Late last week a U.S. Special Operations Raid in Tripoli, Libya ended in the capture of a prominent al-Qaeda figure. Secretary of State John Kerry was quick to correctly proclaim the suspected terrorist group leader Anas al-Liby a “legal and appropriate target.” There are strong legal precedents which not only insinuate the validity of Kerry’s claim but also identify the emergence of a customary international law pertaining to the capture of international criminals. But there still remains a significant difference between the capture of a criminal, and ordering that criminal’s execution — a distinction which is often overlooked. The latter of these customary state practices threatens to undermine international standards of due process and places the state in the perverse position of being judge, jury and executioner.
Kerry’s assertion is based upon a 1992 Supreme Court ruling on United States v. Alvarez-Machain, in which the court held that the abduction of a foreign national does not prohibit him or her from standing trial in the United States. There is also a legal precedent manifest in the Israeli apprehension of Adolf Eichmann in Argentina — an ex-Nazi whose capture was pronounced lawful by a Jerusalem court in 1962. In 1998, General Augusto Pinochet was arrested in London on a warrant issued by a Spanish court for human rights violations committed in Chile. The capture of al-Liby in Tripoli on a warrant issued by a New York federal court for involvement in the 1998 bombings of U.S. embassies in Kenya and Tanzania befits this model. It is readily apparent that jurisdiction and enforcement is consequently becoming an international — and universal — phenomenon.
But this emerging phenomenon is not a license for acts of spurious justice. The killing of Osama bin Laden in Pakistan is clear evidence of an injustice which might originate from justified legal ventures. That bin Laden was unarmed exposes his death as a summary execution. President Barack Obama’s decision to either capture or kill the terrorist kingpin is also a sorely missed opportunity to fashion bin Laden as the subject of an international war crimes tribunal. This hypothetical proceeding would have been a landmark in international law and a legal deterrent for those who would imitate bin Laden. Indeed, the court would have exposed bin Laden as a criminal.
According to reports from The New York Times, al-Liby is now in custody on board a U.S. Navy vessel in the Mediterranean. From this detainment it is likely that he will be extradited to New York to face a criminal trial. The decision to capture, rather than kill, a suspected terrorist is an anomaly in a policy marred by the use of combat drones. Nevertheless, it is a valuable one. Last week’s raid in Tripoli is an addition to a growing norm against impunity.
A version of this article appeared in the Wednesday, Oct. 9 print edition. Peter Keffer is a deputy opinion editor. Email him at [email protected]