President Joe Biden’s assassination of al-Qaeda leader Ayman al-Zawahiri in Afghanistan was illegal under both U.S. and international law. Zawahiri was killed in a CIA drone strike 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.
Zawahiri’s death was not only illegal, but it also happened at a time when the United Nations already declared that there was little to be afraid of 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 is not justice.
Extrajudicial executions are targeted or political assassinations. These are intentional and illegal killings that are carried out under the orders or consent of a government. Extrajudicial executions can be carried out outside of a judicial framework.
Zawahiri was not a threat to imminent security, which is exactly why his assassination became 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 under 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.
Willful killing is also a grave violation of the Geneva Conventions and is punishable under the U.S. War Crimes Act. A targeted killing is legal only when it is necessary to protect human life.
Zawahiri’s Assassination Violated U.S. Law
The law was also broken by the drone strike that killed Zawahiri War Powers ResolutionThe following list identifies three situations in which the president may order the U.S. Armed Forces to join hostilities:
First, pursuant the congressional declaration of war. This has not happened 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).
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 believed to be part of a small group of people who planned the hijacking of four planes in 2001. Three of these planes were then flown into the Pentagon, and the 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 reviewto establish his own standards in targeting killing.
Biden Continues to Launch Illegal Drone Attacks
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.
Zawahiri was assassinated almost a year after Biden launched an unconstitutional strike while he withdrew U.S. forces from Afghanistan. In that attack, ten civilians were killed. 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. Future drone strikes by the Biden administration that kill civilians can be expected.
To justify the 2001 AUMF, U.S. military actions in 85 countries. It must be repealed by Congress and replaced with a new AUMF that specifically requires that any use force must comply with international law obligations.
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 civilians and leave them more vulnerable to terrorism.
