[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]
