Posts Tagged ‘Anwar al-Aulaqi’

REPRISE: Anwar al-Aulaqi—Targeted Killings, Self-Defense, and War Crimes

Thursday, February 13th, 2014

Press reports indicate President Obama is considering adding or has already added the name of a U.S. citizen to the kill list for targeted assassination by drone or other means.

See

Tom Cohen, “When can a government kill its own people?,” CNN, February 11, 2014.

Mark Memmot, “U.S. Citizen May Be Targeted With Drone Strike: Reports,” NPR, February 10, 2014.

Given the text of the Fifth Amendment to the Constitution, which provides that no one shall be deprived of “life” without due process of law, and the absurd argument that has been made by Attorney General Eric Holder that “due process of law” does not require judicial involvement, the question arises–however theoretical it may be–as to whether Obama’s authorization of another targeted assassination of a U.S. citizen abroad would constitute a “failure to uphold the Constitution of the United States” (Obama’s oath of office), and therefore grounds for impeachment.

Consider the factors discussed in the previous article reproduced below.

First published on April 7, 2010

The United States has gotten itself into a terrible jam, having adopted the legal justification of the Bush administration for targeted killings.

The Washington Post reports today that,

A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military’s Joint Special Operations Command…

Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.

“He’s in everybody’s sights,” said the U.S. official, who spoke on the condition of anonymity because of the topic’s sensitivity….

–Greg Miller, “Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill,” Washington Post, April 7, 2010

If this death warrant is executed in circumstances that do not justify the use of force in self-defense, either at the international or at the domestic level with the permission of the territorial state, its execution may constitute a war crime.

Some lawyers have won the argument within the Obama administration that it is lawful to kill a member of a terrorist organization, particularly if he has been involved in past acts of terrorism, wherever he can be found.

This argument is based on provisions of humanitarian law or “the law of war” that distinguish between combatants who are lawful targets and non-combatants who are not.

It ignores, however, the fact that provisions of humanitarian law are themselves limited by key provisions of the United Nations Charter, particularly Article 2 paragraph 4 which prohibits the use of force against the territorial integrity or political independence of any state, except in the case of self-defense against an armed attack as provided in Article 51.

It is universally recognized that Article 2 paragraph 4 is a norm of jus cogens, or mandatory law from which there can be no exception. Humanitarian law grants no right to act beyond the limitations of this prohibition.

The use of lethal force to punish past actions, moreover, constitutes an armed reprisal, which is universally recognized as prohibited by international law.

In other cases, where the territorial state grants its permission to a foreign state to carry out a targeted killing, such a killing is legal under international law only if it meets the requirements of international human rights law. For the territorial state can cede to another state no greater rights than it itself possesses, and indeed it is far from clear that it can do even this.

Both Article 2 paragraph 4 of the Charter and international human rights law allow for the use of lethal force as may be required for self-defense or for self-defense and the defense of others by the authorities of the territorial state.

In both cases the requirement is that force be used only as a last resort against an ongoing or imminent use of force by the target, or after judicial proceedings and due process of law.

This element is initially self-judging in character, opening the door to abuse. However, just as police allegations that they have acted in self-defense are subject to judicial review, the self-defense justification of a state conducting targeted killings, and of the individuals executing the state’s orders, are subject to review by the courts of other countries exercising universal jurisdiction and potentially, at least in the future, by the International Criminal Court. Actions taken by a state in exercise of the right of self-defense are, moreover, to be reported to the U.N. Security Council under Article 51 of the Charter.

The use of force against an individual who has laid down his arms or ceased and desisted from active participation in attacks (or, in the language of  humanitarian law, has withdrawn from combat or placed himself hors de combat) is an extrajudicial killing or assassination, and would also constitute a war crime.

The problem here is that the U.S. government has become so accustomed to being prosecutor, judge and executioner that it has forgotten that international legal norms are involved, whose content and validity are necessarily determined by others, and that the ultimate validity of the legal justifications for targeted killings are likely one day to be determined by the judges of an international court or a national court exercising universal jurisdiction.

Just as individuals who participated in the “harsh interrogation techniques” program carried out under the Bush administration would be well advised to carefully choose the countries they travel to, now but also particularly in five or ten years, those individuals currently involved in the targeted killings program should also be very confident they are acting in lawful exercise of the right of self-defense when executing their orders.

For if their actions do not satisfy the requirements of self-defense, they constitute the commission of unlawful assassinations, and probably war crimes. As established at Nuremberg, the argument that such actions were carried out under the orders of superiors, or “due obdience”, is not a permissible defense.  Nor is the argument that the defendant believed he was acting in accordance with international law likely to be given any weight as a defense.

The United States has now become an official hit squad, which will go out and kill anyone on its list of targetable individuals.

Yet it is hard to see how the United States can kill its way to peace, in Afghanistan or in the struggle against terrorists in different countries throughout the world.

Whatever the short-term gains from the current approach, and it is far from clear that it does not create more terrorists than it kills, President Obama and his international lawyers need to rethink their approach to targeted killings.

They need to reexamine the issue, both in order to avoid extrajudicial executions and assassinations, and to shape the standards which will also guide other states in the future in deciding whether or not to put someone on a hit list and then to go out and kill him.

It is time to back off from the Wild West, and to return to civilization and the task of building out a viable international legal order.

The Trenchant Observer

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Outlook for 2014 and beyond: Technology and the creation of increasingly powerful instruments of totalitarian control

Saturday, January 4th, 2014

“Power tends to corrupt, and absolute power corrupts absolutely.”
–Lord Acton (1834-1902)

“All that is necessary for the triumph of evil is for good men to do nothing.”
–Edmund Burke

The onward push of technology in general, and information technology in particular, brings George Orwell’s vision of Nineteen Eighty-Four (1949) and Aldous Huxley’s vision in Brave New World (1932) more clearly, more palpably into view.

For a more contemporary example, see the German film, Das Leben der Anderen (“The Lives of Others”), which received an Oscar nomination for Best Foreign Film in 2006. The movie is available in English, French, and Spanish, as well as the original German.

Technology’s relentless push places new capabilities in government officials’ hands, as new tendencies toward the creation of totalitarian instruments of oppression appear to sweep past all legal, historical and cultural restraints.

The new mantra of governments in democractic countries where minimal oversight and control of government actions still exists to some degree is that, “We do it because we can do it.”

Justifications are not lacking, for zealous officials in their efforts to control terrorist and other threats.

“What if,” they ask, “a nuclear bomb were exploded by terrorists in a major city?” Citing such examples, they conclude that everything is justified, and nothing is excluded.

The requirements of necessity and proportionality that existed in the past are increasingly lost. Thus, to protect society against terrorists, military and intelligence agencies move relentlessly toward doing everything they can to forestall both perceived and inchoate threats.

The relationship between ends and means–of central importance in both domestic and international law–is lost among officials which have succeeded in forging a secret dominion of secret action, where they are not in any meaningful sense held to account. Over time, they secure the acquiescence if not the enthusiastic support of elected government officials, and even of some judges. They develop doctrines such as the “state secrets privilege” which governments invoke to avoid judicial review of the  legality and constitutionality of their actions and programs.

At the same time, the number of individuals employed by the government and its contractors to protect the population and the state grows astronomically. Powerful commercial interests become fused with the technologoical imperatives and the drive to create ever greater capabilities–and to use them.

The national security officials pushing these programs frequently come from intelligence backgrounds where they are not accustomed to conducting their activities in a manner in which they are held to account before the constitution and the law.

Consequently, as we enter 2014 we are being pushed headlong into a future where the state holds in its hands incredibly powerful instruments of totalitarian control. The government, citing the need for secrecy and the classified nature of the information required for legal challenges, does everything it can to avoid effective judicial and constitutional review of its actions. Legal memoranda justifying secret programs are themselves held secret on the theory that their publication would undermine free and vigorous debate among government officials.

The paradoxical result is that while government lawyers are arguably freed up to produce legal justifications that will never see the light of day, citizens and their representative are denied their right to assess whether the government is acting within the law and the Constitution.

In the end, because in a democracy secret legal justifications lack validity and can have no legitimizing force, the government in effect simply fails to offer any legal justifications for its secret operations. The rule of law is broken, as the government operates outside the framework of legal and constitutional accountability which is the bedrock of a democratic state governed by law.

These are matters which are abundantly clear to first-year law students, but not apparently to ranking lawyers within the Executive Branch in Washington.

A government which proceeds in this manner has gone outside the framework of constitutional government under law. Secret laws, secret legal analyses, secret programs and secret activities whose legality cannot be assessed, are deadly assaults on the rule of law.

Yet they continue. They continue with the full backing of President Barack Obama, as revealed through his actions. Here, as elsewhere, we need to watch what the president does, and not what he says.

We assure ourselves that our elected representatives will safeguard our freedoms even in this new world where everything is known by government officials, and large private organizations such as Google and Facebook.

Yet when someone like the Director of the CIA, David Petraeus, is suddenly forced to resign over an affair after his e-mails somehow become known to intellgence officials shortly after the FBI tells him that their investigation has ended and that he will not be the subject of further inquiry, no one insists on knowing what legal authority the FBI used to secure these e-mails.  No one demands to know why FBI Deputy Director Sean Joyce called David Clapper, the head of the NSA, on November 6, 2012 (as election results flowed in), and told Clapper about the affair, or why Clapper immediately called Petraeus and strongly urged him to resign.  Were the e-mails obtained through abuse of an FBI or NSA program? No one dares to focus on this question, or to investigate it tenaciously to the bitter end.  No one is held accountable.

Edward Snowden’s revelations in The Guardian and other leading newspapers throughout the world have opened a window through which we can now see how absolutely without limits U.S. intelligence agencies have conducted surveillance and made copies of the communications of everyone in the world, including those in the United States.

We know these capabilities have been and are used to identify individuals who become the objects of targeted killings by drone strikes, without judicial process, even when as in the Anwar al-Aulaqi case the target is a U.S. citizen.

We trust that these capabilities will never be “misused” by our government officials, while casting a blind eye to how similar capabilities are currently being used by dictatorships to root out and if necessary to destroy their opponents.

We want to think, “It couldn’t happen here.”

But in a sense it is already happening here. These activities–which seem to clearly violate the Fourth Amendment’s prohibition of unreasonable searches and seizures, if the words in the text and two centuries of constitutional interpretation have any meaning–have already had a chilling effect on free speech in the United States, and elsewhere. The precise text of the Constitution is worth recalling:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Writers and journalists already weigh their words carefully, and the topics on which they choose to write. Self-censorship makes insidious inroads into habits of free thought. Many are in denial, and are loathe to admit that they themselves censor what they write.

But engage a writer in a deeper conversation, off-the-record.  Cross-examine a writer as to whether the current climate–resulting from the government’s surveillance operations, its extremely aggressive prosecution of any who have made classified information public, and even reporters to whom such information has been leaked– has affected any of their decisions regarding what to investigate, what sources to use, and how tenaciously to pursue their investigation, and you may be surprised to learn the degree to which writers and journalists are already pulling their punches.

What can be done?

Our answers to this question will be duly recorded by government surveillance programs and operatives. Of that we can be sure. Does that fact in and of itself affect our answers? If it does, extra courage may be required if we are to come up with effective plans of action to defend our liberties.

Still, is there any amount of collective courage that might be summoned, in a country which has nurtured and protected the freedoms guaranteed by the Constitution for over 200 years, to reverse this onslaught of technological and commercial imperatives, growing government secrecy, and the creation of increasingly powerful instruments of totalitarian control?

If we don’t speak out and take corrective measures now, when will we? Can we imagine that it will become easier in the future? In the words of the Talmud, “If not now, when?”

Does anyone remember J. Edgar Hoover, and the abuses he committed with far fewer tools at his command?

How long can we assume that those who hold (or in the future may hold) these extraordinary and growing powers and the power of the state itself in their hands, will always act benevolently and to uphold the rule of law?

The Trenchant Observer

Drone Killings, the Constitution, International Law, and the John Brennan File

Thursday, February 7th, 2013

Developing story
Check back for updates

Recent News Reports and Commentary

Michael Isikoff (National Investigative Correspondent, NBC News), “Justice Department memo reveals legal case for drone strikes on Americans; A secretive memo from the Justice Department, provided to NBC News, provides new information about the legal reasoningbehind one of the Obama administration’s controversial policies. Now, John Brennan, Obama’s nominee for CIA director, is expected to face tough questions about drone strikes on Thursday when he appears before the Senate Intelligence Committee,” Open Channel on NBC News.com, February 4, 2013.

Chris McGreal (New York), “John Brennan faces grilling over drone leak as senators demand answers; Nominee for CIA director set for tough confirmation questions from senators angered by lack of White House clarity on drones,” The Guardian, February 5, 2013 (13.51 EST).

Spencer Ackerman, “How Obama Transformed an Old Military Concept So He Can Drone Americans,” Wired, February 5, 2013 (10:16 AM).

Department of Justice, White Paper, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al Qa’ida or an Associated Force,” MSNBC, February 5, 2012.

John Brennan’s Senate Confirmation Hearings to be the Director of the CIA

It is clear that the confirmation of John Brennan by the U.S. Senate should at the very least be delayed until a number of very disturbing questions have been answered relating to the U.S. drone operations and kill lists directed by Brennan from the White House and by other agencies.

The leaking on February 4 and subsequent acknowledgment by government officials of an unclassified “Department of Justice White Paper” on the legal justification forthe killing of U.S. citizens in particular, and the drone operations in general, has raised more questions than it has answered, and led to calls by Senators for release of the full classified legal memorandum upon which it the White Paper was based.

Suddenly, Barack Obama’s secrecy bubble within which he and Executive branch officials convinced themselves that the drone strikes at targets on their kill lists, including the execution of American citizens such as Anwar al Aulaqi, are justified under the U.S. constitution, by domestic law, and under international law, has burst.

Now their legal justifications must be examined in the light of day.

Outside President Barack Obama’s secrecy bubble, the self-assurance of officials who have been talking essentially to themselves for the last four years, and longer, will necessarily give way to to a more objective consideration of their legal arguments, and also of the strained efforts the Bush and Obama administrations have undertaken to keep their actions and legal arguments from judicial review.

The very idea of a “secret” legal memorandum justifying the execution of individuals, including U.S. citizens, is at variance with bedrock principles of democracy and the rule of law. The “state secrets doctrine” used by the government to prevent judicial review of its legal arguments, e.g., in the al-Aulaqi case, turns the Constitution on its head.

One cannot meaningfully speak of “the rule of law” when the legal justifications the government advances for its actions are held in secret.

It is clear that John Brennan’s confirmation by the Senate should be delayed until the many questions raised by his stewardship of the drone executions of individuals on “kill lists” which he oversaw, to which candidates might be “nominated” by different Executive branch and military officials, has been fully exposed to the light of day, and its legality under both domestic and international law has been fully examined by domestic and international lawyers outside of the Executive Branch, both in and outside the government. 

Before Brennan is confirmed to be the Director of Central Intelligence, a fresh look should also be taken by the Senators who must confirm him into his role in the torture policies of the Bush administration, and decisions not to hold accountable officials in the CIA and other parts of government for their role in the design and execution of these torture or “enhanced interrogation techniques programs”.

Brennan’s role in the “extraordinary renditions” carried out by the Bush administration, including the operation recently condemned by the European Court of Human Rights in a case involving Macedonia, should also be thoroughly explored. Senators should confirm whether or not the U.S. has participated since 2009 in any further “extraordinary renditions” or maintained any “black sites” where detainees were secretly held in foreign countries, including allegations that some were being held or had been held at the CIA black site operation in Benghazi prior to the September 11, 2012 attacks and murder of Ambassador Chris Stevens.

There is a significant possibility that John Brennan, under applicable norms of international law, could in the future be charged in some foreign country with complicity in the international crime of torture, and in war crimes that drone strikes outside the bounds of international law may constitute.

Before he is confirmed, Senators should have clear and persuasive answers to these questions and others related to the legality of drone executions, the Bush torture program, extraordinary renditions, CIA black sites, and John Brennan’s role and actions in each of these areas.

The Trenchant Observer

See also the following articles by Trenchant Observer published earlier, which are listed on the “Targeted Killings Page”, and also below:

The Obama Leaks: The issue is not the leaks, but whether the president lied to the American people
July 4, 2012

“A time to break silence”: Dr. King on the Vietnam war, and President Carter on America’s human rights violations (revised June 28)
June 27, 2012 (updated June 28, 2012)

Holder’s Investigations into Torture and Covert Operations Leaks–An Obama Cover-up?
June 26 2012

Did the White House authorize recent leaks on covert programs?
June 10, 2012

Foreign policy incompetence; further opinion on President Obama as “Executioner in Chief”
June 6, 2012

More news and opinion on President Obama as “Executioner in Chief”
June 3, 2012 (Updated June 4, 2012)

President Obama as “Executioner in Chief”
June 1, 2012

Attorney General Eric Holder offers legal justification for targeted killings of U.S. citizens abroad
March 24, 2012

Obama’s foreign policy juggernaut, including Tom Donilon, and the risks of hubris (updated)
January 27, 2012

Drone Attacks and Other “Targeted Killings” — State Department Legal Adviser Invokes International Law Limits
September 24, 2011

International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World
July 17, 2011

Strategic disarray in Afghanistan
October 3, 2010

UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes
August 6, 2010

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council
June 2, 2010

Targeted Killings by Drone Aircraft: A View From India, and Some Observations
May 20, 2010

Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes
April 7, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications
February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3, 2010

More news and opinion on President Obama as “Executioner in Chief”

Sunday, June 3rd, 2012

From: A Man for All Seasons (1966)

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
–Attributed to Sir Thomas More, in the film A Man for All Seasons (1966)

*****************************************************

[Developing--please check back for updates. Update June 4, 2012.]

Opinion

Paul Harris, “Drone wars and state secrecy – how Barack Obama became a hardliner; He was once a liberal law professor who campaigned against the Iraq war. Now, according to revelations last week, the US president personally oversees a ‘kill list’ for drone strikes in Yemen and Pakistan. Then there’s the CIA renditions, increased surveillance and a crackdown on whistleblowers. No wonder Washington insiders are likening him to ‘George W Bush on steroids’,” The Guardian, June 2, 2012 (15.56 EDT).

Medea Benjamin, “Obama and Drone Warfare: Will Americans Speak Out?” CODEPINK, May 30, 2012.

Daphne Eviatar, “Obama’s drone policy misreading international law,” Politico, May 3, 2012 (opinion).

Doyle McManus, “Coming clean on drones,” The Los Angeles Times, May 6, 2012 (op-ed).

Earlier Trenchant Observer Articles on Targeted Killings

President Obama as “Executioner in Chief”
June 1, 2012

Attorney General Eric Holder offers legal justification for targeted killings of U.S. citizens abroad
March 24, 2012

Obama’s foreign policy juggernaut, including Tom Donilon, and the risks of hubris (updated)
January 27, 2012

Drone Attacks and Other “Targeted Killings” — State Department Legal Adviser Invokes International Law Limits
September 24, 2011

International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World
July 17, 2011

Strategic disarray in Afghanistan
October 3, 2010

UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes
August 6, 2010

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council
June 2, 2010

Targeted Killings by Drone Aircraft: A View From India, and Some Observations
May 20, 2010

Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes
April 7, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications
February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3, 2010

The Trenchant Observer

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then use the “Search” Box or consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here. The Articles on Targeted Killings page can also be found here.

International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World

Sunday, July 17th, 2011

Recently a number of articles have been published that are of particular interest with respect to the development and use of drones.

See

William Wan and Peter Finn, “Global race on to match U.S. drone capabilities, Washington Post, July 4, 2011

Elisabeth Bumiller and Thom Shanker, “War Evolves With Drones, Some Tiny as Bugs,” New York Times, June 19, 2011

Peter Beaumont, “Campaigners seek arrest of former CIA legal chief over Pakistan drone attacks: UK human rights lawyer leads bid to have John Rizzo arrested over claims he approved attacks that killed hundreds of people,” The Guardian, July 15.2010

Michael Tennant, “U.S. Begins Drone Strikes in Somalia,” The New American, July 14, 2011

In previous articles, The Trenchant Observer has pointed to some of the troubling issues in international law raised by the use of unpiloted aircraft or drones in situations removed from the active battlefield in an on-going armed conflict.

Now, with other countries driving to develop comparable military capabilities in the form of drones, some as tiny as bugs, the short-sightedness of U.S. military policy regarding drones has come fully into view.

Moreover, as far as is publicly known, the United States has done nothing to develop in cooperation with other countries new international legal regimes and norms that might help to control what appears to be a headlong rush toward real anarchy among the nations of the world.

President Barack Obama rarely, if ever, speaks of international law. In his Nobel Prize acceptance speech, he spoke not of international law and legal norms, but rather of international “rules” or “norms”. The words “international law” are absent from his discourse.

One consequence has been an approach to international law that can be summed up as “If I can get away with it I can do it,” a formulation that goes back to Justice Oliver Wendell Holmes Jr.’s famous dictum about “the bad man theory of law”.

The system of international law is different from the domestic system in which a “bad man” might focus on the law only in terms of what he might be able to get away with. For the nations that are subject to international law are themselves the creators of the norms of international law. They are at once the legislature, the sheriff and the potential offender. This creates a dual responsibility on the part of nation states and their lawyers: They must not simply interpret international legal norms in a permissive way that allows them to do what they want, but also act to safeguard and strengthen the system of international law, and the way international legal norms wiil be interpreted by other countries. This is sometimes referred to by international lawyers as the “double-function” (or “dédoublement fonctionnel”) of international lawyers and states: in choosing a course of action they must not only seek to pursue their own short-term objectives, but also the critically-important longer-term objectives of building a viable international legal order that will contribute to their own security.

It is precisely in this area, of the obligation to build future international norms and regimes, while not weakening those that exist, that the United States has utterly failed with respect to drones. In past eras, legal regimes to prevent the use of space for military purposes, or the seabed, were developed in order to shape the future environment in which force might be employed. This the Obama administration has failed to do with respect to drones, both as a result of a very short-sighted pursuit of immediate military advantages through their use, and as a result of the fact that President Obama does not seem to understand very deeply the function of international law in safeguarding the nation’s security.

To facilitate reflection on these issues and the legality under international law of the use of drones, a review of the following articles previously published here might be useful.

See

UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes, August 6, 2010

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council, June 2, 2010

Targeted Killings by Drone Aircraft: A View From India, and Some Observations, May 20, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications, February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3, 2010

As Thomas M. Frank (1931-2009), a distinguished international lawyer and professor of international law at New York University, and Edward Weisband once observed, we should be careful whether to observe and how to interpret international law, because “the law you make may be your own.”

See Thomas M. Franck and Edward Weisband, “The Johnson and Brezhnev Doctrines: The Law You Make May Be Your Own,” Stanford Law Review, Vol. 22, pp. 979-1014 (1970).

The Trenchant Observer

www.twitter.com/trenchantobserv

UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes

Friday, August 6th, 2010

UPDATE

The Center for Constitutional Rights and the American Civil Liberties Union have filed suit against the Treasury Department for rules that require them to obtain a license before they can challenge the inclusion of Anwar al-Aulaqi on the U.S. list of individiduals who may be targeted for extrajudicial execution.

Spencer S. Hsu, “Civil rights groups sue Treasury over targeting of terror suspects for killing, Washington Post, August 4, 2010

The targeting of Al-Aulaqi raises questions regarding the bases of the international law governing the use of force. Beyond the question of whether the U.S. is or is not violating the most basic norms of iternational law, the Al-Alauqi case raises fundamental questions relating to our international legal strategy and our vision of the future world we hope to shape. On April 7, 2010, we wrote the following:

The United States has gotten itself into a terrible jam, having adopted the legal justification of the Bush administration for targeted killings.

The Washington Post reports today that,

A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military’s Joint Special Operations Command…

Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.

“He’s in everybody’s sights,” said the U.S. official, who spoke on the condition of anonymity because of the topic’s sensitivity….

–Greg Miller, “Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill,” Washington Post, April 7, 2010

If this death warrant is executed in circumstances that do not justify the use of force in self-defense, either at the international or at the domestic level with the permission of the territorial state, its execution may constitute a war crime.

Some lawyers have won the argument within the Obama administration that it is lawful to kill a member of a terrorist organization, particularly if he has been involved in past acts of terrorism, wherever he can be found.

This argument is based on provisions of humanitarian law or “the law of war” that distinguish between combatants who are lawful targets and non-combatants who are not.

It ignores, however, the fact that provisions of humanitarian law are themselves limited by key provisions of the United Nations Charter, particularly Article 2 paragraph 4 which prohibits the use of force against the territorial integrity or political independence of any state, except in the case of self-defense against an armed attack as provided in Article 51.

It is universally recognized that Article 2 paragraph 4 is a norm of jus cogens, or mandatory law from which there can be no exception. Humanitarian law grants no right to act beyond the limitations of this prohibition.

The use of lethal force to punish past actions, moreover, constitutes an armed reprisal, which is universally recognized as prohibited by international law.

In other cases, where the territorial state grants its permission to a foreign state to carry out a targeted killing, such a killing is legal under international law only if it meets the requirements of international human rights law. For the territorial state can cede to another state no greater rights than it itself possesses, and indeed it is far from clear that it can do even this.

Both Article 2 paragraph 4 of the Charter and international human rights law allow for the use of lethal force as may be required for self-defense or for self-defense and the defense of others by the authorities of the territorial state.

In both cases the requirement is that force be used only as a last resort against an ongoing or imminent use of force by the target, or after judicial proceedings and due process of law.

This element is initially self-judging in character, opening the door to abuse. However, just as police allegations that they have acted in self-defense are subject to judicial review, the self-defense justification of a state conducting targeted killings, and of the individuals executing the state’s orders, are subject to review by the courts of other countries exercising universal jurisdiction and potentially, at least in the future, by the International Criminal Court. Actions taken by a state in exercise of the right of self-defense are, moreover, to be reported to the U.N. Security Council under Article 51 of the Charter.

The use of force against an individual who has laid down his arms or ceased and desisted from active participation in attacks (or, in the language of humanitarian law, has withdrawn from combat or placed himself hors de combat) is an extrajudicial killing or assassination, and would also constitute a war crime.

The problem here is that the U.S. government has become so accustomed to being prosecutor, judge and executioner that it has forgotten that international legal norms are involved, whose content and validity are necessarily determined by others, and that the ultimate validity of the legal justifications for targeted killings are likely one day to be determined by the judges of an international court or a national court exercising universal jurisdiction.

Just as individuals who participated in the “harsh interrogation techniques” program carried out under the Bush administration would be well advised to carefully choose the countries they travel to, now but also particularly in five or ten years, those individuals currently involved in the targeted killings program should also be very confident they are acting in lawful exercise of the right of self-defense when executing their orders.

For if their actions do not satisfy the requirements of self-defense, they constitute the commission of unlawful assassinations, and probably war crimes. As established at Nuremberg, the argument that such actions were carried out under the orders of superiors, or “due obdience”, is not a permissible defense. Nor is the argument that the defendant believed he was acting in accordance with international law likely to be given any weight as a defense.

The United States has now become an official hit squad, which will go out and kill anyone on its list of targetable individuals.

Yet it is hard to see how the United States can kill its way to peace, in Afghanistan or in the struggle against terrorists in different countries throughout the world.

Whatever the short-term gains from the current approach, and it is far from clear that it does not create more terrorists than it kills, President Obama and his international lawyers need to rethink their approach to targeted killings.

They need to reexamine the issue, both in order to avoid extrajudicial executions and assassinations, and to shape the standards which will also guide other states in the future in deciding whether or not to put someone on a hit list and then to go out and kill him.

It is time to back off from the Wild West, and to return to civilization and the task of building out a viable international legal order.

(end of April 7, 2010 article)

See also the following articles by the Observer:

Targeted Killings by Drone Aircraft: A View From India, and Some Observations, May 20, 2010

Other articles by the Observer on targeted killings may be found by entering “Targeted Killings” in the Search box on the lower right side of the home page.

The Trenchant Observer

www.trenchantobserver.com
E-mail: observer@trenchantobserver.com
Twitter: www.twitter.com/trenchantobserv

Comments are invited.

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council

Wednesday, June 2nd, 2010
Predator Drone Firing Hellfire Missile

Predator Drone Firing Hellfire Missile

Today, Philip Alston, a highly distinguished human rights expert and U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, published a report addressing international law issues raised by the policy of “targeted killings”.

See Philip Alston, “Study on Targeted Killings,” (Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Addendum. (U.N. General Assembly Doc. A/HRC/14/24/Add.6)
May 28, 2010

See also the following:

Peter Finn, “U.N. official: U.S. should end CIA drone attacks in Pakistan,” The Washington Post, May 28,2010

Pankaj Mishra, “America’s exalted capacity for murder, “The Guardian (guardian.co.uk), May 21, 2010

Chase Madar, “How Liberal Law Professors Kill: Harold Koh Learns to Love Bomb Power,” Counterpunch, May 14-16, 2010.

For the most recent article on Targeted Killings (and links to earlier articles) by The Observer, see

“Targeted Killings by Drone Aircraft: A View From India, and Some Observations,”
May 20, 2010

The Trenchant Observer

www.trenchantobserver.com
E-mail: observer@trenchantobserver.com
Twitter: www.twitter.com/trenchantobserv

Comments are invited.

Targeted Killings by Drone Aircraft: A View From India, and Some Observations

Thursday, May 20th, 2010
Predator Drone Over Kandahar (Photo KirstTV Wigglesworth/AP)

Predator Drone Over Kandahar (Photo KirstTV Wigglesworth/AP)

…..

Quotation

“La guerre, c’est une chose trop grave pour la confier à des militaires.”

“War is too serious a matter to just be handed over to some military men.”

–Georges Clemenceau.

…..

The following article from India highlights the explosive growth in the use of targeted killings in the Afghanistan and Pakistan theaters, and alludes to their use in other countries as well:

John Cherian, “Predatory strikes,” FRONTLINE: India’s National Magazine (from the publishers of THE HINDU), Vol.27, No. 11 (May 22-June 4, 2010).

Fundamental questions exist about the permissibility of such attacks in situations where they are not conducted in strict compliance with the requirements of immediacy, necessity and proportionality in exercise of the right of individual or collective self-defense, in accordance with Article 2 paragraph 4 and Article 51 of the United Nations Charter.

In particular, the legal justification based on the distinction under international humanitarian law between combatants and non-combatants, which is used to justify such attacks against anyone believed to be associated with the Taliban or other insurgent groups in Afghanistan and Pakistan, fails to take into account the fact that Article 2 (4) and Article 51 of the U.N. Charter are  norms of jus cogens, or mandatory norms from which there can be no derogation. In other words, these norms of jus cogens are superior to and limit any rights to use force that may be contained in international humanitarian law.

Consequently, targeted killings by drone aircraft are lawful only to the extent they meet the requirements for responding to an imminent or ongoing “armed attack” against “the territorial integrity or political independence” of Afghanistan or Pakistan, or if conducted with the consent of the territorial state they meet the requirements of international human rights law. International human rights law permits the use of force in self-defense or in defense of others by state authorities. It does not permit the widespread targeting and execution of criminals or terrorists without due process of law, when the requirements of self-defense are not met.

Three distinct bodies of law are relevant here: 1) the international law governing the use of force articulated in Article 2(4) and Article 51 of the U.N. Charter, which has become customary law and jus cogens; 2) international humanitarian law; and 3) international human rights law. It should be recalled that each of these bodies of law has as among its essential purposes the avoidance or reduction of the killing and injuring of individual human beings. The original purpose of the distinction between combatants and non-combatants in international humanitarian law was to limit attacks on civilians and civilian targets in traditional battlefield settings.

It is noteworthy that, according to the article from India, a very large number of innocent civilians have been killed in targeted killings by U.S. drone aircraft.

See also earlier articles by The Observer on the subject of targeted killings:

Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes
April 7, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications
February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3rd, 2010

The lawfulness of targeted killings by drone aircraft under international law should be of great concern to the United States, for perceptions of legitimacy of its actions involving the use of force are likely to have a broad impact not only on populations in the Middle East and South Asia, but also on the populations and governments of its coalition allies in Afghanistan, as well as on other nations throughout the world.

European allies in a coalition conducting such attacks may be particularly attentive to whteher or not they are conducted in accordance with international law. Article 25 of the German Basic Law (Grundgesetz) or Constitution, for example, establishes the following:

Article 25
The general rules of public international law constitute an integral part of federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the federal territory.

German participation in coalition actions involving targeted killings by drone aircraft in situations where such actions do not meet the requirements of the right of self-defense against armed attack, or self-defense in compliance with international human rights law (when the attacking state is acting with the consent of the territorial state), would appear to present serious legal issues for the German government. Article 25 of the Basic Law includes both customary international law and the special norms of customary international law which have achieved the status of jus cogens.

A further point of interest is that the United States is using non-military personnel to conduct these attacks, whether C.I.A. agents, “contractors” on the ground gathering targeting information and therefore participating in the attacks, or private “contractors” acting as “pilots” of the drones from facilities thousands of miles away.

If some of the actions in which they are participating are not legal under international law, and it is suggested above that many may not be, then these individuals could potentially face criminal liability in the future for the commission of war crimes. While the U.S. has taken vigorous action to prevent its citizens from from being tried either under the jurisdiction of the International Criminal Court or the universal jurisdiction that may be exercised by national courts of any country when their domestic law authorizes them to do so, the historical trend is in the other direction. It is quite conceivable, if not likely, that within 10 or 20 years these individuals could become subject to arrest and trial when traveling abroad.

In any event, these targeted killings do not seem to be stopping the Taliban, which in Afghanistan still appear to be very present in Marja, the location of a much-touted recent American offensive, as well as in Kandahar province where a huge offensive by the United States and its allies is imminent or perhaps already underway.

The Trenchant Observer

www.trenchantobserver.com
E-mail: observer@trenchantobserver.com
Twitter: www.twitter.com/trenchantobserv

Comments are invited, in any language. If in a language other than English, please provide an English translation if possible. A Google translation will be sufficient.

Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes

Wednesday, April 7th, 2010

The United States has gotten itself into a terrible jam, having adopted the legal justification of the Bush administration for targeted killings.

The Washington Post reports today that,

A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military’s Joint Special Operations Command…

Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.

“He’s in everybody’s sights,” said the U.S. official, who spoke on the condition of anonymity because of the topic’s sensitivity….

–Greg Miller, “Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill,” Washington Post, April 7, 2010

If this death warrant is executed in circumstances that do not justify the use of force in self-defense, either at the international or at the domestic level with the permission of the territorial state, its execution may constitute a war crime.

Some lawyers have won the argument within the Obama administration that it is lawful to kill a member of a terrorist organization, particularly if he has been involved in past acts of terrorism, wherever he can be found.

This argument is based on provisions of humanitarian law or “the law of war” that distinguish between combatants who are lawful targets and non-combatants who are not.

It ignores, however, the fact that provisions of humanitarian law are themselves limited by key provisions of the United Nations Charter, particularly Article 2 paragraph 4 which prohibits the use of force against the territorial integrity or political independence of any state, except in the case of self-defense against an armed attack as provided in Article 51.

It is universally recognized that Article 2 paragraph 4 is a norm of jus cogens, or mandatory law from which there can be no exception. Humanitarian law grants no right to act beyond the limitations of this prohibition.

The use of lethal force to punish past actions, moreover, constitutes an armed reprisal, which is universally recognized as prohibited by international law.

In other cases, where the territorial state grants its permission to a foreign state to carry out a targeted killing, such a killing is legal under international law only if it meets the requirements of international human rights law. For the territorial state can cede to another state no greater rights than it itself possesses, and indeed it is far from clear that it can do even this.

Both Article 2 paragraph 4 of the Charter and international human rights law allow for the use of lethal force as may be required for self-defense or for self-defense and the defense of others by the authorities of the territorial state.

In both cases the requirement is that force be used only as a last resort against an ongoing or imminent use of force by the target, or after judicial proceedings and due process of law.

This element is initially self-judging in character, opening the door to abuse. However, just as police allegations that they have acted in self-defense are subject to judicial review, the self-defense justification of a state conducting targeted killings, and of the individuals executing the state’s orders, are subject to review by the courts of other countries exercising universal jurisdiction and potentially, at least in the future, by the International Criminal Court. Actions taken by a state in exercise of the right of self-defense are, moreover, to be reported to the U.N. Security Council under Article 51 of the Charter.

The use of force against an individual who has laid down his arms or ceased and desisted from active participation in attacks (or, in the language of  humanitarian law, has withdrawn from combat or placed himself hors de combat) is an extrajudicial killing or assassination, and would also constitute a war crime.

The problem here is that the U.S. government has become so accustomed to being prosecutor, judge and executioner that it has forgotten that international legal norms are involved, whose content and validity are necessarily determined by others, and that the ultimate validity of the legal justifications for targeted killings are likely one day to be determined by the judges of an international court or a national court exercising universal jurisdiction.

Just as individuals who participated in the “harsh interrogation techniques” program carried out under the Bush administration would be well advised to carefully choose the countries they travel to, now but also particularly in five or ten years, those individuals currently involved in the targeted killings program should also be very confident they are acting in lawful exercise of the right of self-defense when executing their orders.

For if their actions do not satisfy the requirements of self-defense, they constitute the commission of unlawful assassinations, and probably war crimes. As established at Nuremberg, the argument that such actions were carried out under the orders of superiors, or “due obdience”, is not a permissible defense.  Nor is the argument that the defendant believed he was acting in accordance with international law likely to be given any weight as a defense.

The United States has now become an official hit squad, which will go out and kill anyone on its list of targetable individuals.

Yet it is hard to see how the United States can kill its way to peace, in Afghanistan or in the struggle against terrorists in different countries throughout the world.

Whatever the short-term gains from the current approach, and it is far from clear that it does not create more terrorists than it kills, President Obama and his international lawyers need to rethink their approach to targeted killings.

They need to reexamine the issue, both in order to avoid extrajudicial executions and assassinations, and to shape the standards which will also guide other states in the future in deciding whether or not to put someone on a hit list and then to go out and kill him.

It is time to back off from the Wild West, and to return to civilization and the task of building out a viable international legal order.

The Trenchant Observer

www.trenchantobserver.com
E-mail: observer@trenchantobserver.com
Twitter: www.twitter.com/trenchantobserv

Comments are invited, in any language. If in a language other than English, please provide an English translation. A Google translation will be sufficient.