.C. 2441 (C1)
 Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces and Field, signed 12 June 1949 (hereinafter referred to as Geneva Convention 1), article 50; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, signed 12 June 1949 (hereinafter referred to as “Geneva Convention 2”), Article 51.
 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, (hereinafter referred to as Protocol 1),article 85.
 18 U.S.C. 2441 (c2)
 Annex to the Hague Convention IV Respecting the Laws and Customs of War on Land (hereinafter referred to as “Annex”)
Annex at Article 23
 Id at Article 25
 Common Article 3 to the Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter referred to as “Geneva Convention 2”)
 Protocol On Prohibitions or Restrictions on The use of Mines, Booby-Traps and Other Devices as Amended On 3 May, 1996
 Geneva Convention 3, article 3
 U.S. Const. art. II, § 2, cl. 1
 U.N. Charter, art. 51.
 Geneva Convention 1, article 2, Geneva Convention 2, article 2, Geneva Convention 3, article 2, gevena Convention 4, article 2.
 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (hereinafter referred to as “Protocol II”), article 1
 Prosecutor v. Tadic, Case No. IT-94-1-T
 U.N. Charter Article 51
 Wiebe, supra note 29, at 399.
 U.N. Chartr Art 51
 Wiebe, supra note 29, at 389
 Schmitt, supra note 20, at 640.
 Id at 641.
 Wiebe, supra note 29, at 391, 392.
 Schmitt, supra note 20, at 641.