Tag Archive | "assassination"

Former prime minister Rafik Hariri was killed by a car bomb in Beirut on February 14, 2005. (Martinfrost)

Critical Analysis: Creation of the Special Tribunal for Lebanon

Former prime minister Rafik Hariri was killed by a car bomb in Beirut on February 14, 2005. (Martinfrost)

Former prime minister Rafik Hariri was killed by a car bomb in Beirut on February 14, 2005. (Martinfrost)

Valentine’s Day is the holiday for lovers –with images of hearts, friendship, roses, and chocolates floating around cities everywhere and well into the night. This day, however, was like a scene from the stories of Armageddon for the Lebanese people in 2005. On this date, the former Prime Minister Rafiq Hariri, along with 22 others (including civilians), were killed when approximately 1,800 kilograms of TNT detonated inside a parked Mitsubishi van as Hariri’s convoy passed by in the streets of Beirut, Lebanon. The blast was so powerful that it left a crater at least 10-meters wide and two meters deep on the street. The assassination left the country completely devastated and immediately fired up tensions with neighboring Syria. Hariri was dubbed by some as “Mr. Lebanon,” an oil and gas magnate that was seen as a progressive, Western voice for Lebanon. He was bitterly despised by Bashar al-Assad, Syria’s current president, which led many to believe that Assad was behind the fatal attack. Initial state investigations into who had masterminded this attack were unproductive. The United Nations responded by establishing an independent investigatory body, which eventually led to the creation of the Special Tribunal for Lebanon (STL).

Specifically, the STL was created by the U.N. Security Council, although it has some distinct features that differentiate it from typical “Chapter VII” courts like the International Court for Yugoslavia (ICTY) and the International Court for Rwanda (ICTR ). “Chapter VII” courts are products of the U.N. Charter (Chapter VII), which gives the Security Council the ability to create ad hoc courts during or after an armed conflict. These courts require a unanimous vote of the Permanent Members, and a majority of the non-Permanent, rotating members. Armed conflicts, for the sake of brevity, are those that involve a state and another state (international) or a state and an organized non-state actor/group (non-international).* Hariri’s assassination involved the state of Lebanon and (allegedly) an organized non-state actor, Hezbollah. (Not surprisingly, alternative theories exist as to who attacked Hariri’s convoy in 2005, including Israel’s intelligence group, Mossad.)

Lebanon prompted the eventual creation of the Tribunal by requesting that the Security Council create a court of “international character” to investigate the death of its former Prime Minister and prosecute the suspected perpetrators. As a result of that request, on March 29, 2006, the Security Council mandated the Secretary-General to conduct negotiations with the Government of Lebanon to establish such a tribunal (Resolution 1664). The negotiations fell through, primarily due to disagreement within the new Lebanese parliament about funding and supporting such a Tribunal. Not only did Saad al-Hariri, Rafiq Hariri’s son, lose support due to Hezbollah’s growing majority within the government, but the disagreement eventually turned into Lebanon’s prolonged Cedar Revolution. The Security Council responded with Resolution 1757, creating instead a Chapter VII court in lieu of a voluntary tribunal as originally requested by the government of Lebanon. Voluntary contributions make up 51 per cent of its funding and 49 per cent comes from Lebanon.

The Tribunal cases relate to the assassination of Rafiq Hariri and others on February 14, 2005. The Prosecutor submitted an indictment to the pre-trial judge on January 17, 2011. This indictment was confirmed on 28 June 2011. Four Hezbollah officials were named in the indictment: Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra.

The STL is indeed very special, for three reasons. First, the Tribunal will be addressing a new type of crime within international criminal law: terrorism. Second, it is the first international court to try the Accused in absentia on these terrorism charges. Third, it is prosecuting terrorism charges by way of the Lebanese Criminal Code (which gives the Tribunal a bit of a “hybrid” legal flair).

Much like the Special Court for Sierra Leone (SCSL), the Tribunal is located outside of the country of conflict, mostly due to security concerns. It will be trying the case Prosecutor v. Ayyash et al. at the International Criminal Court (ICC), in The Hague, Netherlands, and in the same courtroom that was used for the trial of Charles Taylor at the SCSL. It is highly unlikely that any of Accused will be present during their trial, which is scheduled to begin on March 25, 2013.

 Maha Kamal is a staff editor with the Denver Journal of International Law and Policy. She received her BA in International Affairs (specialization in European politics) from the University of Colorado at Boulder in 2007. Maha has previously worked with numerous internationally-focused organizations, including World Denver and the Institute of International Education. She is currently enrolled in a practicum at DU Law which is working to create and finalize an evidentiary database for the Charles Taylor case at the International Criminal Court. 

*Fascinated by this subject? We encourage you to take (or audit) a course on International Criminal Law. The University of Denver Sturm College of Law offers this course with Professor David Akerson, typically in the Fall.

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Anwar al-Awlaki

The Legality of Extrajudicially Killing an American Citizen

Anwar al-Awlaki

Anwar al-Awlaki

On Friday, Sept 29, 2011 a U.S. drone attack in Yemen killed two U.S. citizens, al-Qaeda leader Anwar al-Awlaki and al-Qaeda magazine editor Samir Khan.  A secret Justice Department memo authorized the targeting of al-Awlaki, which, according to senior intelligence official, was necessary for the CIA to proceed with the extrajudicial killing of an American. However, because America is not at war with Yemen and Al-Awlaki was not officially classified as an enemy combatant, the killing has been criticized by many as illegal under both domestic and international law and raises serious issues of the interplay between the two in terms of both policy and practice.

Although the U.S. attack can be considered as contrary to provisions in international law that ban countries from assassinating their enemies,1 and domestic law, which prevents deprivation of life absent due process of the law, the CIA memo declared that the killing of an American is lawful so long as he was an enemy combatant and can’t be arrested.

Al-Awlaki was born in New Mexico to Yemeni parents, carried dual Yemen and U.S. citizenship, and earned a degree in civil engineering from Colorado State University in 1994.  Although he was not charged with any crime, the Obama administration accused him of having had a direct role in the 2010 al-Qaeda attempt to bring down two U.S. cargo aircraft and inspiring the actions of Army psychiatrist Maj. Nidal Hasan’s attack on Fort Hood, Texas on November 5, 2009, which left 13 dead. The administration argues that these activities support al-Awlaki’s classification as a “legitimate target” under U.S. and international law.

The specific provisions in international law related to targeted killing of an opponent within the context of war are clear, yet in application, such terms have been construed and tailored to justify contrary state actions. Under customary international law, the 1904 Hague Convention IV on the Laws and Customs of War on Land states that it is “especially forbidden – …To kill or wound treacherously individuals belonging to the hostile nation or army….” Article 23(b) of the Hague Convention of 1899 outlaws “treacherous” attacks on adversaries and can thus be interpreted as prohibiting attacks on enemy leaders or “assassinations.”  Finally, under article 37 of the Additional Protocol to the 1949 Geneva Convention Relating to the Protection of Victims of International Armed Conflict (Protocol I), “[i]t is prohibited to kill, injure or capture an adversary by resort to perfidy” or treachery.  Applicability of such provisions necessarily relies on adherence to common definitions of the pertinent terms.

In recent years the U.S. and Israel have reframed the terminology of such “assassinations,” framing them as “targeted killings” and defined the victims as “enemy combatants” who are therefore legitimate targets wherever they are found and thus, executing them would not be prohibited under international law.

In July 2010, the ACLU filed a lawsuit on behalf of al-Awlaki’s father, Nasser al-Awlaki, challenging the government’s authority to target American citizens who are suspected but not charged with any crime, far from any clearly defined battle zones, and without an imminent threat to the lives of American citizens. However, the Obama Administration defended its authority to use military and paramilitary force against al-Qaeda and associated forces beyond “hot,” or traditional, battlefields such as Iraq or Afghanistan, and a federal court dismissed the case on December 7, 2010.  Further support was provided that the citizenship of certain belligerents does not shelter them from being targeted.

Additionally, in 2001 Congress endorsed the right to kill members of al-Qaeda and their confederates virtually anywhere in the world in passing the Authorization for Use of Military Force bill.  The Bush Administration reasoned that it was no longer bound by legal constraints requiring the government to give suspected terrorists due process because terrorism is an act of war, rather than a crime.  The Obama Administration has continued to follow this policy.  Indeed, it argues, the killing of U.S. citizens could also be defended under international law as an act of self-defense, given CIA intelligence about al-Awlaki’s role in planning attacks against America.

Support for the attacks has come from former Vice President Cheney, who applauded President Obama for having carried out a “very good strike.”  He said that said that the administration has the right to target American citizens outside the U.S. when the nation is at war, as it has been since the 2001 attacks in New York, Washington and Pennsylvania.  Others who echoed this sentiment include Texas Governor and GOP Presidential candidate Rick Perry and Democratic ex-Representative Jane Harman, who was until recently the top Democrat on the House Intelligence Committee.

On the other side of the debate, the lack of due process and rights afforded by the U.S. Constitution raises questions about Executive power and brings up the slippery slope argument.  “If we allow such gross overreaches of power to continue, we are setting the stage for increasing erosions of civil liberties and the rule of law” says Center for Constitutional Rights (CCR) executive director Vincent Warner.

Ron Paul, the Texas congressman seeking the GOP presidential nomination also alluded to the slippery slope argument when he said that we must think very seriously about the practice of “assassinating American citizens without charges” and he emphasized concerns that the American people will start supporting an accepted practice of the president assassinating people who he thinks are “bad guys.”  The tailored nature of the CIA’s report backing the killing of al-Awlaki, however, can be considered as addressing the slippery slope argument because it focuses on al-Awlaki specifically due to his U.S. citizenship.  However, under other circumstances, absent the citizenship factor, such a report would be less necessary and similar assassinations could become commonplace.

The most resounding legal argument against the attacks has come from those such as Mary Ellen O’Connell, Notre Dame law professor, who say that the attack was “immoral, illegal, and dangerous” because, among other things, “[t]he United States is not at war in Yemen.  This was the killing of a criminal suspect with no attempt to arrest.”

There are, as always, the policy and moral underpinnings.  If such a targeted assassination of one man may save the lives of many, should it be deemed acceptable, regardless of his citizenship? While some people answer yes to this question, acceptable and legal are not one in the same, and while the law is not clear on the matter of assassinations, what we have here is a situation in which the U.S. government specifically targeted and killed a U.S. citizen, who undoubtedly had a constitutional right to due process of the law.

Al-Awlaki publicly (but not formally nor effectively) renounced his U.S. citizenship, it is unlikely that Yemen would have turned him over to the U.S. government so that his right to due process could be exercised, and he is accused of being a leader of a terrorist group; consequently, the argument rests that arrest was likely impossible and therefore, the controlling international and domestic law provisions were not applicable, or at the very least, were open for interpretation.  The debate surrounding this recent execution is evidence of the changing face of international law and the further blurring of the line between legality and morality in the decision-making process.  It also highlights the relevance of the inter-play and interaction between domestic and international law.

  1. Black’s Law Dictionary defines assassination as “the act of deliberately killing someone especially a public figure, usually for hire or for political reasons.”

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University of Denver Sturm College of Law