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War and Terror: The CIA's Yemen Operation: a Legal Critique
Posted on Thursday, November 21 @ 19:11:19 UTC
Topic: US Foreign Policy
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 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
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