Organized Crime & Terrorism: Making Room for New Friends

Written by: Regina Paulose

The bond between organized criminals and terrorists appear to be growing in the status quo. This connection should be worrisome as these networks have found common interests. Considering the different objectives of each group, some may question whether they truly have anything in common. Terrorists are generally motivated by politics, whereas organized enterprises are motivated by money. Despite this philosophical difference in the bottom line, some examples prove that this connection is strong. “In some cases terrorists and criminals appear to be deeply intertwined in ways that go well beyond fleeting alliances of convenience. The Dubai-based Indian criminal Aftab Ansari is believed to have used ransom money he earned from kidnappings to help fund the Sept. 11, 2001, terrorist attacks. And some people, like the Pakistan-based Indian crime boss Dawood Ibrahim, even go on to pursue dual careers as both criminal and terrorist leaders.”[1]

Despite the different goals of the two illicit groups, differentiating between the two – sometimes – can be challenging. Terrorists are involved in the black market in order to generate needed revenue.[2]  This revenue is what allows them to pursue their political or religious agendas.[3] Organized criminals have resorted to modeling violent techniques which are used by terrorists to advance their monetary agendas.[4] “Criminal organizations can become ideological over time, following the path of terrorist groups.”[5]  Many famous mafia stories highlight how monetary gain is closely tied with political power. The more power the illicit group yields, the easier it becomes to allow the black market to flourish. Who these groups are and who they can turn into poses a challenge for the rule of law everywhere.

So how do the international conventions address this particular bond?[6] The United Nations Convention on Transnational Organized Crime (UNTOC), which entered into force in 2003, is the main international legal instrument which deals with organized crime.[7]  The Convention is accompanied by three Protocols which deal with human trafficking, smuggling, and arms trafficking. The Convention aims to criminalize participation in organized crime, increase cooperation among state parties, and protect human rights. Given its mandate, naturally, UNTOC does not address the issue of the organized crime – terrorism nexus. With a very broad reading, one could infer that the UNTOC may address this issue. For instance, Article 5 of the Convention calls for criminalization of participation in an organized criminal group. The language of Article 5(ii) states:

Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in:

a. Criminal activities of the organized criminal group;

b. Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim.

An argument could be made that a terrorist who purchases a weapon from or supplies weapons to an organized group is taking “active part” in the “criminal activities” of the group. Or even the language of section (b) makes it clear that if the terrorist has “knowledge” that his participation will “contribute” to the criminal aim, he could be penalized for his association.

This example should serve as a cautionary tale. We must avoid conflating the two groups because it could pose its own set of legal challenges, especially considering that terrorism is mainly viewed via the law of war. If terrorists are engaging in the same activity as organized criminals, it is probably safe to assume that these operations are a means to an end.

Another international instrument to consider is the International Convention for the Suppression of Financing Terrorism. This particular Convention expressly deals with punishing perpetrators who finance terrorism. Under Article 2, any person could be held culpable for directly or indirectly facilitating, participating in, or aiding or abetting in the commission of various offenses as listed in the annex of the Convention.[8] Some of the offenses listed are: unlawful seizure of an aircraft, taking of hostages, terrorist bombings, endangering the safety of civilian aircrafts, and endangering maritime vessels. This particular Convention could provide relief against this particular nexus, depending on how it is enacted domestically.

The international community has recognized that terrorists do use different resources to accomplish their aims. In 2006 the UN General Assembly adopted the United Nations Global Counter-Terrorism Strategy. Specifically one of the aims of the “holistic” strategy is:

“to strengthen coordination and cooperation among States in combating crimes that might be connected with terrorism, including drug trafficking in all its aspects, illicit arms trade, in particular of small arms and light weapons, including man-portable air defence systems, money laundering and smuggling of nuclear, chemical, biological, radiological and other potentially deadly materials.”[9]

While many scholars still argue that the link between these villains is “nebulous”[10] and that the empirical data to support that the groups are working together is little, there still appears to be a small link, at the very least, that should be acknowledged by the rule of law. It is probably time to address the importance of these issues and make the necessary changes required to have states implement more robust language in their national laws. The state parties to these conventions may not have envisioned a world where the underbelly of society forms alliances (however brief) to achieve their various goals. Unfortunately that is the current reality and it seems as though it is far more than a passing trend.


[1] Rolle Lal, “Terrorists and Organized Crime Join Forces” NYT Opinion, May 24, 2005, available at: http://www.nytimes.com/2005/05/23/opinion/23iht-edlal.html?_r=0

[2] See David Kaplan, “Paying for Terror” US News and World Report, November 27, 2005, available at: http://www.usnews.com/usnews/news/articles/051205/5terror.htm

[4] Karen Parrish, “Link Grows Between Terrorism, Organized Crime, Officials Say” American Forces Press Service, March 28, 2012, available at: http://www.defense.gov/news/newsarticle.aspx?id=67721

[5] Lal , as cited above

[6] My analysis for the purposes of this post is limited to two Conventions and is not meant to be an exhaustive or comprehensive look at every single treaty that exists and could potentially address this problem. For anyone wanting more information on finding treaties or researching this issue in depth, I suggest referring to the UN Treaty Collection: http://treaties.un.org/Home.aspx?lang=en

[7] The “guardian” of the instrument is the UNODC. For more information on the UNTOC visit: http://www.unodc.org/unodc/en/treaties/CTOC/index.html

[8] International Convention for the Suppression of the Financing of Terrorism, available at: http://treaties.un.org/doc/db/Terrorism/english-18-11.pdf

[9] UN Action to Counter Terrorism, A/RES/60/288,  September 20, 2006,  p.5 available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N05/504/88/PDF/N0550488.pdf?OpenElement

[10] Annette Hübschle, From Theory to Practice: Exploring the Organized Crime-Terror Nexus in Sub-Saharan Africa, Perspectives on Terrorism (Journal), Vol.5 No 3-4 (2011), available at: http://www.terrorismanalysts.com/pt/index.php/pot/article/view/157/html

Lone Wolf Terrorism

Cover Lone Wolf Terrorism

 JEFFREY D. SIMON, Ph.D.

When the Irish Republican Army failed in an attempt to assassinate British Prime Minister Margaret Thatcher in 1984, the terrorist group issued the following chilling statement: “Today we were unlucky, but remember, we only have to be lucky once.  You will have to be lucky always.”  In those brief words, the IRA got to the heart of the problem of combating terrorism.  No government or society can realistically expect to always be “lucky” against terrorists since the targets of terrorists are limitless and their strategies and tactics are always evolving.

And that is where the lone wolf terrorist comes into play.  As difficult as it is to try to prevent terrorist groups and cells from perpetrating a major attack, it is even more difficult to prevent a lone wolf from doing so.  In my new book, Lone Wolf Terrorism: Understanding the Growing Threat, I try to unravel some of the unique aspects of the lone wolf threat and outline some steps that can be taken to try to reduce the risk of attacks.

I first became interested in lone wolf terrorism when I conducted a case study of an individual (Muharem Kurbegovic) who had terrorized Los Angeles in the 1970s.  Known as the “Alphabet Bomber” he single-handedly brought the city to a standstill and caused widespread fear by his actions and threats, which included a deadly bombing at Los Angeles International Airport and threats to unleash nerve gas over populated areas.  It was then that I realized that the lone wolf could be a powerful actor in the world of terrorism.  In fact, lone wolves have proven to be as dangerous, and have as much of an impact upon governments and societies as the better-trained and organized terrorist groups and cells.

Recent years have witnessed several major attacks by individual terrorists, ranging from Anders Breivik’s massacre of scores of youths on an island in Norway shortly after setting off a bomb in Oslo to Maj. Nidal Malik Hasan who is accused of killing thirteen fellow soldiers and others at Fort Hood, Texas.  The fact that Breivik is an anti-Islamic extremist and Hasan is an Islamic extremist, underscores the diversity in the growing lone wolf terrorist threat.  Lone wolves come from all parts of the political and religious spectrum.  There have also been terrorist incidents and plots by neo-Nazis, white Supremacists, and “single-issue” extremists.

One of the factors that distinguish lone wolf terrorists from those who are members of a group or cell is their freedom to act upon any scenario they might think up.  There is no group decision-making process or group pressure to stifle creativity.  This has resulted in some of the most innovative terrorist attacks in history.  For example, lone wolves were responsible for the first vehicle bombing (1920), major midair plane bombing (1955), hijacking (1961), product tampering (1982) and anthrax letters attack (2001) in the United States.  Lone wolves think outside the box, which is an advantage in trying to come up with new ideas for terrorist attacks.

Lone wolves are also dangerous because the have little or no constraints on their level of violence.  They are not concerned with alienating supporters (as would many terrorist groups) nor are they concerned with a potential government crackdown following an attack.  That is why they are potential candidates to use weapons of mass destruction (WMD).  There has already been a bioterrorist attack (the anthrax letters) committed by a lone wolf in the U.S.  Lone wolves have no supporters or financial and political backers who might be alienated by a WMD attack and no headquarters or training camps that could be hit in retaliatory raids.  A lone wolf might also believe that committing a conventional terrorist attack similar to those occurring regularly around the world would not yield as much publicity and notoriety as an attack with a chemical, biological, or nuclear weapon.

Lone wolves are also more difficult to identify and capture since they work alone.  There are usually no communications to intercept or members of a group to arrest and learn about potential plots.  They can also sometimes by mentally unstable, yet still very effective, such as Theodore Kaczynski, the infamous Unabomber, who sent package bombs throughout the United States from 1978 to 1995.

Although lone wolves have been active in the past, we are witnessing a new wave of attacks due to the revolutionary impact of the Internet.  The Internet is at the center of what I label as the Technological Wave of terrorism.  Technology is there for all to take advantage of, including lone wolves.  If the Internet did not exist, lone wolves would probably have had to invent it.  They use the Internet for a variety of purposes.  This includes conducting online research for targets, tactics and weapons; becoming self-radicalized by visiting terrorist websites and/or engaging in extremist chat rooms; and posting blogs and manifestos online, sometimes announcing to the world what they intended to do.  For example, Anders Breivik, the Norwegian lone wolf, posted a 1500-page manifesto shortly before his attack where he extolled the virtues of killing large numbers of people for maximum publicity.  In another case, an American woman, Coleen LaRose, who identified herself as “Jihad Jane” in her online postings, used the Internet in an attempt to form her own terrorist network.

It is this desire to communicate through the Internet that provides one of the best opportunities to identify potential lone wolves before they strike.  Through the monitoring of the Internet (without violating law abiding individuals’ civil liberties) much can be learned about who the lone wolves are.  This includes the identification of individuals who, as noted above, are visiting extremist chat rooms, purchasing bomb making materials and other suspicious items online, or posting threatening blogs or manifestos.  Additional strategies that may prove helpful in preventing lone wolf attacks are the expansion closed circuit television (CCTV) cameras in public settings, improved detection devices in post offices and other facilities to identify package bombs or letters containing anthrax spores, and further advances in biometrics, including the use of gait analysis which assesses how somebody is walking to determine if a person may be carrying a bomb or other weapon.  Increased public awareness is another important strategy, such as the reporting of unattended packages in airports, bus terminals, shopping malls, and other potential targets for a terrorist attack.

The lone wolf is forcing us to rethink some of our basic concepts about terrorism.  No longer can we view terrorism as emanating solely from organized or decentralized groups and cells.  The lone wolf has proven to be a formidable foe in the battle against terrorism.  This is likely to continue in the years ahead.

 

Jeffrey D. Simon is an internationally recognized author, lecturer, and consultant on terrorism and political violence. He is president of Political Risk Assessment Company., Inc., and a visiting lecturer in the Department of Political Science at UCLA.  His most recent book, Lone Wolf Terrorism: Understanding the Growing Threat, was published in 2013(http://www.prometheusbooks.com/index.php?main_page=product_info&cPath=57_66&products_id=2155).  A former RAND analyst, Dr. Simon has conducted research and analysis on terrorism for more than twenty-five years.  His writings on terrorism, political violence, and political risk have appeared in many publications, including the Journal of the American Medical Association, Foreign Policy, and the New York Times.  His website can be found at www.futureterrorism.com.

Between Welfare And Warfare: The Two-Faced Character Of Hamas

WRITTEN BY: CAMILLA GIOVANNINI

The article aims to point out the double nature, as welfare agency and, at the same time, as armed group, of Hamas, leaving apart the theoretical issue concerning the definition of terrorism and focusing on the implications that this ambivalence implies from an international perspective, specially connected to the blacklisting.

 

Hamas, the acronym of Harakat al Muqāwama al Islāmiyya (Islamic Resistance Movement), was established in Gaza in 1987 as the Palestinian branch of the Muslim Brotherhood[1]. This latter was founded by the schoolteacher Hasan al Banna in Egypt in 1928. At the beginning it was a trade union for Arab and Egyptian workers employed in constructing the Suez Channel. It aimed to promote a culture of solidarity from an Islamic perspective. Ten years after its foundation the organization could count 500.000 members, belonging primarily to the poorest levels of the society. Recalling the traditional Islamic values the league promoted a political view of Islam, also through the opening of  “islamized places”, where relations were involved just among Muslims, without any western contamination. In order to achieve its goals it rooted in the mosques through the means of preaching, da’wa, and was very active in the social services and welfare system. Its presence in the educational and social agencies has been a feature still today, verifiable within the Brotherhood and its affiliate organizations, among them, precisely, Hamas.

As its parental organization, Hamas’ attention and commitment towards the people is a distinctive character which connotes its action and, at this regard, article 21 of the Covenant of Hamas states: “Mutual social responsibility means extending assistance, financial or moral, to all those who are in need and joining in the execution of some of the work. Members of the Islamic Resistance Movement should consider the interests of the masses as their own personal interests”.

The Covenant helps also to figure out the movement’s goals and ideology. Article 1 concerns Islam, perceived as origin and source of interpretation: “The Movement’s programme is Islam. From it, it draws its ideas, ways of thinking and understanding of the universe, life and man. It resorts to it for judgment in all its conduct, and it is inspired by it for guidance of its steps”. From the religion springs the awareness about the conditions of the Palestinian people and the decision to fight: “The basic structure of the Islamic Resistance Movement consists of Moslems who have given their allegiance to Allah whom they truly worship, – “I have created the jinn and humans only for the purpose of worshipping” – who know their duty towards themselves, their families and country. In all that, they fear Allah and raise the banner of Jihad in the face of the oppressors, so that they would rid the land and the people of their uncleanliness, vileness and evils[2].

With regard to Israel and its existence, the statute is clear: “Moreover, if the links have been distant from each other and if obstacles, placed by those who are the lackeys of Zionism in the way of the fighters obstructed the continuation of the struggle, the Islamic Resistance Movement aspires to the realization of Allah’s promise, no matter how long that should take. The Prophet, Allah bless him and grant him salvation, has said:

“The Day of Judgment will not come about until Moslems fight the Jews, when the Jew will hide behind stones and trees. The stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him. Only the Gharkad tree would not do that because it is one of the trees of the Jews.” [3]. The goal of Hamas is to eliminate the State of Israel and to replace it with an Islamist State in all of what was once the land covered by the British mandate, since Palestine is a waqf, an holy endowment, which has to be Islamic[4]. Accordingly, in 2006, when the organization won the political election in Gaza, it imposed in the Strip a strict observation of sharī‘a.

The slogan of Hamas, at article 8, is an effective summary of the organization’s belief: “Allāh is its target, the Prophet is its model, the Qur’an its constitution: jihād is its path and death for the sake of Allāh is the loftiest of its wishes”.

In order to achieve its aims, Hamas is committed in social welfare activities: the organization’s annual budget is estimated in 70 million dollars[5] and the substantial part of it, the 75-80%[6], is devoted to the social services network, which has ensured that support to the organization, which led this latter to the electoral victory. Moreover, it is engaged in political activity and in guerilla and terrorist attacks against Israeli soldiers and civilians. The political wing has always had the control on the entire organization, hence also on the military component: the ‘Izz al Dīn al Qassām Brigades, for which it buys weapons and raises funds. The military wing, in turn, takes part to the decision making process even with regard to the political issues[7].

Starting from 1988, Hamas has begun to act, for first just in the Gaza Strip, then also in Judea and Samaria, targeting villages and towns and taking hostages. There has never been any distinction between soldiers and civilians because: “Every Jew or settler is a target and must be killed. Their blood and their property are forfeit[8]. In Mehola (Israel), April 16, 1993, Hamas opened the season of the suicide terrorism with a car bomb, bringing in the Israeli cities the same dynamics that, ten years before, Hizballāh used in Lebanon. This deadly campaign, which increased in the ‘90s and during the so-called “second intifada”, was responsible for the 40% of all the attacks and caused the 44% of the victims of terrorism in Israel[9].

Hamas’ social services, made of mosques, hospitals, orphanages, schools, religious societies, associations and sport teams, attract funding from abroad, through charitable societies and benefactor States, among them, for instance, Iran, as it was proven once again[10] during the last war in Gaza in the end of 2012, and Syria which also hosted the organization’s foreign contingent, also known as the external leadership, until November 2012. This latter has been in charge of keeping relations with the third Countries: Yemen as well as Iran. Syrian support was granted to Hamas by Hāfiz Assad and then by his son Bashār. The Country is a communication route with Iran, crossed by persons, goods and weapons, and a hosting territory for training camps[11].

Through the Islamic duty of zakāt, charities controlled by Hamas, for instance the Union of Good[12], collect a huge flow of money, especially from Saudi Arabia[13]. However, the Kingdom has been undertaking some agreements with Israel, since the support to the Palestinian cause should be seen from a wider perspective, inserted in the Middle-east chessboard, which implies the struggle for the control on the Region. Thus, from 2001, the flow of funds from Saudi Arabia to Hamas has been progressively reduced in a way inversely proportional to the increasing Iranian funds[14].

In 2003 the European Union listed Hamas in its terror blacklist, replacing the ‘Izz al Dīn al Qassām Brigades (in the list since 2001), opting for an unified consideration of the organization. The European awareness to be dealing with an unique, even articulated, movement has been the result of a different approach, antithetic to the previous one, which was used to split the military from the political wing. National authorities do not always confirm the Community decision: the United Kingdom has blacklisted just the Brigades, due to the consideration towards the organization’s social activities; furthermore, France keeps open channels and relations with it[15]. Outside the Union, Australia and New Zealand have taken the same decision of the Great Britain, on the contrary, United States and Canada have blacklisted the entire organization. In 2006 the Russian newspaper Rossiiskaya gazeta published the list of the terrorist groups drawn up by the Supreme Court of the Russian Federation. According to the words of the general Yuri Sapunov, at that time head of the antiterrorism at the Federal Security Service, the absence, in the list, of Hamas and of the Brigades was justified by the unclearness, on the international scene, about the nature of the organization. Moreover Hamas, and the Brigades as well, did not represent a threat to the Russian security, since they were not linked to the groups operating in Caucasus[16].

With regard to Hamas, as we have seen, the European Union reached the unanimity required by the Council Regulation 2580/2001 in order to list Hamas and to impose on it the provided restrictive measures. On the contrary, this consensus has always been missing when Hizballāh is at stake. Although also recently, after the suicide bombing of a bus full of Israeli tourists in the Bulgarian city of Burgas, Germany[17], United Kingdom and Netherland[18] have called for banning the Lebanese group, the European Governments are not able to find a common position about. Within the Union, just Netherland and Germany have banned Hizballāh, while Great Britain blacklisted only its military wing.

This disagreement is caused by organization’s relevance as social agency in Lebanon. As well as Hamas, the movement since its origin has been committed in providing assistance and services to the Lebanese Shi’ite community, hospitals, schools, summer camps, and creating job positions for the people from the southern quarters of Beirut and the Bekaa Valley.  However these agencies are also finalized to the recruitment of new members for joining the group. Hizballāh uses its summer camps to indoctrinate youngsters with its ideology, celebrating the terrorist culture, teaching to hate Israel, feeding the cult for Hassan Nasrallah’s personality and glorifying the organization’s martyrs[19].

Hamas services too are basins of votes and laborers: the funds are used for financing the social agencies, helping the poorest but also for buying weapons and for sustaining the families of those who were killed or imprisoned during the operations against Israel. Schools and summer camps for children and kids, which host 100.000 minors every year, are places aimed also to indoctrinate the young generations, training them to the hate for Israel, to the military techniques and to the charm of the martyrdom. The following example is a grammar exercise taken from a schoolbook provided by Hamas: “Believers who sit at home, other than those who are disabled, are not equal with those who strive and fight in the cause of Allah with their wealth and their lives[20].

The European Union, with regard to Hamas, has been able, so far, to perceive that the organization is one, now it is at a crossroads: it is called to decide if it wants to apply the same interpretation to the national blacklisting processes and to Hizballāh or if it wants to make a step back and to remove from the list Hamas’ political wing, keeping it as speaker and including its leadership in the peace deals.


[1] Article 2, The Covenant of the Islamic Resistance Movement, 1988

[2] Ivi, article 3

[3] Ivi, article 7

[4] Ivi, article 11

[5] Jonathan Masters, Hamas, Council on Foreign Relations, last update 27 November 2012, available at the website http://www.cfr.org/israel/hamas/p8968 (last visit 21 February 2013)

[6] David H. Gray, John B. Larson, Grass roots terrorism: how Hamas’s structure defines a policy of counterterrorism, Research Journal of International Studies – Issue 8 (November, 2008), p. 126

[7] Intelligence and Terrorism Information Center, Hamas and the terrorist threat from the Gaza Strip, March 2010

[8] Hamas leaflet 65/1990. Source: Boaz Ganor, Hamas – the Islamic resistance movement in the Territories, International Institute for Counter Terrorism

[9] Intelligence and Terrorism Information Center, Profile of the Hamas movement, February 2006

[10] Saeed K. Dehghan, “Iran supplied Hamas with Fajr-5 missile technology”, The Guardian, 21 November 2012, available at the website http://www.guardian.co.uk/world/2012/nov/21/iran-supplied-hamas-missile-technology (last visit 6 March 2013). Iranian support to Hamas has been ensured also through Hizballāh, which has provided its infrastructures to Iranian instructors training Hamas’ members

[11] See supra, note 9

[12] Office of the Coordinator for Counterterrorism, Country Reports on Terrorism 2011, U.S. Department of State, available at the website http://www.state.gov/j/ct/rls/crt/2011/195553.htm#hamas (last visit 8 March 2013)

[13] David H. Gray, John B. Larson, see supra note 6, p. 129

[14] See the U.S. Patterns of Global Terrorism, from 2001 on.

[15] Steven Erlanger, “France admits contacts with Hamas”, in The New York Times, 20 May 2008, available at the website http://www.nytimes.com/2008/05/20/world/europe/20france.html (last visit 8 March 2013)

[16]  Robert Parsons, “Russia: Supreme Court approves List of 17 terrorist groups”, in Radio free Europe. Radio liberty, 28 July 2006, available at the web site http://www.rferl.org/content/article/1070179.html (last visit 8 March 2013)

[17] Benjamin Weinthal, “Top German politician calls for EU to ban Hezbollah”, The Jerusalem Post, 23 August 2012, available at the website http://www.jpost.com/International/Article.aspx?id=282357 (last visit 8 March 2013)

[18] News agencies, “UK seeks to add Hezbollah to EU’s terror watch list”, Ynetnews, 7 September 2012, available at the website http://www.ynetnews.com/articles/0,7340,L-4278524,00.html (last visit 8 March 2013)

[19] Intelligence and Terrorism Information Center,

http://www.terrorism-info.org.il/data/pdf/PDF_08_220_2.pdf (last visit 8 March 2013)

[20] Itamar Marcus, “From nationalist battle to religious conflict: New 12th grade Palestinian schoolbooks present a world without Israel”, Palestinian Media Watch, February 2007, available at the website http://www.palwatch.org/STORAGE/special%20reports/SchoolBooks_English_Final_for_web.pdf (last visit 8 March 2013)

Accountability for Torture by United States Since 9/11

WRITTEN BY: JAMES ROTH

James Roth is a retired lawyer, now a writer. He was one of the founders and long-time board member of Advocates For Human Rights and The Center For Victims of Torture.  He is currently completing his first novel entitled “Beyond Torture.” He is also active with many groups working on foreign policy and international human rights issues.

Summary:

Before 9/11 it was widely accepted that torture was illegal under international and United States domestic law. The United States had signed and ratified the Convention Against Torture and had enacted the anti-torture statute of 1994, 18 U.S.C. Sections 2340-2340A , which criminalized acts of torture by United State nationals or non-nationals committed outside the United States, as well as the Torture Victim Protection Act of 1991.

Shortly after 9/11 Bush administration officials sought and received authorization through various legal memos and reports by the Department of Justice and Department of Defense to create detention facilities outside the United States and to use harsher interrogation techniques than those previously approved. The result was the use of “Enhanced Interrogation Techniques” as well as increased renditions of detainees to other countries for interrogation.

Many abuses which have now been well-documented followed including long-term detentions without access to legal counsel or legal oversight, widespread use of interrogation techniques broadly acknowledged as being torture and cruel and unusual punishment, including deaths of over 100 detainees under questionable circumstances.

Upon taking office in January 2009, President Obama issued Executive Order 13491—Ensuring Lawful Interrogations. Yet, despite well-documented violations of international and domestic laws no clear standards have emerged and there has been no accountability except for a handful of lower level military personnel.

This article outlines a number of areas, both legislative and domestic, that it urges our Congressional Representatives and Senators to pursue.

Specifically, this article urges action to confront the United States Congress to:

  1. Release to the public the December 2012 Senate Intelligence Committee Report with as few redactions as possible so that the public can understand what brought about the shift in U.S. policy toward torture and cruel treatment and diminished America’s longstanding consensus against torture and cruel treatment.
  2. Request that President Obama release in some form the report(s) by the Special Interagency Task Force on Interrogation and Transfer Policies established under Executive Order 13491.
  3. Issue an apology to Canadian citizen Mahar Arar, who was mistakenly retained and rendered to Syria where he was tortured, and to Khalid El-Masri, a Lebanese-Canadian who was kidnapped by the CIA in Macedonia where he was tortured and then flown to Afghanistan and tortured some more until the CIA discovered that it had the wrong person and dumped him on an isolated street in Albania.
  4. Ask the Office of the Inspector General for the CIA to supplement the 2004 Report in light of recently obtained information contained in a Human Rights Watch Report of alleged waterboarding and other abuses of detainees in Libya.
  5. Ask Attorney General Holder to investigate the alleged abuses in Libya.
  6. Take appropriate action to encourage local communities to accept detainees from Guantanamo who have been exonerated.
  7. Assure that appropriate oversight is established and maintained so that torture and cruel treatment does not occur in the future.

Background

On September 14, 2001 President Bush issued the “Declaration of National Emergency by reason of Certain Terrorist Attacks.”[1] On September 17, 2001 President Bush issued a 12-page directive (known as a “memorandum of notifications) to the Director of the CIA and members of the National Security Council authorizing the CIA to capture suspected terrorists and members of Al-Qaeda and to create detention facilities outside the United States to hold and interrogate them.[2]  The International Committee of the Red Cross was refused access to detainees held in the new CIA program until September 2006.[3] On November 13, 2001 President Bush authorized the detention of alleged terrorists and subsequent trial by military commission, which he ordered would not be subject to the principles of law and rules of evidence applicable to U.S. federal courts.[4]

On July 11, 2002, the first detainees arrived in Guantanamo Bay, Cuba. On January 18, 2002 President Bush declared that the Third Geneva Conventions did not apply to the conflict with Al Qaeda or the Taliban and that they would not receive the protections afforded to prisoners of war.[5] On February 7, 2002 President Bush issued a memorandum to that effect.[6] In so doing, the President rejected the requests by Secretary of State Colin Powell to reconsider and reverse his decisions,[7] as well as the advice of William H. Taft, IV, Legal Adviser to the State Department, that these decisions were inconsistent with the plain language of the Geneva Conventions and contravened the unvaried interpretation and practice in the fifty years since the United States became a party of the Conventions.[8]

In March 2002, the first “high value detainee”, Abu Zubaydah, was detained and interrogated by the CIA.[9]  The CIA interrogation program sanctioned by President Bush included interrogation techniques adapted from the Survival Evasion Resistance Escape (“SERE”) training program in which U.S. military members were exposed to and taught to resist interrogation techniques used by countries that did not adhere to the Geneva Conventions.[10] As reported in the later CIA Inspector General Report, the U.S. now employed these techniques itself, including waterboarding, confining detainees in a dark box with insects, up to 11 days of sleep deprivation, facial holds and slaps, “walling” (pushing a detainee against a wall) and use of stress positions.[11]

On November 27, 2002 William J. Haynes, General Counsel for the Department of Defense, provided to Donald Rumsfeld an “Action Memo regarding Counter-Resistance Techniques seeking approval of three categories of counter-resistance techniques to aid in the interrogation of detainees at Guantanamo Bay.” Rumsfeld initialed his approval on December 2, 2002 to the first two categories and one of the techniques from the third category (“mild non-injurious physical contact”). This signaled approval of the SERE enhanced interrogation techniques by the military in addition to the CIA. This is one example of the migration of lists and interrogation techniques beyond those approved by the Army Field Manual. U.S. Army General Geoffrey D. Miller was given command of Joint Task Force Guantánamo in November 2002. He implemented the new harsh techniques there. In August 2003 Miller was sent to Iraq by the Department of Defense to help get more information out of Iraqi prisoners. In September Miller submitted a report recommending “GTMO-ising” interrogation techniques–combining the detention and interrogation units at Abu Ghraib into the Theater Joint Interrogation and Detention Center. Miller recommended that prison guards be used to “soften up” prisoners for interrogations.

In September 2003 Lieut. General Ricardo S Sanchez sent a secret cable to US Central Command outlining more aggressive interrogation methods that he planned to authorize immediately, including several that were later revealed when the Abu Ghraib scandal broke.

All of the above facts illustrate how the US military’s ad hoc decision-making created confusion and allowed the harsh methods to infiltrate from Afghanistan to Guantánamo and Iraq. A clear line exists from the initial decision that the Geneva Conventions did not apply to Al Qaeda and Taliban detainees.

As described by the ICRC after they were finally provided with access to detainees, the CIA detention program “included transfers of detainees to multiple locations, maintenance in continuous solitary confinement, incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements.”[12] The ICRC Report further found: “The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries actually increased the detainees’ feelings of futility and helplessness, making them more vulnerable to the methods of ill-treatment… these transfers increased the vulnerability… to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating…”[13]

The United Nations Joint Study on secret detentions found that the CIA had taken detainees who were held in Afghanistan, Thailand, Poland, Romania and other locations. [14]The UN Joint Study further found the CIA “had taken 94 detainees into custody and had employed enhanced interrogation techniques to varying degrees in the interrogation of 28 of those detainees.”[15]

It has been documented that over 100 detainees died while in US custody, many under suspicious circumstances. [16]

The interrogation techniques used on detainees were euphemistically described as “enhanced interrogation techniques” by the US government, but the United Nations and the International Committee of the Red Cross found that they rose to the level of torture and cruel, inhuman and degrading treatment. [17]

Alberto J. Mora served as General Counsel to the U.S. Navy from 2001 to 2006. Upon learning of the authorization of the use of coercive interrogation techniques by the US he stated:

“To my mind, there’s no practical distinction [between cruelty and torture]. If          cruelty is no longer declared unlawful but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make an exception the whole Constitution crumbles.

Besides, my mother would have killed me if I hadn’t spoken up. No Hungarian after communism, or Cuban after Castro, is not aware that human rights are incompatible with cruelty. The debate here isn’t only how to protect the country. It’s how to protect our values.”

On June 22, 2009 Pres. Barack Obama signed Executive Order 13491–Ensuring Lawful Interrogations. In section 3(b) it provided:

Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States government, or detained within a facility owned, operated or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation that is not authorized by Army Field Manual 2 22.3.

In section 4(a) the order provided “ The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.”

The Order also created a special interagency task force on interrogation and transfer policies. The task force was told to provide a report to the president within 180 days unless an extension was necessary.

The Order required the CIA to use only 19 interrogation methods outlined in the United States Army Field manual on interrogations “unless the Atty. Gen. with appropriate consultation provides further guidance.”

It is unknown whether extraordinary renditions have been carried out since 2009.

Addendum A

Mahar Arar

Mahar Arar is a Canadian citizen who emigrated with his family from Syria at age 17. On September 26, 2002 he was detained by U.S. officials at JFK Airport in New York and interrogated about alleged links to al-Qaeda. Twelve days later he was chained, shackled and flown to Syria where he was held in a tiny “grave-like” cell for over then months. He was beaten, tortured and forced to make a false confession.

His wife, Mosia Mazigh, learned of his imprisonment and campaigned for his release. He was returned to Canada in October 2003. On January 24, 2004 the Canadian government established a Commission of Inquiry to review his treatment by Canadian officials. On September 18, 2006 the Commission of Inquiry cleared Arar of all charges stating “categorically there is no evidence to indicate that Mr. Arar has committed any offense or that his activities constitute a threat to the security of Canada.”

The government of Canada settled the case out of court and paid Arar $10.5 million (Canadian) and Prime Minister Stephen Harper formally apologized to Arar.

In contrast, in 2004 Arar brought a lawsuit in the U.S. in federal court in New York against John Ashcroft and others. The U.S. invoked the “state secrets privilege” and moved to dismiss the lawsuit. It was dismissed and upheld on appeal. Upon rehearing the Chief Judge of the Second Circuit Court of Appeals wrote, “If a civil remedy in damages is to be created for the harms suffered in the context of extraordinary renditions, it must be created by Congress…”

The U.S. Supreme Court declined to accept review of the case.  The U.S. government has taken no steps to make amends to Mr. Arar and his family.

Khalid El-Masri

In a recent landmark decision, the European Court of Human Rights unanimously ruled in favor of Mr. El-Masri on December 12, 2012, corroborating details of his abduction and torture by the CIA and holding that the CIA’s treatment of Mr. El-Masri was torture.

Mr. El-Masri is a Lebanese-Canadian who was kidnapped by the CIA is Macedonia. With the assistance of the Macedonian government he was held incommunicado, severely beaten, sodomized, shackled and hooded, submitted to total sensory deprivation and harshly interrogated for over three weeks. He was then flown to Afghanistan where he was incarcerated in a small, dirty dark brick factory and beaten, kicked, threatened and interrogated for more than four months. When the CIA ultimately learned that he was the wrong person he was dumped on an isolated street in Albania.

In contrast, when Mr. El-Masri brought a case in the U.S. it was dismissed and upheld on national security grounds, as in Mr. Arar’s case, and again the U.S. Supreme Court refused to accept review of his case.

United Nations Special Rapporteur on Human Rights and Counter-Terrorism Ben Emmerson described the European Court of Human Rights ruling as “a key milestone in the long struggle to secure public accountability of public officials implicated in human rights violations committed by the Bush administration CIA in its policy of secret detention, rendition and torture.” He said that the U.S. government must issue an apology for its “central role in the web of systematic crimes and human rights violations by the Bush-era CIA, and to pay voluntary compensation to Mr. El-Masri.”

To date the U.S. government has not responded.


[2] The directive has not yet been publicly released. But see George Tenet, at the Center of the Storm: the CIA During America’s Time of Crisis 208  (Harper 2007).

[3]  ICRC, Report to John Rizzo, Acting General Counsel, CIA. ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, 14 February 2007, available at http://www.nybooks.com/doc/2010/04/22/icrc-report.pdf

[4] Military Order of November 13, 2001:Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, Federal Register, Vol. 66, No.2, 16 November 2001, pp. 57831-36

[5] John Yoo and Robert Delahunty, Memorandum for William J. Haynes, II, General Counsel, Department of Defense, January 9, 2002.

[6] George Bush, The White House, Memorandum for the Vice President, et al, Harsh Treatment of Taliban and al-Qaeda detainees (7 February 2002).

[7] Alberto R. Gonzalez, Memorandum for the President, Decision re Application of the Geneva Conventions to Prisoners of War to the Conflict with Al Qaeda and the Taliban (25 January 2002).

[8] William H. Taft, IV, Legal Adviser, Department of State, Memorandum to Counsel to the President, Alberto Gonzalez, Comments on Your Paper on the Geneva Conventions (2 February 2002).

[9] CIA Inspector General’s Special Review: Counterterrorism, Detention, and Interrogation Activities, September 2001-October 2003, dated 7 may 2004 and publicly released on 24 August 2009, at 12 “CIA IG Report”).

[10] CIA IG Report at 21-22, fn. 26 and 37.

[11] A list of techniques is found in the CIA IG Report at 15.

[12] ICRC CIA Detainee Report at 4.

[13] ICRC CIA Detainee Report at 7. It is notable that the ICRC Report details the same interrogation techniques outlined in the CIA IG Report, which was not publicly available at the time.

[14] 14.       United Nations Human Rights Council, Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the working group on arbitrary detention, and the Working Group on Enforced or Involuntary Disappearances, A/HRC/13/42, 19 February 2010, at 45-50 (“UN Joint Study”).

[15] UN Joint Study at para. 103.

[16] Testimony of Lawrence Wilkerson, Chief of Staff to Colin Powell U.S. Secretary of State, 2001-2005, before U.S. House of Representatives Judiciary Subcommittee on Civil Rights, June 18, 2008

[17] ICRC CIA Detainee Report, at 5, UN Joint Study at 45-50.

The ‘War’ against Terrorism: Time now to Change our Paradigm

By Ronald Rogo (rogo.ronald@gmail.com)

Introduction

In October 2011Operation Linda Nchi (Kiswahili for “Protect the Country”) was launched by the Kenya Defence Forces (KDF). Operation Linda Nchi was the code name for the military incursion into southern Somalia. The ostensible goal of the military adventures was to crash and hopefully eliminate the threat posed by the Al Shabaab, a terrorist organization operating in Somalia and with reported links to the Al Qaeda terror group. The immediate cause of this unusual turn of events[1] was the kidnapping of two Spanish aid workers working with the Médecins Sans Frontières, an international humanitarian organization, from the Dadaab refugee camp in Northern Kenya. It was alleged that this kidnapping was planned and executed by the Al Shabaab. Although the military incursion in response to the kidnappings did not have an exit date it was apparent from the various press statements by the KDF spokesperson that their immediate goal was to capture the port town of Kismayu. With this it was hoped that the Al Shabaab’s main source of funds and supplies would be cut off and the organization would be crippled. Incidentally, with this military incursion, Kenya joined a growing list of countries that have used the war against terrorism as justification for waging war outside their borders[2].

The initial reports from the government of Kenya were that the incursion was made at the invitation of the Transitional Federal Government of Somalia (TFG)[3]. However, subsequent reports brought into doubt whether there was active, or even passive, concurrence of the TFG as initially reported and the Kenyan government was forced to engage in hurried face saving diplomatic overdrive measures. Later, the KDF operation was merged with the African Union operation. Financial and material support was also obtained from the United States of America and the European Union among others.

This article will analyze the legal basis for this “war” against terrorism initially started by the KDF. The main thrust of the article is that the war paradigm cannot be used as justification for a “war” against terrorism as it does not fit into the many legal categories of war. Instead, nations need to come up with another perspective when confronting terrorism that will both be tenable and legally justifiable. Operation Linda Nchi will be used as the case study. The incursion of Kenya into Somalia will be the case study.

The Law of Wars

International humanitarian law (IHL) is the branch of law that governs and guides the relations between states that are in a state of war. It is more commonly described as the law of war. As a result, IHL not only stipulates when nations can justifiably go to war (jus ad bellum) but it also governs the conduct of the parties to the conflict when the state of conflict continues (jus in bello). For example, IHL states what types of targets are justifiable and also the amount and type of force that can be used by the parties in order to disarm the adversary. In this regard, the Geneva Conventions[4], to which Kenya is a signatory, are almost universally accepted as the source of these regulations. The Hague Convention is also recognized as a source of IHL, albeit to a smaller extent.

What “War” Against Terrorists ?

It is difficult to acceptably define the term war. Instead, the legal equivalent term of “armed conflict” is usually used in most legal texts. An armed conflict is seen to arise whenever there is “any difference arising between two States and leading to the intervention of members of the armed forces”. This definition presupposes that there are two sides to the conflict who engage in arms in order to resolve their conflict. There is usually a state of armed conflict between two parties. In addition, the traditional view has been that war is generally an international armed conflict that takes place between two nation states, each trying to assert its will on the other. However, as we shall see later, with the increase in the number and intensity of civil wars there has been recognition that there could be a non international armed conflict that occurs between one group and the governing entity.

Based on the above it is doubtful whether one could legally engage in an armed conflict with terrorists. Whereas it is correct that the armed forces of a particular state could be deployed to hunt out, capture and kill terrorists, such as the KDF has done in Somalia, the terrorists do not, in turn, have an armed force that could then result in an armed conflict. In reality any “war” against terrorists does not have the typical ingredients of a battlefield clash; be it in the air, on the land or over the waters. Since terrorists engage in their criminal activities under the cover of ordinary daily occurrences, it is unrealistic to expect them to engage directly with a country’s armed forces. Instead, depending on the particular modus operandi of the particular terrorist organization one would expect that they would attempt to mingle with innocent civilians.

Under IHL the “members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities”[5]. As combatants, the members of any armed forces can therefore be legitimately targeted by the enemy and either be killed or disarmed. This right includes the right to target and kill them even when they are not aware that they are being targeted, so long as the state of warfare continues and so long as the all the other precautionary measures have been considered[6]. However, in relation to anyone who is not a member of the armed forces of a Party remains a civilian and ought therefore not to be targeted in a state of war. Consequently, since the members of the Al Shabaab are not members of the armed forces of Somalia (or do not even pretend to represent the forces of Somalia), they will always, under the prism of law, be seen as civilians. The only time they can be legitimately targeted is when they directly engage in hostilities and therefore lose the cover of protection of the law. Thus any killings, even in a supposed state of warfare, are justifiable on condition that one can prove that the terrorists were directly participating in hostilities during the state of armed conflict.

In addition it is difficult to see how the Kenyan “war” against terrorism fits into any of the currently recognized categories of armed conflicts. These categories are international armed conflicts or non international armed conflicts. Let me analyze these further.

(i) International Armed Conflicts

Common Article 2(1) of the 1949 Geneva Conventions is the one that is used to guide the conduct of international armed conflicts. The Article provides as follows:

“the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.

While there is no general legal definition for an “international armed conflict” the International Criminal Court (ICC) ruled in the Lubanga case that an armed conflict is of an international character if “it takes place between two or more States”. The court further held that an international armed conflict also “this extends to the partial or total occupation of the territory of another State, whether or not the said occupation meets with armed resistance.”[7] Again, the ICC in the Bemba decision, held that “an international armed conflict exists in case of armed hostilities between States through their respective armed forces or other actors acting on behalf of the State”[8].

Concerning the concept of international armed conflict, the International Committee of the Red Cross (ICRC) commentary on Common Article 2 of the 1949 Geneva Conventions adds:

Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to the human person as such is not measured by the number of victims[9].

Based on the above it is impossible to characterize the KDF’s invasion of Somalia as an international armed conflict. This is because the two protagonists are not two states, rather a state (KDF) on one hand and a terrorist group (Al Shabaab) on the other hand.

(ii) Non-international Armed Conflict

This categorization was included in recognition of the reality that increasingly more conflicts occur and more deaths occur by reason of conflicts within the nation’s borders rather than by cross border conflicts. Thus according to Common Article 3, the armed conflict not of an international character must occur within the territory of the State[10]. The Additional Protocol II[11], (hereinafter “Additional Protocol II”) in supplementing and further expanding the Common Article 3 also provides as follows:

This Protocol […] shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and 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 and to implement this Protocol.

In order for an internal conflict to be qualified as a non international armed conflict and therefore to be covered by IHL there are certain necessary ingredients that must be met. The main one is that the threshold of the conflict must exceed that of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

Article 3 common to the Geneva Conventions of 1949 provides that “this 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”. In applying this provision the ICTY Appeals Chamber decision in the Tadic case held as follows:

“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 hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there[12]

On the question as to whether a group qualifies as an organized armed group the Akayesu decision held that “[t]he term ‘armed conflict’ in itself suggests the existence of hostilities between armed forces organized to a greater or lesser extent. This consequently rules out situations of internal disturbances and tensions”. Further in the Lubanga decision, while setting out the characteristics of a non international armed conflict the court held that one should consider “the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement”[13]

However, there are still plenty of difficulties with such an assessment in relation to the KDF military adventure. Firstly, in order for a conflict to be characterized as a non international armed conflict, it must “take place in the territory of a High Contracting Party”[14]. This means that the theatre of the conflict should have been in Kenya, not Somalia. While the TFG could make the argument that when it combats Al Shabaab it is engaging in a non international armed conflict, the KDF cannot. Again, it was important to show that the Al Shabaab is “under responsible command, (and that it) exercise(s) 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[15]. Significantly, the KDF operation cannot meet the requirements of a non international armed conflict on this score too. Apart from repeated isolated attacks in Kenya it cannot be said that the Al Shabaab controlled a part (or any part of Kenya) of Kenya as at the time of the invasion. Further, the KDF has not engaged militarily with any Al Shabaab terrorist groups within Kenya. Lastly, the law requires the military operations of the armed group to be “sustained and concerted”. Although the Al Shabaab has conducted raids on Kenyan soil, it would be a stretch to characterize them as either sustained or concerted.

Conclusion

From the above, it is evident that the use of a war paradigm when describing the invasion in Somalia is tenuous. There is therefore need to rethink the label used. It has been suggested before that any attack by terrorist groups ought to be considered as criminal activities that require police response-even militarized police response-rather than acts of war that require full scale utilization of a nation’s armed forces. In the American case of Holiday Inns, Inc. v. Aetna Ins. Co.[16], the court stated that “The international law definition of war refers to and includes only hostilities carried on by entities that constitute governments at least de facto in character”. Stacie Gorman also stated as follows:

“terrorists are criminals, and not soldiers of war… The practice of trying terrorists in a court of law suggests that the United States has, in the past, recognized that it is limited in its ability to declare war against terrorist groups”[17]

It is my view there was no armed conflict between the KDF and the Al Shabaab. Although it is correct that the Al Shabaab leadership leadership had declared war upon the nation of Kenya and the KDF had done the same in relation to the Al Shabaab these declarations, by themselves, did not mean that a state of armed conflict existed under IHL. Rhetoric does not give rise to a state of armed conflict. Conversely, the lack of any war declarations does not, ipso facto, mean that there is no armed conflict already in existence. It is therefore important for more police action-rather than military activity-to be involved in this “war” against terrorists in the region. The former is not only more efficient as a tool but also legally congruent.


[1]The Kenyan Defence Forces is, by common accord of military observers, the most inexperienced in the region. In a region that is largely known for its perennial conflicts and instability, the KDF is probably the only army in the region that has not engaged in active cross border warfare. Even highly provocative actions such as Uganda’s incursion into Kenyan borders in the Migingo Islands on Lake Victoria, have had mild responses from the Commander in Chief. Further, while neighboring states such as Ethiopia and Uganda have shown an appetite to engage the Al Shabaab in military warfare, the Kenyan government has been reluctant to directly follow this path. Hence, unsurprisingly, the extended disbelief and cynical views in the region when Operation Linda Nchi was launched by the KDF

[2] The United States of America is known for its “war” against terrorism when it invaded Afghanistan in order to rid the country of Al Qaeda elements soon after the September 11 bombings on the World Trade Center in New York. See President Bush’s address to a joint session of Congress on 20th September 2001 where he stated that “Our war on terror begins with Al Qaida, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated” (available at http://middleeast.about.com/od/usmideastpolicy/a/bush-war-on-terror-speech.htm-).

[3] See press statement by the Ministry of Foreign Affairs of Kenya.

[4] This consists of four treaties and two protocols dealing with the treatment of victims of war. These are the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1864, the Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1906, the Third Geneva Convention relative to the Treatment of Prisoners of War, 1929 and the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949. It also includes the Additional Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts and Additional Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts.

[5] Article 43(2) of the 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 (hereafter referred in the text as AP I)

[6] These precautions include only targeting combatants and military objectives, not causing superfluous and unnecessary injury, taking into account all precautionary measures

[7] Pre-Trial Chamber I, Prosecutor vs Lubanga, ICC-01/04-01/06-803-ten, para. 209

[8] Pre-Trial Chamber II, Prosecutor vs Bemba, ICC-01/05-01/08, 15 June 2009, para.223

[9] J. Pictet, (ed.), ICRC Commentary on Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, (ICRC, 1958), p.20. The convention mentioned is further referred to as the “Fourth Geneva Convention”, see UNTS, vol. 75, p.287

[10] The Article reads as follows: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (…)”.

[11] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977

[12] ICTY, Prosecutor v Tadic, Case No. IT-94-1, “Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction”, 2 October 1995, para.70.

[13] Trial Chamber II, Prosecutor vs Lubanga, ICC-01/04-01/06 Date: 15 June 20009, para. 536

[14] Article 1 of AP II

[15] Ibid

[16] 571 F. Supp. 1460, 1461 (S.D.N.Y. 1983)

[17] 20 In the Wake of Tragedy: The Citizens Cry Out for War, but Can the United States Legally Declare War on Terrorism?, 21 Penn St. Int’l L. Rev. 669 2002-2003

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