|
CounterPunch
November
19, 2002
The CIA's Yemen Operation:
a Legal Critique
by THOMAS HAIDON
"One hopes each time you get a success
like that, not only to have gotten rid of somebody dangerous,
but to have imposed changes in their tactics and operations."
Paul Wolfowicz
US Deputy Defense Secretary (1)
The incident of 5 November in which a United States
CIA drone aircraft attacked a vehicle containing six alleged
members of Al-Qaeda signified a strategic turn in the American
"war on terror". Days prior to the strike, President
Bush offered a foreshadowing of events to come: "The only
way to treat them is [for] what they are--international killers.
And the only way to find them is to be patient, and steadfast,
and hunt them down. And the United States of America is doing
just that."(2) The immediate reaction from the Bush administration
was a subdued one, without an equivocal affirmation or denial
of US involvement. Secretary of Defence Donald Rumsfield indicated
however that the assassination of alleged Al-Queda official Ali
Qaed Senyan al-Harth was "a good thing" and speaking
of the US-Yemen relationship in the "war on terror":
"The arrangement has been a good one and it is on-going".
Irrespective of the complacency of the
United States government and public, issues as to the legality
of the United States course of conduct, pursuant to obligations
imposed by international law may be invoked. Has the United States
violated the territorial and sovereign integrity of Yemen by
conducting such an attack on Yemenite soil? The role of the government
of Yemen may be outcome determinative, and this answer may be
forthcoming in the immediate weeks following the strikes. If
Yemen gave tacit approval for the United States to conduct such
an operation, then the issue of legality may be less clear. However,
the question that follows is: has Yemen been unduly coerced by
the United States to take part in the war on terror? Hence although
there may have been tacit approval from Yemen, the underpinnings
of that approval indicate a puppet-string relationship. The question
then becomes has the United States committed breaches of international
law irrespective of any cooperation with Yemen?
Although the United States has not proffered
a justification for its conduct; if and when queried, the United
States will likely base its justification on the basis of anticipatory
self defense. The Bush administration's definition of "anticipatory
self defense" is more clearly articulated and set forth
in the Bush administration's "National Strategy Plan":
For centuries, international law recognized
that nations need not suffer an attack before they can lawfully
take action to defend themselves against forces that present
an imminent danger of attack. Legal scholars and international
jurists often conditioned the legitimacy of preemption on the
existence of an imminent threat--most often a visible mobilization
of armies, navies, and air forces preparing to attack. (3)
Can the United States, pursuant to international
law, conduct such an operation in Yemen?
Yemen has emerged as an integral player
in the United States' "war on terror. It is somewhat unclear
whether or not the United States acted with the tacit approval
of Yemeni authorities. A two step analysis is required: If the
United States did not receive tacit and specific approval to
conduct such an operation then its actions constitute the unlawful
use of force, which violates the territorial and sovereign integrity
of Yemen. Secondly, if there was such specific and tacit approval
for the attack, then the United States may still have committed
a fundamental breach of international law through the commission
of what appears to be extrajudicial killings.
Without the
cooperation of Yemen.
If the United States went beyond its
parasitical relationship with Yemen and conducted the intelligence/military
operation without the explicit consent of Yemen, then the United
States has engaged in the unlawful use of force, despite an invocation
of anticipatory self defense. Article 4 of The Charter of the
United Nations establishes that "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". (4)
An argument of anticipatory self-defense
is flawed if proffered. The right of anticipatory defense is
partially justified by the imminent threat of a future attack
that is "instant, overwhelming, leaving no choice of means
and no moment for deliberation". (5) This is an established
and accepted precept of international law that supercedes a political
attempt by the Bush administration to codify its own definition
of the principle. Applying these principles, it cannot be said
that alleged terrorists, in a vehicle on a barren highway, posed
an imminent threat to the United States that was "instant,
overwhelming, leaving no choice of means and no moment for deliberation".
Although an argument could be made that the men within the vehicle
may have been targeting US nationals, that alone would not necessarily
justify the use of force through anticipatory self defense. In
fact, Article 51 of the United Nations Charter strictly limits
the doctrine of anticipatory self defense, rendering it invalid
in most situations. Article 51 states:
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. Measures taken by Members in
the exercise of this right of self-defence shall be immediately
reported to the Security Council and shall not in any way affect
the authority and responsibility of the Security Council under
the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace
and security.(6)
Indeed, scholars such as Professor Kelsen
have deduced that Article 51 comprehensively governs the doctrine
of self-defense, and that a customary international law definition
of anticipatory self defense is invalid as is the use of force
to defend nationals abroad.(7) Thus an argument of anticipatory
self defense based on the "imminence" of an attack
on the American embassy, or US nationals, fails because it is
widely accepted that an invocation of self defense must be vindicated
through the procedures of the United Nations Security Council,
not a unilateral use of force.
Furthermore, if anticipatory self-defense
is valid it is also governed by the principle of proportionality
which can be stated to imply: "... the adoption of measures
proportionate to the seriousness of the attack and justified
by the seriousness of the danger".(8) Certainly, launching
a missile into a vehicle containing six men, who were not at
the time exercising aggression is an example of an egregious
use of disproportionate force, even assuming the men in the car
were in the process of planning a strike against a United States
interest.
Thus, an attack on Yemeni soil (without
Yemen's tacit approval) violates Yemen's right to territorial
integrity and political independence. It renders irrelevant Yemeni
military and police resources to handle elements of criminality
according to Yemen's own legal rules and provisions.
With permission
of the government of Yemen.
Even with approval and/or cooperation
from the government of Yemen, the United States (and perhaps
Yemen) has committed "extrajudicial killings" that
violate jus cogens norms of international law, as well as the
Geneva Conventions containing the codification of customary international
law.
According to Amnesty International, national
courts have recognized "extrajudicial killings", that
is executions that are not preceded by due process and judicial
procedures, as a jus cogens violation of international law.(9)
Principle 18 of the 1989 UN Principles on the Effective Prevention
and Investigation of Extra-legal, Arbitrary and Summary Executions
has stated:
Governments shall ensure that persons
identified by the investigation as having participated in extra-legal,
arbitrary or summary executions in any territory under their
jurisdiction are brought to justice. Governments shall either
bring such persons to justice or cooperate to extradite any such
persons to other countries wishing to exercise jurisdiction.
This principle shall apply irrespective of who and where the
perpetrators or the victims are, their nationalities or where
the offence was committed.(10)
This illustrates the legal gravity of
extrajudicial killings, and the obligations imposed upon the
nation where the killings occur in pursuing those who have committed
the killings. To be sure, the United States would qualify itself
as immune from the jurisdiction of Yemen. Yemen, as a partner
in the US "war on terror" would not likely seek to
"prosecute". Likewise, a third party exercise of jurisdiction
would fail, as the United States would invoke its "sovereign
immunity".
The attack in Yemen is an extension of
the "war on terror", and therefore part of an international
conflict concerning global terrorism. An argument can be made,
that this attack may be governed by the Geneva Conventions. Article
3(1) of the Convention prohibits the "passing of sentences
and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the
judicial guarantees which are recognized as indispensable by
civilized peoples." However, the Convention applies to "protected
persons", which are defined as "Persons taking no active
part in the hostilities". This is where a legal argument
based on a violation of the Geneva Convention may be flawed.
If it is shown the victims were directly involved in "terrorist"
attacks against US interests, an argument could be made that
the Convention does not apply. However, the victims were never
given the opportunity to surrender, which if they had would have
brought them within the rubric of the Convention and its protections.
Furthermore, Article 6(1) of the International
Covenant on Civil and Political Rights, to which the United States
is a party, provides: "Every human being has the inherent
right to life. This right shall be protected by law. No one shall
be arbitrarily deprived of his life." The US attack may
very well constitute an arbitrary denial of these rights.
The CIA and
extrajudicial killings
The incident in Yemen is indicative of
a return to the classical policy of extrajudicial assassination
that the CIA so fervently pursued in Latin America during the
1970's and 1980's. According to the Washington Post, which cites
merely an example of what the CIA and its capabilities in Guatemala:
On Oct. 15, 1991, the CIA station in
Guatemala sent an "eyes only" cable to Ward, then the
chief of the Latin American division, summarizing the murder
of U.S. citizen Michael Devine and stating "the entire command
structure of the military zone where the killing took place was
controlled by men known to be capable of murder under the most
casual pretext"--at least one commander was a CIA asset.
After discussing several other cases, the cable concludes by
reporting that "the extrajudicial killing of certain categories
of persons is almost routine."(11)
Such incidents and occurrences were also
commonplace in Honduras, El Salvador and Chile, where the CIA
was often given free reign. The "war on terror", is
the "perfect" conflict to instil new life into the
clandestinely illegal doctrine.
A further, important consideration is
that Yemen, although in the guise of cooperation and partnership,
may be under undue pressure and influence from the United States
to cooperate with the "war on terror". Under the "National
Strategy Plan", new tactics in "welcoming" countries
to help fight the war on terror" will include: "denying
further sponsorship, support and sanctuary to terrorists by convincing
or compelling states to accept their sovereign responsibilities".(12)
Yemen previously "cooperated" with the United States
during the initial occupation of Afghanistan after September
11 when the Bush Administration pledged "conditional aid"
for Yemenite logistical and military support, which it reluctantly
provided.(13) Perhaps the same forces are at work regarding the
instant situation.
The effect
on the crisis in the Middle East
The strike against alleged members of
Al-Qaeda in Yemen will have the effect of strengthening and bolstering
the "validity" of Israel's practice of targeted killings
against Palestinians civilians and governmental officials. This
is despite a politically calculated statement made by the State
Department indicating that the United States was "still
opposed" to targeted killings in Palestine:
Our policy on targeted killings in the
Israeli-Palestinian context has not changed...We all understand
the situation with regard to Israeli-Palestinian issues and the
prospects of peace and the prospects of negotiation... and of
the need to create an atmosphere for progress... A lot of different
things come into play there.(14)
This statement is transparent, and should
be seen as a carefully crafted political statement designed to
allay the concerns and fears of the Palestinians and the Arab
world. With the political shift in Congress to the right, further
support of Israeli policies will be forthcoming. The level of
scrutiny that the United States has historically placed on Israel
in the wake of targeted killings against Palestinians will wane,
along with prospects for negotiation and settlement.
Israel, in witnessing the US strike can
only feel a sense of vindication of its historical practice of
extrajudicial killings. The emergence of Netanyahu as Foreign
Minister and Mofaz as Defense Minister, will set the foundation
for an escalation of these policies that may be accompanied by
an unofficial "rubber stamp" from the United States.
Thomas J. Haidon
is an American attorney and activist residing in Wellington,
New Zealand. He received a Jurisdoctorate (J.D.) with a certificate
of international law from the University at Buffalo School and
has studied at the American University in Cairo and Birzeit University
in Palestine. He is currently pursuing a Masters of Law in international
law at Victoria University in Wellington, New Zealand. This article
originally appeared in A
True Word.
Haidon can be reached at: thaidon@justice.com
References
(1) "US
Still Opposes Targeted Killings." 6 November 2002.
(2) "CIA 'Killed Al-Queda Suspects'
in Yemen" 5 November 2002. <http://news.bbc.co.uk/2/hi/middle_east/2402479.stm>
(3) "The
National Security Strategy of the United States".
Section V. "Prevent our enemies from threatening us, our
allies, our friends with weapons of Mass Destruction". P.
15
(4) http://www.un.org/aboutun/charter/
(5) The Caroline Case. 29 <B.F.S.P>.
1137-1138; 30 B.F.S.P. 195-196
(6) http://www.un.org/aboutun/charter/
(7) Kelsen. "The Law of the United
Nations" (1950) p. 914
(8) L.N. Doc. A. 14, 1927. V.V. Legal
1927. V.14 p. 60
(9) "Universal
Jurisdiction: The Duty of States to Enact and Implement Legislation--Chapter
11 (Extrajudicial Killings). Amnesty International. 01/09/01.
(10) UN Principles on the Effective Prevention
and Investigation of Extra-legal, Arbitrary and Summary Executions,
adopted by the UN Economic and Social Council (ECOSOC) in its
Resolution 1989/65 of 24 May 1989, Principle 18
(11) Blanton, Tom. "Hardly a Distinguished
Career". The Washington Post. 14 March 2002 A17
(12) "The
National Security Strategy of the United States"
September 2002. P.6 <>
(13) MacAskill, Ewan. "Yemen
Attacks Al-Qaida". The Guardian Unlimited. 19 December
2001
Today's Features
Gary Leupp
Terror
War Targets Maoist Exiles
Anthony Gancarski
Secular Crusades
Noam Chomsky
A Modest
Proposal:
Let Iran "Liberate" Iraq
Robert Jensen
World's
Policeman or Bully?
Bill Christison
Why
Bush Wants to Destroy Saddam
Uri Avnery
The Revenge of a Child
New
Print Edition of CounterPunch Available Exclusively
to Subscribers:
- CounterPunch Special:
The Persecution of Gershon Legman by Susan Davis: Smut, the Post Office, Commies
and the FBI;
- Reeling Democrats: Is Pelosi the Answer?
- Gandhi v. Hitler: the Secret Race for the Nobel
Prize;
- Sullying Mario Savio's
Memory;
- Lynching Then and Now;
- Earn While You Learn: Chris Whittle and Child Labor;
The Case of the Pompous
Professor;
- The Class Struggle in
Boston: All that
Effort, But What Did They Get?
Remember, the CounterPunch website is
supported exclusively by subscribers to our newsletter. Our worldwide
web audience is soaring , with about seven million hits a month
now. This is inspiring, but the work involved also compels us
to remind you more urgently than ever to subscribe and/or make
a (tax deductible) donation if you can afford it. If you find our site useful please: Subscribe
Now!
Or Call Toll Free 1 800 840 3683
home / subscribe
/ about us
/ books
/ archives
/ search
/ links
/
|