Since the killing of Muammar Qaddafi, allegedly by rebels in Libya, Anwar al-Awlaki by a missile fired from an American drone in Yemen and the killing of Osama bin Laden by U.S. Navy Seals in Pakistan, there has been a raging debate in the public domain about the use and legality of extrajudicial executions. We all heard the criticism leveled against the Libyan rebels that came thick and fast and from all directions; we also heard the same kind of criticism for the killing of Awlaki, who happened to be an American citizen and for bin Laden.
Though there is no legal definition of an extrajudicial execution, but it is generally accepted that it is a deliberate killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people.
This debate reminded me of a press encounter I had on August 2, 2001 with then Senator Joseph Biden of Delaware and Chairman of the Senate Foreign Relations Committee, outside the Capitol Building. Senator Biden, to my surprise, endorsed during our on the record exchange Israel’s policy then of extrajudicial executions of Palestinians suspected of “terrorism”. He said: “I don’t call this an assassination policy, when you do that you are in effect at war with a group of individuals who in fact ... let me put it in another way, assuming that there is, in the United States, an organization that had as its purpose to kill civilians in the United States of America our FBI would target them, attempt to find them, and if could not capture them would use lethal force to deal with them ... so I don’t call that assassination.”
I then replied: But children are falling by the sideway.
Biden replied: “When children fall by the side it’s an incredible tragedy just as it is a tragedy when some damn fool straps, with the encouragement of members of Hamas, straps dynamite to his body and blows up Israeli children, they’re all crazy.”
To this I said: “But your country stands firmly against the policy of assassinations.”
He replied: “We are against the policy of assassination; my point is that I don’t believe this is a policy of assassination. I don’t believe this is a policy of assassination.”
I went on to ask again: “But this is an extrajudicial killing.”
Biden replied: “No it’s not extrajudicial. This is in effect a declared war, a declared war by an organization that decided that it is going to do all it can to damage civilians and others within Israel. That is a simple proposition. The analogy would be if there were a Colombian drug organization in the United States decided that what it wished to do in order to get America to change its policy on international aid to Columbia to deal with drug cartels, decided that it would use tactics and blowing up women and children visiting the Capitol. We would track them down and find them and if we could not capture them we would kill them.”
We did go on to talk about what chance the ceasefire had of holding out in the presence of such a policy and he also talked about the three Israeli soldiers captured in southern Lebanon at the time.
The Los Angeles Times published the interview that week and the American-Arab Anti-Discrimination Committee (ADC) issued a statement asking Arab Americans to contact Senator Biden and demand that he retract his endorsement of extrajudicial executions and apologize.
This exchange left me bewildered since I have always been an admirer of the man, from the moment I watched from Europe his performance on TV screens, as chair of the Judiciary Committee during the contentious 1991 hearings when Anita Hill alleged that U.S. Supreme Court nominee Clarence Thomas had sexually harassed her when he was her supervisor at the U.S. Department of Education and the Equal Employment Opportunity Commission.
Biden is a man whose strong advocacy later helped bring about U.S. military assistance and intervention during the Bosnian War, saving the lives of thousands and thousands of Muslim Bosnians. He was a man who also served as chairman of the Senate Judiciary Committee, dealing with issues related to drug policy, crime prevention, and civil liberties and led to the creation of the Violent Crime and Law Enforcement Act, and the Violence Against Women Act.
At the time, I remember wondering how can such a fair minded person endorse such an unfair policy, that can, even if inadvertently, kill innocent people owing to the absence of due process and less than accurate execution, even when they are right.
Only this last weekend Pakistan ordered the closure of Shamsi Base, an American drone base after a U.S. attack killed at least 24 Pakistani soldiers near the Afghan border on Nov. 26. The Pakistanis argued that extrajudicial targeted killing of “terrorists” has caused the murder of innocent civilians and children, while the U.S. asserts that targeted killings are justified as a necessary counter-terrorism measure.
U.S. President Barack Obama’s administration has launched more drone attacks in Pakistan than the Bush administration– one every four days – but insists that strikes “do not put … innocent men, women and children in danger”. John O Brennan, Obama’s top counter-terrorism adviser, said in June that “there hasn’t been a single collateral death because of the exceptional proficiency, precision or the capabilities we’ve been able to develop”. Yet, according to the non-profit Bureau of Investigative Journalism, based at City University in London, at least 225 of those killed in drone attacks during the Obama administration “may have been civilians”.
Access to information and reliable statistics is vital. Neither the U.S. nor Pakistan provided accurate reports of civilians killed, in breach of the recommendations of the U.N. Special Rapporteur on Extrajudicial Killings. The British non-profit organization Reprieve is working together with lawyers and villages to better document the attacks.
Now it seems that Pakistan has changed its tune. Advisor to Pakistani Prime Minister Mustafa Nawaz Khokhar, responding to a discussion in the National Assembly on the dismal state of human rights in the country, said that data of the total number of casualties in drone attacks was being collected to present to the Special Rapporteur of the U.N. on Extrajudicial Killings. The advisor said that the government would inform the Rapporteur that drone attacks were a violation of human rights.
Extrajudicial killings are not exclusive domain of the U.S. government alone. Five years after Mexican President Felipe Calderón declared war on the country’s violent drug traffickers, his government is fighting accusations by human rights activists that it allowed the killing, torture and kidnapping of civilians in its drug war. While the government denies systematic abuses, mounting reports of such cases could erode popular support for the offensive by Calderón. As Calderón’s legacy is largely built on his fight against organized crime, the reports could also hurt his party's bid to hold on to the presidency in next years elections. Netzai Sandoval, a Mexican human rights lawyer, went as far as asking the International Criminal Court (ICC) in The Hague on Nov. 25 to investigate Calderón and top security officials — along with leading drug lords — for alleged war crimes.
The U.N. General Assembly’s Third Committee on Nov. 21 passed a resolution on Iran, by a record margin, underscoring the ongoing systematic targeting of human rights defenders by the Iranian government, including public executions and extra judicial and arbitrary detentions. On the same day the General Assembly passed two other similar resolutions on North Korea and Myanmar.
In India, the Gujarat government’s targeting of Muslims is in the spotlight yet again with a Special Investigation Team (SIT) of the state’s high court confirming what was long suspected that four Muslim activists were murdered in cold blood by the Gujarat police in June 2004 and not killed in an exchange of fire, as the police had claimed. The SIT probe confirmed that extrajudicial killings by the Gujarat police had been dressed up to look like an exchange of fire.
In Burundi there are this month strong allegations by opposition figures of a wave of extrajudicial killings allegedly carried out by intelligence operatives and police at the instigation of the ruling Conseil National in an operation codenamed Safisha, which is Kiswahili for “to clean”.
In Sri Lanka, there are recent sworn affidavits by a very senior member of the island’s armed forces that the government armed forces during the final period of the war engaged in extrajudicial executions. The source alleges that extrajudicial killings of surrendering or captured members of the rebel Tamil Tiger group were committed as “standard operating procedure” during the last months of the war which lasted from July 1983 to May 2009. The examples are too many to list here, including those that are taking place right now in the Middle East.
Now that I am 10 years older and hopefully a little bit wiser, since that exchange with Senator Biden outside the Capitol building in DC, I am not clear any more when a civilized society can morally engage in extrajudicial killings (if at all) and when it cannot. You might, as a fair minded person, also be trying to reach a conclusion for yourself, or you might be one of those who outright reject the use of extrajudicial executions under any circumstance whatsoever.
The exchange with Senator Biden happened just one month and nine days before 9/11, and came at a time when my position on extrajudicial executions was so clear, especially when committed by an occupier against an occupied people like the Palestinians. However, things were different prior to 9/11 and we could all afford to be idealists.
Other than the occupier and occupied people case and protecting civilian bystanders, I no longer have a clear cut answer that fits all cases, even though I used to argue that there can be no excuse for defending or rationalizing the execution of anyone without trial, appeal or due process of any kind. This lack of clarity in the post 9/11 world, must be a sign of the times, but it is definitely not a good sign.
The writer is New York and United Nations Bureau Chief of Al Arabiya. He can be reached at firstname.lastname@example.org