Noten 21 t/m 23/Kritiek op twee Volkskrant artikelen





23 MARCH 2022

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.




30 JULY 2019

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.






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.







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.





AUGUST 01 2022\

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


3 AUGUST 2022

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 (¶ 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 (¶ 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 (¶ 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

Reacties uitgeschakeld voor Noten 21 t/m 23/Kritiek op twee Volkskrant artikelen

Opgeslagen onder Divers

Reacties zijn gesloten.