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article imageOp-Ed: Was the US seizure of Abu Anas Al-Liby in Libya legal?

By Ken Hanly     Oct 9, 2013 in Politics
Tripoli - There is little discussion of the legality of the seizure of suspected Al Qaeda operative Abu Anas al-Liby in front of his house in Tripoli as he arrived home from prayers except in terms of defense of its legality under US law.
Secretary of State John Kerry claims that the kidnapping of al-Libby is legal in terms of US domestic law. Jon Silverman, a professor of media and criminal justice at the University of Bedfordshire notes: The statement made by the US Secretary of State, John Kerry, that the kidnap of Abu Anas al-Liby complied with United States law is correct - but that will not stifle criticism that the seizure was a flagrant breach of international law.
Kerry's argument relies upon the Authorization to Use Military Force (AUMF) and he concludes: "With respect to Abu Anas al-Liby, he is a key al-Qaeda figure, and he is a legal and an appropriate target for the US military," .
Stephen Vladeck, professor of law at American University explains the source of the authority of the US to seize al-Liby: " And so the authority under U.S. law comes from this 12-year-old statute, the Authorization for the Use of Military Force, the AUMF that Congress passed right after 9/11. And that has been the basis for virtually all of our uses of the force against al-Qaida and its, you know, personnel all over the world."
Vladeck's comments are part of an interview. The interviewer notes that the AUMF law may set a precedent and that other countries might use the same type of justification. Vladeck's response is interesting: "Well, you know, I mean other countries don't have laws like the AUMF, and I think, you know, we have to merge the practical considerations with the legal ones. So even if other countries thought they had the legal right to capture, you know, terrorism suspects outside of their borders, they may not have the capability or the capacity to do so. So the U.S. is in something of a unique position here. "
Actually, the US is not unique. For example Israeli agents kidnapped Adolf Eichmann in Buenos Aires Argentina in 1960 and took him to Israel where he was tried in 1961 for war crimes. Interestingly, the court rejected claims by the defense that the prosecution was illegal because of the kidnapping. Among the precedents to justify the rejection the court noted the practice of US courts who did not seem to worry about the manner of apprehension of those who were tried as evident in the prosecution of those seized by bounty hunters.
In a decision 21 years ago now, the US Supreme Court ruled that a Mexican gynaecologist charged with being involved in the torture and killing of a US narcotics agent was abducted by Drug Enforcement Administration agents and taken to Texas to stand trial. The court ruled the kidnapping lawful even though there is an extradition treaty between the US and Mexico. So Kerry seems to have the law on his side. But the AUMF law is dangerous and precedent setting. What is legal for the US could be made legal by any other country.
For example Venezuela wants to retry Luis Posada Carriles for the alleged bombing of Cubana flight 455 killing 78 people on October 6, 1976. What if Venezuelan Special Forces seized Carriles from in front of his Florida home and whisked him off to be tried in Caracas? They could cite the US actions as precedent. Of course this will not happen since even if Venezuela had the capacity to do so, the threat of punishment by the US would no doubt deter them. Yet countries such as China and Russia could mimic US actions and use parallel justifications. The US domestic law in itself encourages violation of principles of human rights such as security of the person as Amnesty International notes: The USA has again used its flawed "global war" theory to violate fundamental human rights principles, this time to carry out the abduction of Libyan national Nazih Abdul-Hamed al-Ruqai, also known as Abu Anas al-Libi, from Libya on 5 October 2013. The US government should immediately confirm his whereabouts and provide him access to legal counsel, medical care and family members. Of course so far none of this has happened. Liby's family found out from news reports what had happened to the father.
If the Libyan government was not a party to the seizure, the kidnapping is a clear violation of international law. It violates the sovereignty of Libya. Any seizure of Liby should have been by the Libyan police or security forces. The US seizure shows contempt for Libyan law. Certainly kidnapping would be illegal under Libyan domestic law. The US agents should be liable to the type of action taken by an Italian court that convicted CIA agents and their own intelligence agents of kidnapping in the Abu Omar case. As an anonymous international law expert put it: "There are rumours or allegations that al-Liby was seized by a local militia, but if it was done with the knowledge or approval of the government, that might be used to mitigate what would otherwise plainly be an illegal act under international law.
You just can't go around lifting people in other sovereign states."
Obama avoided answering a question about the legality of Liby's seizure under international law. While the action was legal under US law, that law itself creates a dangerous precedent and encourages actions against international law and also actions that will be illegal under the domestic laws of other countries violating their sovereignty.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
More about US Libya relations, International law, War on Terror
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