US Libya raid: Was it legal?
- 7 October 2013
- From the section Africa
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.
Mr Kerry's confident assertion will, no doubt, have been bolstered by a reminder from State Department legal advisers that a 21-year-old Supreme Court ruling seems to settle the question of whether kidnapping on foreign soil is legal.
The case concerned a Mexican gynaecologist accused of participating in the torture and murder of an American narcotics agent in Mexico in 1985. The man was abducted by agents of the Drug Enforcement Administration and flown to Texas to stand trial.
By a majority of 6-3, the Supreme Court ruled the kidnapping lawful, despite the existence of an extradition treaty between Mexico and the USA.
This decision confirmed earlier precedents in which judges in the United States have declined to concern themselves with the manner in which a suspect was brought to the sovereign territory of the US to stand trial.
These precedents were famously cited in a Jerusalem court in 1961 to reject a claim by lawyers for the Nazi, Adolf Eichmann, that his kidnapping by Israeli agents in Argentina rendered the prosecution unlawful.
Abu Anas al-Liby was indicted by a federal court in Manhattan in 1998 in connection with the bombing of the US embassies in Kenya and Tanzania and there are outstanding international warrants for his arrest. So, John Kerry's argument that he was a "legal and appropriate target" is well-founded.
However, the accepted route for bringing to court suspects who are living outside of the jurisdiction of the requesting state is extradition, not kidnapping.
There is no extradition treaty between the US and Libya and, even if there was one, it is not all certain that the US government would have chosen that option because of its lack of confidence in the rule of law in Libya.
An international law expert, who wished to remain anonymous because he is acting in a Libyan case, said:
"What is critical here is the degree of involvement or collusion of the Libyan authorities in this kidnap.
"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."
Yet, the United States has a history of seeing things differently.
US lawyers, or those representing the US government abroad, have been known to quote the 19th Century practice of bounty-hunting to justify the forcible seizure of suspects abroad to stand trial in the United States.
Abu Anas al-Liby had a $5m (£3.1m) price on his head; US jurisprudence is likely to see his capture in the same light as that of any wanted outlaw.