The assassination of suspected terrorist and United States national, Anwar al-Aulaqi, in a drone attack in Yemen on 1st October 2011 has raised questions about due process in targeted killings carried out be the United States. Whilst the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, has long questioned the practice of targeted killings, the involvement of a US citizen has created a much stronger case for debate in this thorny legal issue.
Upon the news that Osama Bin Laden had been killed, the former UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Schenin, said at the time:
“Acts of terrorism are the antithesis of human rights, in particular the right to life. In certain exceptional cases, use of deadly force may be permissible as a measure of last resort in accordance with international standards on the use of force, in order to protect life, including in operations against terrorists. However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment.
“Actions taken by States in combating terrorism, especially in high profile cases, set precedents for the way in which the right to life will be treated in future instances.
“In respect of the recent use of deadly force against Osama bin Laden, the United States of America should disclose the supporting facts to allow an assessment in terms of international human rights law standards. For instance it will be particularly important to know if the planning of the mission allowed an effort to capture Bin Laden.
“It may well be that the questions that are being asked about the operation could be answered, but it is important to get this into the open.”
On 1st August 2011, the Finnish national, Schenin, was replaced by a UK national, Ben Emmerson.
In a press briefing at the White House on 3rd August 2011 with Press Secretary Robert Gibbs, the issue of extra judicial killings of US citizens was raised with specific regard to Anwar Al-Aulqi with the resulting response on the process behind the green light for such operations:
“Question: Just a quick follow to that. U.S. citizens are entitled to a certain judicial process when it comes to questions like this, when it comes to sentencing to death. And is there a process in place that we don’t know about?
“White House Press Secretary Robert Gibbs: There’s a process in place that I’m not at liberty to discuss.”
The US President, Barack Obama, hailed the killing of Anwar Al-Aulaqi at the ceremony for welcoming the new Chairman of the Joint Chiefs of Staff on 30th September 2011:
“The death of al-Awlaki marks another significant milestone in the broader effort to defeat al Qaeda and its affiliates. Furthermore, this success is a tribute to our intelligence community, and to the efforts of Yemen and its security forces, who have worked closely with the United States over the course of several years…
“…Awlaki and his organization have been directly responsible for the deaths of many Yemeni citizens…
“Al Qaeda in the Arabian Peninsula remains a dangerous – though weakened- terrorist organization. And going forward, we will remain vigilant against any threats to the United States, or our allies and partners. But make no mistake: This is further proof that al Qaeda and its affiliates will find no safe haven anywhere in the world.”
The Australian government similarly claimed victory whilst warning of the ever-present danger of al-Qaeda, claiming to be successful in the fight against al-Qaeda yet maintaining that al-Qaeda are still powerful. The Foreign Minister Kevin Rudd, claimed that the effect of Anwar al-Aulaqi had reached as far as Australia, radicalizing Australian citizens who listened to his internet lectures.
Australian Attorney-General Robert McClelland said:
“A number of Australians have been drawn to extremist figures in Yemen, including to Anwar al-Aulaqi,” said Mr McClelland
“While the news of his death represents a significant blow to al-Qa’ida in the Arabian Peninsula, it does not eliminate the ongoing terrorist threat.
“We need to realise that al-Qa’ida’s ability to adapt and change its leadership endures.”
Counterbalancing the arguments over the threat and destabilizing effect of Mr Aulaqi’s activities, the American Civil Liberties Union argued that the deliberate killing of a US citizen without due process was a worrying trend. ACLU Deputy Legal Director Jameel Jaffer said:
“The targeted killing program violates both U.S. and international law. As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government’s authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific and imminent. It is a mistake to invest the President – any President – with the unreviewable power to kill any American whom he deems to present a threat to the country.”
Yemen, the country where the strike on Mr Aulaqi took place, is plagued by a secessionist movement in the South of the country. Cultural ties with a pocket of the population in Saudi Arabia make any disturbance in the country of interest to both Saudi Arabia and the USA. Alleged links between the violence and al-Qaeda have been complicated by a movement for rights and freedoms by the general populace, who also called for the resignation of President Ali Abdullah Saleh.