-- About the Course -- From the Nuremberg trial to the case against Saddam Hussein, from the prosecution of Al-Qaeda terrorists to the trial of Somali pirates – no area of law is as important to world peace and security as international criminal law. Taught by one of the world’s leading experts in the field, this course will educate students about the fundamentals of international criminal law and policy. We will explore the contours of international crimes such as genocide, war crimes, terrorism, and piracy. We will examine unique modes of international criminal liability and specialized defenses. And we will delve into the challenges of obtaining custody of the accused and maintaining control of the courtroom. -- Course Syllabus -- This course comprises eight units (or "modules"). Each will include an assigned reading, typically an article or book chapter, as well as a simulation designed to bring the readings to life. I will also offer video lectures on each of the topics, accompanied by slides. In addition, there will be online role-play exercises and debates, enabling the students to share their own insights. The order of class sessions will be: (1) History: From Nuremberg to The Hague (2) International Crimes Part 1: War Crimes, Genocide, Crimes against Humanity, and Torture (3) International Crimes Part 2: Terrorism and Piracy (4) Special modes of liability: command responsibility, co-perpetration, and incitement (5) Special defenses: insanity, obedience to orders, duress, and head of state immunity (6) Gaining custody of the accused: extradition, luring, abduction, and targeted killing (7) Pre-Trial Issues: plea bargaining, self-representation, and exclusion of torture evidence (8) Maintaining control of the courtroom -- Recommended Background -- You don’t have to be a lawyer and there are no prerequisites for this course. However, the course will be conducted at the level expected of advanced undergraduate students. Therefore, for all participants, reading and writing comfortably in English at the undergraduate college level is desirable. -- Suggested Readings -- Students should read the assigned online materials for each unit in advance of the class session. In addition, students are invited to subscribe to “War Crimes Prosecution Watch,” a free bi-weekly e-newsletter that summarizes the latest developments in the field of international criminal law. -- Course Format -- This course is made up of eight content units. Each unit is based on an online reading assignment, a video lecture of about one hour in length, and one or more role play exercises to stimulate on-line discussion. The course also offers in-video enrichment quizzes (ungraded) for each unit, a ten question multiple choice midterm diagnostics exam (ungraded), and a ten question True/False Final Exam. -- FAQ-- How will this course be graded? This course is graded on completion. In order to complete the course each student must: (1) finish each module (or “lesson”); (2) write at least one essay response of 200 words or more for at least one simulation throughout the course; and (3) get a score of 6 out of 10 or better on the Final Exam. What resources will I need for this course? For this course, all you need is an Internet connection, and the time to read and discuss the exciting materials available online. What is the coolest thing about this course? The topics we will be discussing are ripped from the headlines. The topics are often controversial and thought-provoking, and always exciting.
Gaining Custody of the Accused
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From the course by Case Western Reserve University
Introduction to International Criminal Law
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From the lesson
Gaining Custody of the Accused
This lesson includes a video lecture and readings that explore the options countries have in attempting to gain custody over an accused person under international law. Specifically, the lesson discusses countries’ use of tactics like abduction, luring, extradition and targeted killing. This lesson also includes a set of simulations that allow students to apply the issues discussed in the readings and lecture to one fictional fact pattern and one real life scenario.
Meet the Instructors
Michael ScharfInterim Dean and Joseph C. Hostetler – Baker & Hostetler Professor of Law
School of Law
[MUSIC].
Hello, this is Michael Scharf. Welcome back to International Criminal
Law. In this session we're going to be looking
at the obstacles and ways of getting custody of perpetrators of international
crimes. So that they can be tried either at
international tribunals or domestic courts.
Now the problem with international criminal law, especially when it comes to
international tribunals is that there is no international constabulary.
So state cooperation is very necessary and sometimes states will act alone
unilaterally which can cause frictions in the international community.
That also applies to some extent when countries want to prosecute domestically.
Because when you operate across borders, your domestic police can not operate in
another country without that country's permission.
So, we are going to be spending today's session looking at a hypothetical, based
and a real life situation and that is perpetrators of 9/11 atrocity.
So, in this slide of course you see Osama bin Laden.
Who famously declared right after 9/11 he was responsible, that Al-Qaeda pulled off
the big one. That this was going to be one of many
terrorist attacks against the United States in the West.
So what happens, is that the Obama administration gets together and has to
figure out what to do, especially in April of 2011.
Where information surfaced that finally showed that they thought they knew
exactly where Osama bin Laden had been hiding for the last 10 years.
Now the big surprise was of course he wasn't hiding in Tora Bora or the
mountains of Afghanistan. But rather, in rather plain sight, near a
military base in Pakistan. So in this slide, you have the White
House crisis group. And you have President Obama saying what
are my options. I've wanted for the years that I've been
president to get this man. It is important to me politically.
It's important to the safety of the United States.
What can we do to get him? And in those questions, we can look at
the options that apply generally to bringing international criminals to
justice. The first option is extradition.
Extradition is a legal method by which an individual can be brought from one
country to another through state cooperation.
It goes all the way back to thousands of years ago when the first extradition
treaty was signed between the Egyptians and the Hittites, during the reign of the
Pharaoh. But more recently, extradition is
governed by treaties. And in this slide you have a picture that
shows the countries with which the United States has extradition treaties.
Now, the extradition treaties that the United States have, cover many countries
throughout the world, but not all of them.
And when there's a country that doesn't have an extradition treaty, an
extradition cannot work. The United States is pretty typical in
this regard. The United Kingdom and other major
countries have many extradition treaties, over a 100.
But no country has an extradition treaty with every country.
What that means, is that there are certain countries where perpetrators can
flee and they will escape the process of extradition.
There's another difficulty with extradition treaties, and that is that
most of them are based either on a list, where they list about 25 extraditable
offensives. And if the particular offense is not on
that list the individual cannot be extradited.
Or, more frequently in modern age, the extradition treaties have what is known
as the dual criminality approach. Where the extradition treaty will say, if
the crime is punishable by over a year in, in prison.
In other words, say felony in both the country that wants the proprietor to be
delivered to them and the country where the perpetrator is present.
So if there's dual criminality, only then can there be extradition.
And the problem with that is there are many crimes where there isn't dual
criminality. The United States for example has had
difficulty getting individuals who have been tax offenders to come back from
Switzerland. Where they don't have a Federal Tax Code
and a Federal Tax Crime. In other situations, the United States
has had difficulty trying to get the individuals who are children of a
biological parent who has been deprived of custody by a court.
And is nonetheless kidnapped, childnapped, the child, and brought them
to another country. And in those situations since, kidnapping
your own child is not seen as real kidnapping, in some countries, its been
difficult. So these are example, where if one
country has a crime on its books, and the other country doesn't, the person can
escape, extradition. And then finally, there is a big loop
hole in extradition law, called the Political Offense Exception to
extradition. Which sometimes applies to people who are
suspected of terrorism. There's two approaches to the political
offense exception. In the United States and the United
Kingdoms, they apply what is known as the incidence test.
In this case, someone is not extraditable, they are protected by the
Political Offense Exception, if their crime occurred during an ongoing
uprising. And it was in furtherance of it.
And the reason for this Political Offense Exception is that, it is been known for,
for centuries that there is some people who are committing crimes but they are
seen as heroes. Like George Washington, they're rebels
with a cause. And therefore it is not in the interest
of countries to extradite them back into the jaws of the lion where they will be
persecuted rather than prosecuted. The other approach, around the world is
called, the proportionality test which was developed by the Swiss.
This is sort of a Machiavellian, ends means type test.
What you do is you evaluate the political goal, the political objective, and then
you look at what the crime was. And if the crime was justified by the
objective then the person is not extraditable.
Now, under both of these situations there have been major cases where fugitives
from justice who committed acts of terrorism have been found
non-extraditable. In the 1980's for example, there were a
number of Irish Republican Army terrorists who had committed crimes both
in Northern Ireland and in the United Kingdom, in London.
And had found their way to places like Boston.
And they argued that they should not be prosecuted because there was an upgoing,
an ongoing uprising in the United Kingdom, in Northern Ireland.
And that the acts of murder, planting bombs, and so forth, were in furtherance
of that uprising. And, for awhile, these people did escape
justice. In fact, what happened was, the United
States had to ammend its extradition treaty with the United Kingdom, to get
rid of the political offense exception, in order to surrender these individuals
back to the United Kingdom for trial. But that exception between the U.S and
the UK has not been generally applied. So most countries of the world still have
the political offense exception. Now, someone like Osama bin Laden,
probably would not escape under the political offense exception.
Because the courts have been trying to figure out who to apply it in a way that
doesn't allow heinous criminals to escape justice.
And one of those ways is to say that the indiscriminate attacks against the
civilian population, which would be a war crime if committed during armed conflict,
cannot be subject to the Political Offense Exception.
And this has been applied in some cases, and if it were applied in the case of
Osama bin Laden he would be extraditable. But the biggest problem we're trying to
get Osama Bin Laden from Pakistan. Even though the United States has
military bases in Pakistan and fairly good relations with that country, is that
there is no extradition treaty between the two.
Why are there so many countries that the United States and others don't have
extradition treaties with? The answer is, that when you enter into
an extradition treaty, it's like a marriage, it's a long term relationship.
And it means that you're going to be usually surrendering not just foreigners,
but even your own citizens to the other country for prosecution.
So you have to be absolutely satisfied with that country's justice system, with
the fairness of their procedures before you'll enter into such a treaty that
binds you to send your own people to be trialed abroad.
And for that reason there are many countries the United States has not
entered into extradition treaties with in the Middle East, some in Asia and many
with the former Soviet Republics. Now, one of the more interesting
extradition cases that have come about in modern days in, in modern times, is the
case of Julian Assange. He is the guy who invented WikiLeaks.
And in the last couple of years, his company has, taken documents that are
given to them from whistleblowers and leakers, and put them on the Internet.
And this has made him a very dangerous fellow in the eyes of many countries who
believe that he is a security threat. And so, there was an extradition request
for Julian Assange from Sweden who charged him with committing sexual abuse
against a woman. But he claimed these were just trumped up
charges and what really was going on was that the United States wanted to get a
hold of him. And if he had gone to Sweden, he would
then be transferred to the United States. So he's in the United Kingdom and he
fights his extradition. And the United Kingdom court said, the
political offense exception does not apply when there is somebody who believes
that the motives of the other country are political.
That they are not really going to give them a fair trial because that doesn't
fall within the narrow confines of the U.S-U.K incidence test.
Remember, there were only two requirements of that test.
First, that there be an ongoing uprising, and there really isn't one in this
situation. And second, that the politcal offense be
in furtherance of that uprising. And again, you can't prove that in this
case. So, this is a case that shows that the
political offense exception is very narrow.
And it doesn't apply to some things that we would consider really political
offenses that needed protection. So what did Julian Assange do?
We flees to the Ecuador Embassy in London and they give him temporary asylum.
And there he is to this day, and nobody can prosecute him as long as he stays
there, although in fact he is a prisoner within the confines of that small
embassy. So, that is a good example of sort of the
limits of the political offense exception, and maybe also the problem of
asylum as another way of frusterating extradition.
There is another way around the political offense exception, and the fact that
there are some countries that there aren't extradition treaties.
And that is that every country, is allowed to deport people who show up
illegally and who are citizens of another country.
Now showing up illegally can mean many things.
It can mean that you got in with a false passport, but it can also mean that on
your visa application, you did not declare that you were wanted for crimes.
That would be, illegal entry. And for that reason the United States
will sometimes find people in its courts non-extraditable under the political
offence exception. Like the IRA terrorists.
And nonetheless, deport them back to the country that wants to prosecute them
because they didn't declare, that they were wanted for serious crimes, when they
entered the country. And so many people say this deportation
is, disguised extradition, and in fact, there has been a huge rise in
deportations in recent years. But, around the world, deportations do
work as a way of transferring one person who's wanted for a crime in another
country. If that person is not a citizen of the
territorial country, who has been requested to surrender them.
Now, if extradition doesn't work, which often is the case.
Because of the limited number of extradition treaties.
Because lack of dual criminality. Because of the political offence
exception, because of asylum. And if deportation doesn't work, there is
another option, that doesn't involve necessarily, use of force.
And this is called, Luring. And a great example of the story of a
successful Luring operation, is Operation Goldenrod.
A case, that was brought about by the United States, about 20 years ago.
The operations had its genesis in a hijacking of an aircraft a Lebanese
Airliner. And the people who committed this
terrorist act ended up letting the per, the victims go, nobody was injured which
was quite lucky. But the perpetrators made the mistake of
making a videotape. Not just of their hijacking, but
especially of all the victims as they were leaving, shaking the hands of the
perpetrators. The perpetrators thought this just showed
how well regarded they were by their victims.
And Stockholm Syndrome not withstanding. I can tell you the victims were just
doing this because they wanted to get the heck out of there without getting killed.
Now this tape that they made ended up going around from terrorist party to
terrorist party. And some undercover officers that were
cooperating with the United States saw the tape and alerted the United States.
And said, do you know that we have a video tape that shows very clearly who
the perpetrators were. And they're, they're really bragging
about how they got away with the successful hijacking, and nobody has ever
brought them to justice. So the United States decided to create a
really elaborate plan to lure the perpetrators out into the open where they
could be caught. And then surrendered to the United States
for trial. What the plan involved was telling the
perpetrators that they could make millions of dollars by doing a drug deal
with a farious drug operation. And since terrorists do need money to buy
their weapons, their plastic explosives, and to purchase documents to go from one
country to another. This seems I guess very something that
the terrorist could really benefit from. So the deal was struck and the, the way
the deal was structured was the terrorists had to go off into a boat, off
the coast of Cypress in order to make this drug transaction.
When they got there, they saw beautiful bikini clad women and drug dealers
hanging out on the boat. And they and lots of drinks, they had a
good time and they thought while this has to be real.
What they didn't know, was those women and those drug dealers were all
undercover FBI officers. So, the individual was taken down and he
was arrested and he was flown to the United States and prosecuted and
convicted and he is still in jail to this day.
So that's an example of where you can lure somebody into international waters.
You don't have to take them out or down in a place where you violate another
country's sovereignty and it can work. Now would it work with Osama bin Laden?
I think there were some thoughts that may be because he was on dialysis and he
might need kidney treatment, that there was a way to use that to lure him.
But in the end, I think they felt the risks were to high, that he would see
through the plan, he was too careful. He knew he was too highly placed to fall
for something like this. So this might work for lower level
terrorists and for crimes that weren't on the international radar.
But as I've said throughout this course, international justice is persistent and
patient. And sometimes it takes 20 years, but
often these kinds of things catch up with the perpetrators.
Now, another situation where there was a luring that didn't work out so well in
terms of the relations, was a famous case call the Van Sichem case.
I was actually a U.S State Department official when this case arose.
And what happened in that case is that Van Sichem was a major narco drug lord.
who had a huge distribution network based in the Netherlands.
And the Netherlands knew that Van Sichem was a Dutch National.
And therefore they weren't going to be extraditing him to other countries.
Because in their extradition treaties there's a clause that says, we will not
extradite our own nationals. It does say that they'll prosecute them
if they don't extradite. But in the Netherlands, the drug laws
were much weaker than in the United States.
And so the U.S did not want Van Sichem to be subject to drug prosecution in the
Netherlands. What they did, is they decided to lure
him out to Belgium. And once who was a Belgium airport they
could just get them extradited to the United States.
And Belgium had no qualms about extraditing a Dutch National from next
door. So how do you get Van Sichem to the
Belgium airport. They found out that his girlfriend lived
in New York. And she had a regular phone call
situation with him where they had code words and she would say things like, meet
me at the regular place. And that meant he should go to Belgium
and and get another drug shipment. And they knew this because they had been
tapping her and his phones. So they found her and they said listen
Van Sichem's girlfriend, if you don't what to go to jail, you have to cooperate
with us. She said, oh, what do I need to do?
And they said, what you need to do is make a call, and tell him to meet you at
the regular place tomorrow. And she says, okay.
So, she's in New York, she makes a phone call.
The call goes to the Netherlands, he picks it up.
I guess he's like involved in this picture in some drugs, but he takes a
break and he picks up the phone, and he says, hi hon, what's up?
She says, meet me at the regular place. He says, I'll pack my bags and be there
tomorrow. So he goes to the Belgium airport in
Brussels, and he gets apprehended, and he gets surrendered to the United States
where he's going to be prosecuted. While the Netherlands goes absolutely
crazy about this. They protest that the United States has
done a law enforcement operation on its territory without any permission of the
government. And that is a violation of international
law, so they say to the United States, we are so mad at you for doing this, we will
not extradite anybody. Not, but we haven't been extraditing our
nationals, but we're not going to extradite anybody you want.
And there are quite a few people on the lists that the American's wanted until
this is patched up. So, actually the United States sends me
over to talk with the Dutch as in my position as attorney adviser for law
enforcement and intelligence of the state department.
And I get scolded by my counterparts in the Netherlands.
And they tell me how terrible the U.S prison systems are and why it's so
important for them not to extradite their nationals and why.
What we did by having this woman call up Van Sichem was no different than if we
had gone into the Netherlands and physically kidnapped Van Sichem
ourselves. Because they said that luring is just
disguised kidnapping. And that the phone call was actually a
penetration into their territory and had we done it in modern days using for
example an email they would have said the same thing.
That the email penetrated their territory and therefore was a violation of their
territorial integrity. Well the way we worked this out is we
promised to enter into a prisoner transfer agreement with the Netherlands.
So, if there was ever a Dutch National, they would surrender them to be
prosecuted in the United States. On condition that the U.S would then
transfer them back to do their time in a posh I guess, Dutch prison.
So it all worked out in the end. But what this shows is that luring when
it, even when it's a phone call, even when it's an email.
Though there aren't any physical penetration, you don't have armed agents
going in, it's still considered by many countries to be a violation of their
sovereignty. And this has to be taken into account
before a luring operation is going to be green lit against a country that may be
one of our allies or as in Pakistan maybe a country that is very important to the
U.S war effort in Afghanistan. And who has a very its, its a very
unstable situation there and United States might not want to topple the apple
cart unintentionally. Okay, so if luring isn't always going to
always work and if extradition often has its obstacles.
What about abduction? I'm going to tell you the case of Alvarez
Machain. He was a doctor in Mexico who got
involved in the Cali drug cartel. And there was an individual named Kiki
Camarina who was a DEA agent who was operating undercover in Mexico.
They found out, somehow who he was. And they captured him.
And the drug lords decided they were going to torture him to find out about
all the other undercover operators in Mexico.
But in order to torture somebody, you have to have a doctor.
So they go to their friend Alvarez Machain, and they say, doc, come on over.
We need you to help us out while we interrogate this DEA agent and find out
who ll the other undercover DEA officers are in our country.
So the guy helped out with that and unfortunately the DEA agent died.
A couple of months later information surfaced and the DEA office in San Diego
found out that Alvarez-Machain was involved in this.
So they decided to go over the border. From San Diego into Mexico, not very far
and they would take Alvarez-Machain into custody by throwing him into the back of
a car and driving him surreptitiously back over the border.
Now they didn't ask the Mexican authorities to extradite Alvarez-Machain.
Because this was a point where there were many reports that indicated that the
Mexican authorities had been infiltrated by the drug lords.
That through coercion, through kidnapping, through threats of violence,
or through payola, paying off these individuals that the officers the judges
couldn't be trusted. And again this is 20 years ago, so I'm
not saying anything to impune our friends in Mexico today who were fighting
valiantly against the drug lords. But back then things didn't look so good,
so the USDA took matters into their own hands.
They take Alvarez-Machain and they throw him in the back of the car and they rough
I'm up a little bit when they do that. And it's no fun, I'm sure to be driven
across the border in a couple of hours over bumpy roads, but he ends up inn San
Diego and he's going to be prosecuted. But his lawyers say you know what, his
way of being apprehended and brought to eh United Sates violated international
law. It violated Mexico's sovereignty because
the U.S sent people into Mexico without Mexico's permission.
And kidnapped a Mexican citizen and brought him back to the U.S.
It also, said the Mexicans, violated their extradition treaty because they did
have a treaty with the U.S, this would not be a case covered by any of the
exceptions. And they claim they should have been
asked and they should have allowed, been allowed to surrender him in the normal
course of things. Well, the case goes all the way up to the
U.S Supreme Court. And the Supreme Court ends up deciding in
a, a very precedent setting fashion, that had, I think implications throughout the
world for the United States Foreign Policy.
That it didn't matter how a fugitive was brought to the United States.
That their rights began once they got in the U.S, at the court house and not prior
to that. They applied something called the
Ker-Frisbie Doctrine. Which were two old cases, Ker and
Frisbie, that had been applied years and years ago.
That said that people could be brought from one state to another or from one
country to another without having to worry about the niceties of due process
and how you treat them. Now, in neither case was it with an
extradition, a case where there was a country with extradition treaty, so the
case had a slight difference. Supreme Court said that was a difference
that didn't matter. The extradition treaty, according to the
Supreme Court, was just an option, it wasn't mandatory.
And the violation of the treaty, therefore, did not require that the case
be dismissed. As far as international law goes, the
court said, well, maybe in international law was violated.
But, that doesn't require dismissal as well.
And so, the case was not dismissed and it said to the rest of the world the U.S is
open for business for kidnapping your citizens where ever they may be.
Now, this scared the heck out of a lot of countries.
And they started saying to the United States, if you want extradition
agreements with us, we need to modify our extradition treaty or enter into some
kind of exchange of notes that makes you promise never to kidnap our citizens.
And the U.S had to do that with Canada, and Mexico, and several other countries.
But for most of the world, the U.S still has this precedence, that, that says,
that it can go across borders and, and kidnap people, and bring them back, even
if it violates due process. Now, there's one exception to this rule,
it's called the Toscanino doctrine. It comes from a U.S court that said,
court case that said, that if the way you bring somebody over is so shocking to the
conscience of the court, to the judge. Then the case may be dismissed with the
judge using his supervisory authority to make sure the entire court system is not
tainted. But in Toscanino, the kind of treatment
that rose to this level of shocking nature, was that the individual was
really abused. He was subject to electric shock, he was
subject to sticks under his fingers. Alcohol was put into all of his orifices
and his eyes, it was just a horrible case.
So, in subsequent cases the U.S courts say that that's sort of, the benchmark
and if it doesn't get to that level it doesn't shock our conscience.
And I suppose in modern times with terrorism and other crimes being so
heinous, it's really hard to shock the conscience of a judge.
So, this is really a narrow exception and as long as people are abducted and not
really tortured. It looks like the U.S courts will allow
this case to go forward. Well, there was a case like this that
then went to the international criminal tribunal for the former Yugoslavia.
It was called the Nikolich case. And it was testing the question of
whether the U.S tough luck rule, the Ker-Frisbie doctrine would apply
intentionally to international tribunals. What happened in Nikolich is that a Serb
who had been responsible for all kinds of war crimes had property in Croatia.
And the UN said if you come over to Croatia and check out the property, then
we will, you know, make a deal with you to make sure it's being well-tended by
our headquarters. And this actually was a companion case
the, the Dokmonovich case. And in Dokmonovich, the individual went
over to Croatia, checked out his property, he was grabbed and he was sent
to the Hague. This was more of a luring operation.
Now in Nikolich, which is a similar case, let's say it's a companion case, the
situation was slightly different. And that was that he didn't get lured
across borders. They nabbed in his sleep, in his
underwear, in his home, in Serbia. They just went in and grabbed them and
they put them in a shipping container and they shipped them to the Netherlands.
And when they opened the container her was roughed up, he was disoriented, he
was bruised. And he said you must dismiss my case,
because you weren't, you didn't extradite me.
You didn't ask Serbia's permission, you just came in and you snatched me.
That's like what the U.S does, but most countries in the world frown upon that.
And the Yugoslavia tribunal had to deal with this question.
It went all the way up to the Court of Appeals the, the, appeals chamber and
unanimously they decided that they would not dismiss the case.
And in a, decision that was written by the American judge Ted Marone.
He said, yes its true it does violate the individuals human rights to kidnap him
where you have extradition and other proceedings available to you.
And he said yes, it's true it violates the territorial integrity of Serbia, to
go in there without permission and take a fugitive out of their territory.
He said however, the remedy for these violations cannot be dismissal of the
case. When you're talking about someone charged
with the most heinous crimes known to human kind, crimes against humanity.
He said that remedy would be disproportionate.
So that he said maybe we'll shave some years off.
Maybe there should be some compensation. But the individual will not go free and
so Nikolich ends up being subject to trial.
And he's convicted and he spends a lot of time in the Hague.
There is another problem, with respect to U.S involvement in abductions, when it
involves using the military to help out. Because, how are you going to abduct
someone from a foreign country if you're in the United States if you just can
send, what, the DEA and the FBI? I mean, these are dangerous places, so
you want to back them up with the military.
But the U.S has a law on its books called the Posse Comitatus Act.
It's an act that was passed right after the Civil War.
And, the reason for this law, was that the Southern States, when they became
part of the Union again, and they had a vote.
Objected strenuously, to the fact that the military from the north, was doing
law enforcement in the south, during the reconstruction era.
And so, at the end of reconstruction, they passed this law, that said, the
military of the United States can never engaged in law enforcement.
And if it does, the individuals who ordered it, or were involved in it, can
be put in jail or fined. So in this picture you have an example,
of like, a military officer patrolling a street in the United States, arresting
someone. That cannot happen, under this law.
But does this law apply when you send the military, like a vessel or helicopters,
to go and do a law enforcement snatch operation, an abduction in a foreign
country. And what the courts have decided, is that
as long as the FBI, who are civilians they are like the police, as long as they
are control of the operation. And the military is just playing a
support role. Then the Posse Comitatus Act is not an
obstacle. This I expose is just a footnote, but it
shows that every country has it's complicating factors.
And there are a lot of other things that can go wrong when you do a snatch
operation. Let's talk about some of those now.
Well first of all you can have a situation where the military and the FBI
and the DEA or whoever walk smack into, you know, a dangerous situation.
Where there's a lot of fighting, and there can be deaths.
And so here's a picture of the famous Black Hawk Down.
This wasn't actually, well, well it was an abduction, act situation.
The, UN and the U.S troops were trying to abduct the leader of the Somalia military
group. General Aidid who had been attacking
peace keepers. And when they went in there to do that
all heck, broke out and the Black Hawk helicopters crashed.
And the Americans crashed and people were beaten and dragged to the streets.
And it took more helicopters to help them and they crashed and it was a giant mess.
Well this is something that can happen when you engaged in an abduction
operation. And President Obama has to be advised
that when he sitting there thinking, what are my options?
Another thing that can happen is they can capture the individuals who are involved
in this abduction. And what would they be prosecuted for?
Well, attempted kidnapping, or if they already did the kidnapping, actual
kidnapping, which is a crime in every country.
illegal possession of guns, you can't take a gun into another country without
its permission. and if anybody got hurt in the crossfire,
you could say that they were responsible for those injuries or killings as well.
So you could actually have people prosecuted in the foreign country who
were there to try to abduct a perpetration for trial in another
country. And then finally if you succeed in
kidnapping the individual, that's not the end of it.
couple of years ago there was a kidnapping plan where the CIA kidnapped
an Italian individual who was said to be involved in terrorism from Milan.
And the Milan courts in Italy ended up prosecuting the CIA officers in Absentia.
And some of them were undercover operators but some of them were people
that they knew, people who were the CIA station chief in the area.
And now those people have a criminal record and there's an international
arrest warrant out for them. So, their carreers, as operators, are
obviously over, they can't leave the United States.
And, it was a big black eye for the United States.
So, when you plan an operation, that's an abduction, a lot can go wrong.
And, in the end, there's no guarantee that it's going to succeed, the risk are
really high. But, just because you have those risks,
doesn't mean that the alternative, which is a targeted killing or assassination is
always going to be a better alternative. So, let's spend some time now looking a
assassination. Here we have a photo of, basically, Osama
bin Laden in the sights of a sniper rifle.
Well, the case of Osama bin Laden, there were two ways you could handle his
assassination. You could use Predator drones which the
United States has been using throughout Afghanistan, throughout Pakistan, in
Yemen, in Iraq, in other countries. Other countries are starting to use
Predator drones. And what they are, are basically
automated little mini aircraft that carry hell fire missiles.
And these are controlled by either a CIA operator somewhere in the vacinity but
more frequently today, by someone back in the United States.
Could be a soccer mom or dad who during the day, operates a joystick.
And puts these terrorists in the crosshairs and pulls the trigger and then
in the afternoons or in the evenings goes off and coaches his kids little league or
soccer team. now the other alternative, the one that
ended up being used in the Osama case is to go in and send special forces.
And have him killed directly by pointing a gun at him and pulling the trigger.
What are the pros and cons of the two? Well the Predator drone is much safer.
You have a less likely hood that your people are going to be captured or killed
or wanting, wanted for extradition. And it's unlikely, that the person who's
back in the United States operating the drone, that their identity will ever be
known. So it's a cleaner operation, but when you
do the Predator drone, the hellfire missiles boom, they make a big explosion.
They could take out an entire house or even a block or in some cases a mountain
side, and therefore they can result in a lot of collateral damage.
And in this case as we'll talk about in a few minutes Osama's house was in the
middle of a neighborhood. And you wouldn't want to take out the
other surrounding homes. But more importantly in this case are two
factors. One is, they thought that when they went
in there they could find all sorts of documents, computers, and other things
that showed what Osama bin Laden had been planning for the future.
And also the names of all the other people in Al Qaeda.
And secondly they thought that if they just blew up his house, because he had
been sort of missing for so long and hiding out the international community
wouldn't believe that he was really killed.
His followers would think he was just in hiding and therefore, there would be no
closure. And that was something that the Obama
administration really, really wanted especially with an election coming up.
So what happens? They find out where he's located.
They find out that the location is in Pakistan just a mile from a military
base, in the middle of a suburb that is fairly heavily populated.
They get this information as you seen in the Academy Award.
nominated movie, Zero Dark Thirty, by following the people who were his
messengers. And they follow him to a place where they
have a very high likelihood, a confidence level, that that's where he's hiding out.
Now they don't know for sure, and there's a great scene in that movie where they
ask around the table, you know, how likely is it that he's really there.
And the CIA director says well about 60% and the defense department says it may be
as high as 70. And the individual who was responsible
for tracking him over the ten year period, said, I know you hate to hear
this, but it's a 100%. Well anyway with that kind of confidence
they decided to go forward. Now they found him in this little town,
Abbottabad, right outside of the capital of, Pakistan.
And this is, a picture that the satellite showed of where his compound was.
And you can see that its in the middle of a suburb with lots of other houses
nearby. An in fact, during the operation, people
came out of the houses, an said, what are you doing?
Go away you invaders. An they had to be held back and, and
things could have gone wrong. so, this is a picture from ground level,
of the, compound. And you could see it has a, a big fence
around it, an it's also in the middle of an area that has, cows, an livestock, and
sheep. Now, this shows the actual layout of the
compound and where Osama bin Laden was believed to be was on the second floor of
the taller room. So they would have to go land on the
compound, get through these high security fences.
There were supposed to be five to seven other armed people there that they would
have to fight through and then they would get up to Osama bin Laden.
Now, the operation takes place in the middle of the night and so far things are
looking good and then all of a sudden one of the helicopters crashes.
Oh no, It could be a repeat of what happened when the U.S tried to rescue the
Iranian hostages in 1979. But, they had two helicopters and the
second helicopter succeeded. Everybody from the first helicopter
jumped out, rescue helicopters came and were able to take them as well.
And, and they went through, floor by floor, and they shot the individuals that
were there. There was some gunfire initially, but
when they got up to Osama bin Laden's room, there is no evidence that he came
out like Butch Cassidy in the Sundance Kid.
You know, shooting his gun. we don't know exactly, because there has
not been a video released. but we do have some of the books, these
kiss and tell stories that had become best sellers.
That tell us that basically it was a kill operation they went in there to kill him,
they did kill him, and when they found his body and there are pictures of his
body all over the internet. that they shot him in the stomach, or the
heart, the chest area, they shot him in the head, they killed him with the old
famous Double Tap. Okay, so, was it legal to go into
Pakistan and assassinate Osama bin Laden the way that he was killed?
That's a good question. That's a question that we need to wrestle
with. First of all the UN charter says that you
cannot go into another country and use force with out violating article two.
Which is sort of, the, the hallmark of the UN.
It's the first commandment of the UN charter.
It says thou shall not invade another country.
And it applies not just to wide spread invasions but anytime you use serious
military force in another country. So, this operation was clearly a
violation of article two, paragraph four of the UN charter.
A very important article. There is only three exceptions to that
rule, against using force in another country.
One is if the country gives you permission.
And the U.S could have argued that they had permission to do counter terrorism
operations on behalf of Pakistan near the border with Afghanistan.
But this operation was 150 kilometers farther away.
It was in the middle, right near the capital, is the middle of a populated
city. There was no permission for this.
So the permission argument isn't going to work.
The second argument is that the security council has authorized the use of force.
And the U.S is allowed to use force in Afghanistan based on the fact that the
Taliban and the Al Qaeda, were joined at the hip.
They were working together and the security council passed a resolution
saying that use of force against the perpatrators of 9/11 and those supporting
them, including the Taliban, was lawful. But did that apply to Pakistan?
Pakistan's not an enemy of the United States, they're not supporting Al Qaeda
generally. They're supporting the U.S in, the, in
the allies in their war against Al Qaeda. So, it's not clear that they come not at
all clear that they would come within that authorization.
And then finally, is the idea of article 51, this is the self defense exception to
the UN Charter. And it says that nothing in the present
Charter shall impair the inherent right of individual or collective self-defense.
If an armed attack occurs against a member of the United Nations, until the
Security Council has taken the measures necessary to maintain international peace
and security. And when this happens, the country has to
report immediately to the Security Council.
Now it is true the United States reported immediately that they had killed Osama
bin Laden. But does this fall within article 51?
Was the United States allowed to us self-defense in a country that was a
friend and ally of the Unites States. Well the US theory on this, is that if a
country is unable or unwilling to stop the terrorists from operating from within
their boarders. Then the United States can take forceful
actions under article 51 to take matters into its own hands and protect itself
from the ongoing terrorist threat. This is a really controversial question
in International Law. And that's because the International
Court of Justice has several times said, that in order for a country to attack
non-state actors, which include terrorists or revolutionaries, that are
operating within the borders of another country.
The prerequisite is that their actions have to be imputed to the other country.
Because otherwise it's too destabilizing to allow countries to just attack people
all over the world. Just because they are in a country where
the country either didn't know about them or couldn't control them, or was you
know, hunting them down. And the irony is, there are terrorists
even operating from the United States. So this justification would allow other
countries to come in and attack in the United States.
They could assassinate Americans and say well, we thought they are terrorists or
drug lords that were going to be a threat to us.
So this was a problem for the international community under the series
of precedents that the international court of justice had set.
That said that you had to have some kind of connection beyond mere tolerance.
You had to have involvement of the state where the action was going to take place.
Now arguably after 9/11, the law has changed, because the United Nations
applauded, the US operation in Afghanistan.
It seemed to be saying that if the US or any country wants to go into another
country, to take out the terrorists after 9/11, that,that was okay.
But, in two ways, the US justifications that came after that were too broad for
the international community. One was, President Bush said, you're
either with us or you're against us. If you're not with us, then we consider
you an enemy and we will attack you along with the terrorists.
And that was seen as really scary to the international community.
If they had green, given the green light to that it could have been very
destabilizing. Countries would be attacking each other
all the time just because there were some dangerous non-state actors that maybe
weren't even being aided by the government but were just hiding out in
its territory. The second thing the United States
government said is, we will not only act in anticipatory self-defense, that's when
you know that an attack is imminent. But we will act in preventive
self-defense, meaning, we're just going to wipe out Al Qaeda, wherever they are,
around the world. And that's because, it will prevent In
the future some other kinds of terrorist incident against us.
And another problem with this is that Al Qaeda used to be a very small group.
But its grown, not because its recruited more members necessarily, but because all
the terrorist organization throughout the world saw the success of 9/11.
And said we want to be associated with that brand.
And so Al Qaeda, it's business model was basically to outsource and, and setup a
distribution of all of these little groups.
And let them have the title Al Qaeda in Egypt, Al Qaeda in Yemen where these
groups were. Prior to that, not actually Al Qaeda.
So what I'm saying is that, Al Qaeda now is spread out throughout the world and
under the U.S policy announced by President Bush.
There could be the possibility of attacks everywhere and anywhere at any time.
And this, I think, scared the international community.
So the International Court of Justice in two subsequent cases reaffirmed that 9/11
did not change the law. That, in fact, you can only attack the
country, when the non-state actors are being aided or supported by the
government. And its not enough to just say that the
government isn't doing enough to stop them, that its tolerating them.
Okay, so Pakistan predictably says on national TV, you've got the Prime
Minister Musharraf saying, United States, you have violated our territory.
And, and there's a map, that shows, that the operation started in Afghanistan, at
the U.S Air Base, and went across the border into Pakistan.
And Pakistan says, you can't justify this.
You have violated International Law. Now, I will say this, they made this
protest but they didn't try to go to the UN to get a General Assembly resolution.
and they didn't really protest so strongly and that's because the
relationship between Pakistan and the United States is a complex one.
Pakistan is getting a lot of foreign assistance from the United States.
And so you know its not an ideal situation to test the law.
Okay, the other issue that this involved, this legal question was, was the way he
was killed consistent with the international law?
So here you have the way he was killed. You have in this picture, the snipers
went up and they gave him the double tap, they blew him away.
They did not take him, ask him if he would surrender, they did not try to take
him down and put him in handcuffs for prosecution.
By the way, why do you think it would have been a bad idea for the United
States to try to bring Osama bin Laden back to the U.S for prosecution?
I think there's a number of reasons that would be.
One is, it could have created a situation where his followers would start amping up
all of the action against the United States and against US allies to try to
coerce the US into releasing him. secondly it would be dangerous.
Where would you prosecute him? New York has been asked to prosecute some
of the Al Qaeda fugitives. That would be the logical place, but can
you imagine how dangerous that would be? And then third, and this is probably the
most important one, under U.S precedent, if you cannot guarantee, that a trial
will be orderly. If the trial becomes a literal circus,
there is a famous case, the Sam Sheppard case that went all the way up to the
Supreme Court it was argued by F Lee Bailey.
And it says in a situation, and let me tell you just briefly about that case,
because it has a Cleveland connection. And of course, I'm a Cleveland professor.
the case involved a doctor. Who was conked on his head and when he
came to his family, his wife had been killed.
And the prosecutor said, no you killed your wife and you conked yourself on the
head. And he was a very well often connected
person. And he kept proclaiming his innocence and
his trial was a media circus. And there was no control at all, there
was television and cameras in the court room and it was just a, a completely out
of control spectacle. And so F Lee Bailey argues that he didn't
get a fair trail and ends up getting the, the trail nullified.
Now the, this was so famous it became the subject of a TV show and a movie called
the Fugitive, starring Harrison Ford. You know that one, I suppose.
But, this is the same question that makes it difficult to prosecute someone like
Osama bin Laden in a US court. How can he get a fair trial in a New York
Federal Court? There's not a juror in the country, that
doesn't know about 9/11, and to prosecute him just down the road, from where those
two towers used to be, would be really difficult.
So I think the United States, for a variety of reasons thought, we don't want
to bring him back for prosecution in the U.S.
And therefore, in my opinion, there was no attempt.
There were no directions for him to be abducted and brought back as a prisoner.
This was an operation that looks to me, from the publicly available evidence, as
one in which he was just going to be assassinated.
Now the U.S Government claims that it was legitimate to do this because he was
terrorist leader with a continuing command function.
In other words, the U.S is saying that the field of battle against Al Qaeda is
worldwide. And that we, the United States, can kill
its leaders anywhere at anytime, as long as they have a continuing command
function. For other members, it would require under
precedent from the Israeli Supreme Court and the Human Rights Commission.
That they be literally engaged in the hostilities in the battle field, but for
the command function leaders you can take them out anywhere.
One of the wrinkles here is that the U.S has been using targeted killing with
these drones for people who are lower level than Osama bin Laden.
Al Awlaki is one example. He was a U.S citizen who was a cleric and
a propagandist for Al Qaeda and he was killed in Yemen.
And their theory again was he had a continuing command function.
So while he drove across the desert and he wasn't an immediate threat, boom, they
blew him up. This is something that is a very
controversial question about whether and how far down you can go and use this
theory. Now the second thing the United States
says is though Osama bin Laden was unarmed, the Navy Seals had met with
resistance when they entered the compound.
There was crossfire and there was the possibility that Osama bin Laden may have
had some kind of button that he could push to bring the whole.
Place down and kill everybody in a, a massive suicide explosion.
So the theory is that in that context you can't just like say, put up your hands
and surrender. It's happening too fast and you have to
do what you can to protect the operation. And then finally the Navy Seals claimed
that they were prepared and hand the means to take him into custody.
But he did not immediately surrender or show an indication that he was trying to
surrender when they shot him. And we'll never know exactly what
happened, but it seems to me that it happened very quickly.
And they didn't really say, put your hands up and surrender, they didn't give
him that option. It was just he came around a corner and
boom, boom he was dead. So, there are these questions about
whether it's legal to do this. And that's because protocol one to the
Geneva Conventions prohibits the killing of enemy fighters if they are either
trying to surrender, or if they're disabled.
And I would suppose that if in fact the first shot didn't kill Osama bin Laden.
That the second shot therefore would have violated this rule.
On the other hand, the U.S government says it was a double tap, it happened so
fast. It wasn't like he was disabled and then
they shot him again. But again, we just probably, will never
know. This however, has created controversy
worldwide about the use of force in this context.
Now finally, we've all seen the pictures of Osama bin Laden's corpse, and this is
a bit surprising. I would've thought that those pictures
would not surface. I suppose the reason the U.S published
them was to convince Al Qaeda that their leader really was no more.
And maybe they thought that this would be the end of Al Qaeda and it would take out
all the wind behind it's terrorist acts. But, in fact, these pictures were really
disturbing. An they played throughout the world, and
if you, Google you can, see a whole lot of them on the internet.
This is one of them. Now is it illegal, to show pictures like
this? The Geneva Conventions do say that
prisoners of war, shall be protected against insults and public curiosity.
Had he been alive you couldn't show pictures that show his terrible injuries
or anything like that. because and you wouldn't want to put them
on the internet because that would make them a public curiosity.
But he wasn't alive. However, the Geneva Conventions and
Common Article 3 has been interpreted as saying that you must be respectful to
corpses. There must be respectful treatment of
dead bodies. And the United States I think understood
this clearly because they announced after these pictures were released that they
were going to bury him at sea. And that they were going to bury him
facing Mecca and that this would be respectful to his religious ways.
Now, that's kind of a joke because first of all you don't bury, people at sea
generally when it's the Islamic faith unless they're killed at sea.
and in fact you bury them on land and if you drop someone under water how are you
going to ensure that they're going to be facing Mecca.
The real reason they buried him at sea is because they didn't want to have some.
Location that would become a shrine and a gathering place for martyrdom, where
people would come and have huge rallies in support of Osama bin Laden.
but it does show the United States understood that you have to be respectful
to corpses. And it raises the question of, well, was
it allowable to show these pictures, these horrible pictures, that have been
throughout the internet. and, and this is just again a
controversy, there's no court that is going to litigate these issues.
But it is something that ha I think weakened the United States in its
relationships with the other countries in its fight against Al Qaeda.
It, it was a bit of a set back, and unfortunately what could have been a
moment that was a clear victory, ended up for these reasons to be a little bit more
cloudy. So, let's just sum it all up before we go
to talking about what's coming up in our sessions.
what we have seen today is that when, a, international criminal, someone who's
accused of, crimes against humanity, like Osama bin Laden was, or terrorism, or
piracy, or genocide or war crimes. When their location is known,t here are
options for the international community. The international community doesn't just
have a police force that can go in and apprehend them, so they have to use
extradition, which is full of difficulties.
They can try to use luring which also has its difficulties.
They can try abductions. Again, very difficult, and
assassinations, which, one more time, is something that is full of controversy.
So, the bottom line here, is getting people to justice, is the weak spot, for
international criminal law. And, it's the place where, you know, you,
you have your ideals but then you have to sometimes, kind of get your hands a
little dirty in order to get someone to justice.
And the question is, have you gone too far?
Have you, through getting your hands dirty, done what in our first session.
The judge in the Nuremberg trial said was something that we should never do.
We should never stoop to their level in the life of every country there comes a
moment when its security is threatened. And that's the question when the country
has to ask itself what are we? And, and we're more than Iraq, we're
more, he said the the extension of a leader, we're what a country stands for,
or what a country stands for. When standing for something is the most
difficult. And my most important lesson today is
that when countries think about these different operations they need to think
about the precedent they're setting. They need to be thinking about the
message that they're setting and they need to try to do things as far as they
can with an international due process. [MUSIC].
Now, in the next class, we're going to start looking at Pre-Trial issues.
We're going to look at individuals who want to represent themselves at trial.
Not because they think they're going to do a great job.
But rather, because they want to hijack the trial.
We're going to be looking at Plea Bargaining, and whether that should be
allowed at international trials. And we are going to return to question of
torture but looking at it in terms of the exclusionary work for torture evidence.
So, until next time, do your readings and I look forward to seeing you.
[MUSIC]
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