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Home EJIL Analysis The Extraterritorial Seizure of Individuals under International Law – The Case of al-Liby: Part I

The Extraterritorial Seizure of Individuals under International Law – The Case of al-Liby: Part I

Published on November 6, 2013        Author: 

Chris_Henderson_150x200Christian Henderson is Senior Lecturer in Law and Director of the Human Rights and International Law Unit at the University of Liverpool.

On 5th October 2013, the US Army’s Delta force entered Libyan territory and seized the alleged al-Qaida leader Nazih Abdul-Hamed al-Ruqai (pictured right), more commonly known by his alias Abu Anas al-Liby, who was wanted by the US for the 1998 bombings of the US embassies in Kenya and Tanzania. The incident recently made the news again as al-Liby came before a Federal Court in New York to plead not guilty to the offences with which he was charged.

Anas_al-LibyUnsurprisingly, the US has made a robust defence of both the raid to seize al-Liby, including apparent invocation of the Authorisation for Use of Military Force (AUMF) adopted under the Bush administration (for an analysis of the use of AUMF see the post by Marty Lederman on Just Security here), as well as its current jurisdiction over him in order to bring him to justice for the bombings (see here and here).

Regardless of whether the abduction was lawful under the domestic law of the United States (see here for an excellent post on this issue) the whole operation raises several key questions under international law. In particular, this incident raises the question of the permissibility of a state entering another to apprehend an individual so as to be able to try them for crimes committed against its nationals. It also raises questions in regards to the treatment of that individual by the apprehending state and the subsequent jurisdiction over them for the alleged offences. The purpose of this and a following post is to seek to set out the framework of applicable rights and obligations in regards to such operations, with a particular focus on the al-Liby seizure.

Prescriptive jurisdiction of the US and the embassy bombings

The first issue that arises, and does so here because the US arrested al-Liby as opposed to choosing to kill him (despite US Secretary of State John Kerry’s rather ominous suggestion that he was a ‘legal and appropriate target’ for the US military), is whether the US possesses jurisdiction over him for the bombings in 1998. The law here is relatively clear. Under the principles of prescriptive jurisdiction the US is fully entitled to make such bombings a criminal offence under its domestic laws, whether under the territorial principle (if the bombed embassies are functionally construed as US territory), the protective principle (given that the offences produced a deleterious effect on the state), or the passive personality principle (given that the offences had an effect upon its nationals.) Consequently, al-Liby was indicted by a federal court in Manhattan in 1998 in connection with the bombings and there were international warrants issued for his arrest. But of course while the US has a wide discretion to prescribe laws, its power to enforce them is instead limited to the territorial confines of the US, limiting the means by which an accused can be physically brought within its jurisdiction.

The apprehension of al-Liby for trial

It perhaps goes without saying that if an individual is located upon the territory of a state they can be arrested and detained as part of the due process procedures of that state. Problems arise, however, when the individual is located on the territory of another state, with the Israeli abduction of Adolf Eichmann a most notable example of such a situation. Given that this was the case with al-Liby, the internationally accepted route for bringing such individuals to trial is extradition. There is no extradition treaty in place between the US and Libya to govern the conditions under which wanted individuals move between the two states. Yet, even if there was such a treaty in place, the US would not likely have perceived this as a viable option given the length of time it would take for such a process to be completed and the uncertainties it carries, particularly in a state such as Libya where the rule of law is not known to be strong. It is therefore necessary to briefly address some of the possible legal bases and controversies upon which the apprehension of al-Liby might be located.

Consent to the operation by Libyan authorities

Under these circumstances, the entering by the US of Libyan territory to apprehend al-Liby is a violation of Libyan sovereignty and thus unlawful under the norms prohibiting intervention and the use of force. That is, however, unless prior permission or approval by the Libyan governing authorities was provided for the raid, something which is still (after several weeks) not altogether clear. Indeed, the Libyan authorities formally condemned the action as a ‘kidnapping’, demanded an explanation from the US, claimed that they had not been informed in advance of the raid, and requested that al-Liby be returned. While this may be the formal position of the Libyan authorities, it was also reported that unnamed US officials had claimed that the authorities were aware of the operation and ‘were willing to tacitly support the raid as long as they could protest in public.’ (See also here). There is now growing pressure on the government, particularly from militia groups, to explain if it was involved, with the abduction (and later rescue) of Libyan Prime Minister Ali Zeidan arguably a reaction to either the failure of the government to prevent the abduction or beliefs that it had somehow colluded in it.

In the absence of Libyan consent the US might claim that its actions were taken in self-defence or that al-Liby’s detention was undertaken as part of the armed conflict which the US claims that it is engaged in with al-Qaida.

Self-defence

While the US has not explained how its actions were internationally lawful, it might be acting upon the assumption that its intervention was justified upon the basis of self-defence in response to the embassy attacks in 1998, although the US did not report its actions as such to the UN Security Council as required by Article 51 of the Charter. Indeed, a former Legal Adviser at the US State Department noted that ‘international law … permits extraterritorial “arrests” in situations which permit a valid claim of self-defense’ (see (1990) 84 AJIL 725, at 727).

There are a number of potential problems with the invocation of self-defence in justification of such an intervention. First, what was the ‘armed attack’ for the purposes of Article 51 of the UN Charter? Al-Liby is accused of being the leader of the al-Qaida element that carried out the embassy bombings in 1998 which killed over 220 people, and one can assume that this is the attack that the US was responding to. Even if the concept of ‘armed attack’ incorporates a gravity threshold, as was (controversially) held by the International Court of Justice in the Nicaragua case, that threshold would have been met here. Second, no state was directly implicated in the bombings. The debate regarding whether non-state actors can be perpetrators of an armed attack for the purposes of the right of self-defence is now well covered, particularly after the attacks of 9/11. While a certain conservative spirit is discernible in this respect in the jurisprudence of the International Court of Justice (eg the Wall advisory opinion), recent state practice and scholarly opinion would nonetheless seem to have confirmed that the traditional inter-state position is no longer valid, if, indeed, it ever was. In particular, there have been instances of general acceptance by the international community on past occasions for responses in self-defence against actions of al-Qaida, most notably 9/11.

Third, there is the issue of the delay in the action taken in response to the bombings which occurred in 1998, and whether this weakens the case for self-defence. While Deborah Pearlstein has argued over on Opinio Juris that the gap between the bombings and the arrest in 2013 is problematic, if it has taken this long to locate and find the suspect (although we do not know for how long the US had been tracking al-Liby or had known of his location), in the current writer’s opinion these problems are somewhat overcome. While the US has already invoked self-defence in response to these bombings when it struck a terrorist training camp in Afghanistan and a pharmaceutical plant in Sudan in 1998 (see UN Doc. S/1998/780 (20 August 1998)), this does not impede the invocation of self-defence on this occasion as there is no limit to the number of responses, so long as they can each be justified as necessary.

This brings us to our fourth potential problem, in that any extraterritorial action in self-defence would need to be demonstrated to be a necessary one. This customary requirement for self-defence, it has to be said, is a particularly slippery one, with its satisfaction depending upon the specific circumstances prevailing in the particular case. While on the one hand it may mean that the state has to act in the heat of the moment so as to effectively defend itself, it also may mean, particularly if a specific armed attack can be said to be over (in this case, the 1998 embassy bombings) yet a threat of further attacks exists given the ultimate objectives of the attacking state or group (in this case, al-Qaida), that the state exhausts as far as possible non-forcible measures before resorting to those of a forcible nature.  Given the fact that al-Liby was located in Libya in 2013 (again, we are not privy to intelligence as to how long the US was aware of his location), the standard the US would have to satisfy appears to be that of the host state – Libya – being unable or unwilling to take any sort of action in light of being notified of the presence of such a wanted individual.

This controversial standard is one that has emerged, particularly in the vocabulary of the US, since the events of 9/11. Indeed, the US has been resolute in reserving ‘the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.’ (as quoted here) In essence, its application here would mean that if the Libyan authorities did not have the capabilities to either arrest and detain al-Liby, or were either openly harbouring him or providing other forms of logistical support, then the door would be open for the US to take the necessary action to bring the accused to justice upon the basis of acting in self-defence. One may of course question whether such extraterritorial seizures can fall within the scope of self-defence. However, international law does not stipulate the means by which a state can defend itself. The only requirement in this respect is that the actions taken are proportionate; that is, they do no more than is necessary to either put an end to an armed attack or, with one having already occurred, the taking of action against the perpetrators with the intention of staving off the threat of a future one. In this respect, and if one accepts that an action in self-defence is necessary, then the arrest and trial of a suspect would seem more agreeable from a proportionality angle then any sort of bombing campaign against the suspect(s) which would raise the additional prospect of civilian casualties and physical destruction.

However, and in any case, while it is not known whether the Libyan authorities had the capabilities to take action against al-Liby, demonstrating that the Libyan authorities were either unable or unwilling to take the required action would be hard to do without showing that the US approached the Libyan authorities, making any action in self-defence arguably unnecessary and thus unlawful.

Finally, while the US has argued for the applicability of the unwilling or unable standard in the context of actions in self-defence, it has also in the same breath claimed that ‘Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that – in accordance with international law – we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time.’ This apparent conflation of the legal frameworks of the jus ad bellum and jus in bello, or more accurately squeezing the former into the latter, is a complete misunderstanding of their relationship and not widely accepted. In particular, even if al-Liby was somehow a lawful target and subject to capture in a putative armed conflict between the US and al-Qaeda, the US would still have to raise a valid self-defense claim vis-à-vis Libya in order to justify its intrusion onto Libya’s sovereignty.

Nonetheless, the position of the US is that this supposed status of seemingly perpetual armed conflict with al-Qaida is the umbrella under which the raid into Libya to apprehend al-Liby could be justified. Indeed, while the US did not expressly claim self-defence, or that Libya was unable or unwilling to hand over al-Liby, in a Pentagon press statement immediately following the raid it was instead claimed that his detention was more broadly lawful ‘under the law of war’. Of course, given the way the US conceptualises the right of self-defence as an element of the law of war we do not know whether this was in fact an implicit justification of self-defence. Yet, while one may be critical of the US’s position that it is in a state of war with al-Qaida, this uncertainty as to the precise legal claim in this instance leads one to consider the possibility of al-Liby’s arrest and detention being lawful under the law of armed conflict. This is the intention of the following post, which will also address the operation from the perspective of international human rights law, as well as the US’s claim of jurisdiction in placing al-Liby on trial within the US.

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3 Responses

  1. Jordan

    Actually, the U.S. Executive has been fairly clear for a number of years that there are two relatively independent and alternative bases for targeting and captures in certain circumstances: (1) the laws of war (the law of war paradigm), and (2) self-defense (the self-defense paradigm). I am pleased that you have addressed the self-defense paradigm (others have not). In that regard, there may be other relevant facts, such as: was he still directly participating in ongoing al Qaeda armed attacks (as a person who is DPAA and targetable)? His wife says no, but…? As you note, how long does it take to identify where he is and to mount a response (although this still seems to pose a problem in the actual case)? And under the laws of war, was he DPH or a CCF? And yes, capture under either paradigm can be permissible (see, e.g. http://ssrn.com/abstract=1718548 and http://ssrn.com/abstract=2165278 — also addressing bin Laden and Anwar al_Awlaki — and these articles address the fact that “consent” of the host or territorial state is not required under either paradigm (only the “law enforcement” paradigm) and that there is no “unwilling or unable” limitation of the right of states to engage in otherwise lawful targetings or captures under either paradigm — see also http://ssrn.com/abstract=1520717 ).
    What I take issue with is your statement that the U.S. has territorial prescriptive jurisdiction b/c a U.S. embassy on foreign state territory is the functional equivalent of U.S. territory. A U.S. flag or registered vessel or aircraft would be, but not an embassy. However, the U.S. would have objective territorial jurisdiction b/c there was an evident intent to produce effects in the U.S. and effects in the U.S. (two out of three criteria met: acts, intent, effects = sufficient). Yes, the U.S. would have protective jurisdiciton b/c there have been direct and significant U.S. national security interests at stake, although a “deleterious effect” would not be sufficient as such. But, no, the U.S. cannot partake of the victim theory b/c it is a minority view, not based in customary international law (although found, by consent, in some international criminal law treaties that would be applicable among the parties and their nationals). And there would be universal jurisdiciton — which has been part of the stated basis for the reach of some U.S. legislation in an early indictment in absentia with respect to the embassy bombings.
    Since he was taken onto a U.S. warship, which is the equivalent of U.S. territory, there are constitutional quesitons posed under U.S. law.

  2. Zekarias Beshah

    I am very grateful to you as you raised a very enticing issue under international law and you are also able to clearly depict how the issue is complex. Looking at the existing jus ad bellum, there are only few exceptions to justify the breach of territorial integrity or use of force: authorization from the UNSC,Self-defense and consent from the host state. among this exception the only viable justification appears to be self-defense. Leaving aside many other issues like whether al-Liby is a continued threat to US, let’s focus on whether it is possible to consider extra-territorial law enforcement as part of self-defense? According to Dinstein, extra-territorial law enforcement is a form of self-defense by State A against non-state actors within the territory of another state, State B. He argues that such action is legitimate under the rubric of international law if it is in response to an armed attack unleashed by the non-state actors from the territory of State B and if State B is unwilling or unable to prevent repetition of that armed attack. The look at history shows that many states had been engaged in extra-territorial law enforcement and in doing so, they claimed, they are exercising their inherent right of self defense. For instance, the crossing of Turkish groups into Northern Iraq, the 1982 and 2006 Israeli’s incursion into the Lebanon, and the 1993 Iran attack against the Kurdish groups in Iraq are justified with self defense. Prominent international law scholars like Prof. Dinstein, under his seminal book war, aggression and self defense, and Prof. Franck, in his book Recourse to force: state action threats and armed attacks agree that there are strong indications that the international community does not object extra-territorial law enforcement provided that the other essential elements of lawful self defense, i.e. necessity and proportionate are satisfied. Therefore,according to these ‘highly qualified publicists’ extra-territorial enforcement seems to be accepted as lawful under international law within the notion of self-defense. Mind that extra-territorial law enforcement comes into picture only if the state is ‘unwilling or unable’ to take the appropriate measures.

    However, we find little help from scholars and state’s discussion to know about the standards of the unwilling and unable test. In other words, it is not clear what facts should the United States have considered when evaluating Libya’s, in our case, willingness or ability to suppress the threat al Liby posed to the United States and other countries.
    Ashley S. Deeks has ascertained some few key principles that the international community might expect the acting state to follow. These include the requirements that the acting state should: ask the territorial state to address the threat and provide adequate time for the latter to respond, reasonably assess the territorial state’s control and capacity in the region from which the threat is emanating, reasonably assess the territorial state’s proposed means to suppress the threat and evaluate its own prior interactions with the territorial state.
    These requirements however are with one central exception, according to Deeks: where the acting state has strong reasons to believe that the territorial state is colluding with the non-state actor, or where asking the territorial state to take steps to suppress the threat might lead the territorial state to tip off the non-state actor before the acting state can undertake its mission.

    If the above standards could be agreed as an accepted standards to define ‘unwillingness or inability’, it seems to me that US can legally defend its case taking the existing volatile situation of Libya.

  3. Jordan

    There actually is no customary international legal limitation (and certainly none by treaty) of the inherent right of self-defense contained in an alleged unwilling or unable test. Even under such an alleged limitation, ongoing armed attacks emanating from state B’s territory would seem to justify a conclusion that state B is demonstrably unable to control its territory.