The killing of an Al-Qa'eda suspect in Yemen has raised questions about the lengths the US will go in its war against terrorism, writes Nyier Abdou From a tactical point of view, the elimination of Al-Qa'eda suspect and fugitive Qaed Salim Sinan Al-Harithy was a triumph of American military prowess. Al-Harithy, believed to be Al-Qa'eda's chief operative in Yemen, was travelling in a car with five associates in the northern Yemeni province of Marib, some 160 kilometres outside of Sana'a, on 3 November, when death came swiftly and, most probably, unexpectedly. A Hellfire missile, launched from a US Predator unmanned aerial vehicle (UAV) operated by the CIA, obliterated the car and the men inside it. The US's stake in the riddance of Al-Harithy reaches back beyond 11 September and the US-led "war on terrorism". Al- Harithy, also known as Abu-Ali, has been tied to the attack on the American warship USS Cole in the port of Aden in October 2000, which resulted in the death of 17 US sailors. An attempt by Yemeni authorities to apprehend Al-Harithy last December ended in his escape and the death of 18 Yemeni soldiers. In contrast, last week's attack, performed with the consent of the Yemeni leadership, was executed with precision and without unintended casualties. Under a 2001 directive by US President George Bush, the Defence Department and the CIA have broad authority to use lethal force in covert actions pursuing Al-Qa'eda -- an expansion on powers vested on the agency by former President Clinton in 1998. Under the rubric of the global war on terrorism the strike is considered a viable military manoeuvre, and it has been used on numerous occasions in Afghanistan. But some commentators have charged that the US cannot be "judge, jury and executioner" at once and brand the strike nothing short of an extrajudicial execution. "If the suspects did not pose an immediate threat, and were deliberately killed in lieu of arrest, then Amnesty International would consider these killings to be extra-judicial executions, which are prohibited in all circumstances by international human rights law," Vienna Colucci, director of networks for the United States section of Amnesty International, told Al-Ahram Weekly. Whether the strike violates the laws of war depends on how literally you take the Bush administration's use of the term "war" -- and under what circumstances you feel the laws of war apply. It is clear that the Bush administration sees its pursuit of Al-Qa'eda as a war in the standard military sense of the word, and not in the more euphemistic sense, like the "war on drugs". Colucci notes that the US has adopted a "pick and choose" approach to human rights law. "Amnesty has in the past expressed concern that the US government appears to be trying to create 'rights-free zones' -- creating a set of conditions in which suspects are apparently considered outside the reach of both international human rights and humanitarian law." Though the US is at war with Al-Qa'eda, as numerous government officials have stated plainly, it is not fighting a traditional army, and this creates a loophole of sorts, because it makes applying the laws of war a matter of interpretation. "The US attack on Al-Qa'eda terrorists was neither an 'assassination' or a 'targeted killing'," Clark Murdock, senior fellow for international security at the Washington, DC-based Centre for Strategic and International Studies (CSIS), told the Weekly. "It was a military strike against an enemy combatant." Murdock suggests that the rules of war "are driven by the nature of the adversary", and notes that "Al-Qa'eda is not a conventional enemy." This point has been expressed in a number of different ways by administration officials, who argue that we are in uncharted waters. White House spokesman Ari Fleischer called it "a different kind of war, with a different kind of battlefield", and former senator and co-chair of the presidential commission on homeland security Warren Rudman has stated, "I think in the war on terrorism there are no rules." One may go on to conclude that it is not a "war" at all, or, perhaps, that the US is unilaterally changing the rules about war -- and leaving those on which international justice and humanitarian law were built behind. "The whole purpose of building up the laws of war over the course of the last century was to create some sort of international norm that would force powerful governments to hold themselves to higher standards than terrorists, thugs, or common criminals," says William Hartung, of the New York-based World Policy Institute. Significantly, State Department spokesman Richard Boucher has said that the US still opposes the policy of targeted assassinations employed by the Israeli Defence Forces (IDF) in the West Bank and Gaza against suspected Palestinian militants. The similarity between the Yemen strike and IDF assassinations, however, are striking. Ilan Berman, vice president for policy at the American Foreign Policy Council in Washington, DC, agrees that the Al-Harithy incident "tracks closely" the tactics employed by the IDF. "It is too early to tell whether this event alone will precipitate a shift toward explicit support of such tactics as employed by Israel on Washington's part," Berman noted. "What does seem clear, however, is that the United States and Israel are gravitating toward increasingly similar perceptions, and possibly strategies, in the war on terrorism." Peter Bouckaert, a senior researcher for emergencies at the New York-based Human Rights Watch (HRW), told the Weekly that although HRW has not taken an overt position on "this new US strategy", the position would be similar to that taken on the IDF's assassination policies. Bouckaert notes that such targeted military strikes are "not necessarily prohibited by the laws of war", but the circumstances that bring them under the confines of war are still a matter of interpretation. "Before a targeted assassination can be justified, there is a burden to prove that no law enforcement options were available -- that the person targeted could not be captured and brought to trial," says Bouckaert. The possibility of "unjustifiably high" civilian casualties from such targeted assassinations makes them an enormous risk, Bouckaert added, pointing to a number of Predator strikes in Afghanistan aimed at top Al-Qa'eda or Taliban targets that ended up hitting civilian targets. "The US has often relied on faulty or questionable intelligence in carrying out strikes, leading to civilian casualties. There is a real problem with the quality of the intelligence that the US relies on when dealing with 'targets of opportunity' and that needs to be addressed." The World Policy Institute's Hartung takes the concerns about intelligence even further, noting that one of the many problems with "assassination from the air" is that the US cannot be sure who it is targeting until they are already dead. "With no trial in advance, no access to the bodies for identification, and no legal authorities involved, [these strikes] can easily be abused to assassinate individuals who have different political views from the administration rather than alleged terrorists," Hartung warned. Ilan Berman, of the American Foreign Policy Council, suggests that the Al-Harithy attack marks a significant shift in US counterterrorism tactics. Noting that we are likely to see an increase in these "pinpoint strikes and aggressive covert actions", Berman maintains that, while extraordinary, such actions fall within the laws of war. "Under international law, the use of targeted killings, while unusual, is entirely defensible," Berman told the Weekly. "To be sure, this is an unconventional sort of conflict, but it is nonetheless a military one, in which the laws of war are applicable." CSIS's Murdock agrees. "[Al-Harithy] could have surrendered to domestic authorities in Yemen and he would have been accorded a different status. But he chose to evade capture, remain at large and continue to pursue Al-Qa'eda's war against the United States. The United States is not obligated to capture enemy combatants and put them on trial. Prisoners of war have rights, not enemy combatants." To argue that the killing of Al-Harithy falls under the confines of the laws of war, whether credible or stretched, is still a reading of the Geneva Conventions that was not foreseen when they were first drawn. Over the last few decades, the laws of war have been strained by the way conflicts are being fought. Like a religious text, they are now subject to elaborate and convenient interpretations and can be made to fit any military agenda. It seems clear that to address this kind of legal stalemate, a new and authoritative interpretation of the Geneva Conventions begs to be made, with a manner of enforcing them more robust. Related stories: Silence and simmering anger
