”Zawahiri was a wretched man, and few will mourn his passing. But legal judgment should not be biased by hindsight. The U.S. tried to kill Zawahiri at least twice before. Those strikes killed 76 children and 29 adults according to Reprieve. The U.S. claims that its latest strike killed no civilians. That may be. If so, it is only by sheer luck that the U.S. did not kill even more civilians for no reason that the law accepts.”

JUST SECURITY

TOP EXPERTS RAISE QUESTIONS REGARDING

LEGAL BASIS OF ZAWAHIRI STRIKE

4 AUGUST 2022

Top Experts Raise Questions Regarding Legal Basis of Zawahiri Strike

A note from co-editors-in-chief Tess Bridgeman and Ryan Goodman: Although Just Security is on hiatus this week, we wanted to be sure to examine and reflect on the U.S. airstrike that killed al Qaeda’s top leader, Ayman al-Zawahiri. We asked members of our board of editors to assess the US government’s strongest argument for the legal basis for the strike and any significant weaknesses or flaws in that argument. We invited them to consider international and domestic law. 

Brian Finucane, senior adviser with the U.S. Program at the International Crisis Group and a Non-Resident Senior Fellow at the Reiss Center on Law and Security at NYU School of Law. Prior to joining Crisis Group in 2021, he served as an attorney-adviser in the Office of the Legal Adviser at the U.S. Department of State.

As a matter of international law, the U.S. government would likely argue that Zawahiri was targeted as an enemy commander in the ongoing non-international armed conflict with al Qaeda.  Further, I would expect the U.S. government to claim that the strike in Kabul was a lawful measure of self-defense as the de-facto authorities were either unable or unwilling to effectively address the threat posed by al Qaeda.  

But such arguments raise questions: 

• Twenty years after 9/11, what threat to the United States does al Qaeda still pose, whether from Afghanistan or elsewhere? 
• Is the threat from al Qaeda such that the use of force in self-defense remains “necessary” as a matter of international law?  Or are other non-military tools sufficient to mitigate the threat such that force is no longer necessary? 
• Does the Biden administration have a theory for when the armed conflict with al Qaeda ends? If so, what is that theory?

The killing of Zawahiri also raises questions of domestic law and the future of the war on terror.  After two decades, what is al Qaeda for the purposes of the 2001 AUMF?  Which affiliates of al Qaeda are “associated forces” for the purposes of AUMF? Will the Biden administration publicly release the list of all groups it deems covered by the AUMF?

Professor Adil Haque, is Executive Editor at Just Security. He is also Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School, and author of Law and Morality at War (Oxford University Press): 

The U.S. will almost certainly argue that the strike was an exercise of its inherent right of self-defense under the U.N. Charter. The Obama administration took the position that the right of self-defense is triggered by an actual or imminent armed attack by a non-state armed group. Once triggered, the right of self-defense remains activated, and justifies the use of force, as long as “hostilities” with the group continue. Importantly, there is no requirement that further armed attacks are ongoing or imminent, so long as further attacks are expected at some point in the future. Relatedly, there is no requirement to seek the consent of the state on whose territory the strike will take place, if that state is deemed “unwilling or unable” to prevent the armed group from using its territory. That position was adopted by the Obama and Trump administrations, and there is no reason to think that the Biden administration will look elsewhere.

In my view, both aspects of the U.S. position are fundamentally flawed. There is no right to use force in self-defense absent an ongoing or imminent armed attack, and there is no right to use force on the territory of another state, without its consent, absent its responsibility for an ongoing or imminent armed attack. The U.S. has not claimed that Zawahiri was orchestrating an imminent armed attack that the strike preempted, nor has it alleged that the Afghan government is substantially involved in Al Qaeda’s ongoing operations. It appears that members of the Taliban regime may have provided Zawahiri with safe haven. But that alone is not enough to justify the strike.

Zawahiri was a wretched man, and few will mourn his passing. But legal judgment should not be biased by hindsight. The U.S. tried to kill Zawahiri at least twice before. Those strikes killed 76 children and 29 adults according to Reprieve. The U.S. claims that its latest strike killed no civilians. That may be. If so, it is only by sheer luck that the U.S. did not kill even more civilians for no reason that the law accepts.

Professor Oona Hathaway, is Executive Editor at Just Security. She is the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, Professor of International Law and Area Studies at the Yale University MacMillan Center, Professor of the Yale University Department of Political Science, Director of the Yale Law School Center for Global Legal Challenges, and Counselor to the Dean at Yale Law School. She served as Special Counsel to the General Counsel of the Department of Defense:

From a domestic law perspective, the legal basis for the strike on Zawahiri is, most lawyers would agree, straightforward: The 2001 Authorization for the Use of Military Force, enacted mere days after the 9/11 attacks, authorizes the President to use all “necessary and appropriate force against those … organizations he determines planned … the terrorist attacks that occurred on September 11, 2001.” Zawahiri, as the leader of the organization that carried out the attacks—and a prominent figure in the organization on 9/11, falls squarely within that authority. That surface clarity, however, ignores a deeper question about whether that 2001 authorization has expired. There is no sunset clause in the 2001 AUMF, but Congress clearly did not contemplate an endless war when it enacted the law more than two decades ago. There is a strong argument that the authorization has effectively expired, though that argument has yet to win in court when raised by those who continue to be detained at Guantanamo Bay under the authority indirectly granted by the authorization. Indeed, the successful strike on Zawahiri is likely to lead to a new set of challenges to those detentions on the ground the conflict in which they were detained has now run its course.

 The international law basis for the strike is similarly easy on the surface and harder on deeper reflection. On the surface, the strike is justified as an act of “self defense” under Article 51 of the United Nations Charter and almost certainly is considered by the administration to fall within the Article 51 letter filed with the UN shortly after the attacks. But when we consider the fact that the attack on Zawahiri comes more than two decades after the 9/11 attacks, the legal argument gets harder to sustain. Granted, Al Qaeda has more fighters than it did on 9/11 despite two decades of our best efforts—during which we spent trillions of dollars—to defeat the group. But it’s far from clear that any of the affiliates have plans to attack the United States or that Zawahiri was involved in such plans if they do. Under international law, acts of self defense need to be aimed at averting active ongoing threats to the state undertaking the self defensive action (or, if it is an act of collective self defense, threats to a state that has requested that state’s assistance). There is also the issue of Afghanistan’s sovereignty. The Afghan government clearly did not consent to the strike. The United States has long sought to justify strikes against nonstate actors located in states that are “unable” or “unwilling” to address the threat they pose as falling within the scope of Article 51. But this theory has been explicitly endorsed by fewer than a dozen states. It may be conventional wisdom in Washington that such strikes are justified, but that conventional wisdom is one of many ways in which what is taken for granted in Washington is at a disconnect with traditional methods of international law. (Under a separate body of international law—international humanitarian law—the strike seems to have been clearly legal, assuming Zawahiri was a legitimate military target. According to current reporting, there was, remarkably, no collateral damage—which would be a testament to the careful planning, techniques, and technology developed over two decades of war.)

In short, the strike reflects the ambiguities inherent in the current U.S. counterterrorism program: It was at once a great success that falls squarely within widely accepted legal theories that have guided U.S. conduct for two decades and it demonstrates how flawed and strained those very same theories are.

Stephen Pomper, Chief of Policy at the International Crisis Group. During the Obama administration, he served as Special Assistant to the President and NSC Senior Director for Multilateral Affairs and Human Rights. He also served as Senior Director for African Affairs. Prior to moving to the NSC, he was the Assistant Legal Adviser for Political-Military Affairs at the Department of State. He is a Non-Resident Senior Fellow at the Reiss Center on Law and Security at NYU School of Law:

The much celebrated recent U.S. strike that killed Ayman Zawahiri sheds some useful light on the Biden administration’s approach to the so-called the global war on terror (GWOT) including some of the tensions in the administration’s approach to warmaking.

On the one hand, President Biden pledged on the campaign trail to end what he referred to as “forever wars”. He pulled American troops from Afghanistan in the face of withering criticism; told the United Nations that the U.S. is no longer at war; and appears to have diminished the tempo of military counterterrorism operations considerably.

On the other hand, the Biden administration continues to engage in counterterrorism operations from a war footing. It has maintained the capacious legal interpretations that enabled the GWOT to branch out to countries far from Afghanistan; has spent no visible political capital to repeal or narrow the 2001 Authorization for Use of Military Force that undergirds this framework; and – as evidenced by the Zawahiri operation – continues to strike senior al-Qaeda leadership.

None of this is especially surprising. Candidate Biden and his team were always careful to hedge their commitments to end unproductive U.S. military entanglements in a way that left space for military counterterrorism, and have never shown much appetite for yielding the expansive authority that executive branch lore and practice – and congressional acquiescence – afford them in this space. But they also have other challenges, including most immediately a Russian war in Ukraine and a tense situation in the Taiwan strait. The result is arguably a sort of GWOT-lite, which has the full legal contours of the longstanding war on terror but a more limited op tempo that generally keeps strikes off the front pages, lowers the volume on criticism, and preserves the resort to force as an option for when policymakers feel it is needed. (Of course there is nothing inherently durable about the “lite” aspect of the current scheme: the same legal architecture could be used in a much more heavy-handed way by a different group of policymakers.)

Given who Zawahiri was, and so long as major reports of civilian casualties do not emerge, it is hard to imagine too much by way of criticism against the strike. But the operation does present some interesting questions that lawyers and commentators can be expected to probe. Among them:

• What facts could the U.S. present to make the case that the Taliban’s relationship to Zawahiri’s activities and whereabouts violated the 2020 Doha agreement (in which the Taliban committed to prevent any groups or individuals, including al-Qaeda, from “using its soil” for and “recruiting, training, and fundraising” “to threaten the security of the United States and its allies”). Beyond a passing comment by a White House official, will it publicly try to make that case?
• Under what theory did President Biden disclose an action reportedly taken by intelligence operatives under what appear to be covert authorities? Did the strike fall under the 2001 AUMF or is the U.S. deeming it an act of national self-defense and why?
• If the latter is the U.S. going to notify the United Nations or rely on its 2001 notification following the September 11 attacks?
• Looking ahead, does the U.S. consider itself to be still at war in Afghanistan for purposes of international and domestic law and if so against specifically what groups and on what bases?

The answers are unlikely to depart significantly from what this and past administrations have offered, which is a useful reminder that while September 11 continues to recede and the GWOT fades from view, the changes they wrought to the U.S. national security apparatus endure.

EINDE ARTIKEL

‘In targeting Ayman al Zawahiri, the CIA killed 76 children and 29 adults. They failed twice and Ayman al Zawahiri is reportedly still alive.”REPRIEVEYOU NEVER DIE TWICE: MULTIPLE KILLS INTHE US DRONE PROGRAM31 DECEMBER 2014

You Never Die Twice: Multiple Kills in the US Drone Program

Each of us only lives once. It sometimes appears, however, that the covert US Kill List allows a man to die twice. Public reports suggest some men on the Kill List have ‘died’ as many as seven times.

The Kill List is a covert US programme that selects individual targets for assassination. The list is personally approved by President Obama and requires no public presentation of evidence or judicial oversight. Targets often die in covert drone strikes in foreign countries and are never notified of what they are accused to have done.

Information on the Kill List and drone strikes is limited to media reporting and anonymous leaks by US, Pakistani and Yemeni officials. Nevertheless, by sifting this information, we found 41 names of men who seemed to have achieved the impossible: to have ‘died,’ in public reporting, not just once, not just twice, but again and again. Reports indicate that each assassination target ‘died’ on average more than three times before their actual death.

This raises a stark question. With each failed attempt to assassinate a man on the Kill List, who filled the body bag in his place? In fact, it is more accurate to say ‘body bags’: many other lives are sacrificed in the effort to erase a name from the Kill List. In one case, it took seven drone strikes before the US killed its target. In those strikes, as many as 164 people died, including 11 children.

In total, as many as 1,147 people may have been killed during attempts to kill 41 men, accounting for a quarter of all possible drone strike casualties in Pakistan and Yemen. In Yemen, strikes against just 17 targets accounted for almost half of all confirmed civilian casualties. Yet evidence suggests that at least four of these 17 men are still alive. Similarly, in Pakistan, 221 people, including 103 children, have been killed in attempts to kill four men, three of whom are still alive and a fourth of whom died from natural causes.

One individual, Fahd al Quso, was reported killed in both Yemen and Pakistan. In four attempts to kill al Quso, 48 people potentially lost their lives.

Other key findings include:

• Twenty-four men were reported killed or targeted multiple times in Pakistan. Missed strikes on these men killed 874 people. They resulted in the deaths of 142 children.
• Eighteen men in Yemen were reported killed or targeted multiple times. Missile strikes on these men killed 273 others and accounted for almost half of all confirmed civilian casualties and 100% of all recorded child deaths.
• In targeting Ayman al Zawahiri, the CIA killed 76 children and 29 adults. They failed twice and Ayman al Zawahiri is reportedly still alive.
• In the six attempts it took the US to kill Qari Hussain, a deputy commander of the Tehrik- e-Taliban Pakistan (TTP), 128 people were killed. including 13 children.
• Baitullah Mehsud was directly targeted as many as seven times, during which 164 people were killed, including 11 children.
• From 2004-2013, children suffered disproportionately in Pakistan. The pursuit of 14 targets killed 142 children. Only six of these children died in strikes that successfully killed their target (21% success rate).

EINDE ARTIKEL

[34]

ANALYSE: UITSCHAKELING AL-ZAWAHIRI

AL QAIDA ZWARE SLAG TOEGEDIEND DOOR DOOD

AL-ZAWAHIRI, MAAR BIDEN KAN NOG NIET OP ZIJN

LAUWEREN RUSTEN

Bert Lanting

2 AUGUSTUS 2022

https://www.volkskrant.nl/nieuws-achtergrond/al-qaida-zware-slag-toegediend-door-dood-al-zawahiri-maar-biden-kan-nog-niet-op-zijn-lauweren-rusten~bf711c2c/#:~:text=Uitschakeling%20al%2DZawahiri-,Al%20Qaida%20zware%20slag%20toegediend%20door%20dood%20Al%2DZawahiri%2C%20maar,flinke%20opsteker%20voor%20president%20Biden.

ZIE VOOR GEHELE TEKST. NOOT 9

VOLKSKRANT

POSTUUM: AYMAN AL-ZAWAHIRI

ZELFS IN EIGEN KRING WERD AL-ZAWAHIRI, MET ZIJN BELEREND

ZWAAIENDE WIJSVINGER, ALS STEKELIG EN PEDANT ERVAREN

Carlijne Vos

2 AUGUSTUS 2022

https://www.volkskrant.nl/nieuws-achtergrond/zelfs-in-zijn-eigen-kring-werd-al-zawahiri-met-zijn-belerend-zwaaiende-wijsvinger-als-stekelig-en-pedant-omschreven~ba2a423a/#:~:text=Zijn%20eerste%20vrouw%2C%20met%20wie,de%20aanslagen%20van%2011%20september.

ZIE VOOR GEHELE TEKST, NOOT 9

[35]

[35]

TRUTHOUT

BIDEN’S ASSASSINATION OF AL QAEDA LEADER AYMAN

AL-ZAWAHIRI WAS ILLEGAL

6 AUGUST 2022

Biden’s Assassination of al-Qaeda Leader Ayman al-Zawahiri Was Illegal

ZIE VOOR GEHELE TEKST, NOOT 32

LAW AND THE AYMAN AL-ZAWAHIRI AIRSTRIKE: A DOZEN QS & A’S

3 AUGUST 2022

https://sites.duke.edu/lawfire/2022/08/03/law-and-the-ayman-al-zawahiri-airstrike-a-dozen-qs-as/

ZIE VOOR GEHELE TEKST, NOOT 23

[36]

AMNESTY INTERNATIONAL

UKRAINE: UKRAINIAN FIGHTING TACTICS ENDANGER

CIVILIANS

4 AUGUST 2022

Ukraine: Ukrainian fighting tactics endanger civilians

• Military bases set up in residential areas including schools and hospitals 
• Attacks launched from populated civilian areas
• Such violations in no way justify Russia’s indiscriminate attacks, which have killed and injured countless civilians

Ukrainian forces have put civilians in harm’s way by establishing bases and operating weapons systems in populated residential areas, including in schools and hospitals, as they repelled the Russian invasion that began in February, Amnesty International said today. 

Such tactics violate international humanitarian law and endanger civilians, as they turn civilian objects into military targets. The ensuing Russian strikes in populated areas have killed civilians and destroyed civilian infrastructure. 

“We have documented a pattern of Ukrainian forces putting civilians at risk and violating the laws of war when they operate in populated areas,” said Agnès Callamard, Amnesty International’s Secretary General. 

“Being in a defensive position does not exempt the Ukrainian military from respecting international humanitarian law.”

Not every Russian attack documented by Amnesty International followed this pattern, however. In certain other locations in which Amnesty International concluded that Russia had committed war crimes, including in some areas of the city of Kharkiv, the organization did not find evidence of Ukrainian forces located in the civilian areas unlawfully targeted by the Russian military.

Between April and July, Amnesty International researchers spent several weeks investigating Russian strikes in the Kharkiv, Donbas and Mykolaiv regions. The organization inspected strike sites; interviewed survivors, witnesses and relatives of victims of attacks; and carried out remote-sensing and weapons analysis. 

Throughout these investigations, researchers found evidence of Ukrainian forces launching strikes from within populated residential areas as well as basing themselves in civilian buildings in 19 towns and villages in the regions. The organization’s Crisis Evidence Lab has analyzed satellite imagery to further corroborate some of these incidents.

Most residential areas where soldiers located themselves were kilometres away from front lines. Viable alternatives were available that would not endanger civilians – such as military bases or densely wooded areas nearby, or other structures further away from residential areas. In the cases it documented, Amnesty International is not aware that the Ukrainian military who located themselves in civilian structures in residential areas asked or assisted civilians to evacuate nearby buildings – a failure to take all feasible precautions to protect civilians.

Launching strikes from populated civilian areas 

Survivors and witnesses of Russian strikes in the Donbas, Kharkiv and Mykolaiv regions told Amnesty International researchers that the Ukrainian military had been operating near their homes around the time of the strikes, exposing the areas to retaliatory fire from Russian forces. Amnesty International researchers witnessed such conduct in numerous locations.

International humanitarian law requires all parties to a conflict to avoid locating, to the maximum extent feasible, military objectives within or near densely populated areas. Other obligations to protect civilians from the effects of attacks include removing civilians from the vicinity of military objectives and giving effective warning of attacks that may affect the civilian population. 

The mother of a 50-year-old man killed in a rocket attack on 10 June in a village south of Mykolaiv told Amnesty International: “The military were staying in a house next to our home and my son often took food to the soldiers. I begged him several times to stay away from there because I was afraid for his safety. That afternoon, when the strike happened, my son was in the courtyard of our home and I was in the house. He was killed on the spot. His body was ripped to shreds. Our home was partially destroyed.” Amnesty International researchers found military equipment and uniforms at the house next door.

Mykola, who lives in a tower block in a neighbourhood of Lysychansk (Donbas) that was repeatedly struck by Russian attacks which killed at least one older man, told Amnesty International: “I don’t understand why our military is firing from the cities and not from the field.” Another resident, a 50-year-old man, said: “There is definitely military activity in the neighbourhood. When there is outgoing fire, we hear incoming fire afterwards.” Amnesty International researchers witnessed soldiers using a residential building some 20 metres from the entrance of the underground shelter used by the residents where the older man was killed.

In one town in Donbas on 6 May, Russian forces used widely banned and inherently indiscriminate cluster munitions over a neighbourhood of mostly single or two-storey homes where Ukrainian forces were operating artillery. Shrapnel damaged the walls of the house where Anna, 70, lives with her son and 95-year-old mother. 

Anna said: “Shrapnel flew through the doors. I was inside. The Ukrainian artillery was near my field… The soldiers were behind the field, behind the house… I saw them coming in and out… since the war started… My mother is… paralyzed, so I couldn’t flee.”

In early July, a farm worker was injured when Russian forces struck an agricultural warehouse in the Mykolaiv area. Hours after the strike, Amnesty International researchers witnessed the presence of Ukrainian military personnel and vehicles in the grain storage area, and witnesses confirmed that the military had been using the warehouse, located across the road from a farm where civilians are living and working.

While Amnesty International researchers were examining damage to residential and adjacent public buildings in Kharkiv and in villages in Donbas and east of Mykolaiv, they heard outgoing fire from Ukrainian military positions nearby.

In Bakhmut, several residents told Amnesty International that the Ukrainian military had been using a building barely 20 metres across the street from a residential high-rise building. On 18 May, a Russian missile struck the front of the building, partly destroying five apartments and damaging nearby buildings. Kateryna, a resident who survived the strike, said: “I didn’t understand what happened. [There were] broken windows and a lot of dust in my home… I stayed here because my mother didn’t want to leave. She has health problems.”

Three residents told Amnesty International that before the strike, Ukrainian forces had been using a building across the street from the bombed building, and that two military trucks were parked in front of another house that was damaged when the missile hit. Amnesty International researchers found signs of military presence in and outside the building, including sandbags and black plastic sheeting covering the windows, as well as new US-made trauma first aid equipment.

“We have no say in what the military does, but we pay the price,” a resident whose home was also damaged in the strike told Amnesty International.

Military bases in hospitals

Amnesty International researchers witnessed Ukrainian forces using hospitals as de facto military bases in five locations. In two towns, dozens of soldiers were resting, milling about, and eating meals in hospitals. In another town, soldiers were firing from near the hospital.

A Russian air strike on 28 April injured two employees at a medical laboratory in a suburb of Kharkiv after Ukrainian forces had set up a base in the compound.

Using hospitals for military purposes is a clear violation of international humanitarian law.

Military bases in schools

The Ukrainian military has routinely set up bases in schools in towns and villages in Donbas and in the Mykolaiv area. Schools have been temporarily closed to students since the conflict  began, but in most cases the buildings were located close to populated civilian neighbourhoods 

At 22 out of 29 schools visited, Amnesty International researchers either found soldiers using the premises or found evidence of current or prior military activity – including the presence of military fatigues, discarded munitions, army ration packets and military vehicles. 

Russian forces struck many of the schools used by Ukrainian forces. In at least three towns, after Russian bombardment of the schools, Ukrainian soldiers moved to other schools nearby, putting the surrounding neighbourhoods at risk of similar attacks.

In a town east of Odesa, Amnesty International witnessed a broad pattern of Ukrainian soldiers using civilian areas for lodging and as staging areas, including basing armoured vehicles under trees in purely residential neighbourhoods, and using two schools located in densely populated residential areas. Russian strikes near the schools killed and injured several civilians between April and late June – including a child and an older woman killed in a rocket attack on their home on 28 June. 

In Bakhmut, Ukrainian forces were using a university building as a base when a Russian strike hit on 21 May, reportedly killing seven soldiers. The university is adjacent to a high-rise residential building which was damaged in the strike, alongside other civilian homes roughly 50 metres away. Amnesty International researchers found the remains of a military vehicle in the courtyard of the bombed university building.

International humanitarian law does not specifically ban parties to a conflict from basing themselves in schools that are not in session. However, militaries have an obligation to avoid using schools that are near houses or apartment buildings full of civilians, putting these lives at risk, unless there is a compelling military need. If they do so, they should warn civilians and, if necessary, help them evacuate. This did not appear to have happened in the cases examined by Amnesty International. 

Armed conflicts seriously hamper children’s right to education, and military use of schools can result in destruction that further deprives children of this right once the war ends. Ukraine is one of 114 countries that have endorsed the Safe Schools Declaration, an agreement to protect education amid armed conflict, which allows parties to make use of abandoned or evacuated schools only where there is no viable alternative. 

Indiscriminate attacks by Russian forces 

Many of the Russian strikes that Amnesty International documented in recent months were carried out with inherently indiscriminate weapons, including internationally banned cluster munitions, or with other explosive weapons with wide area effects. Others used guided weapons with varying levels of accuracy; in some cases, the weapons were precise enough to target specific objects.

The Ukrainian military’s practice of locating military objectives within populated areas does not in any way justify indiscriminate Russian attacks. All parties to a conflict must at all times distinguish between military objectives and civilian objects and take all feasible precautions, including in choice of weapons, to minimize civilian harm. Indiscriminate attacks which kill or injure civilians or damage civilian objects are war crimes.

“The Ukrainian government should immediately ensure that it locates its forces away from populated areas, or should evacuate civilians from areas where the military is operating. Militaries should never use hospitals to engage in warfare, and should only use schools or civilian homes as a last resort when there are no viable alternatives,” said Agnès Callamard. 

Amnesty International contacted the Ukrainian Ministry of Defence with the findings of the research on 29 July 2022. At the time of publication, they had not yet responded.

EINDE STATEMENT AMNESTY INTERNATIONAL

AMNESTY INTERNATIONAL

STATEMENT ON PUBLICATION OF PRESS RELEASE ON

UKRAINIAN FIGHTING TACTICS

7 AUGUST 2022

Statement on publication of press release on Ukrainian fighting tactics 

Amnesty International deeply regrets the distress and anger that our press release on the Ukrainian military’s fighting tactics has caused. Since Russian’s invasion began in February 2022, Amnesty International has been rigorously documenting and reporting on war crimes and violations committed in Ukraine, speaking to hundreds of victims and survivors whose stories illuminate the brutal reality of Russia’s war of aggression. We have challenged the world to demonstrate its solidarity with Ukrainians through concrete action, and we will continue to do so.  

Amnesty International’s priority in this and in any conflict is ensuring that civilians are protected; indeed, this was our sole objective when releasing this latest piece of research. While we fully stand by our findings, we regret the pain caused and wish to clarify a few crucial points. 

In our press release, we documented how in all 19 of the towns and villages we visited, we found instances where Ukrainian forces had located themselves right next to where civilians were living, thereby potentially putting them at risk from incoming Russian fire. We made this assessment based on the rules of international humanitarian law (IHL), which require all parties to a conflict to avoid locating, to the maximum extent feasible, military objectives within or near densely populated areas. The laws of war exist in part to protect civilians, and it is for this reason that Amnesty International urges governments to comply with them. 

This does not mean that Amnesty International holds Ukrainian forces responsible for violations committed by Russian forces, nor that the Ukrainian military is not taking adequate precautions elsewhere in the country. 

We must be very clear: Nothing we documented Ukrainian forces doing in any way justifies Russian violations. Russia alone is responsible for the violations it has committed against Ukrainian civilians. Amnesty’s work over the last six months and our multiple briefings and reports on Russia’s violations and war crimes reflect their scale and the gravity of their impact on civilians. 

Amnesty International wrote to the Ukrainian government detailing our findings on 29 July. In our letter, we included GPS coordinates and other sensitive information about the locations, including schools and hospitals, where we had documented Ukrainian forces basing themselves among civilians. We did not make this information public in our press release due to the security risks it would pose to both Ukrainian forces and to the civilians we interviewed. 

Amnesty International is not attempting to give the Ukrainian military detailed instructions regarding how they should operate – but we call on the relevant authorities to abide by their international humanitarian obligations in full. 

Amnesty International’s priority will always be ensuring that civilians’ lives and human rights are protected during conflict.

EINDE STATEMENT AMNESTY INTERNATIONAL

30]

GLOBAL TIMES

US KILLS QAEDA LEADER WITH DRONE STRIKE THAT

VIOLATES AFGHANISTAN’S SOVEREIGNTY

2 AUGUST 2022

https://www.globaltimes.cn/page/202208/1272046.shtml

A spokesperson for the Afghan Taliban on Tuesday condemned a US military strike on a residential house in Kabul, in which the US claimed al Qaeda leader Ayman al-Zawahiri was killed. Chinese experts said the so-called anti-terrorist action is a violation of the territorial sovereignty of Afghanistan and may be a strategy to gain political points at the upcoming midterm elections. 

The spokesperson for Afghan Taliban Zabihullah Mujahid confirmed on Tuesday in a statement that the airstrike on a house in the Shirpur area in Kabul was carried out by US drones, and called it “a clear violation of international principles and the Doha Agreement,” which the US signed with the Taliban in 2020 that led to the withdrawal of US forces.

US President Joe Biden announced on Monday that the US “successfully concluded an airstrike in Kabul that killed the emir of al Qaeda, Ayman al-Zawahiri,” and claimed that “now justice has been delivered,” according to a White House statement.

The US did not alert Taliban officials ahead of the strike, reported CNN. 

The White House statement claimed that none of Ayman al-Zawahiri’s family members were hurt, and there were no civilian casualties.  

Al-Zawahri was on the balcony of his house on Sunday when two Hellfire missiles were launched from an unmanned drone killing him, according to AP News. 

However, doubts are raised on the authenticity of such claims.  Li Wei, an expert on national security at the China Institute of Contemporary International Relations, said the drone attack in a densely populated area could have caused damage to surrounding buildings or even casualties among local residents considering the large impact of the Hellfire missiles. 

Experts said the US military attack was a violation of the territorial sovereignty of Afghanistan. 

“Any military activities and strikes within the territory of a country without first informing its government will constitute a violation of the sovereignty and territorial integrity of the country no matter what the legitimacy is,” Li told the Global Times on Tuesday.

The Taliban’s statement said Afghanistan “strongly condemns this attack on any cause.” 

The US has once again openly trampled on Afghan territorial sovereignty after its troops’ withdrawal in 2021, which proved that the country has “never really changed” despite its commitment. The strike aimed to show that it still has unmatched influence in Afghan affairs and to expunge the humiliation of having to leave Afghanistan, said a Beijing-based expert on international affairs who requested anonymity.

“The two-decade US-led war in Afghanistan is one of the main reasons why the country is still vulnerable to terrorism. The political chaos and economic depression in Afghanistan have made the whole country and even the region spin out of control for a long time, which has become a hotbed of terrorism and led to Afghanistan becoming a stronghold for many terrorist organizations,” said the expert. 

Some experts suspect the airstrike against Ayman al-Zawahiri came because the critical US midterm elections are close. The country has historically conducted anti-terrorism operations as a political tool to serve its political interests at home, Li said. 

Li added the solutions to eradicating terrorism come from addressing Afghan domestic issues, such as economic issues and people’s livelihoods, which the US is responsible for. 

The US is widely criticized in the world for illegally freezing $7 billion Afghan central bank assets. The international community has urged the US to unfreeze and return the money that belongs to the Afghan people in full to help overcome the humanitarian crisis in the country especially after a massive earthquake in June. 

EINDE ARTIKEL

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4) Did international law require the U.S. to get permission from the Taliban to conduct an airstrike in Afghanistan?

As a general proposition, “each State has complete and exclusive sovereignty over the airspace above its territory.”  In this instance, the situation is more complicated in that while the Taliban has become the de facto rulers of Afghanistan, no country has formally recognized them.  Nevertheless, they have objected to the strike.

LAW AND THE AYMAN AL-ZAWAHIRI AIRSTRIKE: A DOZEN QS & A’S

3 AUGUST 2022

https://sites.duke.edu/lawfire/2022/08/03/law-and-the-ayman-al-zawahiri-airstrike-a-dozen-qs-as/

ZIE VOOR GEHELE TEKST, NOOT 23

”No recognition

No country has yet recognized the Taliban as legitimate rulers of the country, mainly over their harsh treatment of Afghan women and girls.”

VOANEWS

TALIBAN SAY US IS ”BIGGEST HURDLE” TO DIPLOMATIC

RECOGNITION

https://www.voanews.com/a/taliban-say-us-is-biggest-hurdle-to-diplomatic-recognition/6623070.html

ISLAMABAD — 

Afghanistan’s Taliban have alleged the United States is blocking their way to securing international recognition for the Islamist group’s new government in Kabul.

The insurgent-turned-ruling group seized power last August and installed an all-male interim administration following the end of almost 20 years of U.S.-led foreign military intervention in the war-torn South Asian country.

“As far as recognition by foreign countries is concerned, I think the United States is the biggest obstacle,” chief Taliban spokesman Zabihullah Mujahid said when asked to explain whether his group’s policies or any country was responsible for the delay in winning the legitimacy.

“It [America] does not allow other countries to move in this direction and has itself not taken any step on this count either,” he said, while responding to reporters’ questions via a Taliban-run WhatsApp group for reporters.

Mujahid claimed that the Taliban had met “all the requirements” for their government to be given diplomatic recognition.

He asserted all countries, including the United States, need to realize that political engagement with the Taliban is in “everyone’s interest.” It would allow the world to formally discuss “the grievances” they have with the Taliban.

Mujahid insisted Taliban leaders “want better” bilateral ties with the U.S. in line with the agreement the two countries signed in Doha, Qatar, in February 2020. Washington also needs to move toward establishing better ties with Kabul, he said.

“We were enemies and fighting the United States so long as it had occupied Afghanistan. That war has ended now.”

No recognition

No country has yet recognized the Taliban as legitimate rulers of the country, mainly over their harsh treatment of Afghan women and girls. The group is also being pressed to govern the country through a broad-based political system where all Afghan groups have their representation to ensure long-term national stability.

Since taking control of Afghanistan 10 months ago, the Taliban have suspended secondary education for most teenage girls and prevented female staff in certain government departments from returning to their duties.

The Ministry for Vice and Virtue, tasked with interpreting and enforcing the Taliban’s version of Islam, has ordered women to wear face coverings in public. Women are barred from traveling beyond 70 kilometers unless accompanied by a male relative.

The Taliban have rejected calls for removing the curbs on women and Mujahid also defended them. “The orders… regarding women are in accordance with [Islamic] Shariah, and these are the rules of Shariah,” he asserted.

The Taliban are “religiously” obliged to implement Islamic Sharia to counter practices that Islam prohibits, Mujahid said, without elaborating.

“Hopefully Afghan women will also not make demands for things that are against the principles of Islam.”

Afghanistan’s immediate neighbors and regional countries also have urged Taliban authorities to ease their restrictions on women before they could consider opening formal ties with Kabul.

“[An] inclusive ethnopolitical government should be the first step toward this. We make no secret of this, and we say so outright to our Afghan partners,” Zamir Kabulov, Russian special envoy for Afghanistan, said earlier this week, when asked whether Moscow was close to giving the Taliban legitimacy.

Additionally, scholars in many Islamic countries have disapproved of the Taliban’s ban on female education and other policies limiting women’s access to public life.

Al-Qaida presence

Mujahid claimed neither al-Qaida nor any of its members are present in the country, saying they all left Afghanistan for their native countries after the October 2001 U.S.-led military invasion.

Washington blames leaders of the terrorist network for plotting the September 11, 2001, attacks on America from the then-Taliban-ruled Afghanistan.

At the time, only three countries — Pakistan, Saudi Arabia and the United Arab Emirates — had recognized the Taliban. During their rule from 1996-2001, the group had completely banned women from public life and girls from receiving an education, leading to Afghanistan’s diplomatic isolation.

Mujahid reiterated Kabul’s resolve that it will not allow anyone to threaten the U.S. and its allies by using Afghan soil. “We are ready for this, but only if further steps are taken to build mutual trust and strengthen political ties.”

A United Nations report said last month the Taliban continued to maintain close ties with al-Qaida, pointing to the reported presence of the network’s “core leadership” in eastern Afghanistan, including its leader, Ayman al-Zawahri.

The report noted, however, that neither al-Qaida nor the Islamic State Khorasan Province (ISIS-K) “is believed to be capable of mounting international attacks before 2023 at the earliest, regardless of their intent or of whether the Taliban acts to restrain them.”

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TRUTHOUT

BIDEN’S ASSASSINATION OF AL QAEDA LEADER AYMAN

AL-ZAWAHIRI WAS ILLEGAL

6 AUGUST 2022

Biden’s Assassination of al-Qaeda Leader Ayman al-Zawahiri Was Illegal

President Joe Biden’s assassination of al-Qaeda leader Ayman al-Zawahiri in Afghanistan was illegal under both U.S. and international law. After the CIA drone strike killed Zawahiri on August 2, Biden declared, “People around the world no longer need to fear the vicious and determined killer.” What we should fear instead is the dangerous precedent set by Biden’s unlawful extrajudicial execution.

In addition to being illegal, the killing of Zawahiri also occurred in a moment when the United Nations had already determined that people in the U.S. had little to fear from him. As a United Nations report released in July concluded, “Al Qaeda is not viewed as posing an immediate international threat from its safe haven in Afghanistan because it lacks an external operational capability and does not currently wish to cause the Taliban international difficulty or embarrassment.”

Just as former president Barack Obama stated that “Justice has been done” after he assassinated Osama bin Laden, Biden said, “Now justice has been delivered” when he announced the assassination of Zawahiri.

Retaliation, however, does not constitute justice.

Targeted, or political, assassinations are extrajudicial executions. They are deliberate and unlawful killings meted out by order of, or with acquiescence of, a government. Extrajudicial executions are implemented outside a judicial framework.

The fact that Zawahiri did not pose an imminent threat is precisely why his assassination was illegal.

Zawahiri’s Assassination Violated International Law

Extrajudicial executions are prohibited by the International Covenant on Civil and Political Rights (ICCPR), which the United States has ratified, making it part of U.S. law under the Constitution’s supremacy clause. Article 6 of the ICCPR states, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” In its interpretation of Article 6, The UN Human Rights Committee opined that all human beings are entitled to the protection of the right to life “without distinction of any kind, including for persons suspected or convicted of even the most serious crimes.”

“Outside the context of active hostilities, the use of drones or other means for targeted killing is almost never likely to be legal,” tweeted Agnès Callamard, UN special rapporteur on extrajudicial, summary or arbitrary executions. “Intentionally lethal or potentially lethal force can only be used where strictly necessary to protect against an imminent threat to life.” In order to be lawful, the United States would need to demonstrate that the target “constituted an imminent threat to others,” Callamard said.

Moreover, willful killing is a grave breach of the Geneva Conventions, punishable as a war crime under the U.S. War Crimes Act. A targeted killing is lawful only when deemed necessary to protect life, and no other means (including apprehension or nonlethal incapacitation) is available to protect life.

Zawahiri’s Assassination Violated U.S. Law

The drone strike that killed Zawahiri also violated the War Powers Resolution, which lists three situations in which the president can introduce U.S. Armed Forces into hostilities:

First, pursuant to a congressional declaration of war, which has not occurred since World War II. Second, in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” (Zawahiri’s presence in Afghanistan more than 20 years after the September 11, 2001, attacks did not constitute a “national emergency.”) Third, when there is “specific statutory authorization,” such as an Authorization for Use of Military Force (AUMF).

In 2001, Congress adopted an AUMF that authorized the president to use military force against individuals, groups and countries that had contributed to the 9/11 attacks “in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Zawahiri was one of a small circle of people widely believed to have planned the 2001 hijacking of four airplanes, three of which were flown into the Pentagon and World Trade Center buildings. But since he did not pose “an immediate international threat” before the U.S. targeted him for assassination, he should have been arrested and brought to justice in accordance with the law.

The attack against Zawahiri violated Obama’s targeting rules, which required that the target pose a “continuing imminent threat.” Although Donald Trump relaxed Obama’s rules, Biden is conducting a secret review to establish his own standards for targeting killing.

Biden Continues to Launch Illegal Drone Strikes

In spite of the Biden administration’s claim that no civilians were killed during the strike on Zawahiri, there has been no independent evidence to support that assertion.

The assassination of Zawahiri came nearly a year after Biden launched an illegal strike as he withdrew U.S. troops from Afghanistan. Ten civilians were killed in that attack. The U.S. Central Command admitted the strike was “a tragic mistake” after an extensive New York Times investigation put a lie to the prior U.S. declaration that it was a “righteous strike.”

Biden declared that although he was withdrawing U.S. forces from Afghanistan, he would mount “over-the-horizon” attacks from outside the country even without troops on the ground. We can expect the Biden administration to conduct future illegal drone strikes that kill civilians.

The 2001 AUMF has been used to justify U.S. military actions in 85 countries. Congress must repeal it and replace it with a new AUMF specifically requiring that any use of force comply with U.S. obligations under international law.

In addition, Congress should revisit the War Powers Resolution and explicitly limit the president’s authority to use force to that which is necessary to repel a sudden or imminent attack.

Finally, the United States must end its “global war on terror” once and for all. Drone strikes terrorize and kill countless civilians and make us more vulnerable to terrorism.

EINDE ARTIKEL TRUTHOUT

[33]

BBC

AYMAN AL-ZAWAHIRI: HOW US STRIKE COULD

KILL AL QAEDA LEADER-BUT NOT HIS FAMILY

https://www.bbc.com/news/world-us-canada-62400923

Just over an hour after sunrise on 31 July, long-time al-Qaeda boss Ayman al-Zawahiri walked out onto the balcony of a downtown Kabul compound – reportedly a favourite post-prayer activity of the veteran Egyptian jihadist.

It would be the last thing he would do.

At 06:18 local time (01:38 GMT), two missiles slammed into the balcony, killing the 71-year-old but leaving his wife and daughter unscathed inside. All the damage from the strike appears to be centred on the balcony.

How was it possible to strike so precisely? In the past the US has faced criticism for strikes and targeting errors that have killed civilians.

But in this case, here’s how the type of missile, and a close study of Zawahiri’s habits, made it happen – and why more strikes could follow.

Laser accuracy

The type of missile used was key – and these were said by US officials to be drone-fired Hellfires – a type of air-to-surface missile that has become a fixture of US counter-terrorism operations overseas in the decades since the 11 September 2001 attacks.

The missile can be fired from a variety of platforms, including helicopters, ground vehicles, ships and fixed wing aircraft – or, in Zawahiri’s case, from an unmanned drone.

The US is believed to have used Hellfires to kill Iranian general Qassem Soleimani in Baghdad in early 2020, and the British-born Islamic State jihadist known as “Jihadi John” in Syria in 2015.

Among the main reasons for the Hellfire’s repeated use is its precision.

When a missile is launched from a drone, a weapons operator – sometimes sitting in an air-conditioned control room as far away as the continental US – sees a live video stream of the target, which the drone’s camera sensors feed back via satellite.

Using a set of “targeting brackets” on the screen, the camera operator is then able to “lock up” the target and point a laser at it. Once the missile is fired, it follows the path of that laser until striking the target.

There are clear, sequential procedures the crew operating the drone must follow before taking action, to minimise the risk of civilian casualties. In past US military or CIA strikes, this has included calling on military lawyers for consultations before the order to fire is given.

Professor William Banks, an expert on targeted killings and the founder of the Syracuse University Institute for Security Policy and Law, said that officials would have had to balance the risk of civilian deaths with the value of the target.

The Zawahiri strike, he added, “sounds like a model application” of the process.

“It sounds like they were very careful and deliberate in this instance to find him in a location and at a time when they could hit just him and not harm any other person,” Prof Banks said.

In the case of the Zawahiri strike, it has been suggested, but not confirmed, that the US also used a relatively unknown version of the Hellfire – the R9X – which deploys six blades to slice through targets using its kinetic energy.

In 2017, another al-Qaeda leader and one of Zawahiri’s deputies, Abu Khayr al-Masri, was reportedly killed with an R9X Hellfire in Syria. Photos of his vehicle taken after the strike showed that the missile had cut a hole in the roof and shredded its occupants, but without signs of an explosion or any further destruction to the vehicle.

US tracked Zawahiri’s ‘balcony habit’

Details are still emerging about what intelligence the US gathered before launching the Kabul strike.

In the aftermath of the attack, however, US officials said they had enough information to understand Zawahiri’s “pattern of life” at the house – such as his balcony habit.

This suggests US spies had been watching the house for weeks, if not months.

Marc Polymeropoulos, a former senior official at the CIA, told the BBC that it is likely that a variety of intelligence methods were used before the strike, including spies on the ground and signals intelligence.

Some have also speculated that US drones or aircraft took turns monitoring the location for weeks or months, unheard and unseen from the ground below.

“You need something that’s near certainty that it is the individual, and it also has to be done in a collateral free environment, meaning no civilian casualties,” he said. “It takes a lot of patience.”

The Zawahiri strike, Mr Polymeropoulos added, benefited from the US intelligence community’s decades of experience tracking down individual al-Qaeda figures and other terrorist targets.

“We are outstanding at this. It’s something that the US government has gotten very good at over 20 years,” he said. “And Americans are far safer for it.”

However, US operations of this kind do not always go according to plan. On 29 August 2021, a drone strike on a car just north of Kabul airport, intended to target a local branch of the Islamic State group, killed 10 innocent people instead. The Pentagon acknowledged that a “tragic mistake” had been made.

Bill Roggio, a senior fellow at the Foundation for Defence of Democracies who has been tracking US drone strikes for many years, said that the Zawahiri strike was likely “much more difficult” than previous killings to execute, given the absence of any US government presence or assets nearby.

Past drone strikes against nearby Pakistan, for example, were flown from Afghanistan, while strikes against Syria would have been conducted from friendly territory in Iraq.

“[In those places] it was far easier for the US to reach those areas. It had assets on the ground. This was far more complicated,” he said. “This is the first strike against al-Qaeda or the Islamic State in Afghanistan since the US left. This isn’t a common occurrence.”

Could this happen again?

Mr Roggio said he “wouldn’t be surprised” if similar strikes against al-Qaeda targets take place in Afghanistan again.

“There is no dearth of targets,” he said. “The potential next leaders [of al-Qaeda] will very likely be moving to Afghanistan, if they’re not there already.”

“The question is if the US still has the ability to do this with ease, or is it going to be a difficult process?” he added.

EINDE ARTIKEL BBC

[29]

THE NEW YORK TIMES

US SAYS AL QAEDA HAS NOT REGROUPED IN AFGHANISTAN

https://www.nytimes.com/2022/08/13/us/politics/al-qaeda-afghanistan.html

A new intelligence assessment of the Al Qaeda threat was prepared after a drone strike killed Ayman al-Zawahri, the group’s leader. But some outside counterterrorism specialists said it was overly optimistic.

WASHINGTON — American spy agencies have concluded in a new intelligence assessment that Al Qaeda has not reconstituted its presence in Afghanistan since the U.S. withdrawal last August and that only a handful of longtime Qaeda members remain in the country.

The terror group does not have the ability to launch attacks from the country against the United States, the assessment said. Instead, it said, Al Qaeda will rely on, at least for now, an array of loyal affiliates outside the region to carry out potential terrorist plots against the West.

But several counterterrorism analysts said the spy agencies’ judgments represented an optimistic snapshot of a complex and fast-moving terrorist landscape. The assessment, a declassified summary of which was provided to The New York Times, represents the consensus views of the U.S. intelligence agencies.

“The assessment is substantially accurate, but it’s also the most positive outlook on a threat picture that is still quite fluid,” said Edmund Fitton-Brown, a former top U.N. counterterrorism official.

The assessment was prepared after Ayman al-Zawahri, Al Qaeda’s top leader, was killed in a C.I.A. drone strike in Kabul last month. The death of al-Zawahri, one of the world’s most wanted terrorist leaders, after a decades-long manhunt was a major victory for President Biden, but it raised immediate questions about al-Zawahri’s presence in Afghanistan a year after Mr. Biden withdrew all American forces, clearing the way for the Taliban to regain control of the country.

Republicans have said that the president’s pullout has endangered the United States. The fact the Qaeda leader felt safe enough to return to the Afghan capital, they argue, was a sign of a failed policy that they predicted would allow Al Qaeda to rebuild training camps and plot attacks despite the Taliban’s pledge to deny the group a safe haven. Last October, a top Pentagon official said Al Qaeda could be able to regroup in Afghanistan and attack the United States in one to two years.

Administration officials have pushed back on the most recent criticisms, noting a pledge Mr. Biden made when he announced al-Zawahri’s death.

“As President Biden has said, we will continue to remain vigilant, along with our partners, to defend our nation and ensure that Afghanistan never again becomes a safe haven for terrorism,” Adrienne Watson, a spokeswoman for the White House’s National Security Council, said in an email on Saturday.

Yet some outside counterterrorism specialists saw the new intelligence assessment as overly hopeful.

A U.N. report warned this spring that Al Qaeda had found “increased freedom of action” in Afghanistan since the Taliban seized power. The report noted that a number of Qaeda leaders were possibly living in Kabul and that the uptick in public statements by al-Zawahri suggested that he was able to lead more effectively after the Taliban seized power.

This seems like an overly rosy assessment to the point of being slightly myopic,” Colin P. Clarke, a counterterrorism analyst at the Soufan Group, a security consulting firm based in New York, said of the intelligence analysis. He added that the summary said “little about the longer-term prospects of Al Qaeda.”

Al-Zawahri’s death has once again cast a spotlight on Al Qaeda, which after Osama bin Laden’s death in 2011 has largely been overshadowed by an upstart rival, the Islamic State. Many terrorism analysts said Saif al-Adel, a senior Qaeda leader wanted by the F.B.I. in the bombings of two United States embassies in East Africa in 1998, was likely to succeed al-Zawahri. He is believed to be living in Iran.

“Basically, I find the I.C. assessment convincing,” said Daniel Byman, a professor at Georgetown University, referring to the U.S. intelligence community and its new analysis of Al Qaeda in Afghanistan. Mr. Byman has in the past voiced skepticism about a resurgent Qaeda threat.

But other counterterrorism experts disagreed. One point of dispute involved claims in the intelligence summary that Al Qaeda had not reconstituted its threat network in Afghanistan and that al-Zawahri was the only major figure who sought to reestablish Al Qaeda’s presence in the country when he and his family settled in Kabul this year.

“Zawahri was THE leader of Al Qaeda, so his being protected by the Taliban while he provided more active guidance to the group was in of itself reconstitution,” Asfandyar Mir, a senior expert at the United States Institute of Peace, wrote in an email.

“This approach fails to account for the group Al Qaeda is today and the fact that even a small number of core leaders can leverage Afghanistan to politically direct the group’s affiliate network,” Mr. Mir wrote. “Al Qaeda doesn’t need large training camps to be dangerous.”

Some counterterrorism experts also took issue with the government analysts’ judgment that fewer than a dozen Qaeda members with longtime ties to the group are in Afghanistan, and that most of those members were likely there before the fall of the Afghan government last summer.

“Their numbers of active, hard-core Al Qaeda in AfPak make no sense,” said Bruce Hoffman, a terrorism scholar at the Council on Foreign Relations, referring to Afghanistan and Pakistan. “At least three dozen senior Qaeda commanders were freed from Afghan jails a year ago. I very much doubt they have turned to farming or accounting as their post-prison vocations.”

Mr. Hoffman said that Qaeda operatives or their affiliates had been given important administrative responsibilities in at least eight Afghan provinces. He suggested the timing of the government assessment was “to deflect attention from the disastrous consequences of last year’s shambolic withdrawal from Afghanistan.”

The intelligence summary also said that members of the Qaeda affiliate in Afghanistan, formerly known as Al Qaeda in the Indian Subcontinent, or AQIS, were largely inactive and focused mainly on activities like media production.

But a U.N. report in July estimated that the Qaeda affiliate had between 180 to 400 fighters — “primarily from Bangladesh, India, Myanmar and Pakistan” — who were in several Taliban combat units.

“We know from a range of sources that AQIS participated in the Taliban’s insurgency against the U.S. as well as operations against ISIS-K,” Mr. Mir said, referring to the Islamic State’s branch in Afghanistan, a bitter rival of Al Qaeda.

There was broad agreement on at least two main points in the intelligence summary, including that Al Qaeda does not yet have the ability to attack the United States or American interests aboard from Afghan soil.

The U.N. report in July concurred with that judgment, explaining that Al Qaeda “is not viewed as posing an immediate international threat from its safe haven in Afghanistan because it lacks an external operational capability and does not currently wish to cause the Taliban international difficulty or embarrassment.”

And government analysts as well as outside terrorism experts agreed that Al Qaeda in Afghanistan would, in the short term, most likely call upon a range of affiliates outside the region to carry out plots.

None of these affiliates pose the same kind of threat to the American homeland that Al Qaeda did on Sept. 11, 2001. But they are deadly and resilient. The Qaeda affiliate in East Africa killed three Americans at a U.S. base in Kenya in 2020. A Saudi Air Force officer training in Florida killed three sailors and wounded eight other people in 2019. The officer acted on his own but was in contact with the Qaeda branch in Yemen as he completed his attack plans.

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ZIE NOOT 23

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“Al Qaeda is not viewed as posing an immediate international threat from its safe haven in Afghanistan because it lacks an external operational capability and does not currently wish to cause the Taliban international difficulty or embarrassment,” the U.N. report concluded.”

THE NEW YORK TIMES

AL-ZAWAHIRI’S DEATH PUTS THE FOCUS BACK ON AL-QAEDA

https://www.nytimes.com/2022/08/02/us/politics/al-qaeda-terrorism-isis.html

The terrorist network has lost eight of its top leaders in recent years. But it has more total fighters than it did on Sept. 11, 2001.

WASHINGTON — No terrorist group, not even the Islamic State, has had the notoriety and immediate name recognition of Al Qaeda.

But the killing of the group’s leader, Ayman al-Zawahri, in a C.I.A. drone strike early Sunday marks a pivotal inflection point for the global organization. Eight of its top leaders have been killed in the past three years, and it is unclear who will succeed al-Zawahri.

Yet Al Qaeda is in more countries and has more total fighters than it did on Sept. 11, 2001, when it attacked the United States. Some of its franchises that have sprung up since then, particularly in Somalia and the Sahel region of West Africa, are ascendant, seizing

swaths of territory from weak governments and spending millions of dollars on new weapons, despite a decade’s effort to weaken and contain them.

None of these affiliates pose the same kind of threat to the American homeland that Al Qaeda did on Sept. 11. But they are deadly and resilient. The Qaeda affiliate in East Africa killed three Americans at a U.S. base in Kenya in 2020. A Saudi officer training in Florida killed three sailors and wounded eight other people in 2019. The officer acted on his own but was in contact with the Qaeda branch in Yemen as he completed his attack plans.

And as al-Zawahri’s presence in Kabul suggests, Al Qaeda and its leaders feel confident moving around Afghanistan, now that the Taliban are back in control of the country, counterterrorism officials said.

“The question isn’t what this does to Al Qaeda, but what does this do to the witches’ brew of terrorists in Afghanistan?” said Brian Katulis, the vice president for policy at the Middle East Institute.

Al Qaeda is not the only global terrorist network in transition. A risky predawn raid in northwest Syria in early February by U.S. Special Operations forces resulted in the death of the Islamic State’s overall leader, Abu Ibrahim al-Hashimi al-Qurayshi. ISIS fighters have reverted to a guerrilla war since the last remnant of its caliphate, or religious state, in Syria was seized by U.S.-backed Syrian Kurds in 2019.

But al-Zawahri’s death puts the focus back on Al Qaeda, which had largely been overshadowed by its upstart Islamic State rival, also known as ISIL, after Osama bin Laden’s death in 2011. Many terrorism analysts said Saif al-Adel, a senior Qaeda leader wanted by the F.B.I. in the bombings of two United States embassies in East Africa in 1998, was likely to succeed al-Zawahri. He is believed to be living in Iran.

“The international context is favorable to Al Qaeda, which intends to be recognized again as the leader of global jihad,” a U.N. report concluded in July. “Al Qaeda propaganda is now better developed to compete with ISIL as the key actor in inspiring the international threat environment, and it may ultimately become a greater source of directed threat.”

Afghanistan

No country is under greater U.S. scrutiny for a comeback by Al Qaeda than Afghanistan. In announcing al-Zawahri’s death on Monday, President Biden said the strike would help ensure that Afghanistan could no longer “become a terrorist safe haven” or a “launching pad” for attacks against the United States.

But the withdrawal of U.S. forces from the country last August put pressure on the military and spy agencies to watch for a Qaeda resurgence with only limited informant networks on the ground and drones flying from the Persian Gulf on “over the horizon” surveillance missions.

This spring, another U.N. report cautioned that Al Qaeda had found “increased freedom of action” in Afghanistan since the Taliban seized power. The report noted that a number of Qaeda leaders were possibly living in Kabul and that an increase in public statements and videos by al-Zawahri suggested that he was able to lead more effectively and more openly after the Taliban took control.

But the intelligence shared by U.N. member nations in the July report indicated that Al Qaeda did not pose the same immediate threat as the Islamic State affiliate in Afghanistan.

“Al Qaeda is not viewed as posing an immediate international threat from its safe haven in Afghanistan because it lacks an external operational capability and does not currently wish to cause the Taliban international difficulty or embarrassment,” the U.N. report concluded.

Somalia

The wealthiest and most lethal Qaeda affiliate today is Al Shabab, the franchise in Somalia and the rest of East Africa, military and counterterrorism officials said.

According to the most recent U.N. report, Al Shabab currently has 7,000 to 12,000 fighters and is spending approximately $24 million a year — a quarter of its budget — on weapons and explosives, and increasingly on drones.

And the threat is getting worse. “It is my judgment that due to a lack of effective governance and counterterrorism pressure, Al Shabab has only grown stronger and bolder over the past year,” Gen. Stephen J. Townsend, the head of the Pentagon’s Africa Command, told the Senate in March.

In the latest sign of trouble, almost 500 Shabab fighters crossed into eastern Ethiopia last month and clashed with Ethiopian forces along the border, General Townsend said.

In May, Mr. Biden signed an order authorizing the Pentagon to redeploy hundreds of Special Operations forces inside Somalia — largely reversing a decision by President Donald J. Trump to withdraw nearly all 700 ground troops who had been stationed there.

In addition, Mr. Biden approved a Pentagon request for standing authority to target about a dozen suspected leaders of Al Shabab. Since Mr. Biden took office, airstrikes in Somalia have largely been limited to those meant to defend partner forces facing an immediate threat.

Together, the decisions by Mr. Biden resurrected an open-ended American counterterrorism operation that amounted to a low-grade war through three administrations.

Military officials said the total number of U.S. troops having a “persistent presence” in Somalia would be capped at around 450. That will replace a system in which U.S. troops trained and advised Somali and African Union forces during short visits.

The Biden administration’s strategy in Somalia is to try to reduce the threat from Al Shabab by suppressing its ability to plot and carry out complicated operations, such as the attack on a U.S. air base at Manda Bay, Kenya, in January 2020 that killed three Americans.

West Africa

In the Sahel, the vast arid region south of the Sahara, militants from both Al Qaeda and the Islamic State have been fighting local governments in countries like Mali and Burkina Faso for years.

Despite the arrival of French troops and a U.N. peacekeeping force, militants spread across Mali and then to neighboring nations. In Burkina Faso, to the south, nearly two million people have been displaced by the conflict.

Countries on the Gulf of Guinea, like Benin and Ivory Coast, have also suffered sporadic attacks as the violence seeps south. The Qaeda affiliate, known as JNIM, trains recruits in Burkina Faso before redeploying them “to their countries of origin,” the July U.N. report said.

Syria

The most serious terrorism concerns in Syria focus on the thousands of Islamic State fighters in the country’s northeast.

American counterterrorism officials have voiced alarm in recent years about a Qaeda affiliate in Syria, Hurras al-Din, that they say is plotting attacks against the West by exploiting the chaotic security situation in the country’s northwest and the protection inadvertently afforded by Russian air defenses shielding Syrian government forces.

But recent U.S. airstrikes, such as one in June in Idlib Province that the military said killed Abu Hamzah al Yemeni, one of the group’s senior leaders, have eased some of the worries.

Yemen

For more than a decade, Al Qaeda’s affiliate in Yemen was one of the most dangerous terrorist organizations on the planet. The group spent years inventing explosives that were difficult to detect, including trying to disguise bombs in devices like cellphones. It has tried at least three times to blow up American airliners, without success.

But several of the group’s leaders have been killed in recent years, damaging its ability to orchestrate or carry out operations against the West, American and European counterterrorism specialists say.

Clashes with rival Islamic State and Houthi rebel fighters in Yemen have also weakened the group, whose full name is Al Qaeda in the Arabian Peninsula, or AQAP. Even though the group has been diminished, intelligence and counterterrorism officials warn that the organization remains dangerous.

[24]

”You know, al-Zawahiri was bin Laden’s leader.  He was with him all the — the whole time.  He was his number-two man, his deputy at the time of the terrorist attack of 9/11.  He was deeply involved in the planning of 9/11, one of the most responsible for the attacks that murdered 2,977 people on American soil. 
For decades, he was a mastermind behind attacks against Americans, including the bombing of the USS Cole in 2000, which killed 17 American sailors and wounded dozens more. 

He played a key role — a key role in the bombing of U.S. embassies in Kenya and Tanzania, killing 224 and wounding over 4,500 others.

He carved a trail of murder and violence against American citizens, American service members, American diplomats, and American interests.  And since the United States delivered justice to bin Laden 11 years ago, Zawahiri has been a leader of al Qaeda — the leader. ”

THE WHITE HOUSE

REMARKS BY PRESIDENT BIDEN ON A SUCCESFUL COUNTERTERRORISM

OPERATION IN AFGHANISTAN

AUGUST 01 2022\

https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/08/01/remarks-by-president-biden-on-a-successful-counterterrorism-operation-in-afghanistan/

ZIE VOOR GEHELE TEKST, NOOT 23

[25]

”It is important to distinguish between reprisals, acts of revenge, and retaliation. Acts of revenge are never authorized under international law, while retaliation and reprisals are foreseen by humanitarian law.”

DOCTORS WITHOUT BORDERS

THE PRACTICAL GUIDE TO HUMANITARIAN LAW

https://guide-humanitarian-law.org/content/article/3/reprisals/#:~:text=Acts%20of%20revenge%20are%20never,%2C%20reciprocal%20expulsion%20of%20diplomats).

Reprisals

Reprisals are measures of pressure that derogate from the normal rules of international law: they are carried out by a State in response to unlawful acts committed against it by another State and are intended to force that State to respect the law. Reprisals may also be carried out in response to an attack. The question of the legality of reprisals has been in debate since conventional (positive) international law—which includes the UN Charter—posited that States are prohibited from using force, except in case of individual or collective self-defense (Art. 51 of the UN Charter).

In times of conflict, reprisals are considered legal under certain conditions: they must be carried out in response to a previous attack, they must be proportionate to that attack, and they must be aimed only at combatants and military objectives.

Humanitarian law hence forbids all reprisals against civilian persons and objects protected by the 1949 Geneva Conventions and their 1977 Additional Protocols. These include wounded, sick, or shipwrecked persons; medical or religious personnel, units, transports, or material; prisoners of war; civilian persons or civilian objects; cultural property or places of worship; objects indispensable to the survival of the civilian population; the natural environment; works and installations containing dangerous forces; and buildings and material used for the protection of the civilian population (GCI Art. 46; GCII Art. 47; GCIII Art. 13; GCIV Art. 33; API Arts. 20 and 51–56).

It is important to distinguish between reprisals, acts of revenge, and retaliation. Acts of revenge are never authorized under international law, while retaliation and reprisals are foreseen by humanitarian law.

Measures of retaliation are acts by which a State responds to unfriendly, but lawful, acts by another State (for instance, reciprocal expulsion of diplomats).

Reprisals must always be proportionate to the attacks to which they are responding and must never aim at civilians or protected objects. If these conditions are not respected, then it is an act of revenge.

Conditions of Reprisals under Customary IHL

Under customary international humanitarian law, the use of reprisals is subjected to strict conditions. Those conditions are provided for in the study on the rules of customary international humanitarian law published by the ICRC in 2005.

• Rule 145: Where not prohibited by international law, belligerent reprisals are subject to stringent conditions in international armed conflicts.
• Rule 146: Belligerent reprisals against persons protected by the Geneva Conventions are prohibited in international armed conflicts.
• Rule 147: Reprisals against objects protected under the Geneva Conventions and Hague Convention for the Protection of Cultural Property are prohibited in international armed conflicts.
• Rule 148: Parties to non-international armed conflicts do not have the right to resort to belligerent reprisals. Other countermeasures against persons who do not or who have ceased to take a direct part in hostilities are prohibited.

In case of reprisals, military commanders have the duty to implement the precautionary measures foreseen by international law with regard to methods of warfare. Humanitarian law specifies the individual responsibility of each member of the armed forces with regard to such actions.

▸ Attacks ▸ Duty of commanders ▸ Methods (and means) of warfare ▸ Protected objects and property ▸ Protected persons ▸ Proportionality ▸ Responsibility ▸ Self-defense

Jurisprudence

The ICTY considered that customary international law prohibits reprisals against civilian population and goods (ICTY Trial Chamber, Martic Case , 8 March 1996, paras. 15–17). This is due to the fact that humanitarian law is a law that protects individuals—as human beings—rather than States. Therefore, violations of humanitarian law by a party may not justify in return reprisals against a civilian population (ICTY Trial Chamber, Kupreskic Case , 17 January 2000, paras. 527–36).

For Additional Information: Kalshoven, Frits. Belligerent Reprisals . Leiden: Martinus Nijioff, 2005.

Nahlik, Stanislaw-Edward. “From Reprisals to Individual Penal Responsibility.” In Humanitarian Law of Armed Conflict: Challenges Ahead; Essays in Honor of Frits Kalshoven , edited by Astrid J. M. Delissen and Gerard J. Tanja, 165–76. The Hague: Martinus Nijhoff, 1991.

Obradovic, Konstantion. “Prohibition of Reprisals in Protocol I: Greater Protection for War Victims.” International Review of the Red Cross 320 (September–October 1997): 524–28.

[26]

”“Outside the context of active hostilities, the use of drones or other means for targeted killing is almost never likely to be legal,” tweeted Agnès Callamard, UN special rapporteur on extrajudicial, summary or arbitrary executions.”

TRUTHOUT

BIDEN’S ASSASSINATION OF AL-QAEDA LEADER

AYMAN AL-ZAWAHIRI WAS ILLEGAL

Biden’s Assassination of al-Qaeda Leader Ayman al-Zawahiri Was Illegal

ZIE VOOR GEHELE TEKST, NOOT 27

TWEET AGNES CALLAMARD

#Iraq: The targeted killings of Qasem Soleiman and Abu Mahdi Al-Muhandis are most lokely unlawful and violate international human rights law: Outside the context of active hostilities, the use of drones or other means for targeted killing is almost never likely to be legal (1)

— Agnes Callamard (@AgnesCallamard) January 3, 2020

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#Iraq: The targeted killings of Qasem Soleiman and Abu Mahdi Al-Muhandis are most lokely unlawful and violate international human rights law: Outside the context of active hostilities, the use of drones or other means for targeted killing is almost never likely to be legal (1)

[21]

COMMONDREAMS

WARCRIMES AND THE LIE OF AMERICAN INNOCENCE

CHRIS HEDGES

23 MARCH 2022

https://www.commondreams.org/views/2022/03/23/war-crimes-and-lie-american-innocence

Our hypocrisy on war crimes makes a rules-based world, one that abides by international law, impossible.

The branding of Vladimir Putin as a war criminal by Joe Biden, who lobbied for the Iraq war and staunchly supported the 20 years of carnage in the Middle East, is one more example of the hypocritical moral posturing sweeping across the United States. It is unclear how anyone would try Putin for war crimes since Russia, like the United States, does not recognize the jurisdiction of the International Criminal Court in The Hague. But justice is not the point. Politicians like Biden, who do not accept responsibility for our well-documented war crimes, bolster their moral credentials by demonizing their adversaries. They know the chance of Putin facing justice is zero. And they know their chance of facing justice is the same.

We know who our most recent war criminals are, among others: George W. Bush, Dick Cheney, Donald Rumsfeld, General Ricardo Sanchez, former CIA Director George Tenet, former Asst. Atty. Gen. Jay Bybee, former Dep. Asst. Atty. Gen. John Yoo, who set up the legal framework to authorize torture; the helicopter pilots who gunned down civilians, including two Reuters journalists, in the “Collateral Murder” video released by WikiLeaks. We have evidence of the crimes they committed.

But, like Putin’s Russia, those who expose these crimes are silenced and persecuted. Julian Assange, even though he is not a US citizen and his WikiLeaks site is not a US-based publication, is charged under the US Espionage Act for making public numerous US war crimes. Assange, currently housed in a high security prison in London, is fighting a losing battle in the British courts to block his extradition to the United States, where he faces 175 years in prison. One set of rules for Russia, another set of rules for the United States. Weeping crocodile tears for the Russian media, which is being heavily censored by Putin, while ignoring the plight of the most important publisher of our generation speaks volumes about how much the ruling class cares about press freedom and truth.

If we demand justice for Ukrainians, as we should, we must also demand justice for the one million people killed—400,000 of whom were noncombatants—by our invasions, occupations and aerial assaults in Iraq, Afghanistan, Syria, Yemen, and Pakistan. We must demand justice for those who were wounded, became sick or died because we destroyed hospitals and infrastructure. We must demand justice for the thousands of soldiers and marines who were killed, and many more who were wounded and are living with lifelong disabilities, in wars launched and sustained on lies. We must demand justice for the 38 million people who have been displaced or become refugees in Afghanistan, Iraq, Pakistan, Yemen, Somalia, the Philippines, Libya, and Syria, a number that exceeds the total of all those displaced in all wars since 1900, apart from World War II, according to the Watson Institute for International & Public Affairs at Brown University. Tens of millions of people, who had no connection with the attacks of 9/11, were killed, wounded, lost their homes, and saw their lives and their families destroyed because of our war crimes. Who will cry out for them?

Every effort to hold our war criminals accountable has been rebuffed by Congress, by the courts, by the media and by the two ruling political parties. The Center for Constitutional Rights, blocked from bringing cases in US courts against the architects of these preemptive wars, which are defined by post-Nuremberg laws as “criminal wars of aggression,” filed motions in German courts to hold US leaders to account for gross violations of the Geneva Convention, including the sanctioning of torture in black sites such as Guantánamo and Abu Ghraib. 

Those who have the power to enforce the rule of law, to hold our war criminals to account, to atone for our war crimes, direct their moral outrage exclusively at Putin’s Russia. “Intentionally targeting civilians is a war crime,” Secretary of State Anthony Blinken said, condemning Russia for attacking civilian sites, including a hospital, three schools and a boarding school for visually impaired children in the Luhansk region of Ukraine. “These incidents join a long list of attacks on civilian, not military locations, across Ukraine,” he said. Beth Van Schaack, an ambassador-at-large for global criminal justice, will direct the effort at the State Department, Blinken said, to “help international efforts to investigate war crimes and hold those responsible accountable.”

This collective hypocrisy, based on the lies we tell ourselves about ourselves, is accompanied by massive arms shipments to Ukraine. Fueling proxy wars was a specialty of the Cold War. We have returned to the script. If Ukrainians are heroic resistance fighters, what about Iraqis and Afghans, who fought as valiantly and as doggedly against a foreign power that was every bit as savage as Russia? Why weren’t they lionized? Why weren’t sanctions imposed on the United States? Why weren’t those who defended their countries from foreign invasion in the Middle East, including Palestinians under Israeli occupation, also provided with thousands of anti-tank weapons, anti-armor weapons, anti-aircraft weapons, helicopters, Switchblade or “Kamikaze” drones, hundreds of Stinger anti-aircraft systems, Javelin anti-tank missiles, machine guns and millions of rounds of ammunition? Why didn’t Congress rush through a $13.6 billion package to provide military and humanitarian assistance, on top of the $1.2 billion already provided to the Ukrainian military, for them?

Well, we know why. Our war crimes don’t count, and neither do the victims of our war crimes. And this hypocrisy makes a rules-based world, one that abides by international law, impossible.

This hypocrisy is not new. There is no moral difference between the saturation bombing the US carried out on civilian populations since World War II, including in Vietnam and Iraq, and the targeting of urban centers by Russia in Ukraine or the 9/11 attacks on the World Trade Center. Mass death and fireballs on a city skyline are the calling cards we have left across the globe for decades. Our adversaries do the same. 

The deliberate targeting of civilians, whether in Baghdad, Kyiv, Gaza, or New York City, are all war crimes. The killing of at least 112 Ukrainian children, as of March 19, is an atrocity, but so is the killing of 551 Palestinian children during Israel’s 2014 military assault on Gaza. So is the killing of 230,000 people over the past seven years in Yemen from Saudi bombing campaigns and blockades that have resulted in mass starvation and cholera epidemics. Where were the calls for a no-fly zone over Gaza and Yemen? Imagine how many lives could have been saved.

War crimes demand the same moral judgment and accountability. But they don’t get them. And they don’t get them because we have one set of standards for white Europeans, and another for non-white people around the globe. The western media has turned European and American volunteers flocking to fight in Ukraine into heroes, while Muslims in the west who join resistance groups battling foreign occupiers in the Middle East are criminalized as terrorists. Putin has been ruthless with the press. But so has our ally the de facto Saudi ruler Mohammed bin Salman, who ordered the murder and dismemberment of my friend and colleague Jamal Khashoggi, and who this month oversaw a mass execution of 81 people convicted of criminal offenses. The coverage of Ukraine, especially after spending seven years reporting on Israel’s murderous assaults against the Palestinians, is another example of the racist divide that defines most of the western media. 

World War II began with an understanding, at least by the allies, that employing industrial weapons against civilian populations was a war crime. But within 18 months of the start of the war, the Germans, Americans and British were relentlessly bombing cities. By the end of the war, one-fifth of German homes had been destroyed. One million German civilians were killed or wounded in bombing raids. Seven-and-a-half million Germans were made homeless. The tactic of saturation bombing, or area bombing, which included the firebombing of Dresden, Hamburg and Tokyo, which killed more than 90,000 Japanese civilians in Tokyo and left a million people homeless, and the dropping of the atomic bombs on Hiroshima and Nagasaki, which took the lives of between 129,000 and 226,000 people, most of whom were civilians, had the sole purpose of breaking the morale of the population through mass death and terror. Cities such as Leningrad, Stalingrad, Warsaw, Coventry, Royan, Nanjing and Rotterdam were obliterated. 

It turned the architects of modern war, all of them, into war criminals.

Civilians in every war since have been considered legitimate targets. In the summer of 1965, then-Secretary of Defense Robert McNamara called the bombing raids north of Saigon that left hundreds of thousands of dead an effective means of communication with the government in Hanoi. McNamara, six years before he died, unlike most war criminals, had the capacity for self-reflection. Interviewed in the documentary, “The Fog of War,” he was repentant, not only about targeting Vietnamese civilians but about the aerial targeting of civilians in Japan in World War II, overseen by Air Force General Curtis LeMay.

“LeMay said if we’d lost the war, we’d all have been prosecuted as war criminals,” McNamara said in the film. “And I think he’s right…LeMay recognized that what he was doing would be thought immoral if his side had lost. But what makes it immoral if you lose, and not immoral if you win?”

LeMay, later head of the Strategic Air Command during the Korean War, would go on to drop tons of napalm and firebombs on civilian targets in Korea which, by his own estimate, killed 20 percent of the population over a three-year period.

Industrial killing defines modern warfare. It is impersonal mass slaughter. It is administered by vast bureaucratic structures that perpetuate the killing over months and years. It is sustained by heavy industry that produces a steady flow of weapons, munitions, tanks, planes, helicopters, battleships, submarines, missiles, and mass-produced supplies, along with mechanized transports that ferry troops and armaments by rail, ship, cargo planes and trucks to the battlefield. It mobilizes industrial, governmental and organization structures for total war. It centralizes systems of information and internal control. It is rationalized for the public by specialists and experts, drawn from the military establishment, along with pliant academics and the media.

Industrial war destroys existing value systems that protect and nurture life, replacing them with fear, hatred, and a dehumanization of those who we are made to believe deserve to be exterminated. It is driven by emotions, not truth or fact. It obliterates nuance, replacing it with an infantile binary universe of us and them. It drives competing narratives, ideas and values underground and vilifies all who do not speak in the national cant that replaces civil discourse and debate. It is touted as an example of the inevitable march of human progress, when in fact it brings us closer and closer to mass obliteration in a nuclear holocaust. It mocks the concept of individual heroism, despite the feverish efforts of the military and the mass media to sell this myth to naïve young recruits and a gullible public. It is the Frankenstein of industrialized societies. War, as Alfred Kazin warned, is “the ultimate purpose of technological society.” Our real enemy is within.  

Historically, those who are prosecuted for war crimes, whether the Nazi hierarchy at Nuremberg or the leaders of Liberia, Chad, Serbia, and Bosnia, are prosecuted because they lost the war and because they are adversaries of the United States.

There will be no prosecution of Saudi Arabian rulers for the war crimes committed in Yemen or for the US military and political leadership for the war crimes they carried out in Afghanistan, Iraq, Syria and Libya, or a generation earlier in Vietnam, Cambodia, and Laos. The atrocities we commit, such as My Lai, where 500 unarmed Vietnamese civilians were gunned down by US soldiers, which are made public, are dealt with by finding a scapegoat, usually a low-ranking officer who is given a symbolic sentence. Lt. William Calley served three years under house arrest for the killings at My Lai. Eleven US soldiers, none of whom were officers, were convicted of torture at the Abu Ghraib prison in Iraq. But the architects and overlords of our industrial slaughter, including Franklin Roosevelt, Winston Churchill, Gen. Curtis LeMay, Harry S. Truman, Richard Nixon, Henry Kissinger, Lyndon Johnson, Gen. William Westmoreland, George W. Bush, Gen. David Petraeus, Barack Obama and Joe Biden are never held to account. They leave power to become venerated elder statesmen. 

The mass slaughter of industrial warfare, the failure to hold ourselves to account, to see our own face in the war criminals we condemn, will have ominous consequences. Author and Holocaust survivor Primo Levi understood that the annihilation of the humanity of others is prerequisite for their physical annihilation. We have become captives to our machines of industrial death. Politicians and generals wield their destructive fury as if they were toys. Those who decry the madness, who demand the rule of law, are attacked and condemned. These industrial weapons systems are our modern idols. We worship their deadly prowess. But all idols, the Bible tells us, begin by demanding the sacrifice of others and end in apocalyptic self-sacrifice.

BBC

AFGHANISTAN WAR: UN SAYS MORE CIVILIANS KILLED BY

ALLIES THAN INSURGENTS

30 JULY 2019

https://www.bbc.com/news/world-asia-49165676

Afghan and US forces have killed more civilians in Afghanistan in the first half of 2019 than insurgents did, UN figures show.

The unprecedented figures for January to June come amid a ferocious US air campaign against the Taliban.

Some 717 civilians were killed by Afghan and US forces, compared to 531 by militants, the UN said.

The latest data has been revealed as Washington and the Taliban continue negotiations over US troop withdrawals.

Air strikes, mostly carried out by American warplanes, killed 363 people, including 89 children, in the first six months of the year, according to the United Nations Assistance Mission in Afghanistan (Unama).

The US military has rejected Unama’s findings, saying its own collection of evidence was more accurate and that its forces in Afghanistan “always work to avoid harm to civilian non-combatants”. But it did not give its own figures for civilian casualties.

It comes after a report by the UN in April, which reached a similar conclusion for the first three months of 2019. The latest data shows that this unprecedented trend is continuing.

What else does this latest report say?

Ground engagements remained the leading cause of civilian casualties overall, accounting for one-third of the total, followed by improvised explosive bombings and aerial operations.

However the UN says that total civilian casualties are down. There were 3,812 deaths and injuries in the first six months of 2019, the lowest total for the first half of a year since 2012.

Despite the decrease in casualties, the toll on civilians remains “shocking and unacceptable,” Unama said. It documented 985 civilian casualties (deaths and injuries) from insurgent attacks that had deliberately targeted civilians from 1 January to 30 June.

“Parties to the conflict may give differing explanations for recent trends, each designed to justify their own military tactics,” said Richard Bennett, Unama’s head of human rights.

“The fact remains that only a determined effort to avoid civilian harm, not just by abiding by international humanitarian law but also by reducing the intensity of the fighting, will decrease the suffering of civilian Afghans,” he added.

What’s the reaction?

Patricia Gossman, associate Asia director at Human Rights Watch, said civilians were paying a “terrible price” as a result of air strikes and night raids that appeared meant to pressure the Taliban in negotiations.

“Although US military officers in Kabul repeatedly claim to take civilian casualties seriously, they do not conduct adequate investigations to determine accurate numbers or understand targeting errors,” she told the BBC, adding that Afghan government investigations were “even worse”.

“The usual claim – that the Taliban hide among civilians – is not an excuse for killing and injuring civilians in such numbers, and in any case is no excuse for what in some cases may amount to war crimes.”

The Afghan government said in a statement that protecting civilians and providing aid to the injured and displaced was a priority.

What is the current situation in Afghanistan?

Fighting continues with daily violence around the country.

The US and the Taliban have been holding peace talks in the Gulf state of Qatar, but the American military is simultaneously carrying out an intense air campaign against the militant group.

The Taliban, who were driven from power by US forces in 2001, are refusing to formally negotiate with the Afghan government until a timetable for the US withdrawal is agreed upon.

On Monday, US Secretary of State Mike Pompeo revealed that President Donald Trump wants forces in Afghanistan reduced by the 2020 US presidential election.

The existence of an unofficial deadline has deepened fears in Kabul that Washington may rush into a deal with the Taliban in a bid to win over US voters, and ignore any concerns from its Afghan government partners.

EINDE ARTIKEL

BBC

AFGHANISTAN: US ADMITS KABUL DRONE STRIKE

KILLED CIVILIANS

18 SEPTEMBER 2021

https://www.bbc.com/news/world-us-canada-58604655

The US has admitted that a drone strike in Kabul days before its military pullout killed 10 innocent people.

A US Central Command investigation found that an aid worker and nine members of his family, including seven children, died in the 29 August strike.

The youngest child, Sumaya, was just two years old.

The deadly strike happened days after a terror attack at Kabul airport, amid a frenzied evacuation effort following the Taliban’s sudden return to power.

It was one of the US military’s final acts in Afghanistan, before ending its 20-year operation in the country.

US intelligence had tracked the aid worker’s car for eight hours, believing it was linked to IS-K militants – a local branch of the Islamic State (IS) group, US Central Command Gen Kenneth McKenzie said.

The investigation found the man’s car had been seen at a compound associated with IS-K, and its movements aligned with other intelligence about the terror group’s plans for an attack on Kabul airport.

At one point, a surveillance drone saw men loading what appeared to be explosives into the boot of the car, but these turned out to be containers of water.

Gen McKenzie described the strike as a “tragic mistake”, and added that the Taliban had not been involved in the intelligence that led to the strike.

The strike happened as the aid worker – named as Zamairi Ahmadi – pulled into the driveway of his home, 3km (1.8 miles) from the airport.

The explosion set off a secondary blast, which US officials initially said was proof that the car was indeed carrying explosives. However the investigation has found it was most likely caused by a propane tank in the driveway.

One of those killed, Ahmad Naser, had been a translator with US forces. Other victims had previously worked for international organisations and held visas allowing them entry to the US.

Relatives of the victims told the BBC the day after the strike that they had applied to be evacuated, and had been waiting for a phone call telling them to go to the airport.

In a statement, Defense Secretary Lloyd Austin said: “We now know that there was no connection between Mr Ahmadi and Isis-Khorasan, that his activities on that day were completely harmless and not at all related to the imminent threat we believed we faced.

“We apologise, and we will endeavour to learn from this horrible mistake.

The horrific consequences of the US military’s miscalculation have drawn questions about the accuracy of future counter-terrorism operations in Afghanistan with a US presence no longer on the ground.

This catastrophe exposed the dreadful human cost of a war that inflicted a lot of damage from the air for years.

That it should take place just as the Americans ended their 20-year occupation will cast an even darker stain on the chaotic US exit.

But for some in the region, it is a particularly stark example of the ongoing dangers of drone warfare.

When the US started to withdraw its troops from Afghanistan, the Taliban managed to seize control of the country within about two weeks in a lightning-fast offensive.

President Ashraf Ghani fled to the United Arab Emirates, and Afghanistan’s capital, Kabul, fell on 15 August.

It sparked a mass evacuation effort from the US and its allies, as thousands of people tried to flee. Many were foreign nationals or Afghans who had worked for foreign governments.

There were scenes of panic and chaos at Kabul airport, and some people fell to their deaths after trying to cling to US military planes as they took off.

The security situation was further heightened after a suicide bomber killed up to 170 civilians and 13 US troops outside the airport on 26 August. IS-K said it had carried out the attack.

Many of those killed had been hoping to board evacuation flights leaving the city.

The last US soldier left Afghanistan on 31 August – the deadline President Joe Biden had set for the US withdrawal.

More than 124,000 foreigners and Afghans were flown out of the country beforehand. But some people were unable to get out in time, and evacuation efforts are ongoing.

EINDE ARTIKEL BBC

[22]

[22]

AL JAZEERA

WHY DEATH OF AL-QAEDA’S AYMAN A-ZAWAHIRI WILL

HAVE LITTLE IMPACT

https://www.aljazeera.com/opinions/2022/8/2/death-of-al-qaeda-chief-unlikely-to-have-much-long-term-impact

Once the news cycle moves on from the Kabul assassination, it will be business as usual for the US, the Taliban and even al-Qaeda itself.

At first glance, the July 31 killing of al-Qaeda chief Ayman al-Zawahiri by a US drone attack in Kabul, Afghanistan, appears to be the most significant setback the group has experienced since the death of its founder, Osama bin Laden, in 2011.

However, throughout the decade he administered al-Qaeda, al-Zawahiri worked to ensure the organisation has all the necessary tools in place to survive his death. As such, while the operation that eliminated one of the organisers of the 9/11 attacks is undoubtedly a major win for the current US administration, it is unlikely to debilitate the group.

Indeed, the fallout from this targeted assassination will be minimal for al-Qaeda. Al-Zawahiri, seen by many as nothing other than a “grey bureaucrat”, can easily be replaced by someone with a similar managerial mindset. He may even be replaced by someone more charismatic, boosting the group’s allure among current and would-be members alike.

On the international level, the drone attack in Kabul will undoubtedly have an effect on the US’s relationship with the Taliban, as well as the future of Washington’s drone operations. However, it is unlikely that it will lead to any significant change or mark a turning point in the regional let alone global status quo.

Impact on al-Qaeda

A terror group tends to survive the death of its leader if it possesses a functioning organisational bureaucracy, an enduring ideology, and communal support. Al-Qaeda benefits from all three.

First, it has a robust operational bureaucracy. Al-Zawahiri did not possess the charisma of his predecessor. But after bin Laden’s death, he created an extensive, self-sufficient bureaucratic system, with clear chains of command, that ensured the group’s fate is not tied to any single leader, including himself. During al-Zawahiri’s tenure, al-Qaeda adopted an expansion model which can best be described as “franchising”. Under his command, the group expanded its reach from Mali to Kashmir with the addition of numerous largely autonomous and financially self-sufficient branches or “franchises”. As these branches are able to continue operations without much intervention from the central command, the death of any leader is unlikely to cause the network to disintegrate.

Second, al-Qaeda adheres to a violent ideology that does not depend on a leader for its articulation or propagation. The set of ideas that guide the group existed long before al-Qaeda, and will undoubtedly continue to be supported by some in zones of failing governance or alienation after its elimination. Al-Zawahiri was no ideologue. And he knew that he did not need to be one to ensure the group’s expansion and longevity. Al-Qaeda’s ideology will continue to attract support no matter what happens to its leaders.

Third, under al-Zawahiri, al-Qaeda enjoyed significant communal support in areas where it has been active. The late al-Qaeda chief was a pragmatist who castigated as counterproductive the ideological rigidity and excesses of the likes of ISIL founders Abu Musab al-Zarqawi and Abu Bakr al-Baghdadi. Unlike them, al-Zawahiri encouraged the group he controlled to cooperate with, rather than fully dominate, locals and local armed groups. This strategy allowed al-Qaeda to expand its reach. In Syria, its affiliate, Ha’yat Tahrir al-Sham, still endures to this day thanks at least in part to Zawahiri’s policies. Likewise in sub-Saharan Africa, during al-Zawahiri’s tenure, al-Qaeda affiliates entrenched their presence by forming local political alliances and garnering support from clan leaders, nomads and farmers. This communal support is unlikely to die solely due to al-Zawahiri’s killing.

Al-Qaeda faced the most significant challenge in its history during al-Zawahiri’s tenure – it was not a US drone raid or the assassination of a leader but the emergence of a breakaway faction in the form of ISIL, which not only recruited members from al-Qaeda, but created a rival, state-centric narrative that undermined al-Zawahiri’s bureaucratic, decentralised vision of a terrorist network.

Given that al-Qaeda managed to survive the existential challenge posed by ISIL, there is no reason to doubt it will also manage to endure the loss of its most recent leader.

Implications for Doha agreement

The US did not find al-Zawahiri in some hidden cave complex in a hard-to-access rural area of Afghanistan. He was found, and killed, in a suburban district of Kabul. This caused many to question whether the Taliban or at least some elements within the group, knew of or facilitated his presence there.

The 2020 Doha Agreement made the American and NATO withdrawal of forces from Afghanistan contingent on the Taliban’s assurances that the nation would not serve as a haven for al-Qaeda or ISIL to launch attacks against the US.

In this regard, US Secretary of State Antony Blinken accused the Taliban of violating the Agreement, by “hosting and sheltering” al-Zawahiri in Kabul, while the Taliban condemned the drone raid, also calling it a violation of the Agreement. These statements are reminiscent of those exchanged in 2011 between the US and Pakistan after bin Ladin was found and killed in a residential district of Abbottabad.

Back then, the US and Pakistan managed to find a way to continue with the modus vivendi they established after airing their grievances. We are likely to witness the same between the US and the Taliban after al-Zawahiri’s killing. Once they are done expressing their grievances about what happened, they will continue with their cautious relationship because they share a common foe: The Islamic State in Khorasan Province, ISKP (ISIS-K), the Afghanistan affiliate of ISIL. As the Biden administration is currently occupied with deterring China and Russia, it still needs the Taliban to deter ISIL, or to at least keep the peace in Afghanistan.

Drone assassinations to continue

Compared with the Trump administration, the number of US drone attacks dramatically dropped during Biden’s tenure – an apparent acknowledgement by the current administration that such raids contribute to grievances that fuel violence, conflict and anti-US sentiments in the long term.

The 2020 assassination of Iran’s Qassim Soleimani in Iraq, for example, deprived it of a charismatic leader and allowed then President Trump to score some easy points with his base at home, but failed to in any way break Iran’s sway over Iraq. In fact, it achieved little more than strengthening anti-US resolve in both countries.

The current US president and those in his administration are undoubtedly aware of this. Nevertheless, the killing of al-Zawahiri in Afghanistan shows that even Biden is unable to resist the temptation of the short-term political gains provided by such high-profile, low-risk drone assassinations.

All this indicates that once the news cycle moves on from al-Zawahiri’s demise, the actors involved will likely continue with business as usual. Al-Qaeda will appoint a new leader and continue operations, the US and the Taliban will hold on to the modus vivendi they established under the 2020 Doha Agreement despite increased tensions, and the US will continue to use drones across the Muslim world, regardless of the negative long-term impact of such operations.

[23]

THE WHITE HOUSE

REMARKS BY PRESIDENT BIDEN ON A SUCCESFUL COUNTERTERRORISM

OPERATION IN AFGHANISTAN

AUGUST 01 2022\

https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/08/01/remarks-by-president-biden-on-a-successful-counterterrorism-operation-in-afghanistan/

Blue Room Balcony

7:33 P.M. EDT
 
THE PRESIDENT:  My fellow Americans, on Saturday, at my direction, the United States successfully concluded an airstrike in Kabul, Afghanistan, that killed the emir of al Qaeda, Ayman al-Zawahiri. 
 
You know, al-Zawahiri was bin Laden’s leader.  He was with him all the — the whole time.  He was his number-two man, his deputy at the time of the terrorist attack of 9/11.  He was deeply involved in the planning of 9/11, one of the most responsible for the attacks that murdered 2,977 people on American soil. 
 
For decades, he was a mastermind behind attacks against Americans, including the bombing of the USS Cole in 2000, which killed 17 American sailors and wounded dozens more. 
 
He played a key role — a key role in the bombing of U.S. embassies in Kenya and Tanzania, killing 224 and wounding over 4,500 others.
 
He carved a trail of murder and violence against American citizens, American service members, American diplomats, and American interests.  And since the United States delivered justice to bin Laden 11 years ago, Zawahiri has been a leader of al Qaeda — the leader. 
 
From hiding, he coordinated al Qaeda’s branches and all around the world — including setting priorities, for providing operational guidance that called for and inspired attacks against U.S. targets. 
 
He made videos, including in recent weeks, calling for his followers to attack the United States and our allies.
 
Now justice has been delivered, and this terrorist leader is no more.
 
People around the world no longer need to fear the vicious and determined killer.  The United States continues to demonstrate our resolve and our capacity to defend the American people against those who seek to do us harm.
 
You know, we — we make it clear again tonight that no matter how long it takes, no matter where you hide, if you are a threat to our people, the United States will find you and take you out. 
 
After relentlessly seeking Zawahiri for years under Presidents Bush, Obama, and Trump, our intelligence community located Zawahiri earlier this year.  He had moved to downtown Kabul to reunite with members of his immediate family. 
 
After carefully considering the clear and convincing evidence of his location, I authorized a precision strike that would remove him from the battlefield once and for all.
 
This mission was carefully planned and rigorously minimized the risk of harm to other civilians.  And one week ago, after being advised that the conditions were optimal, I gave the final approval to go get him, and the mission was a success.  None of his family members were hurt, and there were no civilian casualties.
 
I’m sharing this news with the American people now, after confirming the mission’s total success through the painstaking work of our counterterrorism community and key allies and partners. 
 
My administration has kept congressional leaders informed as well.
 
When I ended our military mission in Afghanistan almost a year ago, I made the decision that after 20 years of war, the United States no longer needed thousands of boots on the ground
in Afghanistan to protect America from terrorists who seek to do us harm.
 
And I made a promise to the American people that we’d continue to conduct effective counterterrorism operations in Afghanistan and beyond.
 
We’ve done just that.
 
In February, our forces conducted a daring mission in Syria
that eliminated the emir of ISIS.
 
Last month, we took out another key ISIS leader.  Now we have eliminated the emir of al Qaeda.  He will never again — never again allow Afghanistan to become a terrorist safe haven because he is gone, and we’re going to make sure that nothing else happens.  You know, it can’t be a launching pad against the United States.  We’re going to see to it that won’t happen.
 
This operation is a clear demonstration that we will, we can, and we’ll always make good on the sol- — solemn pledge. 
 
My administration will continue to vigilantly monitor and address threats from al Qaeda, no matter where they emanate from.
 
As Commander-in-Chief, it is my solemn responsibility to make America safe in a dangerous world.  The United States did not seek this war against terror.  It came to us, and we answered with the same principles and resolve that have shaped us for generation upon generation: to protect the innocent, defend liberty, and we keep the light of freedom burning — a beacon for the rest of the entire world.
 
Because this is the great and defining truth about our nation and our people: We do not break.  We never give in.  We never back down.
 
Last year, on September 11th, I once more paid my respects to Ground Zero in New York City, at that quiet field in Shanksville, at the Pentagon — and at the Pentagon.
 
Standing at the memorial at Ground Zero, seeing the names of those who died forever etched in bronze, is a powerful reminder of the sacred promise we made as a nation: We will never forget.
 
The memorial also bears a quotation from Virgil: “No day shall erase you from the memory of time.”  “No day shall erase you from the memory of time.”
 
So we continue to mourn every innocent life that was stolen on 9/11 and honor their memories. 
 
To the families who lost fathers and mothers, husbands and wives, sons and daughters, brothers and sisters, friends and co-workers on that searing September day, it is my hope that this decisive action will bring one more measure of closure.  No day shall erase them from the memory of time.
 
Today and every day, I am so grateful to the superb patriots who serve the United States intelligence community and counterterrorism communities.  They never forget.  Those dedicated women and men who tirelessly worked every single day to keep our country safe and to prevent future tragedies — it is thanks to their extraordinary persistence and skill that this operation was a success.  They have made us all safer.
 
And to those around the world who continue to seek to harm the United States, hear me now: We will always remain vigilant, and we will act.  And we will always do what is necessary to ensure the safety and security of Americans at home and around the globe.
 
Today, we remember the lost.  We commit ourselves to the safety of the living.  And we pledge that we shall never waver from defending our nation and its people.
 
Thank you, all.  And may God protect our troops and all those who serve in harm’s way.
 
We will never — we will never give up.
 
7:40 P.M. EDT

LAW AND THE AYMAN AL-ZAWAHIRI AIRSTRIKE: A DOZEN QS & A’S

3 AUGUST 2022

https://sites.duke.edu/lawfire/2022/08/03/law-and-the-ayman-al-zawahiri-airstrike-a-dozen-qs-as/

This is the first of two posts that aim to give you perspectives on some of the law applicable to the airstrike that killed Ayman al-Zawahiri. 

My post today offers some quick “shortbursts” on a number of legal issues the strike suggests, and it will be followed by a separate post by Lawfire^®favorite, Brian Lee Cox.  Brian will give us a ‘deep dive’ on his take on selected legal topics the al-Zawahiri strike raises.

There are two limfacs to keep in mind: 1) to my knowledge, the U.S. government (USG) has not released a formal legal opinion about the strike, and 2) except where indicated otherwise, the posts rely entirely on media reports for the facts.  As we know, the first reports can be wrong.  With those caveats, here are some preliminary views for your consideration:

1) Who was Ayman al-Zawahiri?

In announcing the strike, President Biden described Ayman al-Zawahiri as the “emir“ of al-Qaeda,  the foreign terrorist organization identified by the U.S. as responsible for the 9/11 attacks.  As Osama Bin Laden’s deputy at the time, al-Zawahiri was the President informs, “deeply involved” in the planning of the operation.  Accordingly, the President found him to be “one of the most responsible for the attacks that murdered 2,977 people on American soil.”

Al-Zawahiri was also, the President tells us, “the mastermind of the attacks on the USS Cole that killed 17 Americans,” and he “played a key role” in attacks on US embassies in Africa in the 1990s.  (In fact, the FBI reports that he had been “indicted for his alleged role in the August 7, 1998, bombings of the United States Embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya.”).

After Bin Laden was killed in a U.S. raid 11 years ago, al-Zawahiri became the leader of al-Qaeda.  Here’s what the President says al-Zawahiri has being doing since taking over the terrorist organization:

From hiding, he coordinated al Qaeda’s branches and all around the world — including setting priorities, for providing operational guidance that called for and inspired attacks against U.S. targets.  He made videos, including in recent weeks, calling for his followers to attack the United States and our allies.

2) Was al-Zawahri a lawful target under international law?

The Washington Post reports a “senior official” as explaining:

Government lawyers confirmed the legal basis for the operation, which is standard procedure for drone strikes. Zawahiri had a “continuing leadership role in al-Qaeda” and had participated in and supported terrorist attacks, the senior official said. He was deemed a lawful target.

Let’s unpack this a bit.  As I said in my post about the killing of Osama Bin Laden, not every terrorist is targetable under the Law of Armed Conflict or “LOAC” (sometimes called International Humanitarian Law or IHL). Its application is generally limited to conflicts of sufficient scope and intensity to warrant treatment under a “war” legal regime.

Other terrorists are covered by international human rights law (IHRL), which is essentially a law enforcement legal construct. (Professor Geoff Corn and his co-authors have an excellent chart – found here – in their text, The Law of Armed Conflict: An Operational Approach, which compares and contrasts the two legal frameworks).

Though not without controversy, I believe the best view of the law today is that non-State terrorists who are members of an organized armed group engaged in a conflict (of sufficient scope and intensity to trigger LOAC applicability), are lawfully subject to LOAC’s more permissive targeting rules, that is, much the same rules to which members of traditional militaries are subject in State-on-State conflicts. In other words, the mere status of being a member of certain armed groups can be sufficient to make a person lawfully targetable. 

To be clear, any civilian who “directly participates in hostilities” – even if they do not belong to an armed group – loses protection from direct attack during such participation.  However, membership in certain non-State armed groups engaged in armed conflict can alone provide a separate legal basis for targeting.

The Department of Defense (DoD) Law of War (LoW) Manual puts it this way: “[B]elonging to an armed group makes a person liable to being made the object of attack regardless of whether he or she is taking a direct part in hostilities.” 

Further, the Manual (¶ 5.8.2.1) adds this about those who are members of such entities:

The U.S. approach has been to treat the status of belonging to a hostile, non-State armed group as a separate basis upon which a person is liable to attack, apart from whether he or she has taken a direct part in hostilities. Either approach may yield the same result: members of hostile, non-State armed groups may be made the object of attack unless they are placed hors de combat.

The Manual adds this important clarification that such persons “may be made the object of attack at all times, regardless of the activities in which they are engaged at the time of attack.”  So, for example, a member of a hostile, non-State armed group who is standing without a weapon on a balcony of a safe house could be the object of lawful attack.

The existence of an armed conflict is critical.  But the U.S. has long taken the position that it is in an armed conflict with Al-Qaeda (see here), and it’s been reiterated in Congressional testimony after the 2021 withdrawal, as well as in  judicial filings last fall.

For its part, al-Qaeda essentially declared war on the U.S. via fatwas issued by Osama Bin Laden in 1996 and 1998.  and has never backed away from that position.  Just last fall CNN reported that al-Qaeda operatives said the “war against the US will be continuing on all other fronts unless they are expelled from the rest of the Islamic world.”

In short, al-Zawahiri’s status as a member of al-Qaeda makes him lawfully subject to attack.

3) Is there any other basis under international law that could justify the strike?

Yes.  Article 51 of the UN Charter permits member nations to use force in self-defense in the event of an “armed attack” – even if there is no pre-existing armed conflict. 

The U.S. and many – perhaps most – countries also subscribed to the principle of anticipatory self-defense which essentially means that force can be used in self-defense prior to an “imminent” attack.  Depending upon the circumstances, striking a key individual may be the best way to preclude an attack.

“Imminence” is not necessarily interpreted strictly in a temporal sense.  As the Army’s 2022 Operational Law Handbook explains, the “U.S. analyzes a variety of factors when determining whether an armed attack is imminent,” including “the likelihood that there will be other opportunities to undertake effective action in self–defense that may be expected to cause less serious collateral injury, loss, or damage.”

The Handbook notes that it is the U.S. position that “the absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of the right of self–defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent.”

Did al-Zawahiri present a current threat?  The President characterized al-Zawahiri as a “vicious and determined killer” who, as the leader of an organization with a well-documented track record for horrifying violence, was “calling for his followers to attack the United States and our allies.” 

In addition, the The Hill reports that on NBC’s Today show National Security Advisor Jake Sullivan said the strike “undoubtedly made the United States safer” and offered this explanation: “We do believe he was playing an active role at a strategic level in directing al Qaeda and in continuing to pose a severe threat against the United States and American citizens everywhere.”

Such facts seem sufficient, even in the absence of evidence about a specific forthcoming attack, to find that al-Zawahiri represented a threat that met the criteria for the application of anticipatory self-defense.

That said, in my view, it is unnecessary to do an “imminence” analysis since I believe al-Zawahiri’s status as a member of al-Qaeda is – alone – sufficient legal justification for the strike.

4) Did international law require the U.S. to get permission from the Taliban to conduct an airstrike in Afghanistan?

As a general proposition, “each State has complete and exclusive sovereignty over the airspace above its territory.”  In this instance, the situation is more complicated in that while the Taliban has become the de facto rulers of Afghanistan, no country has formally recognized them.  Nevertheless, they have objected to the strike.

Thus, the legal rationale for the unpermitted penetration of Afghanistan’s airspace would seem to based on the  “unwilling or unable“ proposition in international law. This allows a threatened state to take action in self-defense (to include anticipatory self-defense) in another state without that state’s permission if it is “unwilling or unable” to take action to neutralize the threat that exists within its borders.

The Secretary of State appeared to allude to the concept in his remarks about the al-Zawahiri strike. He pointed out the Taliban’s “unwillingness or inability to abide by their commitments” made when the U.S. withdrew in August of 2021 in accordance with the Doha agreement. 

That agreement required the Taliban, the Secretary said, to “not allow Afghan territory to be used by terrorists to threaten the security of other countries.”  Obviously, the presence of al-Zawahiri living openly in Kabul showed that the Taliban was “unwilling or unable” to address the threat he posed to the “security of other countries.“

5) Did the President have the legal authority under domestic U.S. law to strike al-Zawahiri?

Yes.  Congress’ 2001 Authorization for the Use of Military Force (AUMF) provides:

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.

Plainly, given al-Qaeda’s established involvement in 9/11, its current leader qualifies under this authorizing resolution.  Though some scholars chafe at the fact that the 2001 AUMF is still in force, it is and it applies here.

In addition, Section 2 of Article II of the Constitution designates the President and Commander-in-Chief of the armed forces.  Though the exact scope of President’s Article II power is unsettled, it does appear that it would include authority to use force against al-Qaeda operatives.

6) Is ‘delivering justice’ itself a valid basis for the use of force?

In his remarks, President Biden said that in the killing of al-Zawahiri, “justice has been delivered.”  That may have been one effect of the strike (and a desirable one), but ‘delivering justice’ in the form of killing al-Zawahiri should not be confused with the actual legal basis for the use of force against him. 

Specifically, retribution, retaliation, punishment or their like are not themselves justifications for the use of force.  As one scholar explains with respect to the use of military force in these situations: “unlike the criminal law, our ‘punishment’ of a hostile belligerent nation, terrorist group, or high value target cannot alone serve as its legal argument.”

To say that “justice” for previous wrongs was delivered by a use of force in this case is understandable and even expected; however, it is always essential that the use of force be formally grounded in appropriate legal rationale, such as the need to address a serious, ongoing threat. 

7) Wasn’t this strike an assassination, and aren’t assassinations illegal?

No, it wasn’t an unlawful “assassination.”  As the DoD LoW Manual puts it (¶ 5.7.4 ):

Military leaders are subject to attack on the same basis as other members of the armed forces. Similarly, leaders of non-State armed groups are also subject to attack on the same basis as other members of the group. There is no objection to making a specific enemy leader who is a combatant the object of attack. (Emphasis added.)

Allow me to elaborate a bit with an extract from a previous post:

In 1989 Hays Parks, then a Department of Defense official, wrote the definitive memorandum regarding the legal meaning of “assassination.” I very much encourage you to read the full text, but I’ll give you a few highlights.

Parks was opining on the application of Executive Order 12333’s prohibition on assassination, and explained that:

Peacetime assassination…would seem to encompass the murder of a private individual or public figure for political purposes, and in some cases…also require that the act constitute a covert activity, particularly when the individual is a private citizen. Assassination is unlawful killing, and would be prohibited by international law even if there was no executive order proscribing it.

But Parks drew a careful distinction between such slayings, and the killing of an individual combatant in wartime. He points out:

[C]ombatants are legitimate targets at all times, regardless of their duties or activities at the time of attack. Such attacks do not constitute assassination unless carried out in a “treacherous” manner, as prohibited by article 23(b) of the Annex to the 1907 Hague IV. While the term treacherous has not been defined, as previously noted it is not regarded as prohibiting operations that depend upon the element of surprise, such as a commando raid or other form of attack behind enemy lines.

Parks cites the many examples of lawful wartime killings of individuals, including the World War II operation that resulted in the death of Japanese Admiral Isoroku Yamamoto, who masterminded the attack on Pearl Harbor.

In my view, “assassination” is not the legally correct way to describe the al-Zawahiri killing and – regardless – his death was not unlawful.

8) Some press reports say the U.S. put a “$25 million bounty on [al-Zawahiri’s] head” – is that legal?

A “bounty” on al-Zawahiri’s “head” may wrongfully suggest that there was a reward for killing him.  As the DoD LoW Manual explains (¶ 5.26.3), “rewards may not be offered for the killing of enemy persons.”  However, the rule does not “prohibit offering rewards for information that may be used by combatants to conduct military operations that attack enemy combatants.”

It is true that through the Rewards For Justice Program  the U.S. Secretary of State may authorize rewards for information that:

• Leads to the arrest or conviction of anyone who plans, commits, aids, or attempts international terrorist acts against U.S. persons or property
• Prevents such acts from occurring
• Leads to the identification or location of a key terrorist leader
• Disrupts terrorism financing

According to the FBI, there was “a reward of up to $25 million for information leading directly to the apprehension or conviction of Ayman Al-Zawahiri.”  Such a reward for information is completely legal, even if it ends up being used for targeting a belligerent.

9) Was the U.S. legally required to try to capture al-Zawahri?

As the answer above about the reward offered for information that could lead to al-Zawahiri’s arrest suggests, the U.S. did try to bring him into custody, but was unsuccessful.

In any event, the LOAC does not require an effort to capture a belligerent. The DoD LoW Manual (¶ 2.2.3.1) points out:

Some commentators have argued that military necessity should be interpreted so as to permit only what is actually necessary in the prevailing circumstances, such as by requiring commanders, if possible, to seek to capture or wound enemy combatants rather than to make them the object of attack. This interpretation, however, does not reflect customary international law or treaty law applicable to DoD personnel. (Emphasis added.)

LOAC expert Professor Michael Schmitt likewise rejects the notion as some have suggested, that LOAC or, as it is sometimes called, International Humanitarian Law (IHL) mandates any obligation to try to capture, even when operationally feasible.  He adds:

My opposition to a capture-kill rule is also based on the fact that the enemy fighter generally has the means to achieve the same result by surrendering, since those who surrender are hors de combat and cannot be attacked; in other words, IHL already addresses the situation.  A rule that prohibits an attack whenever the individual can be captured would shift the burden from the fighter to the attacker in a way that warfighting states would have been, and remain, unlikely to countenance.

The New York Times reports that given the location of the safe house al-Zawahiri was using, “any sort of incursion by Special Operations forces would be prohibitively dangerous.”  Consequently, to stop him with the least risk to friendly forces and civilians in the area, a precision airstrike was necessary.

Thus, even under an IHRL regime (essentially a law enforcement paradigm) the use of deadly force would likely be permissible in this instance.  Consider this extract from the UN’s “Basic Principles on the Use of Force and Firearms by Law Enforcement Officials”:

[I]n self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives.

10) The President said only that al-Zawahiri was killed by an airstrike.  If a remotely-piloted aircraft (RPA) was used, and it was piloted by a civilian, would that impact the legality?

No.  There is nothing inherently unlawful about using RPAs (commonly referred to as drones) to conduct an otherwise lawful strike.  Notably, over three-dozen countries now have armed drones, and the worldwide military drone market is expected to hit $26.12 billion by 2028.  Drones do have limitations, but they are lawful weapons that certainly can be used in full compliance with LOAC.

As a general rule, civilians are not prohibited by LOAC from participating in combat operations.  However, in State-on-State conflicts, they would lose their protection against direct attack.  That said, unprivileged belligerents like al-Qaeda terrorists do not have a legal right to attack anyone at any time.

11) The President said he authorized the strike after “carefully considering the clear and convincing evidence of [al-Zawahiri’s] location.”  Is “clear and convincing” the standard of certainty that LOAC requires for operations?

No.  LOAC generally employs a “reasonable military commander“ standard for decisions involving the use of force.  The DoD LoW Manual (¶ 5.3) does, however, put it slightly differently:

Commanders and other decision-makers must make decisions in good faith and based on the information available to them. Even when information is imperfect or lacking (as will frequently be the case during armed conflict), commanders and other decision-makers may direct and conduct military operations, so long as they make a good faith assessment of the information that is available to them at that time.

In a 2018 essay, Michael J. Adams and Ryan Goodman relate the position of the International Committee of the Red Cross (ICRC) on ‘reasonableness’ in targeting:

[The ICRC] explains that the law requires targeting decisions “must reflect the level of certainty that can reasonably be achieved in the circumstances” and that “in practice, this determination will have to take into account, inter alia, the intelligence available to the decision maker, the urgency of the situation, and the harm likely to result to the operating forces or to persons and objects protected against direct attack from an erroneous decision.”

Even in the law enforcement context, reasonableness is employed in judging use-of-force decisions.  For example, in the 1989 case of Graham v. Connor, the U.S. Supreme Court concluded:

[The] “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

The President’s use of a heightened standard of certainty appears to laudably reflect his determination to avoid civilian casualties.  He said:

This mission was carefully planned and rigorously minimized the risk of harm to other civilians. And one week ago, after being advised that the conditions were optimal, I gave the final approval to go get him, and the mission was a success. None of his family members were hurt, and there were no civilian casualties.

Of course, LOAC requires “feasible” precautions be taken to avoid civilian harm.  The DoD LoW Manual (¶ 5.2.3.2) elucidates this requirement:

The standard for what precautions must be taken is one of due regard or diligence, not an absolute requirement to do everything possible.  A wanton disregard for civilian casualties or harm to other protected persons and objects is clearly prohibited.  Feasible precautions are those that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.

Still, it appears that in his decision-making process for this strike the President went ‘above and beyond’ what the law might require.

12) Does LOAC require zero civilian casualties in attacks?

No.  The DoD LoW Manual (¶ 5.10) explains the law this way:

• Combatants must take feasible precautions in planning and conducting attacks to reduce the risk of harm to civilians and other persons and objects protected from being made the object of attack; and

• Combatants must refrain from attacks in which the expected loss of civilian life, injury to civilians, and damage to civilian objects incidental to the attack would be excessive in relation to the concrete and direct military advantage expected to be gained. (Emphasis added.)

In short, civilian casualties, however unwanted, are nevertheless tolerated by LOAC even when it is clear in advance they will occur.  Various policies of the U.S. and other countries may call for zero casualties in attacks, but the law does not.

Concluding thoughts

Although the death of al-Zawahiri is an important step in keeping America and its allies safe, there is little reason to think that the threat from al-Qaeda will disappear entirely 

Unfortunately, it will take constant effort to keep the peril from it and other terrorists organization suppressed.  Doing so will (often?) involve the use of lawful force. 

As much as we may want to end “forever wars,” the melancholy truth is that the “enemy gets a vote.”  Consequently, we must educate ourselves to the threat, as well as to an understanding of the applicable law, and commit ourselves to real vigilance.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

Be sure to read Brian Lee Cox’s post, Al-Zawahiri Strike, Article 51 Self-Defense, and Future Implications for the AUMF

Last update 2334 hrs 3 Aug 22