Enforcing ICL: The Iran Tribunal and the Rios Montt Trial

WRITTEN BY: REGINA PAULOSE

“Silence is the most powerful scream” – Anonymous

There are many incidents that have violated International Criminal Law (ICL) that have taken place in global history but have never been presented to a “legitimate” tribunal for consideration.  Thankfully, this has not stopped victims from finding a way to address the wrongs that have been committed against them. After WWII, the Nuremburg Tribunals showcased that perpetrators of horrible crimes would face punishment by the international community (or at least by the victors of war). Unfortunately, as history continued to unfold, it became clear that whenever an atrocity occurred it did not necessarily mean that every perpetrator would be held accountable for violations of ICL.

Circa 1966, Playwright Bertrand Russell and Philosopher Jean Paul Sartre created the “Russell Tribunal” which investigated crimes alleged to have been committed by the U.S. during the Vietnam War.[1] As Jean Paul Sartre eloquently described,

“[t]he Russell Tribunal was born of this doubly contradictory conclusion: the judgment of Nuremberg had necessitated the existence of an institution to inquire into war crimes and, if necessary, to sit in judgment; today neither governments nor the masses are capable of forming one. We are perfectly aware that we have not been given a mandate by anyone; but we took the initiative to meet, and we also know that nobody could have given us a mandate. It is true that our Tribunal is not an institution. But, it is not a substitute for any institution already in existence: it is, on the contrary, formed out of a void and for a real need.”[2]

These activists envisioned that one day the world would have a permanent court to address war crimes, crimes against humanity, and genocide. Philosophically, the ad-hoc tribunals and the ICC are the ideals that Sartre envisioned in his inaugural address. In reality, “selective justice” has continued to cripple the international rule of law. However, as the Iran Tribunal and the Rios Montt Trial prove, citizens are moving together to force open the doors of justice to accommodate them so that they can determine their own truths for the atrocities they have witnessed.

Iran Tribunal

Inspired by the Russell Tribunal, survivors, families of deceased victims, activists, and scholars, created an “Iran Tribunal” to address the atrocities that were committed in the 1980’s by the ruling regime in Iran.[3]  The Tribunal specifically focused on the atrocities committed from 1981-1988. Ayatollah Khomeini appointed a provisional government in 1979. This provisional government began to arrest previous regime members and members of political organizations who spoke out against the Islamic regime. It is estimated from these actions, that approximately 15,000 people were arrested, tortured, and summarily executed.

The Tribunal heard and documented detailed evidence that showed the regime’s use of forced disappearances, various kinds of torture, massive rapes, and other forms of cruel and inhumane treatment of prisoners. Witnesses who came before the Tribunal also gave names of hundreds of victims who were executed without any due process. They described how these prisoners were held for as little as three days and executed by a firing squad or by hanging.

In addition there was testimony regarding various massacres that took place. The Jahrom Massacre was described as follows:

“After Mahmoud Vatanparast, the Governor of Fars Province, refused to rig the province’s parliamentary election results in 1980 in favour of Mohammed Behsarati, a losing candidate, the shari’ah leader of Jahrom ordered the murder of Vatanparast’s entire family from the pulpit of the mosque. Several family members where then summarily executed, including by crucifixion, defenestration, skinning alive, being cut into pieces with shears, and being dragged along the asphalt behind a moving van. Children as young as nine were arrested; others were incarcerated and then killed under torture or in the massacres of 1988. After inhabitants of Jahrom smelt a foul odour coming out of a canal, seventeen dead children were shortly found in the water.”[4]

During the Rasht Prison Fire, several inmates burned to death as guards would not open their cells to allow them to escape the flames. There were massacres in Kurdistan, where hundreds of Kurds were killed in an airport and children were executed in front of their schools.  The regime also used “pardon commissions” but it was commonly referred to as “death commissions.” Prisoners would be brought before the commission and questioned as to their religious/political beliefs. If the commission did not approve of their answer, the prisoners would be taken out and executed.

In its Findings, the Tribunal documented the perpetrators involved and the various locations where these crimes took place. In the Final Judgment  the Tribunal held that the “evidence tendered in these hearings supports a finding that crimes were committed by agents of the Islamic Republic of Iran, beginning with the Supreme Leader, and ending with the executions in the prisons and these constitute a breach of international law.”[5] It concluded that the Islamic Republic of Iran committed crimes against humanity during the 1980-1989 period.

Rios Montt Trial

The Iran Tribunal is not an isolated incident of victims demanding justice for the heinous acts of its leaders. In Guatemala, the road to bring Rios Montt to trial for his actions in 1982-1983 for genocide and crimes against humanity was a long one.

“Guatemalan victims’ organizations filed a war crimes case against the general in 2001, but it got stuck in the country’s legal system. Years later, under the principle of universal jurisdiction, the Spanish Constitutional Court accepted a case that had been brought by Nobel laureate Rigoberta Menchú charging Ríos Montt and seven other commanders with genocide, terrorism and torture. A tenacious lawyer named Almudena Bernabeu began the investigation. In 2006 a Spanish court issued arrest orders for the general and others, but the Guatemalan government denied extradition. When Ríos Montt was later elected to Congress, he gained immunity from prosecution. Then another extraordinarily brave woman stepped in. After Claudia Paz y Paz became Guatemala’s attorney general in 2010, she filed a case against Ríos Montt (after his term ran out) and two other military commanders on charges of genocide, torture and terrorism.”[6]

Although it has been many years since these events took place, the victims stopped at nothing to bring these perpetrators to justice. The Rios Montt trial is the first time a national court has prosecuted its own head of state for the crime of genocide.[7] The case is still on going as the latest information indicates that the case is moving on to the Sentencing Tribunal.[8]

International Humanitarian Law (IHL) makes it clear that it is prohibited to kill anyone who is not taking part in international armed conflict or internal armed conflict. Even if it is unclear if the situation is an armed conflict, human rights law forbids extrajudicial killing.[9] When violations such as these take place under IHL, the most common method in enforcing these laws is prosecuting individuals through war crimes tribunals.[10]

Whether or not a particular war crimes tribunal exists, has appropriate jurisdiction, or chooses to take action, states have a continued responsibility. “States are also bound to prosecute in their own courts any person suspected of having committed a grave breach of the Conventions, or to hand that person over for judgment to another state. In other words, perpetrators of grave breaches, i.e. war criminals, must be prosecuted at all times and in all places, and states are responsible for ensuring that this is done.”[11] IHL goes deeper in that “it requires States to seek out and punish any person who has committed a grave breach, irrespective of his nationality or the place where the offence was committed. This principle of universal jurisdiction is essential to guarantee that grave breaches are effectively repressed.”[12]

So how does one reconcile that only some events in history are prosecuted and others neglected – especially when international law promotes universal jurisdiction? ICL cannot be taken seriously if it is selectively enforced. The problem is not a lack of laws to regulate unlawful conduct; it’s the lack of political will to take action.  The Iran Tribunal and the Rios Montt trial are symbolic indications of a growing movement. It is a movement opposing sweeping atrocities under the historical rug and creating accountability even when the political will to hold perpetrators accountable may not exist.


[1] The U.S. did not acknowledge the legitimacy of this Tribunal. Since this Tribunal other “Russell Tribunals” have been created which acknowledge different events. The latest Tribunal created has been on Palestine. http://www.russelltribunalonpalestine.com/en/

[2] Jean Paul Sartre, “Inaugural Statement” Selections from the Russell Tribunal, http://www.vietnamese-american.org/contents.html

[3] The facts that I use here are taken from the Iran Tribunal, Findings of the Truth Commission, July 30, 2012, available at: http://www.irantribunal.com/Eng/PDF/Commission%20Report-p.pdf

[4] Findings, 2.3 -2.3.1.4

[5] Final Judgment in the Iran Tribunal Published, (February 7, 2013) available the Tribunal website and a press release summary can be found at: http://www.irantribunal.com/Eng/PDF/Press%20release-judgment.pdf.

[6] Laura Carlsen, Genocide on Trial in Guatemala, The Nation, available at: http://www.thenation.com/article/166526/genocide-trial-guatemala#

[7] Amy Ross, “Wading Uncharted Waters: The Trial of Ross Montt” ALJAZEERA, February 4, 2013, available at: http://www.aljazeera.com/indepth/opinion/2013/02/20132364350499257.html

[8] Kate Doyle, “Rios Montt on Trial for Genocide in Guatemala” February 7, 2013, available at: http://www.cipamericas.org/archives/8920

[9] The most authoritative source on IHL issues is the ICRC. The ICRC also maintains a database with all the treaties and relevant IHL texts which can be found at: www.icrc.org

[10] American Red Cross, Prosecutions of Violations of IHL, (April 2011), available at: http://www.redcross.org/images/MEDIA_CustomProductCatalog/m4640075_IHL_ProsecutionofViolations.pdf

[11] ICRC, “How are War Criminals Prosecuted under International Law?”  (January 1, 2004) available at: http://www.icrc.org/eng/resources/documents/misc/5kzmnu.htm

[12] Id

Initiatives for Peace in Northern Mali in the 1990’s – Lessons Learned

WRITTEN BY: RICK GOLD[i]

Mali has emerged out of obscurity since March 2012. Journalists worldwide have reported on the coup d’état and transitional government, capture of the northern half of the country by secular Touaregs, displacement of the Touareg movement by Al Qaeda-affiliated groups, destruction of historic treasures such as Sufi tombs and ancient documents, capture by French troops of the three major cities of the North, and introduction of soldiers from other African countries.  These events parallel those of the early-mid 1990’s, when the Malian army was unable to put down a revolt of Touaregs returning from Libya’s war with Chad or enforce a peace treaty with Touareg and Arab movements. It then fomented a coup d’état.  Consequently, the transitional government negotiated a national pact that guided a wide range of peace-making efforts with the rebel movements, working with civil society, the United Nations and bilateral donors. The mixed results of these initiatives and those implemented over many years by subsequent democratically elected governments provide some lessons for addressing Mali’s problems today.  This post addresses the lack of historical analysis of today’s crisis in Mali.

From 1993-1997, I lived in Mali, working as the Program Officer for the US Agency for International Development (USAID).  Northern Mali was an important geographic focus of USAID.  I oversaw USAID’s $2 million contribution to the United Nations Trust Fund that supported a program of Disarmament, Demobilization, and Reintegration (DDR) Program for ex-combatants in northern Mali. I also defined and led the implementation of a strategy to help civil society increase economic opportunities and improve livelihoods as well as health and education services in areas affected by the fighting. My work enabled me to visit Timbuktu and Gao, the two major urban areas, as well as many villages along the Niger River. My on-the-ground involvement in the peace efforts over four years allows me to bring a different perspective from journalists reporting on today’s events.

Geography

Mali is a land-locked country about twice the size of France with seven neighboring West African countries.  Its economic lifeline is the Niger River, which runs through the southern half of the country and enables 80% of the population to engage in farming and fishing. About 65% of the geographic area is within the Sahara desert, which has infrequent and minimal rainfall, allowing herding to sustain 10% of the population.  Mali’s economy is based on agriculture, earning foreign exchange from gold, cotton and other agricultural exports. It is among the 25 poorest countries, with severe educational and health problems, and is highly dependent upon foreign aid.[ii]

Demography

About 10% of Mali’s 15.5 million ethnically diverse people are Touareg, a light-skinned Berber people. More than 90% of the population is Muslim, including Touareg. In the North, several clans of Touareg live in a symbiotic but uneasy relationship with other ethnic groups, such as Songhai agriculturists. The Touareg have a caste system, which is reflected in their long dominance over dark-skinned Bella servants.  Touareg are mainly herders, but also engage in agriculture. While they are a peaceful people, the Touareg have a long history of robbing travelers and caravans passing through the desert areas they know so well.

History

Mali was the center of empires from the 9th through the 16th century, based on its control of caravan trade in gold, salt, slaves and luxury items. During this time, Timbuktu became one of the world’s major centers of Islamic learning. Morocco took control of Timbuktu in the 17th century and sent its Islamic scholars into exile.  By the 19th century, Malian kingdoms gained power over large areas of the Niger River.  In the late 19th century, France eventually gained control of both the Niger River and towns in northern Mali, but never was able to fully pacify the North.  It held Mali until the country became independent in 1960.

Mali’s first President, Modibo Keita, reached out to the Soviet Union for support and broke relations with France.  In 1968, he was overthrown in a coup d’état by Moussa Traoré, who led an authoritarian, corrupt government until he was overthrown by another coup d’état in 1991.  Lieutenant-Colonel Amadou Toumani Touré led a transitional government, which gave up power to an elected government under President Alfa Oumar Konaré in 1992.  Mali remained democratic until the coup d’état of March 2012.

The Touareg

The Touareg have never accepted central authority. They resisted French control for more than 70 years. In 1963, a small Touareg independence movement was quickly put down by the Malian military under President Modibo Keita and the region was placed under military authority. Regional leaders appointed by the Central Government were unresponsive to the needs of the population. They were accused of diverting international food assistance provided in response to the severe droughts of the 1970’s, which displaced many inhabitants. The Keita and Traore governments allocated minimal infrastructure or development funding to the North, which remained isolated due to lack of roads and communications until the paved road to Gao was built in 1985.  Due to their isolation, inhabitants of the North, particularly the Touareg, have had little attachment to the state of Mali. Touareg clan chiefs, interested in asserting their independence, resisted sending children to the few government schools that were built.  Poorly thought-out government initiatives to reform land ownership and modify the relationship between Touaregs and their former Bella slaves increased frustration with the government.

The Rebellion

The beginning of the 1990-95 rebellion began when Malian Touaregs launched an armed attack to liberate Nigerian Touareg fighters who had fled Niger, only to be arrested by the Malian military in the town of Menaka, east of Gao. As the Touaregs and Arabs established a number of armed movements, they used weapons brought from the 1980’s Libyan conflict with Chad, where a number of Touareg served in the Libyan army. President Moussa Traoré sent a large part of his poorly trained army to the North, where they used repressive tactics to control the region.[iii]

The Tamanrasset Accord

By 1990, Traoré’s authoritarian rule fueled a democratic resistance movement in the capital, Bamako, that threatened his regime.  Recognizing that his military could neither eliminate the Touareg insurgency quickly nor protect him in Bamako from the democratic resistance movement, he sought the assistance of Algeria in negotiating a peace treaty with two major Touareg and Arab movements, the Azaouad Popular Movement (MPA), and the Arabic Islamic Front (FIAA). [iv] The Tamanrasset Accord, named after the southern Algeria town where it was negotiated, was signed in January 1991.  In the Accord, the Malian military agreed to “disengage from the running of the civil administration and … suppress… certain military posts,” “avoid zones of pasture land and densely populated zones,” and to be “confined to their role of defense of the integrity of the territory at the frontiers.” The Accord also affirmed that “combatants may integrate the Malian Armed Forces under conditions defined by the two parties” and called for a ceasefire between the two main Touareg/Arab factions and the government.

The Accord, however, was stillborn, as both sides lacked confidence that it would be implemented. The MPA then split into three movements committed to independence and/or autonomy. Members of the Songhai ethnic group felt that too much control was being offered by the government to the Touareg. Violence escalated.

The National Pact

The failure of the Tamanrasset Accord and expanding unrest by the urban democracy movement gave  Lieutenant-Colonel Amadou Toumani Touré (ATT) the justification for leading a coup d’état to remove the Traoré regime in March 1991. ATT committed himself to establishing a transition government and putting in place the conditions for a stable, democratically elected government by July 1992. In August 1991, he organized a national conference on the future of Mali, but organized it in a way that marginalized the voices of northern peoples. Subsequently, however, ATT invested enormous political capital in moving toward a National Pact that would ensure peace and address holistically the needs of the North.  In December 1991, he called on Algeria to facilitate a meeting that unified all the rebel movements into the Coordinating Body for the Unified Movements and Fronts of Azawad (MFUA).  In several negotiating sessions, again with the facilitation of Algeria, the transitional government and MFUA created the National Pact[v], which was signed in April 1992.

The MFUA acknowledged in the Pact that independence was no longer an option for the North, but that its future must lie within the Malian state. The goal was to restore confidence and eliminate insecurity.  The most urgent objective was to create a permanent cease-fire. Key aspects of the Pact included: 1) the establishment of commissions to investigate abuses, guarantee ceasefire and assure Pact implementation (through the Commissioner of the North and Commission of Supervision). 2) an exchange of prisoners; 3) disarmament and demobilization of combatants; 4) integration of ex-combatants into the Malian armed and civilian forces; 5) the reduction of military presence in the North: 6) the return of refugees; 7) the construction of infrastructure in the North to increase investment and catalyze development; 8) new administrative structures and local, regional and inter-regional assemblies. The Government recognized the “special status of the North” by creating the post of Commissioner for northern Mali in the Office of the President. The Central Government would fund implementation of the Pact, with support from international donors.

President Alpha Oumar Konaré was elected in July 1992. He viewed the National Pact as an essential instrument for putting in place the conditions that would prevent another military coup.  After the Pact’s signature, violence decreased enough for President Konaré to visit Timbuktu, Gao and Kidal regions in December 1992.  However, the new Government had a difficult time implementing the Pact quickly and effectively.

Commissions

Lack of funding and perhaps commitment prevented the new Government from establishing functional commissions to guarantee the ceasefire and investigate abuses. On the other hand, the Commissioner of the North and Commission of Supervision played important roles in assuring other important components of the Pact.

Disarmament and Demobilization

The Malian Government was financially responsible for disarmament and demobilization. Violence continued through 1994, when it was most intense.  The first round of integration of 640 ex-combatants into the military and civilian services took place in 1993 and was not executed effectively.  The Malian Government could not afford to integrate all ex-combatants at one time, especially when it was being pressured by the International Monetary Fund to cut expenditures and reduce the number of civil servants.[vi] Malian soldiers refused to accept poorly educated rebel soldiers into their units and isolated them. Training was inadequate to create integrated units. In the face of increasing violence and lawlessness, the Malian military lacked discipline, fueling further violence.

In 1994, members of the Songhai ethnic group, frustrated by the slow implementation of the Pact, created their own self-defense organization, Ganda Koy, which the Government was forced to include in the disarmament and demobilization process.  MFUA movements wildly exaggerated the number of combatants to be demobilized and met with the Government at a series of meetings in Tamanrasset in spring 1994. Lack of agreement on numbers of soldiers to integrate in civilian and military services or reinsert into society provoked violence among the movements.

Recognizing the precarious of National Pact implementation, from July to September 1994, the Government organized and facilitated 17 regional meetings that gained nationwide citizen support for national initiatives such as the Pact and allowed women and disadvantaged groups to be heard. Based on this experience, President Konaré decided that Malian civil society should be given time to build support for the Pact.  With funding from the UN, donors and NGOs, civil society organizations in the North led 37 discussions of all stakeholders in the Pact in 1995 and 1996. The results of these meetings were localized peace agreements among inter-dependent communities, the resolution of local disputes, and social reconciliation.[vii]

The UN, in cooperation with the Commissioner of the North, provided strong leadership in the next stages of the peace process and established a UN Trust Fund, to be financed by multiple donors. Disarmament and demobilization of the remaining movement combatants began in November 1995, first through cantonment of armed combatants, then closure of movement bases and finally integration of the most capable ex-combatants into the military and civil service. While the Malian Government financed the cantonment process, the UN funded through its Trust Fund a demobilization premium of $200 for each of the 2,681 combatants who turned over one weapon.  By February 2006, about 1,500 ex-combatants were integrated into military service, while 150 were integrated into the civil service.[viii]

To commemorate this historic step forward in disarmament, demobilization and reconciliation, the Malian Government organized the Flame of Peace Ceremony in Timbuktu, in which it burned the weapons received from the ex-combatants. The movements formally announced their dissolution. Ten thousand people participated in the event. The UN facilitated the ceremony, and many high-level UN officials attended. The guest-of-honor was J.J. Rawlings, President of Ghana and the Economic Community of West African States (ECOWAS). Today, the Flame of Peace statue is one of the highlights of any visit to Timbuktu.

Reintegration of Ex-Combatants

The National Pact committed the Government to reintegration of ex-combatants into society.  Beyond integrating some of them into the military and civilian services, the Government recognized the need to assist others to restart their lives as civilians.  From 1996-1997, the UN Trust Fund, with support from multiple donors, financed the $10 million Support Program for the Socio-Economic Reintegration of Ex-Combatants in Northern Mali (PAREM), which provided small grants to 9,500 ex-combatants.  Based on a model from Mozambique, PAREM provided $600-$700 per person for 866 projects focusing on livestock, agriculture, commerce, services and other livelihoods. Many of the projects were undertaken by groups of ex-combatants who pooled their money for large initiatives such as creating a rice field or launching a livestock project. NGOs complemented the funds with training on skills such as micro-enterprise management, sorghum production, livestock management, mechanical repairs and handicraft production.  PAREM did a good job of channeling money into the northern economy, easing the transition for ex-combatants and facilitating peace. It was not an easy program for the UN to manage, however.  The movements negotiated hard to gain the maximum number of program participants. The Songhai Ganda Koy movement complained that the Touareg movements were authorized too many participants. The movements also resisted the UN’s requirement to plan projects and submit written proposals. Once PAREM began, some ex-combatants who were frustrated with the waiting time for receiving their money attacked Program Offices. The UN therefore forced donors to expedite transfers to the UN Trust Fund. To assure that the projects were implemented, the UN paid out the grants in multiple sums, which frustrated some of the participants.[ix]

Resettlement of Refugees

The National Pact also called for resettling refugees.  Given that violence continued in the North through 1995, refugee resettlement began in 1996 and continued through 1999. Over that period, the UN High Commission for Refugees worked with Malian authorities to resettle 130,000 refugees from Mauritania, Algeria, Burkina Faso and Niger as well as 175,000 displaced persons. UNHCR made a special effort to assist both refugees and all local people who were equally suffering from the lack of infrastructure in terms of water, health and education [x]

Decentralization

The 1992 National Pact identified a “special status” for the North and promised the establishments of new administrative structures and local, regional and inter-regional assemblies. However, input from the 1994-1996 regional and civil society meetings convinced President Konaré that decentralization of the national government throughout Mali would be a more promising approach to building consensus and delivering appropriate government services at local levels.  Through 2013, the Malian Government has created 761 local collectivities (703 communes, 49 circles, 08 regions and the district of Bamako). The Commission of the North has guided the decentralization process in northern Mali, where the first communal elections did not take place until June 1999.  The delay in establishment of communal assemblies and their lack of funding frustrated many people in the North, but gave new Touareg and Songhai political actors the opportunity to represent all members of their communities. Mahmoud-Alpha Maiga, the former Ganda Koy representative in France stated, “It is thanks to the Touareg rebellion that the central government has accepted decentralization. This represents an important step because now it will be a local person, who knows the people and local customs, who will run the local affairs and no longer a civil servant sent from the South.”[xi]

Development

Long-term development of the North was the unstated goal of the National Pact.  The return to calm and settlement of refugees allowed infrastructure and development programs to begin again.  Donor funding for NGO agriculture, employment, health and education programs increased significantly, but were not large enough to meet the most urgent needs of many communities. In addition, some of the ex-combatants turned to vehicle hijacking and kidnapping, which
slowed down the implementation of development programs.  The reduction in military presence associated with the Pact enabled the ex-combatants to link up with narco-traffickers operating out of Guinea-Bissau.[xii]  Corruption associated with narco-trafficking had a major impact on the Malian Government, which reduced its capacity to provide security and support democratization and decentralization, contributing to the 2012 coup d’état.[xiii]

Small Arms Moratorium

An important outgrowth of the Malian Government’s efforts to seek peace in the North was the 1998 ECOWAS Declaration of a Moratorium on the Importation, Exportation and Manufacture of Small Arms and Light Weapons in West Africa, the related 1999 Code of Conduct[xiv] and the 2006 ECOWAS Convention on Small Arms and Light Weapons, Their Ammunition and other Related Materials.[xv] In 1996, the Malian Government, with support from UN, invited West African countries to participate in a conference on conflict prevention, disarmament and development. Mali called upon its neighbors to move toward a moratorium on small arms trade. The preparatory document explained: “The proposed moratorium is one element of a policy on arms control. It is an act of faith, and a manifestation of the political desire to observe for a definite period, an official ban on the transfer and manufacture of light weapons within the geographic space of interested countries.”[xvi]

Lessons Learned

The peace initiatives in Mali in the 1990’s provide some important lessons for dealing with today’s crisis.  First, security is an essential requirement for long-term development. Second, peace and stability require multiple tracks: 1) promoting national and international mediation; 2) encouraging armed movements to unify to facilitate negotiations; 3) empowering civil society to reconcile all parties; 4) improving civilian-military relations; 5) undertaking disarmament and demobilization; 6) reintegrating ex-combatants into the military and civil service; 7) reintegrating ex-combatants into society through funding of economic projects; 8) facilitating return of refugees and displaced persons by investing in infrastructure and services for all those living in the areas of return; 9) facilitating decentralization of governance; 10) investing in long-term, sustainable development; 11) maintaining development assistance even while addressing security and building peace.

The main difference between the 1990s and today, other than the involvement of Al Qaeda-affiliated groups and the intervention of French and African soldiers, is that the Malian Government requires even more assistance to improve its capacity to govern.  International actors must focus not only on promoting peace and reconciliation, but also on how they can help the Malian Government gain the capacity and legitimacy to lead these efforts.


[i] Rick Gold is an international development and rule of law consultant. He served 29 years in the foreign service of the U.S. Agency for International Development, including 4 years in Mali.

[ii] Central Intelligence Agency, The World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/ml.html

[iii] See Lieutenant Colonel Kalifa Keita. Conflict and Conflict Resolution in the Sahel: The Tuareg Insurgency in Mali, US Army War College Strategic Studies Institute 1998, http://www.strategicstudiesinstitute.army.mil/pdffiles/pub200.pdf

[iv] Tamanrasset Accord Agreement on Ceasing of Hostilities, 1991, www.ucdp.uu.se/gpdatabase/peace/mal19910106.pdf

[v] National Pact Concluded between the Government of Mali and the

Unified Movements and Fronts of Azawad Giving Expression to the

Special Status of Northern Mali, April 1992, https://peaceaccords.nd.edu/site_media/media/accords/Mali_Peace_Accord-proof.pdf

[vi] Carolyin Norris, Mali – Niger: Fragile Stability, UNHCR Centre for Documentation and Research, May 2001, WRITENET Paper No. 14/2000, http://www.unhcr.org/refworld/pdfid/3bc5aaa66.pdf

[vii] Kare Lode, Mali’s Peace Process: Context, Analysis and Evaluation, Accord: An International Review of Peace Initiatives, 2002, http://www.c-r.org/sites/c-r.org/files/Accord%2013_11Mali%27s%20peace%20process_2002_ENG.pdf

[viii] R. Poulton & I. Ag Youssouf, A Peace of Timbuktu: Democratic Governance, Development and African Peacemaking, United Nations, March 1998, pp. 115-119, http://unidir.org/bdd/fiche-ouvrage.php?ref_ouvrage=92-9045-125-4-en

[ix] Poulton & Ag Youssouf, pp. 123-131

[x] UNHCR Wraps Up Its Mali Repatriation Program, http://www.unhcr.org/3ae6b82240.html

[xi] Norris, p. 16

[xii] Luís Filipe Madeira, Stéphane Laurent, Sílvia Roque, The international cocaine trade in Guinea-Bissau: current trends and risks, March 2011, http://peacebuilding.no/var/ezflow_site/storage/original/application/7563aa361160ef275ddd4f0812c6f41e.pdf

[xiii] Ousmane Sy, La Crise Politico-Institutionnelle au Mali, Comment en Sortir Plus Fort et Plus Uni, October 2012, http://ousmanesy.net/index.php?option=com_docman&task=doc_download&gid=8&Itemid=82

[xiv] Economic Community of West African States, Declaration of a Moratorium on the Importation, Exportation and Manufacture of Small Arms and Light Weapons in West Africa, October 1998, http://www.poa-iss.org/RegionalOrganizations/ECOWAS/Moratorium and Code of Conduct.pdf

[xv] Economic Community of West African States, Convention On Small Arms And Light Weapons, Their Ammunition And Other Related Materials, June 2006,  http://www.poa-iss.org/RegionalOrganizations/ECOWAS/ECOWAS Convention 2006.pdf

[xvi] Poulton, pp. 227-230

Targeted Killings and Humanitarian Law

WRITTEN BY: DR. BONNIE C. BRENNAN[1]

The relationship between human rights and humanitarian law grows ever more complicated.  The current view is that human rights applies at all times everywhere and that humanitarian law is lex specialis, applying only in time of war in the theatre of war with the possible exception of belligerent occupation.[2] The question I would like to raise in this brief essay is which law properly applies to the targeted killings currently being undertaken by the Obama administration against suspected terrorists.

What is War?

The problem with the selection of the applicable law lies in defining the term “war.”[3]  Certainly, at the time that the Geneva Conventions[4] were written, shortly after the close of World War II, the answer as to what constituted “war” must have seemed self-evident.  Indeed, the 1949 Geneva Conventions were written with an eye to World War II and were intended to outlaw the excesses of that war.  One might argue that the excesses of that war were outlawed again as previous humanitarian law conventions were ignored by the belligerents during World War II.  As a product of the developments in technology that had taken place since World War I, especially in connection with airpower, the principle of distinction was simply disregarded. Both the Allies and the Axis powers engaged in the unlimited bombing of civilian populations with the intent to weaken their resolve to fight; hence, World War II tragically devolved into total war — and, of course, total destruction.[5]

It has often been noted that generals tend to prepare for the last war.  Apparently international lawyers are guilty of the same error in judgment.   In the shadow of the so-called Cold War, however, an outbreak of conventional warfare on the scale of the two world wars was impossible.  The two superpowers avoided direct confrontation with each other, especially after the Cuban Missile Crisis.  It is fair to say that the leadership on both sides did not merely scare each other, but also themselves, with the nuclear brinkmanship associated with that crisis.

As a result, there were no more conventional wars the consequences of which the 1949 Geneva Conventions were written to ameliorate.  Rather, both superpowers engaged in war by proxy around the world.  Internal wars, spurred by superpower meddling, became the norm as was evinced by the negotiation of Additional Protocol II of 1977.[6]  At or about that time, however, another form of violence had become prominent, that is, international terrorism which was perpetrated by a broad range of groups during the seventies including the IRA, the PLO, Beider Meinhof, the Red Brigades, FLQ and SLA.

Terrorism is, of course, effective because, like total war, it does not respect the principle of distinction.  But is it war and should it be addressed by humanitarian law?  Or is the international human rights regime the relevant law?  Or should an entirely different legal regime be developed with international terrorism solely in mind?

The Global War on Islam

This is hardly a new question, but it is becoming an increasingly urgent question.  It is old news that, after the attack on the World Trade Center, the Bush administration declared a Global War on Terror.  Despite repeated claims to the contrary, it is clear that it evolved into a Global War on Islam.

Should you doubt this, contrast the treatment of Timothy McVeigh, a Christian and a U.S. citizen, who detonated a truck bomb in front of the federal building in Oklahoma City on April 19, 1995, killing 168 people and injuring over 800 in an act of revenge for Waco and Ruby Ridge with the treatment of Anwar al-Awlaki, a Muslim and also a U.S. citizen, who openly advocated Jihadism and who was the spiritual advisor to individuals who perpetrated terrorist acts including the shootings at Fort Hood in 2009 and attempted terrorist acts including the so-called Christmas Day bombing in the same year.   While both were ultimately executed, McVeigh first received a full and fair trial which observed the entire panoply of Constitutional rights.[7]  Anwar al-Awlaki, who may have preached violence but killed no one, was summarily executed by means of a drone attack in Yemen on September 30, 2011.[8]  Moreover, two weeks later, his 16-year-old son, also a U.S. citizen, was killed in a second drone strike, also in Yemen.[9]

Plainly, both the United States and its European allies have securitized their relationship with their Muslim minorities.  Other states around the world have jumped onto the bandwagon, seizing upon the opportunity to declare their own troublesome Muslim minorities “terrorists,”  including the Chechens so-designated by Russia and the Uyghurs so-designated by China — this despite the obvious fact that both states were guilty of repressing these minorities, thus inviting armed resistance.

Within the United States we have seen the rise of a second rate McCarthy in the guise of Congressman Peter King, who has held extensive hearings on the prevention of the radicalization of American Muslims.[10]  It is an approach that is guaranteed to result in the very outcome King purports to wish to prevent.  Plainly, American Muslims have not failed to note that they are viewed as enemies of the state by virtue of their religion and their religion alone.

Witnessing the characterization of Muslims as the enemy based solely on their religious beliefs — in open violation of our first amendment guarantees — is deeply disturbing and there appears to be no end in sight.  Anti-Muslim propaganda appears to issue from every quarter.  The current administration, which billed itself as a human rights administration during its first run for office, made campaign promises to close GITMO, try the prisoners held there and/or set them free.[11]  There was substantial, and I would say ill-considered resistance to rendering justice on behalf of these men.  Moreover, as events have evolved, it is not at all clear that the resistance originated entirely outside of the administration.[12]

President Obama, in reference to the fact that his daughters will soon be dating, has felt at liberty to joke about ensuring their future dates’ good behavior by threatening them with drones.[13]  Putting aside a father’s archaic desire to guard his daughters’ virtue, I am in any event ill at ease with the joke.  This administration has foresworn torture in favor of the use of drones for the purposes of summary execution of suspected terrorists around the world, including American citizens.  The collateral damage has, moreover, been substantial.  It is not at all clear to me how this is an improvement over the previous administration’s international legal record whether we deem the appropriate law to be human rights or humanitarian law.  Surely death by summary execution is not better than torture and surely both are reprehensible uses of force.

Choosing the Right Law 

Plainly, the United States is permitted to prevent further terrorist attacks.  So once again I must ask, which is the appropriate law?  Is it human rights law, which would only provide for the capture and prosecution of terrorists?  Or is it humanitarian law, which permits the use of force only against legitimate military targets during time of war?  On a human rights theory, the United States is under an obligation to attempt to take the perpetrators into custody and provide them with a full and fair trial consistent with our constitution.  There are only limited circumstances under which criminal law would permit the U.S. government to kill a suspected criminal rather then capturing him or her alive and all of them involve the protection of the state and its citizens against the immediate threat of violence.

However, the present administration is obviously not disposed to proceed in a manner consistent with the human rights model.  Nothing made that fact clearer than the execution of Osama bin Laden.  Despite claims to the contrary, it is absurd to suppose that a highly elite Navy SEALs unit was incapable of capturing bin Laden alive and returning him to the United States to be prosecuted.[14]  Videos of bin Laden that emerged after his death showed a frightened old man who had hidden in a Pakistani compound for years to avoid capture.[15]  They underscored how vulnerable to attack he really was.  Moreover, there was plenty of evidence including archival film footage to establish that, while he may have been the face of international Jihadi terrorism, he was himself incapable of so much as properly handling a gun.[16]  It should have been obvious to an objective observer that he posed no threat to the members of the SEALs unit.  Whatever reasons may be offered, the plain truth was that the American military was sent to Pakistan to execute, not capture, the then weak old man.

The summary execution of suspected terrorists is clearly the preference of the current administration.  In contrast to the capture of the bulk of the Nazi leadership (sans Hitler, who committed suicide)  and their prosecution at Nuremberg in accordance with the rule of law, persons who notably killed not thousands but millions of unarmed civilians during World War II, there has been no attempt to bring alleged terrorists to justice after 9/11.   Hence, the summary executions continue apace.

Can a serious argument be made that humanitarian law applies?  I believe that it is a hard argument to make.  None of the hallmarks of war are here apparent.  Certainly, terrorists have political motivations.  But this fact is hardly sufficient to convert loosely organized groups into armies waging war.  The current administration acknowledges that the structural integrity of al-Qaeda has largely been undermined.[17]  While it is not clear to me that it was ever the highly organized, monolithic group that the last administration represented it to be, it is certainly not that anymore.

In any event, for humanitarian law to apply, the claim must be that terrorists can properly be targeted with force by the United States military by virtue of their status as enemy soldiers.  I would suggest that that claim is, on its face, a poor fit with the requirements of humanitarian law.  Indeed, every account of how humanitarian law justifies targeted killings that I have so far encountered assumes that summary executions of suspected terrorists are legitimate and then attempts to make this square peg fit into an unquestionably round hole.

We know that Additional Protocol II was written with nonstate actors in mind.  Article 1, entitled “Material field of application,” provides in paragraph 1 that the Protocol is intended to supplement Common Article 3 of the 1949 Geneva Conventions in connection with armed conflicts “which take 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.”  Common Article 3 similarly provides that it applies to “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.”  Plainly, the remainder of humanitarian law, whether originating with the Hague or Geneva Conventions, has no application here as they are only relevant to interstate conflicts.[18]

One can make the argument that international terrorism, while by definition crossing international borders, nonetheless occurs in the territory of the State Party where the terrorist attack occurs.  One could further argue that at least some terrorist groups possess a sufficiently well established command structure to comprise an organized armed group.  International terrorists do not, however, “exercise such control over a part of [a State Party’s] territory as to enable them to carry out sustained and concerted military operations” nor indeed does that appear to be their objective.

Plainly, neither Additional Protocol II nor Common Article 3 have application to international terrorism.  Indeed, the provisions of Paragraph 2 of Additional Protocol II would appear, by its terms, to exclude international terrorism.  It states that the protocol “shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”[19]  Where international terrorism preexisted the negotiation and adoption of Additional Protocol II, its drafters could have explicitly included it if they were so disposed.  All of the evidence suggests that they had no intention of including terrorism within its coverage.

Advocates of the application of humanitarian law to international terrorism bemoan the fact that the failure to designate terrorists as legitimate military targets gives terrorists the upper hand.  I can only say welcome to the world of law enforcement.  Yet we require all police agencies of the United States to observe the requirements of our law, including the Constitution of the United States of America to which they have sworn their allegiance.

The Third Choice

There is, of course, a third alternative and that is to develop a new body of law intended exclusively to address the question of terrorism.  It would not be odd to suggest that there are lacunae in international law, including the law of war.  Spies, for instance, are intimately involved in the prosecution of war.  The gathering of reliable intelligence is essential to the identification of military targets and the minimization of collateral damage.  Yet, even recognizing this fact, the law addressing the activities of spies and their treatment upon capture is admittedly underdeveloped.[20]

The United Nations has long tried to develop law treating the question of terrorism, to date with little success.[21]  The problem is always and invariably the same:  One man’s terrorist is another man’s freedom fighter.  This is not a position without merit even from an American point of view.  There can be little doubt that the British colonial administration would have deemed members of the American militias during our War of Independence to be terrorists were the concept available to them at the time.  International law has undergone extensive development since the American Revolution, however, and compelling politically motivated terrorists/freedom fighters to observe the principle of distinction would be a boon to the international community.

In the absence of a fully developed legal regime specifically treating terrorism, however, the default principle must prevail.  If an individual is not a soldier, then he or she is by definition a civilian.  As a civilian, he or she is not a legitimate target of military force.  The summary execution of a civilian is not consistent with either humanitarian law or the law of human rights.  We, the United States, its law enforcement agencies and its armed forces, are under an obligation to capture suspected terrorists and bring them to justice.  Targeted killing is simply insupportable under the law as it currently exists.

Conclusion

I have no love of terrorists.  I lived in New York City when the planes struck the World Trade Center – that symbol of American global economic dominance.  My mother lived only a short distance from the Pentagon when the planes struck that most prominent symbol of American military might.  I feared to discover if anyone I knew died in either place.  I have yet to recover from the images of individuals, who knowing that they were about to die, were left with the singular choice as to how.  I still cannot bear to reflect on their fall from the heights of the World Trade Center to their deaths while horrified New Yorkers helplessly looked on.  In sum, I have no confusion about why they call it terrorism, as I was indeed terrified.

But while I have no love of terrorism, I do love the law and I cannot permit the tortured interpretations to which it has been subject since 9/11 to pass without comment.  As a state that everywhere promotes the rule of law, we must act consistently with the law or be deemed utterly without credibility.  It is time for us to cease and desist from the practice of targeted killings.  It is time for us to do what is right because it is the right thing to do.


[1]   Bonnie C. Brennan received her J.D. from the NYU School of Law and her Ph.D. from the Fletcher School of Law and Diplomacy, Tufts University.  She currently teaches human rights and humanitarian law at the NYU Department of Politics and practices criminal defense law at The Legal Aid Society in New York City.

[2]   See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ¶ 106, ICJ Advisory Opinion, 9 July 2004, http://www.icj-cij.org/docket/files/131/1671.pdf (Accessed on February 7, 2013).

[3]   The term of art is, of course, “armed conflict,” a term which the Geneva Conventions do not themselves define. For a ICRC commentary on the meaning of “armed conflict,” see http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf (Accessed on February 7, 2013).

[4] See 1949 Geneva Conventions and Additional Protocols (text and commentaries), http://www.icrc.org/ihl.nsf/CONVPRES (Accessed on February 7, 2013).

[5]  For a discussion of “strategic” or “area”  bombing, see Stephen A. Garrett, Ethics and Airpower in World War II  (1997).

[6]   Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, http://www.icrc.org/ihl.nsf/INTRO/475?OpenDocument (Accessed on February 7, 2012).

[7]  See Gore Vidal, “The Meaning of Timothy McVeigh,” Vanity Fair (September 2001), http://www.vanityfair.com/politics/features/2001/09/mcveigh200109 (Accessed on February 7, 2013), for a discussion of the man and his motivations.

[8] Ahmed Al Haj, “Ahmed Al-Haj, “Anwar Al-Awlaki Dead: U.S.-Born Al Qaeda Cleric Killed In Yemen,” October 10, 2011, http://www.huffingtonpost.com/2011/09/30/anwar-alawlaki-usborn-mus_n_988397.html (Accessed on February 7, 2013).

[9]  Peter Finn and Greg Miller, “Anwar Al-Awlaki’s family speaks out against his son’s death in airstrike,” Washington Post, October 17, 2011, http://articles.washingtonpost.com/2011-10-17/world/ 35279713_1_anwar-al-awlaki-ibrahim-al-banna-aqap (Accessed on February 7, 2013).

[10]  Chris Lisee, “Rep. Peter King’s Muslim ‘Radicalization’ Hearings Return to Capitol,” June 21, 2012,  http://www.huffingtonpost.com/2012/06/21/peter-king-muslim-radicalization-hearings_n_1613746. html (Accessed on February 7, 2013).

[11]  ACLU, “Close Guantanamo,” undated,  http://www.aclu.org/close-guantanamo (Accessed on February 7, 2013).

[12] Charlie Savage, “Closing Guantanamo Fades as a Priority,” New York Times,  June 25, 2010,  http://www.nytimes.com/2010/06/26/us/politics/26gitmo.html?_r=0 (Accessed on February 7, 2013).

[13]  Kristina Wong, “President Obama’s Joke About Predator Drones Draws Fire,” ABC News, May  3, 2010, http://abcnews.go.com/blogs/politics/2010/05/president-obamas-joke-about-predator-drones-draws-fire/ (Accessed on February 7, 2013).

[14]  See Nicholas Schmidle, “Getting Bin Laden,” The New Yorker, August 8, 2011,  http://www.newyorker.com/reporting/2011/08/08/110808fa_fact_schmidle?currentPage=all (Accessed on February 7, 2013) for a popular account of Bin Laden’s death.

[15]  Martha Raddatz & Luis Martinez, “Osama Bin Laden Videos Released by Government,” May 8, 2011, http://abcnews.go.com/Blotter/osama-bin-laden-home-videos-released-pentagon/story?id=13552384 (Accessed on February 7, 2013).

[16] “Osama Bin Laden Shoots Guns,” http://www.youtube.com/watch?v=9Cg2s3amG50 (Accessed on February 7, 2013), shows the propagandistic version of the video.  However, although I can find it no where on the Internet, there were airings of the same video on television which showed an inept bin Laden fumbling with the gun before and after the cut of him apparently firing it.

[17] James Gordon Meek, “Osama Bin Laden’s Al Qaeda a shell of its former strength; Yemeni group now biggest threat: report,” NY Daily News, February 8, 2011, http://www. nydailynews.com/ news/national/ osama-bin-laden-al-qaeda-shell-strength-yemeni-group-biggest-threat-report-article-1.135402#ixzz2KGil0d5S (Accessed on February 7, 2013).

[18] See 1949 Geneva Conventions and Additional Protocols (text and commentaries), http://www.icrc.org/ihl.nsf/CONVPRES?OpenView  (Accessed on February 7, 2013).

[19]   Id.

[20] Michael Bothe, “Combatants and Noncombatants,” in Dieter Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts, 65, 98 (1999),  http://books.google.com/books  (Accessed on February 7, 2013).

[21]  Sixth Committee, Sixty-seventh General Assembly, 1st & 2nd Meetings (AM & PM), “Legal Committee Urges Conclusion of Draft Comprehensive Convention on International Terrorism:  Delegates Urge Clear Definition to Distinguish Terrorist Acts from Right of Self-determination,” UN Doc. GA/L/3433, 8 October 2012, http://www.un.org/News/Press/docs/ 2012/gal3433.doc.htm (Accessed on February 7, 2013). See also International Instruments Related to the Prevention and Suppression of International Terrorism, (2008), UN Sales No. E.08.V.2, http://www.unodc.org/documents/terrorism/ Publications/Int_Instruments_Prevention_and_Suppression_Int_Terrorism/Publication_-_English_-_08-25503_text.pdf (Accessed on February 7, 2013), for a compilation of the piecemeal approach to the regulation of international terrorism so far achieved by the international community.

The convenient truth behind Suicide Attacks in Islamic legal texts – Restrictions on Asymmetric Warfare

Jihadists and like-minded Salafi ideologues regularly advocate the legitimacy of suicide murder as a legitimate offense tactic, and certain sectors of Muslim society today appear to accept its authenticity with little reservation. Based on a principle popularized by the 13th century Muslim theologian Ibn Taymiyya, suicidal missions have become a staple tactic in the Jihadi playbook.  In response, a counter-argument must be carefully constructed by engaging the same sources in order to afford policy makers, law enforcement agencies and media outlets a viable means of debunking the myth of the principle’s legitimacy and a way to eradicate what has become a persuasive argument in the terrorist recruitment process at the ground level.

The principle mentioned is that of “plunging into the enemy” (Arabic inghimas), and it was developed, in part, in Ibn Taymiyya’s seven-century-old treatise titled A Principle Regarding Plunging into the Enemy, and is it Permitted?.[1]  Ibn Taymiyya, who is probably the most widely cited medieval scholar by the Salafi-jihadist trend in Islam,[2] understands “plunging into the enemy” very differently from today’s jihadists, although they refer to his writings and use the principle to justify suicide attacks in the explication of their ideology and their legal opinions (fatwas). Furthermore, and maybe even more importantly, their interpretation is not derived in accordance with appropriate Shari`a procedure, and it certainly does not override explicit Qur’anic and other legal texts prohibiting suicide.[3]

So how is this principle presented in the aforementioned treatise?

Right off the bat, Ibn Taymiyya, like other legal scholars, restricted the application of “plunging into the enemy” by stating that it would be “more appropriate” to carry it out in a situation of military asymmetry, when “an individual or group is fighting [an enemy] that outnumbers them, on condition there is some benefit to Islam in fighting, even if the (individuals) are likely to be killed.” Next, the author introduced three scenarios in which the principle specifically applies (translated here from the original text):

1. (Line 23) first scenario:

Like [in the case of] a man who storms the ranks of the infidels and penetrates them. Scholars call this “plunging into the enemy,” since [the man] is swallowed up in them like a thing that gets submersed in something that engulfs it.

2. (Line 24) second scenario:

And like a man who kills an infidel officer among his friends, for instance, by pouncing on him publicly, if he [can] get him by deceit, thinking he can kill him and take him unawares like that.

3. (Lines 25-26) third scenario:

And [like] a man whose comrades have fled and so he is fighting the enemy alone or with a few others, and yet this is inflicting harm on the enemy, despite the fact they know they are likely to be killed.

The Salafi-jihadi argument in support of suicide operations is neutralized through the following restrictions that emerge from the text-

1. Asymmetric warfare

The notion of “plunging into the enemy” is inextricably tied in the text with the undesirable asymmetric situation of confronting a numerically superior army, and lines 23-25 correctly read as cases in which a soldier on the battlefield decides to carry out an attack that will likely result in his death. Jihadist ideologues extended the medieval scholars’ idea of numerical superiority of the enemy to include the current technological superiority of Western militaries as justification for their interpretation of the scope of the “plunging into the enemy” principle. While including technical superiority is not a stretch, the leap to legitimizing suicide-murder is a far cry. In fact, the analogy as a whole becomes invalid, because it ignores the other restrictions (below) that must be considered in order to complete a valid analogy in Islamic law. Ibn Taymiyya was obviously aware of the notion of asymmetry in warfare, and despite that (or perhaps, because of that?) he placed several conditions on the principle’s applicability. Jihadist ideologues did not follow proper Shar`i procedure, because if they did they could not have manipulated the language of “the plunging” principle to suit their case.[4]

2. Suicide

Since suicide is absolutely forbidden in Islam, there would have to be a clear benefit to the outcome of a war, or a “decisive repulsion” (sic.) of the enemy’s damage to Islam, in order to permit a dangerous mission that could surely end with an individual’s death and/or create other Muslim casualties.[5]  In a case where a mission is deemed unquestionably beneficial to a battle, only then, “it is more appropriate” to apply the principle. This is an important restriction. The highly contextualized permission to “self-destruct” is taken out of context by the Salafis and constitutes a pivot point in their attempt to ground suicide bombing in Islamic law. They analogize a suicide bomber with an individual “plunging into the enemy”. However, in the case of plunging into the enemy, a combatant is expected to die at the hands of the enemy, not by his or her own doing. What this means is that the component of self-endangerment in plunging into the enemy does NOT include intentionally killing oneself. Furthermore, when one considers, let’s say, the last thirty years since the tactic gained popularity, it is clear that even the worst wave of suicide bombings (including the events of 9/11/2001) has never been able to demonstrate “a decisive repulsion of the enemy’s damage to Islam”.   Hence endangering oneself with the intention of inflicting harm on the enemy that does NOT decisively repulse the enemy’s damage to Islam is NOT permitted.

3. Non-combatants

According to Muslim scholars like Ibn Taymiyya, Plunging into the enemy clearly pertains to a battlefield-type situation in the course of a conventional war, involving combatants rather than a single event occurring in a concentration of non-combatants. Ibn Taymiyya is neither implying nor legitimizing “suicide mass-murder” of non-combatant men, women and children (Muslim or other Shari`a protected groups, like Jews and Christians). Instead, Ibn Taymiyya offers a highly restricted context within which an almost certainly “suicidal-type attack” on numerically (or by analogy) technologically superior enemy combatants could be rendered “more appropriate.” Ibn Taymiyya repeatedly states in his writings that Muslim and non-Muslim non-combatants must NOT be harmed and collateral damage should be avoided.

4. Chances of Survival

Finally and indubitably, Ibn Taymiyya sees the possibility of coming out alive from such a dangerous mission even when advocating martyrdom in the cause of God.[6] He neither asserts that the lone fighter will, in fact, be killed, nor argues that the success of the mission depends entirely on the fighter’s certain death. This is crucial, since the possibility of surviving is entirely absent when considering the intention and state of mind of a suicide terrorist, up to and during the act of taking his or her own life, especially with a weapon of choice that is explosive.[7]

Take-away

The promotion of suicide murder as a legitimate case of plunging into the enemy (inghimas) is an unfortunately successful name-game and an evasive legal device.[8] With false legal reasoning and a manifold decontextualization of an historical term, jihadist ideologues have managed to apply the term to a staple tactic in their strategy book. They have been spinning the Islamic tradition and law to suit their cause. Today’s jihadists are not faced with similar historical and geopolitical conditions as the medieval scholars they quote. Unlike the medieval scholars who possessed a structural disposition to cooperate with the state, Jihadists and many Salafists rebel against authority and delegitimize Sunni Muslim society in a manner that in certain regions is contributing to a breakdown of governance and social stability (Syria, Libya, Afghanistan, Iraq and Pakistan).[9] In fact, Jihadists’ form of dissent fits Islamic legal definitions of brigands (muharibun)[10] and rebels (bugha) who spread terror and destruction and whose terror-based methods and pursuit of indiscriminate slaughter and lawlessness are difficult to distinguish from those of bandits with all the Shari`a consequences of that. In doing so Jihadists have blurred the lines within Islamic law between a perceived expression of bravery and anti-Shari`a, deviant criminal behavior.

Dr. R. M. holds an M.A. and PhD in Arabic and Middle Eastern studies from NYU. She taught Arabic as an adjunct assistant professor at Queens College (SUNY) and New York University, and continues to privately prepare doctoral candidates for their proficiency exams in Arabic. Research interests and expertise involve medieval Arabic linguistic theory, Islamic legal reasoning, and Qur’anic exegesis. R. has been involved in West Point’s Combating Terrorism Center projects since 2005, including Gaining the Initiative project, the Salafi Ideology Project (Militant Ideology Atlas), and Jihadi ideology. As an FBI fellow at the CTC, she designed the curriculum for the CTC’s Arabic Familiarization course, Arabic Name Analysis and Phraseology. R is involved in CTC’s external education division for FBI/JTTF regional training, is currently a Terrorism Intelligence Analyst for InterPort Police.


[1] Qa`ida fi al-inghimas fi al-`aduww wa-hal yubah fiha?. This treatise has not been published in the West and is currently available only in Arabic, edited and prepared by Abu Muhammad Ashraf b. `Abd al-Maqsud, Qa`ida fi al-inghimas fi al-`aduww wa-hal yubah fiha? (Riyadh: Adwa’ al-Salaf, 2002). The only copy of the manuscript (#444) is said to be located at the Egyptian National Library in Cairo.

[2] For a detailed account on the proliferation of suicide attacks and popularization of martyrdom, see Assaf Moghadam, The Globalization of Martyrdom: Al Qaeda, Salafi Jihad, and the Diffusion of Suicide Attacks (Baltimore: Johns Hopkins University Press, 2008).

[3] Jihadist lexicon does not use the term “suicide attack,” rather one finds phrases like “carrying out jihad.”

[4] Partial statements by Ibn Taymiyya were isolated, stripped of deliberate restrictions, and elaborated on devoid of syntactic, juridical and historical contexts. In fact, Ibn Taymiyya himself criticizes those who use partial statements of Ibn Hanbal (d. 855 C.E.) thereby ignoring the complexity of his juridical opinion, al-Sarim al-maslul (Saudi Arabia: al-Haras al-Watani al-Sa`udi, n.d), vol. 2, pp. 483-484. In this respect, the jihadists’ case for their brand of martyrdom attacks lacks the legal reason (Ar. `illa) identified in the case of inghimas (plunging into the enemy). On the concept of `illa, see Nabil Shehaby, “`Illa and Qiyās in Early Islamic Legal Theory,” Journal of the American Oriental Society 102:1 (1982): pp. 27-46.

[5] A mission that falls under the definition of “plunging into the enemy” is dangerous and self-destructive, and in this sense, perhaps can be termed “suicidal.” This is different from other meanings signified by the word “suicidal” that relate to an explicit intention of ending one’s own life. For example Qur’an 4:29-30 says, “And do not take your own lives for God has mercy on you. And so he who does this in transgression and violation, We shall burn him in Hellfire. This is an easy feat for God.”

[6] Ibn Taymiyya, Qa`ida fi al-inghimas fi al-`aduww wa-hal yubah fiha? (Riyadh: Adwa’ al-Salaf, 2002), p. 36, line 45; refers to the Qur’an, chapter 9, verse 52.

[7] Dr. Boaz Ganor, “The Rationality of the Islamic Radical Suicide Attack Phenomenon,” International Institute for Counter-Terrorism, March 31, 2007.

[8] On prohibition of evasive legal devices, see Dr. Ahmad al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law (Herndon, VA: International Institute of Islamic Thought, 2005), pp.56-57.

[9] Compare with ideological roots of the Sovereign Citizen Movement in the U.S. and the movement’s rejection of U.S. government’s legitimacy.

[10] In a video in 2000, Abu Mus`ab al-Suri called jihadists to commit larceny, murder, arson, against non-Muslims in Muslim countries. And see Emrullah Uslu, “al-Qa`ida robbers target jewelry stores,” Jamestown Foundation: Eurasia Daily Monitor, 6:25 (2009) (accessed online http://www.jamestown.org/single/?no_cache=1&tx_ttnews[tt_news]=34476&tx_ttnews[backPid]=7&cHash=fdae903bb8). It is noteworthy that Ibn Taymiyya and other Muslim jurists have expressed their condemnation of such groups pursuing indiscriminate slaughter and lawlessness. For example, Ibn Taymiyya, Majmu` al-Fatawa, (al-Madina: Majma` al-Malik Fahd li-Taba`at al-Mushaf al-Sharif, 1995), vol. 4, pp. 440-441, 444, 450-452; and Minhaj al-Sunna al-Nabawiyya (Riyad: Ibn Sa`ud University, 1986), vol. 2, pp. 233, 244

Targeted Killing: Bin Laden As a Legitimate Military Target

WRITTEN BY: DR. ELIZABETH BORG[1]

 

Introduction

After Israel made public a policy of ‘targeted killings’ of alleged terrorists in the Occupied Palestinian Territories[2] this term became common usage, however, it is neither defined under international law nor does it fit into any particular legal framework. According to a UN special report[3] targeted killings are premeditated acts of lethal force employed by States in times of peace or during armed conflict to eliminate specific individuals outside their custody. Moreover according to Melzer targeted killings can be defined as a use of lethal force by a subject of international law that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary) and deliberate.[4] Examples of targeted killings include the November 2002 killing of alleged al Qaeda leader Ali Qaed Senyan al-Harithi and five other men in Yemen, reportedly by a CIA-operated Predator drone using a Hellfire missile[5] and the January 2010 killing, in an operation allegedly carried out by 18 Israeli Mossad Intelligence agents, of Mahmoud al-Mahbouh, a Hamas leader, at a Dubai Hotel.[6]  In this case, Osama Bin Laden was individually selected and intentionally targeted and killed by the United States[7] by means of a helicopter raid after months of decision making and planning. Hence, the killing of Bin Laden can be qualified as a targeted killing.

Targeted Killings and International Law

In a speech on the Obama Administration and International Law, Harold Koh[8] maintained that ‘as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defence under international law.’[9]

Article 2(4) of the UN Charter enshrines the prohibition on the use of force[10] however Article 51 of the UN Charter provides an exception[11] of self-defence and allows recourse to force on the territory of the State which was responsible for the armed attack on the territory of the Victim State. Moreover, it has been generally accepted in today’s paradigm on the use of force that the ‘armed attack’ does not necessarily have to be attributable to a State, but can also be carried out by a non-State actor[12] although apprehensions exist as to whether a State can use force in self-defence against the territory (‘Territorial State’) where the non-State actor may be present. For example, in the Case concerning armed activities on the territory of the Congo the ICJ held that Uganda did not have the right to exercise self-defence against the DRC because:

there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3(g) of General Assembly resolution 3314 (XXIX) on the definition of aggression, adopted on 14 December 1974. The Court is of the view that, on the evidence before it, even if this series of deplorable attacks could be regarded as cumulative in character, they still remained non-attributable to the DRC. Thus, the lack of attribution between the non-State actors and the government of the DRC served as the inhibiting factor for Uganda to exercise self-defence. [13]

Additionally the dispute of whether, prior to the use of counterforce, consent is needed from the TerritorialState arises.  As a general rule, prior consent from the TerritorialState should be a prerequisite to the use of extraterritorial force on its territory. In the light of these circumstances, a limited exception to this general rule may be allowed when there is an immediate necessity to use force to either halt or repel an armed attack.  Nonetheless, formally requesting consent might not be practical, especially if armed attacks are on-going from the territory of the TerritorialState or, more controversially, when a State wishes to invoke pre-emptive self-defence. Under the Bush administration, the US had openly maintained that the ‘inherent right to self-defence’ encompasses anticipatory self-defence according to existing principles of customary international law.[14] Traditionally, the Caroline incident[15] has been recognized as the classic formulation of the right to anticipatory self-defence.[16] The above implies that if States believe they have the right to use pre-emptive self-defence against non-State actors, there must be unequivocal evidence that the threat is imminent and that the use of force is absolutely necessary in order to halt or repel the impending armed attack.[17]

Referring to Koh’s statement claiming the US is in an armed conflict with al-Qaeda, it was argued by the US that this armed conflict in Afghanistan could spill over onto Pakistan.[18]Assuming this is the case then International Humanitarian Law[19] applies, thus one needs to determine whether this conflict is of an international or non-international character so as to identify the body of rules that applies. The ICTY[20] in the Tadić Judgment defined armed conflict [21] implying that a higher threshold of violence is required for the classification as a non-international armed conflict[22] than an international armed conflict.[23] The latter is satisfied ‘whenever there is a resort to armed force’, whilst the former requires ‘protracted armed violence’ and the membership of an ‘organized armed group’. Although Koh does not explicitly classify the conflict, he mentions Common Article 3,[24] Additional Protocol II[25] of the Geneva Conventions[26] and Hamdi v. Rumsfeld.[27] These suggest that the current US position views the conflict as NIAC.[28] Both types of conflict will now be examined, concentrating upon the principle of distinction.

International Armed Conflict

Under the principle of distinction, the parties must distinguish between combatants and civilians, military and non-military targets. Article 43(2) of Additional Protocol I[29] states that members of the armed forces of a Party to a conflict are combatants having the right to participate directly in hostilities. However, it is difficult to classify al-Qaeda members as combatants because they are not part of the armed forces of a State nor do they fulfil the four conditions laid out in Article 4(A) (2) Geneva III[30] especially since the underlying premise of terrorism involves acts which are contrary with the laws and customs of war. The implication is that a terrorist is a civilian, and can only be the object of attack ‘for such time as they take a direct part in hostilities.’[31] For example, Cassese believed that under IAC, members of terrorist groups are to be regarded as civilians.[32] This is also reflected in the ICRC Interpretive Guidance on the notion of Direct Participation in Hostilities.[33]  The ICRC Guidance states that:

In order to qualify as direct participation of hostilities, a specific act must meet the following cumulative criteria: 1. the act must be likely to adversely affect the military operation or military capacity of a party to the armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and 2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and 3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and the detriment of another.[34]

 

Another controversial issue is the status of unlawful combatant in IAC. Chief Justice Barak of the Israeli Supreme Court held that terrorists and their organizations in armed conflict of international character with Israel do not fall into the category of combatants, as ‘they do not belong to the armed forces, and they do not belong to units to which international law grants status similar to that of combatants. Indeed, the terrorists and the organizations which send them to carry out attacks are unlawful combatants. They do not enjoy the status of prisoners of war. They can be tried for their participation in hostilities, judged, and punished.’[35]

 

Non-international armed conflict

Article 1 of Additional Protocol II states that a NIAC is a conflict between the armed forces of a High Contracting Party ‘and dissident armed forces or organized armed groups.’ Meanwhile, Article 13(2) of Additional Protocol II states that ‘the civilian population as such, as well as individual civilians, shall not be the object of attack,’ whilst Article 13(3) states that ‘civilians shall enjoy the protection […] unless and for such time as they take a direct part in hostilities.’ This protection is also emphasised by the ICRC Guidance[36] which makes a difference between ‘organised armed groups’ and dissident armed forces[37]suggesting that members of organized armed forces of a non-State Party, e.g. al-Qaeda, are only those who assume a continuous combat function. In view of this one concludes that individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities[38] are assuming a continuous combat function and not entitled to combatant privilege.[39] Additionally, an individual recruited, trained and equipped by such a group to continuously and directly participate in hostilities on its behalf can be considered to assume a continuous combat function even before he or she first carries out a hostile act.[40]

 

International Human Rights Law (IHRL)

In the absence of an armed conflict, the legal regime which applies is IHRL.  Alston observes that a law enforcement or state killing is only legal if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or non-lethal incapacitation, of preventing that threat to life (making lethal force necessary).[41]  Another issue that arises is whether the International Covenant on Civil and Political Rights (1976)[42] has extraterritorial applicability. According to the Human Rights Committee, as declared in General Comment 31,[43]Article 2(1) of the ICCPR[44] should be read that each State party would have assumed its obligations under the ICCPR to ‘all persons within its territory’ and ‘all persons subject to its jurisdiction’ and ‘anyone within the power or effective control of that State.’  In view of the fact that Bin Laden was present in Pakistan where the US had no territorial control, the question is whether the US by virtue of the attack had power and effective control over him. It is hard to argue that targeting someone with the intention to capture or use lethal force against them does not amount to an exercise of power or control. The right to life can be regarded as a peremptory norm of customary international law. The right to a fair trial and the presumption of innocence are enshrined as principles in customary international law. This could imply that the United States is obligated to respect Bin Laden’s right to life and the due process of law.

Conclusion

Ultimately, it can be concluded that it is difficult to give a definitive judgment as to the legality of the use of lethal force against Bin Laden due to the lack of certainty of facts of the operation as well as a paucity of a definitive stance on targeted killings under IHL. One must also see which body of laws applies, i.e. IHL or IHRL. If the latter applies the use of lethal force must be absolutely necessary, proportional and thus the undesired last resort. The operation must be conducted in a preventive nature as opposed to punitive nature in order not to amount to an ‘arbitrary’ deprivation of life.[45] In view of the analysis made above, IHL of a NIAC applies meaning that the principle of distinction as well of self-defence must be examined in such a light.  The inherent self-defence serves as a justification for the extraterritorial use of force against a non-State actor in another State. Although Pakistan was not informed beforehand of the operation, and hence no consent was given, Pakistan’s reaction was a very cautious and it did not condemn the US’s actions.[46] This raises the question of precedent and whether cognisance of targeted killing proves the emergence of an internationally customary rule however this is not the case.[47] The legal justifications for self-defence claimed by the US, as explained in Koh’s speech,[48]  are : (i) that under IHL, Bin Laden is a legitimate target; (ii) that he was an imminent threat to the United States. Thus, Koh believes ‘there is no question that he presented a lawful target for the use of lethal force.’ In view of the above, the armed conflict is a result of counterforce to the 9/11 attack however the inherent right to self-defence suggests that force can also be used as a prevention to further attacks.  It can be inferred that because of the nature of this particular operation, the ‘porous frontier’[49] of Afghanistan[50] and Pakistan, Bin Laden being an integral part of al-Qaeda, being significantly responsible for 9/11 and other armed attacks, possibly planning further terrorist attacks, makes Bin Laden a legitimate target as a civilian with DPH as well serves as a justification for self-defence. However, this justifies the use of extraterritorial force, but not the lethal use of force against a targeted individual. The latter has to be examined in view of civilian DPH or membership in an organised armed group.  The fact that Bin Laden was widely recognised as having a leadership position within Al-Qaeda, as well as past experiences and events, fulfils the requirement for a lasting integration into an organised armed group as above-mentioned.  Melzer has argued that ‘in practice, a civilian who regularly and consistently directly participates in hostilities of a belligerent party will almost always be affiliated with an organized armed force or group and, thus, may be regarded as a de facto member assuming a continuous combat function for that force or group. As such, he is no longer considered to be a civilian and loses protection against direct attack for as long as he continues to assume such combat function.’[51] Hence, in view of the above, Bin Laden fulfils the requirement for a lasting integration into an organised armed group making him a legitimate target. However, as the ICRC Guidance suggest, the targeting of Bin Laden must adhere to the principle of proportionality and necessity.[52]  The latter suggests that even if an individual may be targeted, non-lethal means should be contemplated in circumstances where it is possible to do so. If Bin Laden has resisted the assault and died as a result of a fire fight then most probably, only lethal forces could be used there and then.  One must also keep in mind the principle of military necessity requires that the lethal force used must be of a degree and kind, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the military operation, in this case the submission of Bin Laden, with the minimum expenditure of life and resources.

In conclusion, the military operation conducted by the US was not unlawful in respect of IHL of NIAC since the extrajudicial force used in Pakistan can be justified as self-defence and Bin Laden can be considered as a legitimate military target.


[1] Graduated as a lawyer from the University of Malta in 2010, Dr. Elizabeth Borg continued her studies by pursuing a LLM in International Crime and Justice with UNICRI, a United Nations Institution in Torino. Dr. Elizabeth Borg is currently a Lawyer at the Department of Industrial and Employment Relations and can be reached at dr.elizabethborg@gmail.com or  elizabeth.borg@gov.mt

[2]Orna Ben-Naftali & Keren Michaeli, We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 Cornell Int’l L.J. 233, 234 (2003).

[3] UN General Assembly Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 28 May 2010

[4] Nils Melzer, Targeted Killing in International law. Oxford University Press, 2008: ‘Deliberate’ meaning that the death of the targeted person is the actual aim of the operation as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims.

[5] Jane Mayer, The Predator War, The New Yorker, 26 Oct. 2009; Greg Miller, C.I.A. Said to Use Outsiders to Put Bombs on Drones, LA Times, 13 Feb. 2009.

[6] Targeted Killing in Dubai: A Mossad Operation Gone Awry?, Der Spiegel, 23 Feb. 2010, http://www.spiegel.de/international/world/0,1518,679764,00.html;

Ilene Prusher, Was Mossad Behind Dubai Assassination? Israel Foreign Minister Isn’t Saying, Christian Science Monitor, 17 Feb. 2010, http://www.csmonitor.com/World/Middle-East/2010/0217/Was-Mossad-behind-Dubai-assassination-Israel-foreign-minister-isn-t-saying

[7] Hereinafter referred to as ‘US’

[8] Legal adviser to the US Department of State

[9] Harold H. Koh’s speech at the Annual Meeting of the American Society of International Law, Washington, DC, 25 March 2010 (hereinafter ‘Koh’s speech’), www.state.gov/s/l/releases/remarks/139119.htm.

[10] United Nations, Charter of the United Nations, 4 October 1945, 1 UNTS XVI, (hereinafter ‘UN Charter’), Art 2(4): ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

[11]UN Charter, Art 51 ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security […].’

[12] Christian J. Tams, The Use of Force against Terrorists, 20(2) European JIL (2009), 359.

[13] Democratic Republic of the Congo v. Uganda,Judgment of 19 December 2005, ICJ Reports 2005, 168, 223, para.146.

[14] Richard K. Betts, U.S. National Security Strategy: Lenses and Landmarks, November 2004.

[15] Robert Y. Jennings, The Caroline and McLeod Cases, 32(1) American JIL (1939), 82.

[16]Letter from Daniel Webster, U.S. Secretary of State, to Henry Fox, British Minister in Washington, 24 April 1841, Secretary of State Daniel Webster called upon the British to show that the ‘Necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment for deliberation […] and that the British force, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.’.

[17]Emanuel Gross, Thwarting Terrorist Acts by Attacking the Perpetrators or Their Commanders as an Act of Self-Defence: Human Rights versus the State’s Duty to Protect Its Citizens, 15 TempleICLJ (2001), 195.

[18] Noam Lubell, Extraterritorial Use of Force Against Non-State Actors, 2010.

[19] Hereinafter ‘IHL’

[20] The International Criminal Tribunal of the FormerRepublic of Yugoslavia

[21] ICTY Trial Chamber, Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Oct. 2, 1995, Case No. IT-94-1-AR72, ¶ 70: The International Criminal Tribunal for the former Yugoslavia (ICTY) has held that ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of territorialities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.’

[22] Hereinafter ‘NIAC’

[23] Hereinafter ‘IAC’

[24] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 3116-18, 75 U.N.T.S. 31, 32-34 (hereinafter ‘Geneva I’); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 3320-22, 75 U.N.T.S. 85, 86- 88 (hereinafter ‘Geneva II’); Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 3318-20, 75 U.N.T.S. 135, 136- 38 (hereinafter ‘Geneva III’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 3518-20, 75 U.N.T.S. 287, 288-90 (hereinafter ‘Geneva IV’).

[25] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, art. 1, 1125 U.N.T.S. 609, entered into force Dec. 7, 1978 (hereinafter ‘Additional Protocol II’).

[26] Common Article 3, Geneva Conventions, and Additional Protocol II, to which the U.S. is not a party, includes additional requirements, including that the conflict between the armed forces of the state 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.’  (Additional Protocol II).

[27] Hamdan v. Rumsfeld, 548 U.S. 557 (2006). In Al-Aulaqi v. Obama, a D.C. district court, in dicta, interpreted Hamdan as holding that the conflict was a non-international armed conflict. See Al-Aulaqi v. Obama, 727 F.Supp.2d at 17 (asserting that Common Article 3, applied by the Supreme Court in Hamdan, would prohibit the government from using lethal

force against al-Aulaqi were he to turn himself in).

[28] In Hamdi v. Rumsfeld, supra note 19, the US Supreme Court responded to the petition by the US government that the conflict with al-Qaeda was not a conflict to which the full protections afforded to detainees under the Geneva Convention by saying that ‘[w]e need not decide on the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3, because, like Article 2, it appears in all four Geneva Conventions […].’5

[29] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. (hereinafter ‘Additional Protocol I’)

[30]The four conditions imposed by the Geneva III are (a) being under responsible command; (b) wearing a fixed distinctive sign; (c) carrying arms openly; and (d) conducting their operations in accordance with the laws and customs of war.

[31] Article 51(3) of Additional Protocol I

[32] Antonio Cassese, Expert Opinion on Whether Israel’s Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law

[33] Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, Recommendation 1, ICRC, May 2009, (hereinafter ‘ICRC Guidance’). Recommendation 1 states that:  ‘For the purposes of the principle of distinction in international armed conflict, all persons who are neither members of the armed forces of a party to the conflict nor participating in a levée en masse are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in territorialities.’

[34]With regard to ‘direct causation’, the ICRC Guidance, pg. 52, states that ‘there must be a sufficiently close causal relation between the act and the resulting harm’; the ‘distinction between direct and indirect participation in territorialities must be interpreted as corresponding to that between direct and indirect causation of harm’; and, pg. 53, that ‘direct causation should be understood as meaning that the harm in question must be brought about in one causal step. Therefore, individual conduct that merely builds or maintains the capacity of a party to harm its adversary, or which otherwise only indirectly causes harm, is excluded from the concept of direct participation in territorialities‘. Ultimately, ‘only where persons are specifically recruited and trained for the execution of a predetermined territorialities act can such activities be regarded as an integral part of that act, and therefore, as direct participation in hostilities.’

[35] This is consistent with the Expert Opinion produced by Cassese who said (supra note 24): No ‘intermediate status’ exists between that of combatant and the status of civilian. A civilian who takes direct part in territorialities does not forfeit his or her civilian status but may become the lawful object of attack for the duration of his or her participation in combat. The term ‘unlawful combatant’ is a shorthand expression useful for describing those civilians who take up arms without being authorized to do so by international law; it has an exclusively descriptive character. It may not be used as proving or corroborating the existence of a third category of persons: in war time a person is either a combatant or a civilian; tertium non datur.

[36] ICRC Guidance, Part I, Recommendations of the ICRC, Recommendation II states ‘For the purposes of the principle of distinction in non-international armed conflict, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore entitled to protection against direct attack unless and for such time as they take a direct part in territorialities. In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (continuous combat function)’

[37] ICRC Guidance, pg. 33, :Membership for an organized arm group depends on ‘whether the continuous function assumed by an individual corresponds to that collectively exercised by the group as a whole, namely the conduct of hostilities on behalf of a non-State party to the conflict’, and as a result, ‘the decisive criterion for individual membership in an organized armed group is whether a person assumes a continuous function for the group involving his or her direct participation in hostilities.’

[38] Hereinafter ‘DPH’

[39] Additional Protocol I, Art 43.1, Combatant privilege, namely the right to directly participate in hostilities with immunity from domestic prosecution for lawful acts of war, is afforded only to members of the armed forces of parties to an international armed conflict (except medical and religious personnel), as well as to participants in a levée en masse. Although all privileged combatants have a right to directly participate in hostilities, they do not necessarily have a function requiring them to do so (e.g. cooks, administrative personnel). Conversely, individuals who assume continuous combat function outside the privileged categories of persons, as well as in non-international armed conflict, are not entitled to combatant privilege under IHL (see also ICRC Guidance Section X).

[40] ICRC Guidance pg. 34

[41] Philip Alston, The CIA and Targeted Killings Beyond Borders Philip, Public Law and Legal Theory Research Paper series , Working Paper No. 11-64 September 2011 pg. 16. See also Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth U.N. Congress on Prevention of Crime and Treatment of Offenders, Havana, Cuba, Aug. 27-Sept. 7, 1990, preamble; Code of Conduct for Law Enforcement Officials, art. 3, GA Res. 34/169, Dec. 17, 1979.

[42] Hereinafter ‘ICCPR’

[43] CCPR/C/21/Rev.1/Add.13, 26/05/2004, General Comment No. 31 [80], Nature of the General Legal Obligation Imposed on States Parties to the Covenant State Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory.

[44] ICCPR, Art. 2.1 states that: ‘Each State Party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.’

[45]ICCPR, Art 6.1 states that, ‘every human being has the inherent right to life. […] No one shall be arbitrarily deprived of his life.’ This represents a protection of life against interference by State Organs.’ However, the use of ‘arbitrary’ implies that this protection is not absolute.

[46] Dwyer, Devin, Osama Bin Laden Killing: Pakistan Reacts Cautiously to U.S. Raid on Its Soil. Available at: http://abcnews.go.com/Politics/osama-bin-laden-killed-pakistan-reacts-cautiously-us/story?id=13507918

[47] Customary international law arises out of State practice and in this case it is the US and Israel which mainly engage in targeted killing and they do so amidst widespread criticism. This illustrates that states do not view target killing as a peremptory norm of international law and there is no opinio juris in respect of the execution of targeted killings.

[48] Supra note 6: Koh states ‘Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda. In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force. […] [T]he manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way. Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender.’

[49] Ved. P. Nanda, War on Terror, 2009 37 Denv. J. Int’l L. & Pol’y 513, Nanda has observed that ‘one could justify the targeted strikes by the US in Pakistan on the ground that the geographical region of conflict stretches from Afghanistan to Pakistan, that suspected al-Qaeda and Taliban terrorists and their associates often cross that porous frontier, and that Pakistan has implicitly consented to such attacks.’

[50] Note that the US military team conducting the operation on 1 May 2011-2 May 2011 has reached Pakistan from Afghanistan.

[51] Nils Melzer, Keeping the Balance Between Military Necessity and Humanity: A response to four critiques of the ICRC’s Interpretative Guidance on the Notion of Direct Participation in Hostilities.

[52] ICRC Guidance, Section IX, contains a requirement of necessity, by imposing a restraint on the use of force in direct attack: In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, the kind of degree and force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.