Unnecessary and Disproportional: The Killings of Anwar and Abdul

32 Pages·2012·5.82 MB·English

1
Unnecessary and
Disproportional:
The Killings of Anwar and
Abdul-Rahman al-Awlaki
© Copyright 2012 CagePrisoners Ltd
Permission is given to duplicate this document for personal use only,
as long as it is unaltered and complete. Copies may not be duplicated for commercial purposes.

Author: Khalilur Rahman Dewan
27 Old Gloucester Street
London
WC1N 3XX
www.cageprisoners.com
Tel: [phone]
Email: [email protected]
CagePrisoners is a not-for-profit company limited by guarantee which operates as a human rights NGO. The organisation seeks
to work for political Muslim detainees, specifically those interned as a result of the War on Terror and its peripheral campaigns,
by raising awareness of the illegality and the global consequences of their detention. By promoting due process, the vision of the
organisation is to see a return to the respect of those fundamental norms which transcend religion, societies and political theories.
05 FOREWORD
07 IntRODUctIOn
08 US ‘LEgaL’ JUStIFIcatIOn On UnmannED aERIaL VEhIcLES
13 anWaR aL-aWLakI
16 a maJOR BLOW tO aL-QaEDa’S mOSt actIVE
OpERatIOnaL aFFILIatE?
22 thE ExtRaJUDIcIaL kILLIng OF
anWaR aL-aWLakI
29 REcOmmEnDatIOnS
“How excellent would
it be if you ask brother
Basir to send us the
resume, in detail and
lengthy, of brother
Anwar al-‘Awlaqi,
as well as the facts
he relied on when
recommending him…
and how excellent
would it be if he gives
us a chance to be
introduced to him
more…”
Usamah Bin Laden
(after Us Justice department’s
memo ‘legalising’ the targeted
killing of awlaki)
5
FOREWORD
“As for my husband who was assassinated by a US
drone exactly one year from today, I believe strongly
that his killing has nothing to do with the allegations by
the US that he has links to terrorist attacks, but rather to
silence him because of his influence on Muslims in the
Western world as a Muslim scholar and preacher…the
drone programme is wrong and illegal because it kills a
lot more civilians than so called [high] valuable targets.”
–
Gihan Mohsen Baker, wife of Anwar al-Awlaki
eLeven years ago, on november 25th pecially the UK, as well as via the internet.
2001, after the notorious uprising and in mid-2006, shortly after i joined Cage-
ensuing prisoner massacre at the fortress of Prisoners, al-awlaki was arrested in his na-
Qala-i-Jangi near the afghan city of mazar- tive yemen and held until his release in de-
e-sharif, the world saw the first images of a cember 2007. shortly after that i was able
dishevelled, starved, emaciated, wounded, to conduct an exclusive phone interview with
burned and battered american, John Walker him to discuss why he’d been held and un-
Lindh, beamed into its living rooms. it was der what conditions.
america’s first encounter with its own citi- al-awlaki may have been imprisoned
zen’s accused of supporting its enemies in without charge or trial by the yemenis but
the War on Terror. he was convinced he was kept at the behest
i’d never heard the name anwar al-aw- of the Us government. although he told
laki before or during my years as a captive me that he was interrogated by the FBi and
in Bagram and guantanamo. i’d never been that an incident occurred between them, he
questioned about his ideology, his history or refused to elaborate on the details when i
his whereabouts – not by the FBi, the Cia, pressed him further. he may not have been
military intelligence or mi5. The reason was
a friend of Us foreign policy and even have
simple: they hadn’t heard of him either, or
been of interest to the FBi beforehand but, it
if they had, they were not interested in him.
was from the point of this interrogation that
after my freedom from Us captivity and re-
al-awlaki started his collision course with
turn home, i began to hear more about this
the Us administration:
young, articulate and charismatic yemeni-
“There was some pressure, which I refused to
american imam whose lectures had become
immensely popular with muslims through
1. http://www.cageprisoners.com/our-work/interviews/item/159-
his tours in the english-speaking world, es- moazzam-begg-interviews-imam-anwar-al-awlaki
6
accept and that led to a conflict that occurred Like others, al-awlaki may have become
between me and them, because I felt that it was anti-american because of his opposition to
improper behaviour from their behalf. That led Us policy in the muslim world, his own re-
to an issue between me and them during the in- sponse to what was happening, his encoun-
terrogation”.1 ter in prison with the FBi or a combination
strangely, although he was never placed of all three, but there was a time when he
on the FBi’s ‘most Wanted’ list, al-awlaki’s dined freely in the Pentagon as a guest and,
name, despite being a Us citizen, was put at when he condemned the 9/11 attacks openly.
the head of a secret Us government ‘kill or various governments and media outlets
capture’ listing. he could not have known have regularly stated that the killing of al-
it during his time in captivity but the ‘con- awlaki was justified as he was a leader of al-
flict’ and ‘issue’ that had begun in a yemeni Qaida in the arabian Peninsula (aQaP) and
dungeon between him and the Us would his views and influence constituted a major
only end after his death, carried out by a Cia threat to Us national security. as untenable
drone attack last year. or would it? as that scenario appears to be it was never
shortly after he was killed – alongside an- tested by evidence. al-alwaki’s name, how-
other Us citizen, samir Khan – al-awlaki’s ever, was big only in the english-speaking
16-year-old son abdulrahman was also world; and, it was inflated by the media and
struck down by a Us drone, and he wasn’t those who understood very little about his
on any kill list. operational role and influence in aQaP and
Unmanned aerial vehicles (Uavs) – or the arabic-speaking world, which remains
drones – are regularly used to kill suspects in highly questionable and unsubstantiated.
places like Waziristan, somalia and yemen This report by CagePrisoners seeks to
which are often described as the ‘Wild West’ explain some of the above along with legal
of the muslim world due to the lawlessness rules that were twisted to allow President
that prevails in some of those regions. it is obama to carry out extrajudicial killings, just
a bitter irony indeed that drones are used to as his predecessor had implemented extraju-
kill ‘the bad guys’ in these places as the pre- dicial detention.
ferred choice of modern Us justice – wheth-
er the victims are placed on ‘wanted dead or Moazzam Begg
alive’ lists or not.
director of CagePrisoners and former
detainee at Bagram and guantanamo Bay
september 2012
…his encounter in prison with the
FBi or a combination of all three,
but there was a time when he dined
freely in the Pentagon as a guest
and, when he condemned the 9/11
attacks openly.
7
IntRODUctIOn
In capital cases in the US, the legal standard that is required
in order to apply the death penalty to a defendant requires
a defence that goes beyond that of a normal investigation.
The guidelines set out by the American Bar Association
require that mitigation of the defendant’s act takes place
as part of a trial, in order to ascertain any reason why he/
she should not be executed, sometimes looking at three
generations of family history in order to come to that
understanding.
desPiTe having such strong legal pro- the Us. did he, as they claim, have an op-
tections in place for such federally erational role that was significant enough to
administered executions, the Us has deter- warrant his killing? The principles of neces-
mined that targeted assassinations are per- sity and proportionality in the laws of armed
missible by law, as they are there to protect conflict have been given as a measure by
national security of the american people. which states understand the extent to which
The case of anwar al-awlaki highlights they should go in the targeting of an enemy.
the way in which the obama administration The claim by the Us, is that al-awlaki’s
has radically altered its own understanding killing met both those criteria due to their
of the law, in order to assassinate those who knowledge of the case, much of which has
it deems to be ‘dangerous’. This understand- not been shared publicly.
ing goes well beyond what was envisaged by regardless of the secret evidence that has
the Us Constitution and international hu- been kept from the public in this case, there
man rights and humanitarian law. are major issues in relation to the facts as
With al-awlaki, the americans claimed they stand according to public accounts. By
that he played a key operational role in the understanding the evidence that is publicly
attacks by nidal hassan and Umar Farouk available and looking at the manner in which
abdulmutallib. the Us justified its actions, it could be said
This report seeks to deconstruct the rheto- that this exercise was far more to do with
ric that surrounded al-awlaki’s extrajudi- making an example of anwar al-awlaki,
cial killing, and understand to what extent than about killing a strategic target in the
he presented a real and present danger to fight against global terrorism.
8
US ‘LEgaL’ JUStIFIcatIOn On
UnmannED aERIaL VEhIcLES
Intelligence gathering in the nuclear Weapons case, where self-de-
The Us administration has not released fence can only warrant measures which are
the secret memorandum addressing proportional to the armed attack and neces-
the legal justification on the targeting of al- sary for response.4
awlaki or the ‘drone’ programme2. much of Customarily the War on Terror has set
the information analysed in this report are a precedent of an unlimited timeframe of
speeches presented by the Us legal adviser self- defence and to any territory to be in
and media reports which briefly state the Us conflict with non-state actors. Consequently,
position on international law for unmanned the Us are deploying Unmanned aerial ve-
aerial vehicle (Uav) warfare in general ap- hicles (Uavs) over sovereign states, which
plication. should beg the question, whether the Us are
The Us administration consistently reiter- in armed conflict with these states, such as
ates that they must comply with internation- yemen where al-awlaki was assassinated.
al legislation and principles. The administra- although there are several matters of discus-
tion echoed that the Us is engaged in armed sion and analysis with regards to the propor-
conflict with al-Qaeda, Taliban and associat- tionality and requirements of self-defence
ed forces due to the attacks on 11 september under international law, for this report, we
2001. Consequently the Us have responded will merely focus on extra-judicial killings re-
as a right under article 51 of the Un Charter lating to Uavs with special focus on anwar
(self defence) to protect Us citizens and en- al-awlaki et al.
gage in conflict3 on an international sphere The justification for the usage of Uavs
to use lethal force, as al–Qaeda still have in- remains covert and therefore there is not a
tent to conduct attacks and compromise Us wealth of public knowledge on the Uav pro-
national security. gramme from the Us administration, detail-
on a national level, the Us asserts the au- ing their ‘legal’ position, although they have
thority of ‘authorization for Use of military briefly stated they believe they are abiding by
Force’ (aUmF) 2001, which provides the international legislation and laws of war.
Us with empowerment to use force against
any person who aids or abets in planning of harold hongju koh on use of force
terror related attacks. however there are is-
on 25 march 2010 harold hongju Koh;
sues with the proportionality of self-defence.
the Legal adviser to the Us department of
The Us have undermined international law
state, addressed the annual meeting of the
and have invoked an undetermined time
american society of international Law in
scale for the timeframe of the War on Terror,
Washington, dC.
which is contrary to the opinion of the iCJ
Koh addressed the meeting with several
2 ‘secret memo made case for awlaki killing’ [09/10/2011] points with regards to the Us position on
http://www.aljazeera.com/news/ameri-
cas/2011/10/201110945658841979.html 4 Legality of the Threat or Use of nuclear Weapons, advisory
3 militarily and ideologically opinion, 1996 i.C.J 226,245 (Jul.8)
9
use of force and Uav’s justifications sur- The non-international conflict with non-
rounding them. state actors creates many practical problems
“What i can say is that it is the considered with the principle of distinction. afghani-
view of this administration—and it has cer- stan and the tribal areas bordering Pakistan
tainly been my experience during my time as is a prime example of how al-Qaeda, Taliban
Legal adviser—that Us. targeting practices, and associated forces are amalgamated on
including lethal operations conducted with the borders of the two countries with refu-
the use of unmanned aerial vehicles, comply gees and tribesmen, creating complications
with all applicable law, including the laws of for the application of international legisla-
war5.” tion and principles. The Us administration
Koh further stated that the Us adminis- need to acknowledge, that just as intelligence
tration carefully reviewed the rules concern- officers and private security contractors are
ing ‘targeted operations’ and the laws of deployed in these conflict related zones, cov-
wars and principles pertaining to it, such as ertly integrating with the tribal people, the
the following: same standard of protection, distinction and
“First, the principle of distinction, which proportionality need to be preserved for ci-
requires that attacks be limited to military vilians and non-combatants in this conflict
objectives and that civilians or civilian ob- through the use of drone warfare. risk is
jects shall not be the object of the attack;” apparent on both sides of the conflict, and
There is a wealth of research and empiri- the Cia- led drone programme has not pre-
cal data to factually prove that the Us ad- served the right of protection of the civilian
ministration is in violation of the principle population, as attacks have taken place were
of distinction as thousands of non – combat- civilian casualties have outweighed the mili-
ants have been killed6. Further, the Bureau tary objective, which would, under interna-
of investigative Journalism has established tional law, be regarded as indiscriminate kill-
that not only innocent civilians are facing ing and thus unlawful.
the brutal force through drones, but rescu- on a logistical analysis, it would be highly
ers7 and funeral attendees8. There is much difficult due to practicalities for the Us drone
empirical evidence which gives credence to programme to fulfil the principle of distinc-
the argument that the Us has little control tion, as al-Qaeda or the Taliban do not wear
over targeting in relation to the principle of a set uniform, as a result it will be difficult to
distinction, consequently the purpose of the distinguish between an alleged fighter and
‘precision’ drone programme is flawed. tribesmen which will inevitably weaken the
even the concept of where the conflict is upholding of the distinction principle. al-
taking place becomes important. The ap- though intelligence and informers on the
plication of international humanitarian law ground are central for intelligence to reach
(ihL) spilling over to the borders of Pakistan drone operators for commissioning of at-
can be a classical example of how difficult it tacks, they are not operating consistently,
is to distinguish between combatants and ci- thus operators relying upon drone surveil-
vilians. lance which can be airborne for more than
24 hours. This is exacerbated by tribal ten-
geographical analysis sions that exist in the region, where the Us
The War on Terror has leaped to many has been used to solve ancient tribal grudges.
countries from iraq, afghanistan, tribal ar-
eas of Pakistan and to yemen. ‘playstation mentality’
5 The obama administration and international Law harold Uav operators are stationed thousands of
hongju Koh, Legal adviser, Us. department of state
miles away or in a complete different territo-
annual meeting of the american society of international Law,
Washington, dC - [march 25, 2010] ry, thus the psychological and risk elements
http://www.state.gov/s/l/releases/remarks/139119.htm
of warfare are reduced to a minimum, cre-
6 ‘drone statistics visualised’ [10/08/2011]
http://www.thebureauinvestigates.com/2011/08/10/resources- ating and encouraging the development of
and-graphs/
‘playstation mentality’,9 which will make
7 ‘Us drone strike Kills 11 militants in Pakistan’ [14/09/2010]
http://www.google.com/hostednews/afp/article/aLeqm5itkgeu- killing less difficult. Consequently, widen-
Typv0diZ8trtmL2r58h1ia
8 obama terror drones: Cia tactics in Pakistan include targeting 9 http://www2.ohchr.org/english/bodies/hrcouncil/
rescuers and funerals [4th, Feb, 2012] docs/14session/a.hrC.14.24.add6.pdf
http://www.thebureauinvestigates.com/2012/02/04/obama- United nations, general assembly, ‘report of the special rap-
terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers- porteur on extrajudicial, summary or arbitrary executions’, Philip
and-funerals/ alston [29/05/2010]
10
ing the threshold to fall in to errors, and not be deemed as combatants or directly assist-
abide by the principle of distinction and pro- ing in hostilities. striking such groups or in-
portionality. dividuals would be considered reprehensible
‘‘second, the principle of proportionality, according to the spirit of the law and a viola-
which prohibits attacks that may be expected tion of ihL. These issues will be discussed
to cause incidental loss of civilian life, injury by illustration:
to civilians, damage to civilian objects, or a
combination thereof, that would be excessive 1. Drone strike used to ‘bait’ a funeral
in relation to the concrete and direct military attack
advantage anticipated.’’ The Cia-led programme is disproportion-
investigations have gathered data which ate, as drone strikes are used to ‘bait’ higher
only draws a similar conclusion, that the ranked officials. an attack on 23 June 2009
use of drones is not proportional. Uav’s are targeted a middle ranking commander with
extra-judicially killing innocent civilians and the objective of later attacking the higher
ruining humble infrastructure without any officials in the command infrastructure
transparency and accountability in the after- at the funeral, such as Baitullah mehsud.
math of a ‘targeted’ strike. The funeral attendees were numbered in
The Us administration has made it clear their thousands and the Uav’s attacked the
that it will target any individual who is in- crowds, extra judicially killing 83 people, and
volved in directly aiding and abetting in between18–45 was believed to be non- com-
hostilities against the Us, which includes batants/civilians.11 The systematic plan by
the non-combatants in the highly populated the Cia to ‘bait’ higher ranking officers to
tribal areas, as they will lose the right to civil- attend a funeral is disproportional and mor-
ian protection. article 51(2)10 states that civil- ally questionable. on a cultural note, it is an
ian populations and individuals will not be islamic religious obligation to attend funer-
‘object of attack’ with the primary purpose als of any muslim who have passed away or
to spread terror among civilians being pro- killed, as we witness in the attack on 23 of
hibited. Further article 51(4) prohibits indis- June 2009. The attack was a deliberate op-
criminate attacks: portunist strike which only targeted civil-
article 51(4) additional Protocol i: indis- ians, failing to assassinate Baitullah mehsud
criminate attacks are prohibited. indiscrimi- himself or any other high ranking official
nate attacks are, who may have attended the funeral. This is
“(a) those which are not directed at a spe- contrary to the laws of armed conflict. The
cific military objective; attack was indiscriminate and did not protect
(b) those which employ a method or the civilians that were attending the funeral,
means of combat which cannot be directed which concludes the attack to be unlawful
at a specific military objective; or and counter-productive to the military objec-
(c) those which employ a method or tives sought by the Cia.
means of combat the effects of which cannot
be limited as required by this Protocol; and 2. Rescuers targeted and killed
consequently, in each such case, are of a na- The Us Uavs have targeted rescuers that
ture to strike military objectives and civilians have tried to aid those targeted in drone at-
or civilian objects without distinction.” tacks12. although the Us deems any person
in light of this, the Us has engaged in who ‘directly aids hostilities’ as losing their
armed attacks against civilians in the various civilian protection, one must question the
parts of the world under the pretext of the threshold the Us are using to distinguish
War on Terror. although the Us reiterates who can be targeted in these circumstances,
clearly that any individual or group ‘directly’ as the Us have disproportionally targeted ci-
aiding or assisting in hostilities will be legiti- vilians.
mate targets. The Us have not defined who
is a combatant and non combatant in these 3. chromite miners
circumstances, as rescuers and funeral at-
11 ‘Witnesses speak out’ [04/02/2012]
tendees in an event of a drone strike cannot http://www.thebureauinvestigates.com/2012/02/04/witnesses-
speak-out/
10 article 51(2) additional Protocol i: The civilian population as 12 Us. terror drones target rescuers and funerals in Pakistan kill-
such, as well as individual civilians, shall not be the object of at- ing civilians, investigative report reveals
tack. acts or threats of violence the primary purpose of which is to http://www.asiantribune.com/news/2012/02/11/us-terror-drones-
spread terror among the civilian population are prohibited. target-rescuers-and-funerals-pakistan-killing-civilians-investigati