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| November 14, 2002 | |
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The attack provides a perfect illustration of the legal and moral complexities that the US campaign against global terrorism has thrown up. Until now, outside the actual battlefield in Afghanistan, the United States and its allies have tried to apprehend suspected terrorists, rather than targeting them directly with lethal force. The Yemen killing shows that the military approach, so far employed only in Afghanistan, is going global. The rationale behind the strike is that al-Qaeda operatives are enemy fighters, that the whole world represents a battlefield, and that when hostile combatants cannot be captured, it is legitimate to shoot to kill. National Security Advisor Condoleezza Rice laid out this line of reasoning when she said on Fox News on Sunday November 10, "We’re in a new kind of war, and we’ve made it very clear that this new kind of war be fought on different battlefields." Act of War or Summary Execution? The idea that the United States is at war with al-Qaeda (or that a state of armed conflict exists between the two, in legal terms) has been a guiding principle of the Bush administration’s response to September 11. But it remains controversial, and some of those who do not accept it have already strongly criticised the strike against al-Harithi. Anna Lindh, Sweden’s foreign minister, was quoted in the Washington Post as saying that the attack was "a summary execution that violates human rights". In the same article, an unnamed former official of the Clinton administration warned that there was a danger that the United States could become "in fact or perception, judge, jury and executioner around the world." Amnesty International issued a press release saying, "If this was the deliberate killing of suspects in lieu of arrest, in circumstances in which they did not pose an immediate threat, the killings would be extra-judicial executions in violation of international human rights law." The organization warned that "the prohibition against the arbitrary deprivation of life cannot be derogated from in any circumstances, even in a time of national emergency." Traditionally, the laws of war (such as the Geneva Conventions) recognize only two types of armed conflict: an international armed conflict, which takes place between two states, and an internal armed conflict, a civil war taking place within the territory of a single state. Under these terms, the global US campaign against al-Qaeda and associated terrorist groups should be viewed as a law-enforcement matter. However, some lawyers argue that the scope and scale of the attacks on September 11 make them an act of war. For instance, the American Bar Association Task Force on Terrorism and the Law wrote in a report on President Bush’s proposals for military commissions that "Given the degree of violence in these attacks, and the nature and scope of the organization necessary to carry them out, it is much more difficult to argue that these are not acts of war, than to argue that they are." Ground Rules For a New Kind of War If the campaign against terrorism is "a new kind of war", it certainly poses some difficult questions about the ground rules that are appropriate for it. A central concern of international humanitarian law (as the laws of war are formally known) is to distinguish between combatants and civilians, between those who can be legitimately targeted and those who are, in the term of the Geneva Conventions, "protected". But in a war against members of a terrorist organization who wear no uniform, are not obviously engaged in hostilities, and may be found anywhere in the world, the basic act of identifying the enemy is already controversial. When the United States declares that someone is working actively with al-Qaeda, many people will hear this not a self-evident statement of fact, but as an assertion that needs to be demonstrated.
This uncertainty affects US policy on detainees, where the administration is resisting demands that it should allow for some judicial review of the classification of captives as enemy combatants, and also the choice of targets for military action. According to Suzanne Spaulding, chair of the American Bar Association Standing Committee on Law and National Security, "The strike in Yemen highlights the difficulty of applying traditional rules of engagement to this non-traditional war." She argues that "the US government has not adequately explained the parameters of this war" – including the definition of the enemy and what counts as a legitimate military target. It is impossible to know whether the Yemen strike will set a pattern that will now be repeated regularly, or whether the use of such attacks will remain comparatively rare. (Newsweek reported this week that "an informed source" had told them that "several more Qaeda operatives are being tracked and targeted in Islamic countries in the Middle East and Asia.") In this case, the identification of al-Harithi as a senior figure in al-Qaeda seems to be widely accepted, and it is suspected that he had a direct hand in the attack on the USS Cole in 2000, which killed 17 US sailors. Moreover, it seems plausible that al-Harithi could not easily have been arrested. Last December, several Yemeni soldiers were killed in an abortive attempt to capture a group of al-Qaeda suspects, which may have included al-Harithi, near Yemen’s border with Saudi Arabia. It is possible to imagine rules of engagement that might emerge for military attacks in this "new war", that would take into account such intangible factors as the degree of certainty with which suspects can be identified, their alleged seniority within al-Qaeda, and the possibility of detaining them through more traditional law-enforcement means. In the past, the US government has repeatedly criticised Israel for the targeted killing of Palestinian militants. On November 5, after the strike in Yemen, the State Department spokesman Richard Boucher said that US policy on Israel’s actions "has not changed". Boucher would not comment directly on what distinguished the circumstances in Yemen from those in Israel, but he said that criticism of Israel related in part to "the prospects of peace and the prospects of negotiation and…the need to create an atmosphere for progress." The implication seems to be that the Palestinians have a legitimate political cause, and in the past US officials have criticised Israel for targeting figures who could be seen as legitimate political representatives, rather than as terrorists with whom no diplomatic relations were possible. Another significant factor in the strike against al-Harithi is that it appears to have been carried out with the consent of the Yemeni government. Using armed force on the territory of a state that has not given its agreement is a breach of Article 2 (4) of the United Nations Charter, which says members must refrain "from the threat or use of force against the territorial integrity or political independence of any state". In off-the-record briefings since September 11, US officials have suggested that they are prepared to carry out military operations overseas without the knowledge or consent of the host country, if necessary. This would constitute an act of aggression, though the United States might claim that it was acting in self-defence. The Role of the CIA Finally, it is notable that the strike in Yemen was apparently carried out by the CIA, not the US armed forces. CIA operations are governed by a series of tightly drawn legal rules laid down by the President, and last year, President Bush gave the organization specific authorization to target al-Qaeda members. (The fact that the country is held to be at war means that this finding did not contradict or displace a long-standing Presidential directive banning assassination.) This, presumably, is what Condoleezza Rice was referring to when she said on Fox News that "the President has given broad authority to US officials in a variety of circumstances to do what they need to do to protect the country." Under the laws of war, however, the CIA’s role is legally questionable. According to A.P.V. Rogers, a former British army officer and an authority on the laws of war, "it has long been recognised that hostilities are only to be conducted by the uniformed armed forces of a party to the conflict." Rogers pointed to Article 43(2) of the First Additional Protocol to the Geneva Conventions, which reads: "Members of the armed forces of a Party to the conflict (other than medical personnel and chaplains…) are combatants, that is to say, they have the right to participate directly in hostilities." (Although the United States is not a party to the Additional Protocol, this passage is widely thought to reflect customary international law.) If the CIA agents who carried out the strike were not lawful combatants, they would not theoretically have the right to participate in hostilities, and their killing of al-Harithi would not be sanctioned under international humanitarian law. During the war in Afghanistan, CIA agents took part in fighting on the ground and launched a number of attacks from unmanned Predator drones, in support of military operations. However CIA operations have traditionally been seen not as a part of conventional hostilities, but as covert action that exists in a twilight zone, as far as international law is concerned. The Yemen strike appears to be a curious form of covert action – one that is openly boasted about by the defense officials of the state that carried it out – and the Pentagon crowing has apparently led to a good deal of friction between the Department of Defense and the CIA. The difference between a strike launched by the CIA and the military may seem insignificant, when the person responsible was in any case hundreds of miles from the target, watching a live video feed and pushing a button on a control panel. However, the apparent disjunction between the existing legal framework, and evolving state practice, is a further indication of the complications of this "new kind of war", and a further argument for the US government to spell out some clearer rules of engagement. Related chapters from Crimes of War: What the Public Should Know: Aggression Related Links A
Strike in Yemen Missile
Strike Carried Out With Yemeni Cooperation Yemen
Killing Based on Rules Set Out by Bush Yemen/USA:
government must not sanction extra-judicial executions The
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The
Yemen Strike: The War On Terrorism Goes Global