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March 14, 2013

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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:

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.
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.
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.
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.
Ask Attorney General Holder to investigate the alleged abuses in Libya.
Take appropriate action to encourage local communities to accept detainees from Guantanamo who have been exonerated.
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.

[1] http://federalregister.gov/article/2001/09/18/01-23358/declaration-of-national-emergency-by-reason-of-certain-terrorist-attacks.

[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.

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February 20, 2013

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Law of War, Terrorism

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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

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February 8, 2013

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Human Rights, IHL, Law of War, Terrorism

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, 1^st & 2^nd 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.

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February 5, 2013

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Armed Conflict, Law of War, Terrorism

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 13^th 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

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February 5, 2013

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Targeted Killing: Bin Laden As a Legitimate Military Target

WRITTEN BY: DR. ELIZABETH BORG[1]

Introduction

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

Targeted Killings and International Law

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

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

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

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

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

International Armed Conflict

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

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

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

Non-international armed conflict

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

International Human Rights Law (IHRL)

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

Conclusion

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

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

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

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

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

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

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

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

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

[7] Hereinafter referred to as ‘US’

[8] Legal adviser to the US Department of State

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

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

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

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

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

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

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

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

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

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

[19] Hereinafter ‘IHL’

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

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

[22] Hereinafter ‘NIAC’

[23] Hereinafter ‘IAC’

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

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

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

[26] Common Article 3, Geneva Conventions, and Additional Protocol II, to which the U.S. is not a party, includes additional requirements, including that the conflict between the armed forces of the state and ‘dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.’ (Additional Protocol II).

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

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

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

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

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

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

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

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

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

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

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

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

[38] Hereinafter ‘DPH’

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

[40] ICRC Guidance pg. 34

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

[42] Hereinafter ‘ICCPR’

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

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

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

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

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

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

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

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

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

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

A Contrario ICL

Reflections and Commentary on Global Justice Issues

Category Archives: Terrorism

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Targeted Killings and Humanitarian Law

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Accountability for Torture by United States Since 9/11

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