Al-Qaeda, Taliban sanctions committee approves “most comprehensive set of updates” to sanctions list

The chair of the UN Security Council’s “Al-Qaeda and Taliban Sanctions Committee” on Monday said the committee has “approved the most comprehensive set of updates” to their sanctions blacklist, as well as the largest group of narrative summaries for added listings in its history.The statement came as the chairman of the Security Council Committee established under Resolution 1267 on sanctions against Taliban and Al-Qaeda members, Peter Wittig, the German ambassador to the UN, briefed the 15-nation Security Council in an open meeting.

“Today, I am pleased to report that the committee, building on these efforts, has approved the most comprehensive set of updates to the Consolidated List and the largest group of narrative summaries of reasons for listing in its history,” Wittig said.

Specifically, he told the Council that the committee has agreed to 78 list amendments and to make publicly available almost 200 additional summaries of reasons for listing.

“In particular the additional narrative summaries will further facilitate the implementation of the sanctions,” he said. “They mark an important step to close an information gap and further enhance fair and clear procedures.”

Currently, the Consolidated List has 488 entries — 258 Al- Qaeda individuals, 138 Taliban individuals and 92 Al-Qaeda entities, he said.

Since the last briefing, the committee has added the names of six individuals to the list, and removed six other individuals from the list in addition to amending 37 entries based on additional information gathered.

Despite his death, Osama Bin Laden was not removed from the list.

European Commission Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments

Read it here.

NGO calls on ECtHR to intervene in military commissions case of Al Nashiri

The Open Society Justice Initiative is calling on the European Court of Human Rights to intervene urgently in the first death penalty case to be tried by US military commissions at Guantánamo Bay, Cuba, involving Abd al-Rahim al-Nashiri.

In an application to the Court, OSI argues that Poland violated al-Nashiri’s rights under articles 2, 3 and 6 of the ECHR by enabling al-Nashiri’s incommunicado detention and torture on Polish soil and his transfer out of the country, and that the President of the Court should exercise his power to grant interim relief under Rule 39 by indicating to the Government of Poland that it should immediately use all available means at its disposal to ensure that Al Nashiri is not subjected to the death penalty.

These means include but are not limited to: (i) making written submissions before 30 June 2011 to Bruce MacDonald, the Convening Authority for Military Commissions, to ensure that he does not approve the death penalty for Mr. al Nashiri‘s case; (ii) obtaining diplomatic assurances from the United States Government that it will not subject Mr. al Nashiri to the death penalty; (iii) taking all possible steps to establish contact with Mr. al Nashiri in Guantánamo Bay, including by sending delegates to meet with him to monitor his treatment and ensure that the status quo is preserved in his case; and (iv) retaining and bearing the costs of lawyers authorised and admitted to practice in relevant jurisdictions in order to take all necessary action to protect Mr. al Nashiri‘s rights while in U.S. custody including in military, criminal or other proceedings involving his case.

Bruce MacDonald, the Convening Authority for U.S. military commissions, has said he will consider written submissions against the death penalty until June 30, 2011, following which he will make a decision on whether to approve capital charges and refer them for trial to a military commission.

On 20 April 2011, United States military commissions prosecutors brought charges against Mr. al Nashiri relating to his alleged role in the attack on the USS Cole in 2000 and the attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002.

Thousands of Egyptian civilians tried in military courts since February 2011

IPS reports that thousands of Egyptian civilians, including protesters who helped topple the authoritarian regime of president Hosni Mubarak, have been tried in military courts without due process. Defendants are denied access to legal counsel, but receive assistance to defence lawyers appointed from a pool of army-approved attorneys. attorneys may be given as little as five minutes to meet with the accused, review the charges, and present the case before a military judge. Sentences handed down by military courts – which have included at least three death sentences since February – cannot be appealed.

Court records indicate Egyptian military courts have handed down more than 7,000 sentences since the Supreme Council of the Armed Forces (SCAF) removed Mubarak on Feb. 11 and assumed control of the country. Most of the trials have involved defendants accused of looting, arson and “thuggery” under tougher criminal laws passed after Mubarak’s ouster. The courts have also sentenced hundreds of protesters critical of the military council’s governance and decisions.

“Each case involves anywhere from one to 35 defendants… so we estimate that over 50,000 civilians have been sentenced in the last three months,” Ramadan told IPS. “We’ve never seen anything like this. Even under Mubarak’s rule there were only two or three military trials a year. ”

Last thoughts on the ‘kill-or-capture’ order of Bin Laden

Briefingat the White House by Press Secretary Carney:

The team had the authority to kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his surrender if the team could do so safely. The operation was conducted in a manner fully consistent with the laws of war. The operation was planned so that the team was prepared and had the means to take bin Laden into custody. There is simply no question that this operation was lawful. Bin Laden was the head of al Qaeda, the organization that conducted the attacks of September 11, 2001. And al Qaeda and bin Laden himself had continued to plot attacks against the United States. We acted in the nation’s self-defense. The operation was conducted in a way designed to minimize and avoid altogether, if possible, civilian casualties. And if I might add, that was done at great risk to Americans. Furthermore, consistent with the laws of war, bin Laden’s surrender would have been accepted if feasible.

UN Special Rapporteur Martin Scheinin says the operation was lawful, and did not violate international law.

“The United States offered bin Laden the possibility to surrender, but he refused. Bin Laden would have avoided destruction if he had raised a white flag”, Scheinin said on Tuesday.According to Scheinin, apprehending a dangerous criminal like Osama bin Laden means that one must be prepared to use force. He noted that killing is permissible under international law only if the person being apprehended resists, and if there are no other means available.Scheinin said that the United States was prepared for the possibility of catching bin Laden alive, noting that the operation involved a commando raid on his hiding place, and not a missile strike.

Later the UN Special Rapporteur issued a joint statement together with Chris Heyns, the Special Rapporteur on extrajudicial, summary or arbitrary executions:

“Acts of terrorism are the antithesis of human rights, in particular the right to life. In certain exceptional cases, use of deadly force may be permissible as a measure of last resort in accordance with international standards on the use of force, in order to protect life, including in operations against terrorists. However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment.

Actions taken by States in combating terrorism, especially in high profile cases, set precedents for the way in which the right to life will be treated in future instances.

In respect of the recent use of deadly force against Osama bin Laden, the United States of America should disclose the supporting facts to allow an assessment in terms of international human rights law standards. For instance it will be particularly important to know if the planning of the mission allowed an effort to capture Bin Laden.

It may well be that the questions that are being asked about the operation could be answered, but it is important to get this into the open.”

Mary O’ Connel elaborates at Foreign Policy:

The question turns on one critical factor: President Obama’s orders to the Navy SEAL team that carried out the raid on bin Laden’s compound in Abbottabad. Orders to kill, not capture, bin Laden would be difficult to defend legally. But top counterterrorism adviser John Brennan stated Monday that the SEALs were under orders to capture bin Laden if they could. CIA chief Leon Panetta has implied, on the other hand, that the team was under orders to kill, with the option to capture if he attempted to surrender. If Panetta is correct, the legal case is weakened but can still be defended.
(…)The ECHR considered a case in
1995 with parallels to the bin Laden raid. In McCann v. The United Kingdom, the court found that members of the
elite British SAS used excessive force when they killed IRA members in Gibraltar who were suspected of preparing a bombing. The court found that the operatives should have attempted to arrest the terrorists, instead of shooting them based on intelligence they possessed that the suspects were preparing to use explosives. If the suspects had resisted arrest or attempted to escape, authorities then would have had had the right to resort to lethal force.

This is the law that applied in bin Laden’s case. On May 2, no fighting was going on in Pakistan that would rise to the level of “armed conflict” as defined under international law; Pakistan had to suspend major military operations against militant groups in the country’s tribal areas after the floods of 2010. And despite what some commentators have argued, under international law there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves. The correct choice of law, therefore, was peacetime law.

The discussion continues at Opinio Juris here and EJIL Talk here.

UN Security Council Counter-Terrorism Committee report on bringing terrorists to justice

Read it here.

A. International cooperation in counter-terrorism investigations and prosecutions
B. The role of the prosecution in counter-terrorism cases
C. New challenges in the investigation and prosecution of terrorism
D. Prosecution of terrorism cases and prevention of terrorism
E. The prosecution and counter-terrorism investigations
F. Organization of the prosecution and its relationship with other agencies
G. Concluding observations

List of good practices identified by participants

The intelligence that led to Bin Laden’s arrest

Adam Goldman and Matt Apuzzo have (as usual) the best sources:

Shortly after the Sept. 11, 2001, terrorist attacks, detainees in the CIA’s secret prison network told interrogators about an important courier with the nom de guerre Abu Ahmed al-Kuwaiti who was close to bin Laden. After the CIA captured al-Qaida’s No. 3 leader, Khalid Sheikh Mohammed, he confirmed knowing al-Kuwaiti but denied he had anything to do with al-Qaida.

Then in 2004, top al-Qaida operative Hassan Ghul was captured in Iraq. Ghul told the CIA that al-Kuwaiti was a courier, someone crucial to the terrorist organization. In particular, Ghul said, the courier was close to Faraj al-Libi, who replaced Mohammed as al-Qaida’s operational commander. It was a key break in the hunt for in bin Laden’s personal courier.

Finally, in May 2005, al-Libi was captured. Under CIA interrogation, al-Libi admitted that when he was promoted to succeed Mohammed, he received the word through a courier. But he made up a name for the courier and denied knowing al-Kuwaiti, a denial that was so adamant and unbelievable that the CIA took it as confirmation that he and Mohammed were protecting the courier. It only reinforced the idea that al-Kuwaiti was very important to al-Qaida.

Was information obtained through waterboarding? No.

Mohammed did not discuss al-Kuwaiti while being subjected to the simulated drowning technique known as waterboarding, former officials said. He acknowledged knowing him many months later under standard interrogation, they said, leaving it once again up for debate as to whether the harsh technique was a valuable tool or an unnecessarily violent tactic.

It took years of work before the CIA identified the courier’s real name:
Sheikh Abu Ahmed, a Pakistani man born in Kuwait. When they did
identify him, he was nowhere to be found.

SEALS got order to kill, not capture Osama Bin Laden?

An interesting detail in the story about Osama Bin Laden is that the 40 Navy Seals went to “kill, not capture Bin Laden” according to Reuters, quoting an anyonymous U.S security official. In a statement released 20 minutes before the  Reuters news the EU counter-terrorism coordinator Gilles De Kerchove, however  saidthat

Based on the available information, the circumstances of this difficult operation made it impossible to capture Osama Bin Laden alive.

(Update: Just listened to BBC World. A White House official tells the reporter that “there was no decision to automatically go for a kill. US military personnel are not authorised to kill if a subject surrenders, but because of who Bin Laden was it was widely assumed that there would be a kill. The White House also says it was Bin Laden who ‘cowardly hid’ behind a woman.”)

(Update 2: John Brennan, the White House’s chief counterterrorism advisor, was asked at a press conference whether the mission was to capture or kill Osama bin Laden. He says that the forces were prepared for “all contingencies,” but if the forces had an opportunity to capture bin Laden, they would have done so.)

(Update 3: It’s getting more complicated. The Daily Telegraph now  reports that now the White House acknowledged that bin Laden did not have a weapon at the time he was shot, and did not fire back. However, U.S. officials continued to insist, while not offering details, that bin Laden resisted the U.S. military team. A bit more details can be found here, while Slate provides context on how to ‘read the Bin Laden coverage’)

(Update 4: UN High Commissioner for Human Rights Navi Pillay asks the US for details on the precise circumstances of Bin Laden’s death.)

In any case any order to kill, rather than detain OBL would be entirely unsurprising and in line with Obama’s general detention practices in the fight against terrorism. There was little to be gained politically by arresting and detaining OBL. It only would have caused the President (again) many domestic headaches.  Where should the US detain and interrogate OBL? Guantanamo was not an option for the president, the Parwan Detention Facility in Afghanistan was off limits, and bringing Osama to the US would have created political mayhem as well. “Bringing Osama to justice” therefore always meant killing him, and not giving him a military or civilian trial.

It is also interesting to see that the use of drones, the US’ favorite technique to kill terrorist suspects in Pakistan to date, apparently wasn’t really contemplated to use in the case of such a high value target as Osama Bin Laden. There’s no clear explanation for this: was it because drones are mainly used to target “mere foot soldiers” or “lower-level fighters” anyway? Probably not. Was it because the US really wanted to make clear Osama Bin Laden had died, and there wasn’t enough intelligence to know for sure that Osama was in the compound? Perhaps. We know that Navy Seals checked the identity of Osama Bin Laden with a DNA test and face-recognition technology. (I hope they used better equipment than this one by the way.)