As a professor of international and criminal law, I must write in profound disagreement with the suggestion by David Newman and Bruce Bueno de Mesquita that the United States Government's prohibition of political assassination be repealed (NY Times Op-Ed, Jan. 26).
The rule to that effect found in President Reagan's Executive Order 12333 of 1981 is based on article 23(b) of the regulations annexed to Hague Convention IV, Oct. 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.'' Paragraph 31 of Department of the Army Field Manual 27-10, ''The Law of Land Warfare'' (1956), authoritatively defines this provision to mean: ''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.' ''
Even more recently, the United States District Court for the District of Columbia specifically held in Letelier v. Republic of Chile, 488 F. Supp. 665, 673 (1980) that Chile's assassination of Orlando Letelier in the streets of Washington was ''clearly contrary to the precepts of humanity as recognized in both national and international law.''
Hence, it is the longstanding position of the United States Government that assassination of anyone - let alone a head of state or head of government (e.g., Muammar el-Qaddafi) - is a violation of the laws and customs of warfare and therefore an international crime. Furthermore, according to Field Manual 27-10, paragraph 498, 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 it and liable to punishment. Finally, Paragraph 510 of the same source denies the defense of ''act of state'' to such alleged international criminals by providing that though a person who committed an act constituting an international crime may have acted as a head of state or as a responsible government official he is not relieved from responsibility for that act.
Irrespective of Executive Order 12333, 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 according to Article 6 of the United States Constitution, the so-called Supremacy Clause. But even if Congress were to enact a statute that expressly repealed the rule found in Hague regulation article 23(b), that would still not help U.S. Government officials allegedly responsible for assassinations during the course of their travels abroad. This is because the Nuremberg Tribunal of 1945 expressly ruled that the rules found in the Hague regulations had entered into customary international law as of 1939.
Therefore, it would be impossible for a state or its leaders to ignore the internationally recognized rule prohibiting assassination. Such government officials would be subject to prosecution in any state of the world that obtained jurisdiction over them for the commission of an international crime without limitation of time. I doubt seriously that the American people would want any aspect of our foreign affairs and defense policies to be conducted by alleged international criminals.
The outbreak of World War I provides a very compelling example of the principle at stake. This conflagration started because of a terrorist attack at Sarajevo by a Serbian nationalist who assassinated Archduke Francis Ferdinand, heir-apparent to the throne of the Austro-Hungarian empire. With the backing of Germany, Austria-Hungary issued an ultimatum to Serbia, which in turn was supported by Russia. Eventually, the world went to war, and approximately 20 million people were killed.
At the 1919 Paris Peace Conference the Allied Powers put the responsibility for the outbreak of the war squarely upon the shoulders of the Central Powers by means of article 231 of the Treaty of Versailles.
Mr. Newman and Mr. Bueno de Mesquita draw examples from the Middle East. Yet that region could most readily become the Balkans for the 1990's. Except that at this point in the thermonuclear age, there will probably not be a peace conference at the end of World War III.
As George Santayana wrote, ''Those who cannot remember the past are condemned to repeat it.''
The authors foolishly and quite contemptuously suggest that we try to rewrite the tragic lessons of modern history. Our Government officials are obliged to obey the well-considered rule of domestic and international law found in Hague Regulation article 23(b), prohibiting assassinations until further notice from both Congress and the international community, on pain of criminal prosecution. The repeal of Executive Order 12333 would not change this.
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