In this second of two posts I intend to continue the analysis of the extraterritorial seizure of individuals under international law, with a particular focus upon the recent arrest, detention and now trial of the al-Qaida leader al-Liby by the United States, who was wanted in connection with the bombings of the US embassies in Kenya and Tanzania in 1998. In the previous post I addressed the prescriptive jurisdiction of the US over these offences and, noting that its enforcement was territorially limited, looked at two possibilities as to how enforcement may occur; the consent of the Libyan authorities and in self-defence. While the existence of the former would have justified the entering of Libyan territory, question marks still existed in connection with al-Liby’s human rights in such operations. This issue will be addressed in this post. By contrast, while it is at least possible that extraterritorial seizures could be justified as self-defence, the US has thus far failed to demonstrate that the Libyan authorities were unable or unwilling to apprehend and hand-over al-Liby to the US, instead basing the operation broadly upon the ‘laws of war’. As such, whether this branch of the law permits such operations will be addressed first.
Arrest and detention as part of an armed conflict
Assuming here for the sake of argument that the US is in a state of war/armed conflict with al-Qaida, and similarly assuming for the sake of argument that given the absence of two state parties this is a non-international armed conflict per the ambiguous Hamdan judgment, the law of armed conflict says very little about powers of detention in such conflicts, as opposed to the rather extensive provision it makes for the issue (particularly in GCIII) in armed conflicts of an international nature.
It could be argued that there is a power of extrajudicial detention in non-international armed conflicts under customary international law. Indeed, this appears to be the view of the US and certain other states. Yet, the rules that do exist in the law of non-international armed conflicts governing detention are concerned with the general treatment and trial of individuals after they have been detained, as opposed to providing prior grounds for detention and thus ensuring that any deprivation of liberty is not of an arbitrary nature. Instead, such issues are left to the domestic law of the state where the non-international armed conflict is taking place and/or international human rights law. In this respect, regardless of whether the claim of the US in regards to its armed conflict with al-Qaida is well-founded or not, given the extraterritorial nature of the arrest and detention of al-Liby questions are raised as to whether, and if so how, international human rights law provides a form of regulation to the actions of the US.
Extraterritorial arrest under international human rights law
‘[e]veryone has the right to liberty and security of person. No one shall be arbitrarily deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.’
Every time somebody is arrested they are, of course, deprived of their liberty, but it is the arbitrariness of such deprivation which is the focus of this negative human rights obligation, which can be avoided if the arrest and detention are made ‘on such grounds and in accordance with such procedures as are established by law’. In other words, the restriction of liberty is possible in certain circumstances dictated by law.
While the violation of a sovereign state’s territory and the rights of an individual are two discrete legal issues, it is arguable that Article 9 makes a connection between the two. Indeed, an argument can be made that the ‘law’ referred to in this provision may be taken to mean international law. In this case if international law has been violated through a state’s extension of enforcement jurisdiction to apprehend an individual upon another state’s territory, the individual’s right to liberty might similarly be said to be violated as its deprivation was not strictly speaking in accordance with the law. In Domukovsky and ors v Georgia, a case before the UN Human Rights Committee with certain factual similarities to the seizure of al-Liby, the lack of consent to the operation by the territorial state proved pivotal on this issue. However, as an alternative to the existence of consent, if one is to accept the argument that such actions were lawful under the right of self-defence then a violation of the law may similarly have been avoided, thereby negating any claim of arbitrary deprivation of liberty. Yet, as argued in the previous post, neither the provision of valid consent nor lawful self-defence appear to have taken place in the context of the seizure of al-Liby.
The consent of the territorial state, or indeed a valid claim of self-defence, does not necessarily mean that extraterritorial arrest and detention would be lawful, just that it is one factor to be considered. Indeed, there are other due process elements that would need to be satisfied. In the case of al-Liby can we say that the prescribed offence, the indictment, and then the warrants for his arrest satisfy the legal grounds and procedures as per Article 9 of the ICCPR? In other words, without the extraterritorial element involved would his arrest have been prima facie lawful? Possibly, but even then the US would need to have satisfied the procedural elements of a lawful arrest and detention. For example, we have not been made privy to whether al-Liby was informed of the reasons for his arrest and the charges against him, either at the time (see Article 9, ICCPR) or promptly afterwards (see Article 5, ECHR). In addition, anyone arrested on criminal charges must be brought ‘promptly’ before a judge (see Article 9, ICCPR). ‘Promptly’ in this context has been interpreted as meaning the delay must not exceed a few days and certainly not more than a week (see Ocalan v Turkey (2005)), with al-Liby’s appearance in New York a week after his arrest seemingly satisfying this.
The US has, of course, continuously dismissed the extraterritorial application of international human rights law, but there is extensive practice to the contrary, even in the context of a non-international armed conflict. The UN Human Rights Committee, for example, made quite clear in Lilian Celiberti de Casariego v Uruguay (1984) that:
Article 2(1) of the Covenant places an obligation upon a State party to respect and to ensure rights “to all individuals within its territory and subject to its jurisdiction”, but it does not imply that the State party concerned cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State, whether with the acquiescence of the Government of that State or in opposition to it … it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.
The UN Human Rights Committee was clear on its position regarding extraterritorial application prior to the US ratifying, at which point the US then made no reservations along these lines. The decisive factor is not whether al-Liby was detained within the four walls of a US detention facility or ship (although cf. Medvedyev v. France), but whether he was under the direct control of US agents, which appears to be the case both at the time, or at least shortly after his arrest, and during his stay on the US navy ship.
The domestic distinction between means of apprehension and the exercise of jurisdiction
Now that al-Liby is on the territory of the US (on which see here), apprehending a suspect in a manner that – and some might say gravely – violates international law might pose problems in terms of a court of law permitting an individual to stand trial before it. However, states (and some international criminal tribunals) have often adopted a male captus bene detentus approach to such issues (for more on which see here), drawing a clear distinction between the means of apprehension and the jurisdiction to prosecute. This is certainly the case in Israel, where the state’s infamous abduction of the Nazi Adolf Eichmann from Argentina did not prevent his trial from proceeding in a Jerusalem court in 1961.
Similarly, in the US, the ‘Ker-Frisbee doctrine’, which was developed in Ker v. Illinois (1886) and which holds that the fact that an individual was brought into the jurisdiction of a court by unlawful means does not automatically divest the court of jurisdiction, seems to have held its position as ‘good’ law. While the US Court of Appeals held in US v Toscanino (1974) that such a distinction should not be applied where the presence of the defendant has been secured by force or fraud, subsequent cases have to an extent nullified this approach. For example, in US ex rel. Lujan v. Gengler (1975) it was noted that this approach was limited to circumstances in which ‘torture, brutality and similar outrageous conduct’ had taken place against the individual, none of which it appears al-Liby has subjected to. In Sosa v Alvarez-Machain (1992) the US Supreme Court held that even if there is an extradition treaty in place between the US and another state, abduction by the US would not necessarily be a bar to jurisdiction being exercised so long as the relevant treaty did not expressly preclude this as a means of apprehension. By contrast, in the UK, while it had been held in the 1980s that the court’s had no power to inquire into the circumstances with which an individual had been brought into the jurisdiction of the state concerned (R v Plymouth Justices, ex parte Driver (1986)) the House of Lords shortly afterwards held that where an extradition treaty existed between the UK and the state in which an accused was seized, ‘our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party’ (R v. Horseferry Road Magistrates’ Court, ex parte Bennett (1993)). Consequently, while international law does not provide prescriptive rules on this issue, there is also no discernible rule of customary international law prohibiting the US putting al-Liby on trial, despite the arguably unlawful means of his initial arrest and detention.
The extraterritorial seizure of an individual raises two issues; the rights of a state and the rights of an individual. While these issues appear at first sight to be independent of each other, as has been discussed over the course of these two posts they are very much interconnected and far from simple to disentangle. Indeed, the rights of the individual rest to a real extent on the encroachment of the rights of the state in which they are located.
While it is troubling that the US has thus far refrained from explaining how its actions were lawful, it has to be said that a capture rather than kill policy by the US is certainly preferable from many perspectives than the targeted killings that we have become used to. In the absence of consent from the Libyan authorities it is at least arguable that self-defence could have been invoked in order to justify this particular operation. Although it is still possible that the US may invoke self-defence, for any invocation to possess any credibility it would need to be reported to the UN Security Council, as expressly required by Article 51 of the UN Charter and the absence of which the ICJ in Nicaragua case has held as casting a negative light on any such invocation. In addition, the US needed to demonstrate pre– or post-facto that its own standard of the Libyan government being unable or unwilling to hand over al-Liby had been satisfied. Not to have done so puts real question marks over the legality of its incursion into Libyan territory. Nonetheless, given Libya’s apparent protest against the operation it is primarily up Libya itself to vindicate its sovereign rights.
However, as discussed above, the US not satisfying this standard also raises the issue of the arbitrariness of al-Liby’s arrest and detention and thus the legality of the entire operation. In this respect, and with al-Liby now sitting in New York, while there might have been grounds for his arrest, ultimately, and despite his relatively quick appearance before a judge in New York, it is difficult to claim that this was carried out in ‘accordance with such procedures as are established by law’. Yet given that the US appears to have grounds for claiming jurisdiction over al-Liby once in the US, there is an uncomfortable feeling that the ends in many respects justifies the means here. In this respect, and given the relative success of this operation, this may well prove a key part of the Obama administration’s modus operandi in its war against al-Qaida in the future.