Was US capture of Libyan al Qaeda suspect legal?
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The US has defended the capture of suspected al Qaeda leader Anas al Libi by Navy SEALS in an operation in Tripoli on Saturday as “appropriate and legal”, despite the objections of the Libyan government.
The capture by US special forces of suspected al Qaeda leader Nazih Abdul-Hamed al Ruqai, better known by his alias Anas al Libi, in a raid in Libya on Saturday was the latest demonstration of Washington’s determination to root out wanted terrorists, no matter where in the world they might be hiding.
US Navy SEALS seized al Libi, a Libyan citizen who has been wanted by the United States for more than 15 years for his alleged links to the twin 1998 US embassy bombings in East Africa, in an operation in the Libyan capital Tripoli. A raid was also carried out in Somalia on the same day, though the US forces failed to capture their target.
“We hope that this makes clear that the United States of America will never stop in the effort to hold those accountable who conduct acts of terror,” US Secretary of State John Kerry said on Sunday, while attending an economic summit in Indonesia.
Tripoli accuses US of ‘kidnapping’
Somalia raised no objections to the US carrying out military operations within its borders, with Prime Minister Abdi Farah Shirdon telling reporters that his government’s cooperation with the US was “not a secret”.
But the view in Libya is rather different, with the country’s government describing Libi’s capture as nothing short of a “kidnapping”.
"The Libyan government is following the news of the kidnapping of a Libyan citizen who is wanted by US authorities,” Prime Minister Ali Zeidan said Sunday.
Anas al Libi has been taken aboard a US Navy ship in the Mediterranean Sea, where he is being investigated by an elite team of interrogators, US officials said on Monday.
Libi is being held aboard the USS San Antonio, an amphibious transport dock ship, where he was taken after his capture in Libya on Saturday, the officials said.
He is being questioned by the US High Value Detainee Interrogation Group, an inter-agency group created in 2009 and housed in the FBI's National Security Branch.
"The Libyan government has contacted US authorities to ask them to provide an explanation."
Tripoli’s protests have raised awkward questions for Washington over the legality of raids to capture terrorists on foreign soil.
Speaking on Monday, Kerry was adamant that Libi was a “legal and appropriate target” for the US military.
“Members of al Qaeda and other terrorist organizations literally can run but they can't hide,” he added.
In Washington’s view, operations like the one in Libya and the 2001 killing of Osama bin Laden by Navy SEALS in Pakistan have a legal basis under the Authorization for Use of Military Force, a law passed by the US Congress in the wake of the 2001 September 11 attacks.
The law permits the US president to use “all necessary and appropriate force against those nations, organisations, or persons he determines planned, authorised, committed, or aided the terrorist attacks that occurred on September 11, 2001 … in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons”.
‘A clear violation of international law’
This, according to Victor Comras, a lawyer and former US State Department diplomat specialising in counter-terrorism, makes operations such as the one in Libya legal under American law.
“Since 2001 at the start of the war on terror, there is this principle of self-defence, where if a state cannot arrest or hand over a terrorist, or refuses to do so, the US has the right to do it,” he told FRANCE 24 from New York.
Furthermore, Washington may have had little choice than to act without first consulting the Libyan government, Comras argued.
“The problem in this type of situation is that it up to the authorities of the country in question whether they cooperate or not. In certain cases, if you give advanced warning of an impending operation, you risk the suspect disappearing.”
Libya “did nothing” to hand over al Libi, said Comras. “Under such circumstances, the only chance the Americans had to catch him was to do it themselves, in accordance with the self-defence principle.”
But while the Libya operation may have been permitted under the US’s own statutes, this does not make it acceptable under international law, argues Marcelo Kohen, a professor of international law at the Graduate Institute of International and Development Studies in Geneva.
“The US operation in Libya is a clear violation of the fundamental norms of international law, namely the respect of a country’s territorial integrity and sovereignty,” he told FRANCE 24.
“A state cannot remove a foreign citizen, from inside a foreign territory, to be judged in its own country while disregarding international law,” he said. “You need permission. There are existing legal structures among states to address this kind of situation.”
Nevertheless there is little risk of the US facing legal repercussions for the military operation in Libya, said Kohen.
“No mechanism exists that would allow Libya to go beyond a simple protest, while knowing that this will have no effect.”