SR ON EXTRAJUDICIAL, SUMMARY OR ARBITRARY

UNCLAS SECTION 01 OF 02 GENEVA 002085

SIPDIS

STATE FOR IO/SHA, DRL/MLA

E.O. 12958: N/A
TAGS: PHUM UNHRC
SUBJECT: SR ON EXTRAJUDICIAL, SUMMARY OR ARBITRARY
EXECUTIONS REQUESTS INFORMATION ON HAITHAM AL-YEMENI


1. Mission received the following communication from Philip
Alston, Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions, regarding the death of Haitham al-
Yemeni. This communication has been forwarded to IO/SHA via
e-mail and is number 26 on the Geneva 2005 Communications
Log.


2. Begin text of letter:

REFERENCE: AL G/SO 214 (33-23)
USA 8/2005

26 August 2005

Excellency,

I have the honour to address you in my capacity as Special
Rapporteur on extrajudicial, summary or arbitrary executions
pursuant to Commission on Human Rights resolution 2004/37.

I would like to bring to your Excellency's attention
information I have received according to which Haitham al-
Yemeni, an alleged al-Qaeda senior figure, was killed on the
Pakistan-Afghanistan border on or around 10 May 2005 by a
missile fired by an un-manned aerial drone operated by the
US Central Intelligence Agency. Mr. al-Yemeni had reportedly
been under surveillance for more than a week by US
intelligence and military personnel. Reports indicate that
the Predator drone, operated from a secret base hundreds of
kilometers from the target, located and fired on him in
Toorikhel, Pakistan, an area where Pakistani forces had
allegedly been looking for al-Qaeda leader, Osama Bin Laden.
It is my understanding that the CIA is authorized to operate
such Predator operations under presidential authority signed
after the September 11, 2001 terrorist attacks.

According to the information received, although Mr. al-
Yemeni was not listed by that name neither in the FBI's, nor
in Pakistan's, "most wanted" list, the active surveillance
of his activities would suggest that he was playing an
important role inside the al-Qaeda organization. It has been
suggested that those undertaking the surveillance were
hoping that he would lead them to Osama bin Laden. However,
after Abu Faraj al-Libbi, another suspected al-Qaeda leader,
was arrested by Pakistani authorities a month before, it is
reported that a decision was taken to kill Mr. al-Yemeni for
fear that he would go into hiding and thus be lost track of.
My understanding is that the CIA reportedly refused to
comment on the situation. Similarly, Sheik Rashid Ahmed,
Pakistan's Information Minister denied that any such
incident had ever happened near the Pakistan-Afghanistan
border.

In drawing the attention of your Excellency's Government to
this information and seeking clarification thereof, I am
fully aware of the stance taken by your Government in
correspondence with my predecessor with respect to the
mandate's competence regarding killings that are said to
have occurred within the context of an armed conflict (I
refer to your Government's letters dated 22 April 2003 and 8
April 2004). As I have explained in my Report to the 61st
Commission on Human Rights, however, both the practice of
the General Assembly and of the independent experts
successively holding the mandate since its creation in 1982
make it clear that questions of humanitarian law fall
squarely within the Special Rapporteur's mandate (See
E/CN.4/2005/7, at par. 45).

In the light of these considerations, I would reiterate my
concern that empowering Governments to identify and kill
"known terrorists" places no verifiable obligation upon them
to demonstrate in any way that those against whom lethal
force is used are indeed terrorists, or to demonstrate that
every other alternative has been exhausted. (See
E/CN.4/2005/7, at par. 41). I would also recall that the
Human Rights Committee has held that a State party can be
held responsible for violations of rights under the Covenant
where the violations are perpetrated by authorized agents of
the State on foreign territory, "whether with the
acquiescence of the Government of [the foreign State] or in
opposition to it". (See Lopez v. Uruguay, communication
No.52/1979, CCPR/C/OP/1 at 88 (1984),paras. 12.1-12.3.)

Finally, I wish to stress that, while Governments have a
responsibility to protect their citizens against the
excesses of non-State actors or other entities, efforts to
eradicate terrorism must be undertaken within a framework
clearly governed by international human rights law as well
as by international humanitarian law.
Without in any way wishing to pre-judge the accuracy of the
information received, I would be grateful for a reply to the
following questions:


1. What rules of international law does your Excellency's
Government consider to govern this incident? If your
Excellency's Government considers the incident to have been
governed by humanitarian law, please clarify which treaty
instruments or customary norms are considered to apply.


2. What procedural safeguards, if any, were employed to
ensure that this killing complied with international law?

3. On what basis was it decided to kill, rather than
capture, Haitham al-Yemeni?

4. Did the government of Pakistan consent to the killing of
Haitham al-Yemeni?

It is my responsibility under the mandate provided to me by
the Commission on Human Rights and reinforced by the
appropriate resolutions of the General Assembly, to seek to
clarify all such cases brought to my attention. Since I am
expected to report on these cases to the Commission I would
be grateful for your cooperation and your observations. I
undertake to ensure that your Government's response is
accurately reflected in the reports I will submit to the
Commission on Human Rights for its consideration.
Please accept, Excellency, the assurances of my highest
consideration.

Philip Alston
Special Rapporteur on extrajudicial, summary or arbitrary
executions

End text of letter.

MOLEY