Anwar al-Awlaki: Execution by Hellfire

Imam Anwar al-Awlaki was not, at least by my own narrow and idealistic definition, a “good man”. Among other plots, he was indirectly responsible for the death of 13 American soldiers at Fort Hood, and was very nearly responsible for the death of scores of civilians through his involvement in the infamous but failed “underwear bomb” incident of Christmas 2009. Due to an American government that, like me, considers him not a “good man”, Awlaki was killed by American forces in Yemen on 30 September, 2011. Or rather, Awlaki was killed in Yemen by American civilian operatives who were elsewhere. A Predator drone, piloted by a CIA agent on the other side of the planet, fired a hellfire missile and destroyed a vehicle carrying Awlaki, as well as Mr. Samir Khan, also a self-described jihadist. There is no doubt that both Awlaki and Khan belonged to al-Qaeda. But more significantly, they both belonged to a much larger, more privileged club – they were American citizens.

Anwar al-Awlaki
Anwar al-Awlaki in 2008

Awlaki was dangerous not only because of his ideas, but also because of his ability to spread his ideas in fluent, native English. This made him an attractive voice to the marginalized extremists living in the West – it is no coincidence that he has also been linked to the 2005 bus bombing in London. Following his birth in New Mexico, a childhood in Yemen, and a university education in Colorado, it was apparently a visit to Afghanistan in 1993 led to increasingly radical views. Upon returning to the United States, he allegedly began to raise funds for terrorists and terrorist organizations.

He had been in Yemen since perhaps 2004, where he gained an increasingly higher profile as a radical through his learned use of online media, including social networking. After being on the run for some seven years, he has finally met his seemingly inevitable fate. Reaction to his killing has been mixed; there is no doubt he was a dangerous man and practical arguments can be made for his capture, but how can the United States Administration legally justify killing him remotely, without any option for surrender?

The ability to conduct extrajudicial killings remotely is the most terrifying characteristic of the so-called War on Terror – the war that has redefined the enemy and how they are engaged. The Predator drone is efficient, cost-effective, and relatively foolproof. That is, while it can be shot down like any other piece of military hardware, there is no associated complication of the potential capture or death of a human pilot; the existence of a drone that is downed can be easily denied. Without this relatively new technology, the choice by a state to execute an individual would be markedly more complicated. The ease by which such an execution can now take place makes defining its legality that much more important.

MQ-1 Predator
Predator Drone

The decision to authorize the CIA to capture or kill a small number of high-value al-Qaeda targets was made after 9/11 by President Bush, and its justification has continued to this day. In March of 2010, the Legal Advisor to the US Department of State, Mr. Harold Hongju Koh, stated that “[t]he United States agrees that it must conform its actions to all applicable law. As I have explained, as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for Use of Military Force (AUMF). These domestic and international legal authorities continue to this day.” The AUMF to which Mr. Koh refers is decidedly and unnervingly perfunctory. In its main operational paragraph, it states that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

It takes a great leap of politically-flavoured logic, and an elephantine dose of assumption, to make the link between al-Qaeda operatives based in Yemen in 2011, and those persons who “planned, authorized, committed, or aided” the 9/11 attacks. It has been argued that Awlaki was in contact with the 9/11 conspirators while he was living in Virginia around the turn of the millennium, but even despite the chillingly broad language of the AMUF, such allegations of casual contact between extremists are a flimsy basis for such use of force. Further, by invoking both the AUMF and international rules of war, the American administration is conveniently covering all of its bases – if it is an individual or a non-state actor, then the AUMF applies. If it is a nation (such as Afghanistan) then it is a matter of traditional war, governed by international norms and treaties such as the Geneva Convention, and the Charter of the United Nations.

Upon receiving the Nobel Peace Prize in 2009, President Obama, arguably elected for his idealistic and inclusive rhetoric, stated that “the world must remember that it was not simply international institutions – not just treaties and declarations – that brought stability to a post-World War II world. …[T]he instruments of war do have a role to play in preserving the peace.” This statement, although debatably true, cannot justify negating and ignoring those same institutions due to the necessity of the instruments of war. That is, it is such instruments of war working in combination with such international institutions that have a role to play in preserving the peace.

In a speech last month, Assistant to the President for Homeland Security and Counterterrorism John Brennan argued that “[s]ome have suggested … we prefer to kill suspected terrorists, rather than capture them. This is absurd … We cannot – and we must not – succumb to the temptation to set aside our laws and our values when we face threats to our security, including and especially from groups as depraved as al-Qaeda.” He further stated that “President Obama has directed that all our actions—even when conducted out of public view—remain consistent with our laws and values.” Finally, he argued that it was lawful to kill “those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of Qaeda and its associated forces.”

This is all fine and good as a statement of counterterrorism policy, but begins to look suspicious and even fall apart when the obvious questions are asked. To what laws were Mr. Brennan referring? To the AUMF? Does that justify the extrajudicial killing of a suspect, let alone an American citizen? To the Constitution, which states that “no person shall be … deprived of life … without due process of law”? Conforming to a law that is patently unconstitutional, or unjust, does not therefore make an action lawful. The execution of any al-Qaeda non-combatant stands upon shaky legal ground. But the execution of Awlaki, an American citizen with a constitutional right to due process was undoubtedly, and simply, illegal.

For those of us who welcomed the election of President Obama, it’s disheartening. For he has set a precedent by which future Presidents may justify increasingly arbitrary actions. As eloquently stated by Jameel Jaffer, deputy legal director of the ACLU “[t]he powers claimed by this President may be used by the next one… and he might be someone less trustworthy.”

(Feature photo courtesy of Defence Images/Flickr, other photos courtesy of Wikimedia Commons)

International Law in Practice

The Case of Indonesian Migrant Domestic Workers

Each time Suri begins to pack her bags, her ten year old daughter begins to sulk. She knows it will be at least a year, if not more, before her mother returns to their village in East Java. During that time, the memory of her mother’s voice and face will start to fade; when she returns again, Suri will be almost a stranger in her own family. For hundreds of thousands of migrant domestic workers from Indonesia, this is all too common. Women like Suri contribute to the Indonesian economy in staggering figures – some $8 billion USD was sent back home in the form of remittances in 2008. Yet they remain workers without rights, often exploited, abused, and ignored.

Suri (not her real name) is one of the lucky ones. A recent high profile case of the execution of an Indonesian in Saudi Arabia has further spurred discussion in Indonesia over protections of its own citizens abroad. Ms. Ruyati binti Sapubi, a 54 year old domestic worker, was beheaded after being convicted of murdering her employer. Ruyati had been allegedly abused, and denied permission to leave Saudi Arabia. She admitted to the murder, citing the abusive circumstances. In a similar case, Ms. Darsem binti Dawud Tawar was convicted of murdering a family member of her employer, one she accuses of attempted rape. While Darsem was pardoned as a result of political manoeuvring on the part of the Indonesian government –  and a healthy blood money payment of just over $500,000 USD – Ruyati received no such protection. The Indonesian government has since issued a moratorium on the sending of migrants to Saudi Arabia; the Saudis have similarly blocked the issuance of new visas.

Susilo Bambang Yudhoyono
Indonesian President Susilo Bambang Yudhoyono

Ironically, Indonesian President Susilo Bambang Yudhoyono (SBY) had tough words on such issues just a week prior to Ruyati’s execution. Speaking at the International Labour Conference in Geneva on 14 June 2011, SBY called Indonesian migrant workers “economic heroes” and stated that the Indonesian government has “developed arrangements with host countries, to ensure that [migrant workers] rights are respected and protected.” Just two weeks later, with the country in an uproar over the inability of the Indonesian government to protect Ruyati, Indonesian Foreign Minister Mr. Marty Natalegawa added insult to injury by stating that “though this nation feels sad [about her death], at the same time we can’t ignore that Ruyati has admitted to killing her employer.” The minister’s statement suggests that Ruyati deserved her fate, regardless of the circumstances. What about the responsibility of the state to protect its citizens overseas? What about the arrangements to ensure protection of rights? SBY received a standing ovation for his speech at the International Labour Conference; he and his government have yet to put words into action.

Words into action form the most difficult, complex, and elusive goal of international law. While there are reams of agreements between nations on any number and variety of issues, the actual level of enforcement of these agreements domestically is often severely lacking. High profile examples abound – The United States ratified the UN Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1994, yet events of the last decade have shown the government’s lack of commitment, in the name of national security. Similarly, South Korea is a signatory to the International Covenant on Civil and Political Rights, yet maintains restrictions on peaceful public assembly. Then there are the cases of blatant political posturing – Saudi Arabia ratified the Convention on the Elimination of All Forms of Discrimination Against Women in 2000, however it entered a reservation stating that  “In case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe the contradictory terms of the Convention.”

When treaties are subject to such obvious disregard and are coupled with a lack of any meaningful enforcement of oversight mechanism, they become little more than the wistful ideals of utopians. It takes a strong and brave state to accept the loss of power, and political complications, that will come with integration of international legal instruments into domestic legislation.

Indonesia has been given that opportunity. At the same conference where SBY delivered his now-infamous speech, the ILO passed Convention 189 on Decent Work for Domestic Workers. Convention 189 is the result of decades of effort to provide protections specifically for domestic workers. The convention finally recognizes domestic work as work, a fundamental step forward in the rights of these women. Indonesia supported the passage of this convention, and government ministries and spokesmen continue to pay lip service to its principles. But now comes the difficult task of actually ratifying the convention, and the nearly monumental task of integrating it into domestic legislation.

For the Indonesian Parliament, the difficulties are complex. For example, article 15 of the convention seeks to protect domestic workers from the exploitative practices of recruitment agencies. Such agencies are often privately run, lack any form of government oversight, and only seek to gain profit at the expense of migrant workers. Exorbitant recruitment fees are regularly charged, forcing the migrant worker into a situation akin to bonded labour. However in Indonesia, some of the largest recruitment agencies are owned by members of parliament. This obvious conflict of interest has meant continued delays in reforming relevant legislation – particularly Law 39 of 2004 Concerning Placement and Protection of Indonesian Workers in Foreign Countries. In its current form, this piece of legislation is severely lacking in terms of protections of workers. Instead it focuses almost entirely on loose regulation of recruitment agencies. Without significant political will, which by all accounts is lacking, reform of this law will continue to be stalled in parliament.

If and when Indonesia does ratify Convention 189, there should be little cause for celebration unless it is followed by (or ideally preceded by) meaningful integration into domestic legislation. Students of international law, and those who champion international legal norms and instruments, must be continually wary of the gaps between endorsement, ratification, integration, and application – all the talk in the world cannot bring back Ruyati, or protect others like her. Promotion of the international law regime is only as meaningful as associated, concrete actions by individual states.

(Photo courtesy of bbcworldservice/Flickr)