Libyan terror suspect faces US court – but was his arrest legal?

Wanted: al-Liby is wanted in connection with 1998 US embassy bombings. US Department of State

Nazih Abdul-Hamed al-Ruqai, or Abu Anas al-Liby, as he is more commonly known, has pleaded not guilty to charges of conspiracy to kill and maim Americans abroad and to attack US national defence facilities in connection with al-Qaeda’s bombing of US embassies in Kenya and Tanzania in 1998.

After being on the US most wanted list for 13 years, al-Liby was seized 11 days ago by members of the US army’s Delta force from the streets of Tripoli in a daylight operation that has stirred international controversy.

The Libyan government immediately demanded an explanation of the seizure, stressing that they were “keen on prosecuting any Libyan citizen inside Libya”.

US secretary of state, John Kerry, responded that al-Liby was “a legal target” and that he would face justice in the US. US president Barack Obama carefully avoided answering directly a question about whether the seizure had been lawful, only saying that al-Liby “helped plan and execute plots that killed hundreds of people, a whole lot of Americans. We have strong evidence of that. And he will be brought to justice”.

Regardless of whether the abduction was lawful under the domestic law of the United States it nonetheless raises questions under international law. In particular, this incident raises the question of the general permissibility under international law of such operations whereby one state enters another to apprehend an individual so as to be able to try them for crimes committed against its nationals.

Jurisdiction to prescribe laws

The first issue that arises, and this does so because the US arrested al-Liby as opposed to choosing to assassinate him (despite Kerry’s rather ominous suggestion that he was a “legal and appropriate target” for the US military), is whether the US possesses jurisdiction over him for the bombings in 1998.

Under the principle of prescriptive jurisdiction the US is fully entitled to make such bombings a criminal offence under its domestic laws. Indeed, al-Liby was indicted by a federal court in Manhattan in 1998 in connection with the bombings and there are outstanding international warrants for his arrest.

There are several bases upon which the US might claim jurisdiction over the bombings. The first of these is the territorial principle), upon the assumption that the embassies in which the bombings took place are construed as US territory.

There is also the protective principle), which holds that a state may assert jurisdiction over offences which produce a deleterious effect on the state, regardless of where the offences take place or by whom they are committed.

Finally, the passive personality principle) holds that a state may claim jurisdiction to try an individual for offences committed abroad which have had an effect upon its nationals.

In this case, and unlike with the 9/11 attacks which were committed upon the territory of the US, the bombings for which al-Liby was wanted were carried out abroad in Kenya and Tanzania. But while a state has a wide discretion to prescribe laws, its power to enforce them is, by contrast, limited to the territorial confines of the US.

Apprehension of al-Liby for trial

In this respect, the second issue that arises in connection with the seizure of al-Liby is the means by which an alleged offender is apprehended for the purposes of a trial. If the individual is on the territory of the state concerned then they can be arrested as part of due process.

Most wanted: Anas al-Liby. Wikimedia Commons

If, on the other hand, they are located on a ship on the high seas or a territory that does not belong to another state they can be arrested and brought back to the state for trial.

In this situation, the internationally accepted route for bringing such individuals to trial in a state where they are not located is extradition. There is no extradition treaty in place between the US and Libya, which would govern the conditions under which wanted individuals would move between the two states.

Yet, even if there was such a treaty in place, the US would not likely see this as a viable option given the length of time it would take for such a process to be completed and the uncertainties it carries, particularly in a state like Libya where the rule of law is not known to be strong.

In these circumstances, the entering by the US of Libya’s territory to apprehend al-Liby is a violation of the sovereignty of Libya and thus unlawful under the norms prohibiting intervention and the use of force. That is, however, unless the prior permission or approval of the Libyan governing authorities was provided for the raid, something which appears unlikely. Indeed, the demand by Libya for an explanation gives the impression that the authorities there had not been informed in advance of the raid.

However, there is growing pressure on the government particularly from militia groups to explain if it was involved with the abduction (and later rescue) of the Libyan prime minister, Ali Zeidan, on Wednesday arguably a reaction to either the failure of the government to prevent the abduction or beliefs that it had somehow colluded in it.

If there was no prior consent, it is possible that the UN Security Council could authorise intervention for the purposes of apprehending an individual whose presence at large posed a threat to the peace. But this did not occur in this case and whether it would happen in the future is speculative.

While the US has not been candid as to exactly how its actions were lawful, it might be acting upon the assumption that its intervention was justified upon the basis of self-defence in response to the embassy attacks in 1998. Indeed, a former legal adviser at the US State Department noted that “international law … permits extraterritorial ‘arrests’ in situations which permit a valid claim of self-defense”.

However, even if such an action could be justified as self-defence, it would first need to be proven to be necessary, and with no known approach to the Libyan authorities to first arrest and hand over al-Liby to the US, this would be hard to prove.

US can still prosecute al-Liby

While it might be thought that apprehending a suspect in a manner that – and some might say gravely – violates international law would pose problems in terms of a court of law permitting an individual to be tried in it, a distinction is in fact often drawn between the means of apprehension and the jurisdiction to prosecute.

This is certainly the case in Israel, where the state’s infamous abduction of the Nazi Adolf Eichmann from Argentina did not prevent his trial from proceeding in a Jerusalem court in 1961.

Similarly, while the US Court of Appeals held in US v Toscanino (1974) that such a distinction should not be applied where the presence of the defendant has been secured by force or fraud, subsequent cases have to an extent nullified this approach. For example, in Sosa v Alvarez-Machain (1992) the court held that even if there is an extradition treaty in place between the US and another state abduction by the US would not necessarily be a bar to jurisdiction being exercised so long as the relevant treaty did not expressly preclude this as a means of apprehension.

Ultimately, it would thus seem that despite the illegality of his initial apprehension and any state responsibility that might flow from this, an argument could be made that given the absence of an extradition treaty between the US and Libya the US would be able to exercise jurisdiction over al-Liby for the bombings in Kenya and Tanzania in 1998.