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.
President Joe Biden at the White House in June. (White House, Cameron Smith)
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.
#Iraq: The targeted killings of Qasem Soleiman and Abu Mahdi Al-Muhandis are most lokely unlawful and violate international human rights law: Outside the context of active hostilities, the use of drones or other means for targeted killing is almost never likely to be legal (1)
— Agnes Callamard (@AgnesCallamard) January 3, 2020
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.”
Ayman al-Zawahiri, on right, interpreting for Osama bin Laden, left, during an interview with Pakistani journalist Hamid Mir in November 2001. (Hamid Mir, CC BY-SA 3.0, Wikimedia Commons)
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.
This article is fromTruthoutand reprinted with permission.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
the whole idea of “justice” is just as silly as it can be !!! This is a sad mockery of justice because there has never been justice anywhere in the world. Julian Assange is one of the examples I can refer to
Not just illegal but barbaric – using a particularly vicious weapon – the Hellfire R9X, known by various nicknames, including the “knife bomb” or the “flying Ginsu.
These weapons are unregulated, and are part of the UN discussions about regulating and potentially banning ‘super’ and ‘autonomous’ weapons in general. I’m not too optimistic that any of them will ever be banned.
I’m old enough to remember the time Barack Obama ordered the murder of a US citizen, purportedly for weaponized Muslim proselytizing, and then stalked and murdered his age of minority son.
Thank you Marjorie.
Each time I learn of these targeted killings it makes me ill – no matter if it was ordered by Obama, Trump, or Biden, or whoever sits on the throne of infantile thinking and non accountability to any set of human values or principles.
If our country were a country of laws we would act that way and prove it.
Ordering a hit makes me think we are the mafia. n’est ce pas?
It turns our agents into hit men and diminishes any sense of justice they may have lurking somewhere in their brains …instead, its laws of the jungle that define us.
But I don’t need to tell you that because you ,thankfully, always remind us of what our leadership should aspire to to earn the trust of their own people.
Instead we’ve lost our way….
Our finest people rot in prison and our criminals run things or so it seems.
Thank you, Professor Cohn, for explaining what Americans should already know and demand of our elected leaders. In the Declaration of Independence, the first-listed inalienable right is LIFE. The U.S. Constitution’s Bill of Rights could not be clearer that government officials and agents have no lawful authority to deprive a person of life without affording the accused DUE PROCESS OF LAW. Since 9/11 we Americans have allowed our federal government officials and agents to arrogate the powers of prosecutor, judge, jury, and executioner and to kill anyone they suspect of “terrorism,” often in secret and always without accountability. These extrajudicial killings are illegal, immoral, and shameful. Our acquiescence is equally shameful.
There’s an old saying about serial killers. That once they begin dropping corpses, it is very unlikely that they will ever quit on their own accord.
Murder as a political instrument is just too handy and too easy, and once a government crosses that line, it is easier and easier to keep the blood flowing. So many pesky problems get solved when people die, and once the line is crossed and the murders begin, it is both easy and convenient to keep on killing.
Which means of course, that the deaths will continue, and almost certainly continue to escalate, until somebody makes the US Government stop. There appear to be three possibilities. 1) Dr. King’s Revolution of Values by which America evolves and realizes that killing souls is wrong. 2) The rest of the world bands together, and like with the Fascists of the 1930’s, stands up and insists that the killings must end. Or 3), Slim Whitman riding the bomb down to the ground waving his cowboy hat and yelling Yeeee-Haaawwwwwww and thus triggers the Doomsday Machine which has been primed and armed for over 60 years.
My handicapping of this field is as follows. 1) Ain’t gonna happen. The Deep State put a bullet into Dr. King’s brain to abort that Revolution of Values, and its been downhill from there. In the last election, anti-war candidates were outvoted 99-1 for President. There is nowhere in the American electorate any support for Peace. 2) We might be at that ‘invasion of Poland’ moment. But, as an American, I’ll say that it ain’t gonna be pretty. Check out the old black-n-white photos of the rubble and ruins of Germany to get a preview of the Final Destination. 3) Yeeee–Haaaaawwwwww, Yippeeeee-Cayeeeeee Mo#$@#4-F@#$%s. Number three is such a heavy favorite that its currently listed as 1 to 10, and the bookies are considering suspending the action because they can’t get any smart money on the other choices.
I’m glad I didn’t have any kids. Maybe being so unattractive wasn’t such a curse after all?
So long, and thanks for all the fish.
Wouldn’t it be easier and quicker to list the things that Biden has done that are legal and constitutional? If we are going to focus on listing the illegal acts, we are going to be here for awhile. Normally, as an old lefty, I’m ok with long meetings. But, with the Doomsday Clock saying 6 … 5 …. 4, I’m not sure this is the time for a long meeting nor a long list. Just somebody impeach him and get him out of there before he pushes the Big Red Button while talking to Jesse Helms, his old Senate BFF and the invisible friend he keeps wanting to shake hands with.
I continue with my view that every President from Clinton forward should have, and in a constitutional democracy, must have been impeached. Could probably go back further and find causes as well, but these blatant and unconstitutional wars and killings have stepped up and been sickeningly constant from Clinton onwards and each is an impeachable offense were we really a rule-based society instead of just the most corrupt nation on the planet.
Killing is easy for Biden, he just snaps his finger. Did he ever voice a word of regret for the lives lost in Afghanistan when a drone killed the Afghan family including children? Any regret concerning his active participation in the Iraq invasion? He called Putin a war criminal, he is one himself. The USA has left a trail of blood, killing, and misery for millions of people in the wake of military actions, never a word of introspection or regret from the man. That is really true of all our presidents, not a word of regret ever and every one of them is a killer. They authorize torture. It took some 5 years for Reagan to admit that the Americans shot down the Iranian civilian airliner over international waters, they are as ruthless as the best of them. Even now they do know there is evidence of Ukrainian war crimes and they ignore it, they accuse Russian soldiers of war crimes but so far they have no evidence. American presidents give orders to assassinate civilian and military officials, and scientists using drones and hellfire missiles. And it is done in our name, for our benefit, for freedom and democracy as long as they get votes for doing it. Hillary and Madeline, are two women just as ruthless with hands up in the blood to their elbows.
Illegal actions committed by states, especially killings, have a number of consequences that affect all of us.
First, it sends a message that such acts are normal, reducing inhibitions for people who are angry, under stress etc. and implanting the very idea of resolving a “problem” with killings or actions that may well kill someone. USA is a leader in illegal killings like drone assassinations, and it also has police most prone to kill citizens that I know of — perhaps it is exceeded in some countries in Latin American, but this is a minor consolation. Suicidal persons may commit killing more often, with the idea strongly implanted — possible cause of “mass murders”.
Second, it degrades the image of the country. Is being “pro-American” a vote getter, or political poison, say, in Pakistan? Who sincerely believes in “rules” in “rule based world order”? Assassinations are definitely a lesser problem than invasion, but by their very frequency and publicity have a major effect.
Third, the more powerful a state, the larger “contagion effect” it has. How reluctant other government will be to kill their opponents abroad — and at home, for that matter?
Least appreciated consequence is degradation of the mentality of the leadership. Once you are habituated to the planning, approving, reviewing illegal acts like killings, torture, kidnappings etc., you get addicted. You feel more powerful etc. Needless to say, rationality of our leaders is valuable, and the lack of it… the consequences can be endless.
Since when does the US give a fig about something/anything being legal or illegal? Whatever suits America is game.
Marjorie Cohn, being professor emerita at Thomas Jefferson School of Law, is certainly a wiz with the ins and outs of American practices in constitutional law.
According to the professor; going by the books, could have, should have, would have better served democracy.
How profound!
Being a member of the national advisory boards of Assange Defense, one has to ask: how much legal credence should any individual, in the predicament of Julian Assange, give to her political counsel?
I’m afraid I must say that both Nod and his former boss should be before the bar for the extrajudicial execution of Anwar al-Awlaki first.
Most thinking individuals knew the above.
But most dont know or want to know.
Just another body buried at Wounded Knee.
The global Manifest Destiny marches onward.