A Rights Concern
The killing of Osama bin Laden was undoubtedly the biggest news last week. While the shooting of the al-Qaeda chief filled the headlines for days, the confusion over what happened and questions over legality of the killing had taken over the discussion soon after.
United States officials had originally announced that Osama was killed in a firefight in the house in Pakistan he was occupying, and that he used his wife as a human shield.
A few days later, it was admitted he had been unarmed, and there was no use of a human shield. Instead, there was no firing on the US forces, except for one person at the initial stage.
The death of Osama came a few days after the Nato bombing of the house of Libyan leader Moammar Gaddafi, which the Libyan authorities said had killed his son and several grandchildren.
This raised the question of whether it is legal for one state or states to kill persons, including political leaders, in other states.
These two events, in Pakistan and Libya, highlight the issue of targeted killings carried out by a government agency in the territory of other countries.
For example, drones controlled by operators thousands of miles away are increasingly being used to fire missiles at buildings and vehicles in which the targeted persons are believed to be in, with high “collateral damage”.
Drone attacks killed 957 civilians in Pakistan last year, according to the Human Rights Commission of Pakistan. This was almost as many as the 1,041 civilians killed by suicide bomb attacks in the same year.
The high civilian deaths and casualties by US drone attacks have caused great public resentment in Afghanistan and Pakistan, with the leaders in these countries warning the United States to control or curb the attacks.
As worldwide public clamour increased last week for more information on what really happened during the raid on Osama's house, United Nations human rights officials also called on the United States to disclose the full facts, including whether there had been plans to capture him.
The UN High Commissioner for Human Rights Navi Pillay called for light to be shed on the killing, stressing that all counter-terrorism operations must respect international law.
Last Friday (May 6), a joint statement was issued by Christof Heyns, UN special rapporteur on extrajudicial, summary or arbitrary executions, and Martin Scheinin, special rapporteur on protecting human rights while countering terrorism. Both report to the UN Human Rights Council.
A Reuters report from New York on Thursday (May 5) said: “The legality of the commando killing of the al-Qaeda leader is less clear under international law, some experts said. President Barack Obama got a boost in US opinion polls, but the killing raised concerns elsewhere that the United States may have gone too far in acting as policeman, judge and executioner of the world's most wanted man.”
The German newspaper Sueddeutsche Zeitung expressed misgivings about the legality of the killing.
“Which law covers the execution of bin Laden?” wrote its senior editor Heribert Prantl.
“US law requires trials before death penalties are carried out. Executions are forbidden in countries based on rule of law. Martial law doesn't cover the US operation either. The decision to kill the godfather of terror was political.”
In May last year, the issue of targeted killings was addressed in a landmark report to the Human Rights Council by Philip Alston, who was then UN Special Rapporteur on extrajudicial, summary or arbitrary executions.
Alston suggested that the drone killings carry a significant risk of becoming war crimes because intelligence agencies “do not generally operate within a framework which places appropriate emphasis upon ensuring compliance with international humanitarian law”.
More generally, the report said that in targeted killings, there has been a highly problematic blurring and expansion of boundaries of the relevant legal frameworks – human rights laws, laws of war and use of inter-state force.
“The result is the displacement of legal standards with a vaguely defined “licence to kill” and the creation of a major accountability vacuum,” said the report, concluding that many of the practices violate legal rules.
It warned that whatever rules the United States attempt to invoke or apply to al-Qaeda could be invoked by other states to apply to other non-state armed groups.
The failure of states to comply with their human rights law and international human rights obligations to provide transparency and accountability for targeted killings is a matter of deep concern.
In light of the increasing use of targeted killings in recent weeks and years, the issues and proposals raised in the May 2010 report should be seriously followed up.
This article was first published in The Star, Malaysia. Reprinted with permission.