In an effort to safeguard national security, the United States has undertaken a few select, high profile interventions that have challenged the sovereignty of other nations in years past. Some of these unilateral military actions have been criticized as aggressive attempts to demonstrate the United States’ global superpower status, including last October’s well-reported raids in Libya and Somalia.
The Libya raid has been criticized as a forceful act in disregard of Section Two of the UN’s Model Law on Extradition of 2004, which states that: “A person may be extradited in accordance with the present law or a relevant extradition treaty or agreement on the request of a requesting State”. In accordance with this model, the United States would have been expected to request permission from the Libyan government before undertaking an operation to remove a citizen from Libyan territory.
This step was not taken by United States officials before U.S. Special Operations Forces apprehended Abu Anas Al-Liby upon his return from morning prayers in Tripoli on October 5, 2013. The suspected al-Qaeda terrorist was targeted for his alleged involvement in the 1998 bombings of the United States embassies in Kenya and Tanzania that killed 258 people and injured some 4,500 more. Al-Liby was indicted by a New York Grand Jury in 2000 for his role in the carnage, and is to be tried in a U.S. civilian court once a trial date is set following his court appearance on December 12th.
Al-Liby will be tried in a New York court rather than at a facility such as Guantanamo Bay in accordance with the State Department’s recent efforts to reduce the detainment facility’s population, expressed by spokeswoman of Marie Harf as, “The administration's position on Guantanamo is clear. Our goal is not to add to the population, it’s to reduce it, which we’ve done...Our policy is not to send any new detainees to Guantanamo.”
The Libyan government has appointed Mr. Bernard Kleinman, an experienced defender of accused terrorists like 1993 World Trade Center bombing mastermind Ramzi Yousef, to defend Al-Liby. The Libyan government also called for a public explanation from the United States, calling the mission to capture Al-Liby, “A flagrant violation of the country's national sovereignty."
Although Secretary of State John Kerry claims that the suspected terrorist was a “legal and appropriate target,” there is still question over the legality of the mission, as no publicly available extradition treaty exists with Libya. The current government had only been in place for 25 months since the 2011 overthrow of Muammar Quaddafi. This exchange will set the precedent for future interactions with Libya, though similar actions by the United States have been accepted by the international community in the past.
Two years ago, United States forces attacked Osama Bin Laden’s Abbottabad compound without notifying the Pakistani government of the planned attack. While cross-border missions were not abnormal in Pakistan at the time, this was the first deep—and eventually public—penetration of Pakistani territory. Nearly three decades earlier, in 1985, the United States kidnapped a Mexican accused of the murder of a United States narcotics agent on Mexican soil before transporting him to Texas without approval of the Mexican government. This act was declared lawful by the Supreme Court in United States v. Alvarez-Machain in a 6-3 decision.
The United States is not the only nation that has violated the sovereignty of another country in order to capture a dangerous target, however. In 1961, an Israeli court argued that their prosecution of the Nazi Adolph Eichmann was lawful even though he was kidnapped by Israeli agents on the foreign soil of Argentina. Given Argentina’s historic sympathies and de facto status as a Nazi safe haven, the country’s government condemned Israel’s secret operation. Furthermore, Veronica Eichmann complained to the Argentine Federal Court that her husband was denied due process through his capture and rendition. The court reviewed her complaint, but eventually closed the case in 1962 after failing to identify Eichmann’s kidnappers. Together, these cases have established loose precedent for the legitimacy of such capture/kill missions in foreign territories.
The precedent set by the recent Libya raid and by these previous cases is one that can be applied to future situations regarding the capture of international criminals, including the pirates off of the coast of Somalia. Over the past few years, piracy has been a growing security threat in the Gulf of Aden, as well as more recently in West Africa’s Gulf of Guinea. As recently as last fall, two American sailors working on an oil supply vessel of the coast of Nigeria were kidnapped and released, presumably after having been ransomed. The International Maritime Bureau estimates that pirates hijacked 53 ships and took 1,181 hostages worldwide in 2010 alone.
As of October 2013, 206 incidents have been reported worldwide to the ICC Commercial Crime Services, including 11 hijackings. Two of eleven Somali-related incidents were hijacking, and a further two of thirty Nigeria-related reported incidents were also hijackings, indicating a new geographic area of focus for maritime events. The capture and prosecution of the perpetrators has proven to be difficult, though, for there is no universally accepted legal system for those accused of piracy.
For example, Somalia does not have enough resources to address the problem itself, so the capture of pirates off the Somali coast is often left to the navies of victimized nations and defensive leagues like the Combined Maritime Forces. Once apprehended, these criminals may be tried in the national courts of their victims’ homelands, as evidenced in the case of the lone surviving pirate of the Maersk Alabama attack made famous in the movie Captain Phillips, who was convicted in the United States and is serving a 33 year prison sentence in a federal penitentiary.
Currently, there are no concrete universal norms for the capture and prosecution of pirates. However, the United Nations has taken a step towards unifying international responses by unanimously adopting Resolution 1851 in December 2008 that gave countries the power to “Undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea,” for a period of one year, presumably including the right to pursue pirates into Somalian water and onto Somali soil. This resolution has been reaffirmed consistently over the intervening years, most recently in Resolution 2125 on November 18, 2013.
The stance has important implications, for it supports the right of nations to enter another sovereign territory in pursuit of targets that may have been engaged in international waters. Currently, three multinational maritime coalition forces are operating off of the coast of Somalia, including the European Union, NATO, and the Combined Maritime Forces.
Piracy is just one of the challenges in international law that the recent precedent of the Libyan and Somalian raids can be applied to. As the world grows increasingly interconnected, nations must work together to form agreements concerning the capture and persecution of dangerous criminals both on land and at sea.
Photo: UK Ministry of Defence (cc).
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From the Shores of Tripoli: Territorial Sovereignty and Jurisdictional Precedent
February 18, 2014
In an effort to safeguard national security, the United States has undertaken a few select, high profile interventions that have challenged the sovereignty of other nations in years past. Some of these unilateral military actions have been criticized as aggressive attempts to demonstrate the United States’ global superpower status, including last October’s well-reported raids in Libya and Somalia.
The Libya raid has been criticized as a forceful act in disregard of Section Two of the UN’s Model Law on Extradition of 2004, which states that: “A person may be extradited in accordance with the present law or a relevant extradition treaty or agreement on the request of a requesting State”. In accordance with this model, the United States would have been expected to request permission from the Libyan government before undertaking an operation to remove a citizen from Libyan territory.
This step was not taken by United States officials before U.S. Special Operations Forces apprehended Abu Anas Al-Liby upon his return from morning prayers in Tripoli on October 5, 2013. The suspected al-Qaeda terrorist was targeted for his alleged involvement in the 1998 bombings of the United States embassies in Kenya and Tanzania that killed 258 people and injured some 4,500 more. Al-Liby was indicted by a New York Grand Jury in 2000 for his role in the carnage, and is to be tried in a U.S. civilian court once a trial date is set following his court appearance on December 12th.
Al-Liby will be tried in a New York court rather than at a facility such as Guantanamo Bay in accordance with the State Department’s recent efforts to reduce the detainment facility’s population, expressed by spokeswoman of Marie Harf as, “The administration's position on Guantanamo is clear. Our goal is not to add to the population, it’s to reduce it, which we’ve done...Our policy is not to send any new detainees to Guantanamo.”
The Libyan government has appointed Mr. Bernard Kleinman, an experienced defender of accused terrorists like 1993 World Trade Center bombing mastermind Ramzi Yousef, to defend Al-Liby. The Libyan government also called for a public explanation from the United States, calling the mission to capture Al-Liby, “A flagrant violation of the country's national sovereignty."
Although Secretary of State John Kerry claims that the suspected terrorist was a “legal and appropriate target,” there is still question over the legality of the mission, as no publicly available extradition treaty exists with Libya. The current government had only been in place for 25 months since the 2011 overthrow of Muammar Quaddafi. This exchange will set the precedent for future interactions with Libya, though similar actions by the United States have been accepted by the international community in the past.
Two years ago, United States forces attacked Osama Bin Laden’s Abbottabad compound without notifying the Pakistani government of the planned attack. While cross-border missions were not abnormal in Pakistan at the time, this was the first deep—and eventually public—penetration of Pakistani territory. Nearly three decades earlier, in 1985, the United States kidnapped a Mexican accused of the murder of a United States narcotics agent on Mexican soil before transporting him to Texas without approval of the Mexican government. This act was declared lawful by the Supreme Court in United States v. Alvarez-Machain in a 6-3 decision.
The United States is not the only nation that has violated the sovereignty of another country in order to capture a dangerous target, however. In 1961, an Israeli court argued that their prosecution of the Nazi Adolph Eichmann was lawful even though he was kidnapped by Israeli agents on the foreign soil of Argentina. Given Argentina’s historic sympathies and de facto status as a Nazi safe haven, the country’s government condemned Israel’s secret operation. Furthermore, Veronica Eichmann complained to the Argentine Federal Court that her husband was denied due process through his capture and rendition. The court reviewed her complaint, but eventually closed the case in 1962 after failing to identify Eichmann’s kidnappers. Together, these cases have established loose precedent for the legitimacy of such capture/kill missions in foreign territories.
The precedent set by the recent Libya raid and by these previous cases is one that can be applied to future situations regarding the capture of international criminals, including the pirates off of the coast of Somalia. Over the past few years, piracy has been a growing security threat in the Gulf of Aden, as well as more recently in West Africa’s Gulf of Guinea. As recently as last fall, two American sailors working on an oil supply vessel of the coast of Nigeria were kidnapped and released, presumably after having been ransomed. The International Maritime Bureau estimates that pirates hijacked 53 ships and took 1,181 hostages worldwide in 2010 alone.
As of October 2013, 206 incidents have been reported worldwide to the ICC Commercial Crime Services, including 11 hijackings. Two of eleven Somali-related incidents were hijacking, and a further two of thirty Nigeria-related reported incidents were also hijackings, indicating a new geographic area of focus for maritime events. The capture and prosecution of the perpetrators has proven to be difficult, though, for there is no universally accepted legal system for those accused of piracy.
For example, Somalia does not have enough resources to address the problem itself, so the capture of pirates off the Somali coast is often left to the navies of victimized nations and defensive leagues like the Combined Maritime Forces. Once apprehended, these criminals may be tried in the national courts of their victims’ homelands, as evidenced in the case of the lone surviving pirate of the Maersk Alabama attack made famous in the movie Captain Phillips, who was convicted in the United States and is serving a 33 year prison sentence in a federal penitentiary.
Currently, there are no concrete universal norms for the capture and prosecution of pirates. However, the United Nations has taken a step towards unifying international responses by unanimously adopting Resolution 1851 in December 2008 that gave countries the power to “Undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea,” for a period of one year, presumably including the right to pursue pirates into Somalian water and onto Somali soil. This resolution has been reaffirmed consistently over the intervening years, most recently in Resolution 2125 on November 18, 2013.
The stance has important implications, for it supports the right of nations to enter another sovereign territory in pursuit of targets that may have been engaged in international waters. Currently, three multinational maritime coalition forces are operating off of the coast of Somalia, including the European Union, NATO, and the Combined Maritime Forces.
Piracy is just one of the challenges in international law that the recent precedent of the Libyan and Somalian raids can be applied to. As the world grows increasingly interconnected, nations must work together to form agreements concerning the capture and persecution of dangerous criminals both on land and at sea.
Photo: UK Ministry of Defence (cc).
