Assassination - Assassination And The Law

The legal status of assassination is ambiguous in both domestic and international law. Killing or endangering the sovereign, members of the royal family, or chief representatives of the sovereign has always been abhorrent in English common law, and was formally defined as treason in the fourteenth century ("Treason Act," 25 Edw. 3, stat. 5, c. 2 (1351) (England)). The concept of treason has since been extended beyond personal fealty to include violence against the constitutional system by anyone having a duty of allegiance. The law of treason has, however, rarely been invoked (Law Commission). Indeed, the English legal system has been characterized by its nonrecognition of political offenses as such. Political motivation has been accorded scant consideration as even a mitigating factor, in contrast to the tradition established in continental legal systems. There is no recognized political defense in English law. Thus, assassination as a form of treason is extremely circumscribed, and most assassinations are treated as common law crimes without political import.

The United States, Canada, and some other nations formerly British-ruled follow the English model on this question. In the United States, Congress reacted in 1963 to President John F. Kennedy's assassination by making it a federal offense punishable by death or life imprisonment to assassinate the president, president-elect, vice president, vice president-elect, or anyone legally acting as president (18 U.S.C. section 1751 (1976)). Subsequently, it was also made a federal offense to assassinate an incumbent or elected member of Congress. To war against the United States or to assist its enemies constitutes treason; and it is an offense to advocate the forcible or violent overthrow of the federal or any state government, or the assassination of any officer of such governments (18 U.S.C. sections 2381, 2385 (1976)). Otherwise, assassination is a common crime to be dealt with by the state or other government in whose jurisdiction it occurs.

Even though a common crime, the killing of officials—especially police officers and federal agents—has been dealt with increasingly as a special offense meriting more stringent penalties; and any killings or attacks by antigovernment militants receive special attention under laws such as the Racketeering Influenced and Corrupt Organizations (RICO) statutes. Conviction in such cases typically results in significantly more severe sentencing (Smith). In effect, such homicides are perceived and treated as politically inspired—that is, as assassinations.

Until the nineteenth century the European monarchs generally agreed that regicide was intolerable, and considered the offender against government the most despicable of criminals. In 1833, Belgium initiated the doctrine that political offenders were not to be extradited. Most other nations followed suit, but the ensuing treaties typically required extradition of assassins and other violent offenders as common criminals unless their acts occurred in the course of a political disturbance or were "proportionate"—that is, not excessive in view of the aims and circumstances of the act (Kittrie). Beginning with the reaction against late nineteenth-century anarchist violence, the political defense of assassination and other political violence has been increasingly unlikely to prevent extradition. In particular, war crimes and crimes against humanity are widely considered to be extraditable offenses. However, there have been many exceptional cases; and the international community remains sharply divided on how to define and deal with terrorist killings and other politically motivated violence.

The legal situation is, then, that assassination may be defined domestically as treason, an "allied offense," or a common crime. Under international law, it may be defined as a nonextraditable political offense (albeit "complex" rather than "pure"), as an extraditable common crime, or as a crime against humanity or against the laws of war. In both domestic and international law, the legal status of any particular assassination depends on the political concerns and relative power of the various authorities and of any private parties involved in or interested in its occurrence.