German interior minister in favour of targetted killings? 

On the occasion of the assassination of Hamas-leader Rantisi by Israeli forces, another wave of universal condemnation of such targetted killings swept around the globe. There are legal, philosophical and political arguments - a decent summary (in German) has been published by the Austrian weekly profil. The legal arguments seem to speak clearly against the killings, the philosophical debate seems to provide quite some room for them, and the political arguments in either direction mostly seem to rest on subjective predictions of the future outcome of the Israeli policy, which in reality seem to be highly uncertain. Still, at least European public opinion is almost unanimously opposed.

However, on 26 April the German weekly Der Spiegel published an interview with German interior minister Otto Schily (in German) that has created shock and disbelief in Germany because Schily seems to at least consider the option of targetted killings in the fight against terrorism, at least outside of Europe. I translate the most important excerpts below:

Schily: (...) I am in clear opposition to the death penalty and will remain so for all my life. But we must and will defend ourselves - if need be in a way that cannot spare the life of the terrorists. In such extreme cases as in Afghanistan, the fight against terrorism requires the use of military means.

Spiegel: Like the Israelis or the US, who in Jemen killed an Qaida-representative and five people travelling with him by means of a rocket attack?

Schily: That is a very problematic case, which is not in conformance with our interpretation of the law. But a clear settlement of these matters in the international context is still missing. In war we reserve the right to kill the opponent. Is there not a right of self defense against terrorists who are plotting for acts of mass murder? This leads to the question whether the killing of a person can be justified as self defense in the extreme case.

Spiegel: And which conclusion have you reached?

Schily: That is a very delicate question.

Spiegel: Do we understand you correctly: You do not exclude targetted killings?

Schily: I haven't said that..

Spiegel: ..but thinking about it already creates the option, doesn't it. We remember a Spiegel-interview half a year ago, in which interior minister Schily challenged the international community to find answers to such questions. To which result has this dicussion led?

Schily: This matter blurs the limits of criminal law, police law and martial law. The questions are so difficult that no definite answers exist yet.

Spiegel: Maybe many states have no interest in clearing up this uncertainty. The US seems to have less concerns about killing a suspect or sending him to Guantamo than to bring him before a regular court.

Schily: The problem for politics is that it sometimes has to act before the right categories have been found.

Spiegel: In times of Guantamo and other excesses we would nevertheless like to know when a state takes the liberty to permanently arrest suspects without a court order, or even to to kill them.

Schily: We have to distinguish between the situation that we are facing Europe and the situation outside. Within Europe we defend ourselves against terrorism in the framework of the fight against crime. For example, this excludes targetted killings - with the exception of certain measures of self defense or emergency measures, under the heading of the so-called 'ultimate shot to save' (Finaler Rettungsschuss).

Spiegel: This means, within Europe we do not lead a war, but a fight against terrorism?

Schily: Yes, but outside of Europe, for example in Afghanistan, we have used military means, also with corresponding so-called collateral damages. That is then war. But if we say that in the extreme case it is legitimate to even kill highly dangerous attackers, then it is only consistent to restrict their ability of movement already in advance. Here we are at the difficult question where to situate the border between military and policing measures. (...) In police law we could create the basis for a kind of 'security detainment' (Sicherungshaft), which grants certain rights to the detainees such as access to a lawyer and examination by a court (...) The decisive question is always: Is the presence of a person an objective danger for our country that we cannot accept? If this is the case, it must be possible to expel this person, even when the person claims: "I have now turned into a peaceful shopkeeper".

Der Spiegel is also performing an online poll on the question: Should targetted killings of terrorists be allowed in the fight against terrorism? At 6597 votes cast, there was a rather surprising two-thirds majority in favour.

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