Since Zawahiri did not pose “an immediate
international threat,” Marjorie Cohn says he
should have been arrested and brought to justice
in accordance with the law.
By Marjorie Cohn
August 12, 2022:
Information Clearing House
-- "Truthout"
President
Joe Biden’s assassination of Al-Qaeda leader
Ayman al-Zawahiri in Afghanistan was illegal
under both U.S. and international law.
After the C.I.A.
drone strike killed Zawahiri on Aug. 2, Biden
declared, “People
around the world no longer need to fear the
vicious and determined killer.”
What we should fear
instead is the dangerous precedent set by
Biden’s unlawful extrajudicial execution.
[Related:
Al-Qaeda Chief Killing Does Not ‘Make Us
Safer’]
In addition to
being illegal, the killing of Zawahiri also
occurred in a moment when the United Nations had
already determined that people in the U.S. had
little to fear from him. As a United
Nations report released in July concluded,
“Al Qaeda is not
viewed as posing an immediate international
threat from its safe haven in Afghanistan
because it lacks an external operational
capability and does not currently wish to cause
the Taliban international difficulty or
embarrassment.”
Just as former
President Barack Obama stated that “Justice
has been done”
after he assassinated Osama bin Laden, Biden
said, “Now
justice has been delivered”
when he announced the assassination of Zawahiri.
Retaliation,
however, does not constitute justice.
Targeted, or
political, assassinations are extrajudicial
executions. They are deliberate and unlawful
killings meted out by order of, or with
acquiescence of, a government. Extrajudicial
executions are implemented outside a judicial
framework.
The fact that
Zawahiri did not pose an imminent threat is
precisely why his assassination was illegal.
Violated
International Law
Extrajudicial
executions are prohibited by the International
Covenant on Civil and Political Rights (ICCPR),
which the United States has ratified, making it
part of U.S. law under the Constitution’s
supremacy clause.
Article 6 of the ICCPR states,
“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.”
In its
interpretation of Article 6, The
UN Human Rights Committee opined that
all human beings are entitled to the protection
of the right to life “without distinction of any
kind, including for persons suspected or
convicted of even the most serious crimes.”
“Outside the
context of active hostilities, the use of drones
or other means for targeted killing is almost
never likely to be legal,” tweeted Agnès
Callamard, U.N. special rapporteur on
extrajudicial, summary or arbitrary executions.
“Intentionally lethal or potentially lethal
force can only be used where strictly necessary
to protect against an imminent threat to life.”
In order to be lawful, the United States would
need to demonstrate that the target “constituted
an imminent threat to others,” Callamard said.
Moreover, willful
killing is a grave breach of the Geneva
Conventions, punishable as a war crime under the
U.S. War Crimes Act. A targeted killing is
lawful only when deemed necessary to protect
life, and no other means (including apprehension
or nonlethal incapacitation) is available to
protect life.
Violated US
Law
The drone strike
that killed Zawahiri also violated the War
Powers Resolution,
which lists three situations in which the
president can introduce U.S. Armed Forces into
hostilities:
-First, pursuant to
a congressional declaration of war, which has
not occurred since World War II.
-Second, in “a
national emergency created by attack upon the
United States, its territories or possessions,
or its armed forces.” (Zawahiri’s presence in
Afghanistan more than 20 years after the Sept.
11, 2001, attacks did not constitute a “national
emergency.”)
-Third, when there
is “specific statutory authorization,” such as
an Authorization for Use of Military Force (AUMF).
In 2001, Congress
adopted an AUMF that
authorized the president to use military force
against individuals, groups and countries that
had contributed to the 9/11 attacks “in order to
prevent any future acts of international
terrorism against the United States by such
nations, organizations or persons.”
was one of a small
circle of people widely believed to have planned
the 2001 hijacking of four airplanes, three of
which were flown into the Pentagon and World
Trade Center buildings. But since he did not
pose “an immediate international threat” before
the U.S. targeted him for assassination, he
should have been arrested and brought to justice
in accordance with the law.
The attack against
Zawahiri violated Obama’s targeting rules, which
required that the target pose a “continuing
imminent threat.”
Although former President Donald
Trump relaxed Obama’s rules,
Biden is conducting a
secret review to
establish his own standards for targeting
killing.
Biden
Continues Illegal Drone Strikes
In spite of the
Biden administration’s claim that no civilians
were killed during the strike on Zawahiri, there
has been no independent evidence to support that
assertion.
The assassination
of Zawahiri came nearly a year after Biden
launched an illegal strike as
he withdrew U.S. troops from Afghanistan. Ten
civilians were killed in that attack. The U.S.
Central Command admitted the strike was “a
tragic mistake” after an
extensive New York Times investigation put
a lie to the prior U.S. declaration that it was
a “righteous
strike.”
Biden declared that
although he was withdrawing U.S. forces from
Afghanistan, he would mount “over-the-horizon”
attacks from outside the country even without
troops on the ground. We can expect the Biden
administration to conduct future illegal drone
strikes that kill civilians.
The 2001 AUMF has
been used to justify U.S.
military actions in 85 countries.
Congress must repeal it and replace it with a
new AUMF specifically requiring that any use of
force comply with U.S. obligations under
international law.
In addition,
Congress should revisit the War Powers
Resolution and explicitly limit the president’s
authority to use force to that which is
necessary to repel a sudden or imminent attack.
Finally, the United
States must end its “global war on terror” once
and for all. Drone strikes terrorize and kill
countless civilians and make us more vulnerable
to terrorism.
Marjorie Cohn is
professor emerita at Thomas Jefferson School of
Law, former president of the National Lawyers
Guild, and a member of the national advisory
boards of Assange
Defense and
Veterans For Peace, and the bureau of the
International Association of Democratic Lawyers.
Her books include Drones
and Targeted Killing: Legal, Moral and
Geopolitical Issues.
She is co-host of “Law
and Disorder”
radio.
Views expressed in this article are
solely those of the author and do not necessarily
reflect the opinions of Information Clearing House.
in this article are
solely those of the author and do not necessarily
reflect the opinions of Information Clearing House.
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