Lawfare: The Unlawful U.S. Killing of Ayman al-Zawahri

A legitimate or illegitimate use of power?

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The recent killing of the most senior al-Qaeda leader in Afghanistan is another triumph of American exceptionalism over international law. U.S. President Joe Biden boasted that “justice” has been “delivered,” but he offered no explicit legal justification for the death of Ayman al-Zawahiri. Certain assumptions about its justification may be drawn from the U.S.’s previous expansive legal positions on counterterrorism, discussed below and in a previous Lawfare piece on the legality of the al-Zawahiri strike. However, the extensive and sympathetic western media coverage has largely omitted questions about its legality, illustrating how effectively the U.S. shapes the narrative of the war on terror. Almost a year after the U.S. withdrawal from Afghanistan, the legality of the killing has implications for the U.S.’s militarized “over the horizon” strategy for combating terrorism in Afghanistan.

The killing is most accurately described as extrajudicial execution or revenge murder designed to deter others from participating in terrorist groups. It is also another body blow to the “rules-based international order” that the U.S. demands others—but apparently not itself—respect. There are three reasons why the killing violates international law. First, it is not a lawful exercise of self-defense against any continuing armed attack by al-Qaeda, but a violation of Afghanistan’s sovereignty and the prohibitions on the use of force and intervention in a foreign state. Second, it is not authorized by the law of war, since there is no longer an armed conflict against al-Qaeda to which the law of war applies, and al-Zawahiri may not have been a military target in any case. Finally, it violates the right to life under international human rights law—an obligation that applies to a U.S. strike abroad of this kind.

Self-Defense
The Law of War Does Not Apply
Targeting al-Zawahiri Under the Law of War
International Human Rights Law

The U.S. finds itself in an awkward club of states that murder or assassinate abroad, including Russia, Saudi Arabia, and Israel. That the killing may be lawful under the U.S.’s absurdly wide 2001 Authorization for Use of Military Force, which purports authorizing perpetual global war against al-Qaeda irrespective of international law constraints, does not excuse U.S. violations of international law. In the same way, Russia cannot write its own rules for Ukraine, or China for the South China Sea, or Israel for occupied foreign territory, or Morocco for annexed Western Saharan territory. U.S. law does not rule the world.

Terrorists evading justice in safe havens like Afghanistan is a fiendish policy challenge, despite the raft of nonmilitary tools available to contain them, including intelligence and law enforcement cooperation, sanctions, collective action through the Security Council, diplomacy, and influencing their state sponsors through incentives, among others. Unilateral, extralegal solutions may appeal to powerful states that can pursue them with relative impunity, particularly where other states—often not victims of terrorism to the same extent—cannot be convinced to change the law.

Ultimately, however, summarily executing criminal suspects without trial, however unsavory they may be, is disturbingly lawless and unjustifiable. Vigilante justice discredits the U.S. and erodes its moral authority as a self-declared champion of a “rules-based international order.” It signals to other states that the rule book is only for the weak, and spawns lawlessness by others.

It is also counterproductive, evident in the deep radicalizing effects of other U.S. war on terror practices such as torture, enforced disappearances, drone strikes causing excessive civilian casualties, unfair military commissions, and indefinite detention at Guantánamo Bay. It tends to bring tactical victories without strategic success. The relative failure of two decades of counterterrorism in Afghanistan warrants more abundant caution about whether military responses to terrorism are necessarily the most effective long-term means of countering the threat.
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