The Cable

The U.S. Makes Case for Libya Abduction at the U.N.

Barack Obama's administration has mounted a strenuous defense at the United Nations of its decision to capture Ahmed Abu Khattala, the chief suspect in the deadly 2012 attack on the U.S. compound in Benghazi, Libya. It notified the U.N. Security Council that America acted in self-defense to prevent similar attacks, according to an unpublished copy of the U.S. letter to the world body.

The appeal to the Security Council came as the Libyan government accused Washington of violating Libyan law by abducting Abu Khattala within its borders and urged the United States to return Abu Khattala to stand trial in Libya.

The Libyan government "considers this as a violation of legal sovereignty and certainly they are asking for some explanation from the U.S. government," Libya's U.N. envoy, Ibrahim Dabbashi, told Foreign Policy. "I think the guy is also wanted for crimes in Libya." The Libyan government, he added, believes that Libya should try him rather than the United States.

Dabbashi said he has "no idea" whether the United States officially sought Libyan approval for the operation. But he has no intention of formally protesting the American action. "There is no reason to raise it," he said. "I think it should be raised in Washington, D.C."

Pentagon spokesman Rear Adm. John Kirby said that the United States did tell Libyan authorities about the operation to capture Abu Khattala but wouldn't clarify whether it notified the government beforehand or afterward. "On the consultations with Libya, we've long made it clear that we were going to hold accountable the perpetrators of -- of Benghazi," he told reporters Wednesday. "This should come as no surprise to anyone, least of all the Libyan government. And I can tell you that they were -- they were notified about ... this capture operation."

It is unusual for the United States to report its counterterrorism operations to the United Nations.

The United States has long maintained that in self-defense it can legally pursue international terrorists anywhere in the world if it has evidence the terrorists are seeking to strike American targets. The Obama administration believes it requires no international approval to do so.

The United States provided no such explanation to the U.N. Security Council after Delta Force commandos in October captured Nazih Abdul-Hamed al-Ruqai (also known as Abu Anas al-Libi), a Libyan militant whom U.S. authorities linked to al Qaeda's 1998 bombing of two U.S. embassies in Africa that killed more than 200 people.

The United States has also never formally notified the 15-nation council of any of its targeted killings of terrorist suspects by drone, and it didn't make formal notification of its raid of Osama bin Laden's compound.

In a letter to Russia's Vitaly Churkin, this month's Security Council president, Samantha Power, the U.S. ambassador to the U.N., said that the United States determined that Abu Khattala was a "key figure" in the September 2012 attack on the U.S. diplomatic outpost, which resulted in the deaths of U.S. Ambassador J. Christopher Stevens and three other Americans.

"On behalf of my government, I wish to report that the United States of America has taken action in Libya to capture Ahmed Abu Khattala, a senior leader of the Libyan militant group Ansar al-Sharia - Benghazi in Libya," she wrote. "Abu Khattala will be presented to a United States Federal Court for criminal prosecution.

"Following a painstaking investigation, the U.S. government ascertained that Ahmed Abu Khattala was a key figure in those armed attacks," the letter continued. "The investigation also determined that he continued to plan further armed attacks against U.S. persons."

The U.S. rationale echoed the Bush administration's controversial doctrine of "preemptive war," which holds that the United States may act militarily in self-defense to respond to an imminent threat. Power provided no details of Abu Khattala's role in planning future attacks against U.S. citizens, but insisted that they were serious enough to merit American action.

"The measures we have taken to capture Abu Khatallah in Libya were therefore necessary to prevent such armed attacks, and were taken in accordance with the United States' inherent right of self-defense," she wrote. "We are reporting these measures to the Security Council in accordance with Article 51 of the Charter of the United Nations."

Article 51 states that U.N. members possess an "inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations."

David Bosco, a scholar at American University and an FP columnist who authored a book on the Security Council, said it is "unusual" for the United States to submit such a letter.

The United States, he said, is likely seeking to "solidify" its legal case. He suggested that the United States may not have had a clear green light from the Libyan government. "If the United States could claim that the Libyan government had endorsed or given its authorization to this operation, they would have been on solid legal ground internationally because of the right of sovereign governments to request assistance, including military assistance, from another government," he said. "This letter makes me think that the Libyan government is not on board with this operation and was certainly not publicly willing to condone it."

The U.S. Supreme Court has ruled that criminal defendants may be prosecuted in U.S. courts regardless of where or how they were captured and brought to the United States. In 1992, the court found that a Mexican doctor accused of assisting in the torture and murder of a Drug Enforcement Administration agent and his pilot in Mexico could stand trial in the United States even though the doctor was kidnapped from his home and flown in a private plane to Texas, where federal authorities arrested him.

"The fact of [the defendant's] forcible abduction does not prohibit his trial in a United States court for violations of this country's criminal laws," the Supreme Court ruled.

Foreign Policy's Senior Writer Shane Harris contributed to this story from Washington.

Photo by Mahmud Turkia/ AFP/Getty Images

The Cable

EXCLUSIVE: ICC to UN: Investigate Your Alleged Coverups in Darfur

The International Criminal Court's prosecutor will appeal to U.N. Secretary-General Ban Ki-moon on Tuesday to conduct a "thorough, independent and public inquiry" into allegations -- first disclosed in a Foreign Policy investigation -- that the U.N. systematically covered up crimes against civilians and U.N. peacekeepers in the U.N.-African Union Mission in Darfur, also known as UNAMID.

The request by Fatou Bensouda, the ICC's Gambian prosecutor, for a U.N. investigation into wrongdoing within its own ranks is unprecedented. It comes more than two months after Foreign Policy published a three-part series detailing the mission's failure to protect civilians under their watch or to seriously investigate evidence indicating that the Sudanese government and its proxies may have targeted U.N. blue helmets.

The FP report -- which was based on thousands of pages of highly confidential internal U.N. documents from the mission's former spokeswoman, Aicha Elbasri -- prompted calls in April for a U.N. investigation by a coalition of Darfuri rebel groups, including some that are themselves accused of wrongdoing in the documents. On April 17, the leaders of three Darfuri rebel groups -- Abdel Wahid Nur, Minni Minnawi, and Jibril Ibrahim -- appealed to the U.N. Security Council, calling for an "immediate launch of investigation into the serious allegations raised by Dr. Elbasri against UN officials and the deliberate misinformation that has characterized reports on Darfur since 2008."

But the U.N. Security Council and the U.N. secretariat have yet to act on the reports. U.N. officials say they already recognized serious flaws in UNAMID's performance, and that they had conducted a major "strategic review" of U.N. operations in Darfur that recommend a series of reforms that would require better reporting from the field and urge the blue helmets to more actively protect civilians in distress.

But officials say the prosecutor's call for an independent investigation suggests she is not satisfied an in-house "strategic review" by the U.N. Department of Peacekeeping Operations will be adequate in addressing the mission's shortcomings.

In a report to be presented to the U.N. Security Council Tuesday morning, the prosecutor's office is set to say that it "is concerned about recent allegations of manipulations of UNAMID reporting and of intentional cover-up of crimes committed against civilians and peacekeepers, in particular those committed by the Government of the Sudan forces.... These allegations are supported by documentation from the former UNAMID spokesperson."

The report -- a copy of which was obtained by Foreign Policy -- calls on U.N. Security Council governments that are members of the Hague-based international court -- Australia, Britain, Jordan, France, Luxembourg, and Nigeria -- to support the call for an investigation.

Australia, Britain, France, and Luxembourg are expected to raise concerns about the allegations in Tuesday's Security Council briefing, but it is not clear whether they will support the prosecutor's request. A British spokeswoman, Iona Thomas, said, "We are concerned about the allegations that the prosecutor references [in her report] and some of the findings and recommendations of the strategic review of UNAMID should help tackle some of the mission's failings."

The debate over holding Sudanese war criminals accountable for their crimes comes as Sudan is facing an escalation of violence, including a surge in the aerial bombardment by the Sudanese Air Force of villages in the rebel stronghold of East Jebel Marra. The emergence in February of a pro-government militia known as the Rapid Support Forces, comprised of roughly 6,000 fighters, has been followed by a series of ground offensives through south and north Darfur, where pro-government militia have torched villages and killed civilians suspected of links to the rebels.

"Reportedly, the movements and military operations of the Rapid Support Forces are arranged in coordination with the General Command of the Sudanese Army," the report states. Their operations "show a similar pattern of the indiscriminate and disproportionate attacks" attributed to the pro-government janjaweed that carried out some of the worst atrocities during the height of the region's violence between 2003 and 2005.

The report also accuses a coalition of rebel groups, operating under the banner of the "Darfur joint resistance forces," of mounting attacks on civilians in north Darfur in March. The rebels displaced about 81,000 people, set homes on fire, plundered local property, and killed as many as 31 civilians.

Bensouda and her predecessor, Luis Moreno-Ocampo, have struggled for years to secure U.N. cooperation for the court's efforts to hold Sudanese President Omar Hassan al-Bashir and two other Sudanese officials accountable for mass atrocities in Darfur between 2003 and 2005, where as many as 300,000 civilians died. The former ICC prosecutor issued arrest warrants for the Sudanese leader in July 2008. Bashir has since been charged with genocide and other war crimes.

In Tuesday's report, Bensouda accuses Sudan of failing to abide by a slew of U.N. Security Council demands over the past decade, and expresses concern over the U.N.'s high-level contacts with senior Sudanese officials wanted by the court, citing a "lengthy" January 2014 meeting at an African Union Summit in Addis Ababa, Ethiopia, between the U.N. Deputy Secretary-General Jan Eliasson and the Sudanese president. She calls on the U.N. to publicly explain its justification for such contacts. The prosecutor's "office notes with great concern that despite the fifty-five UN Security Council resolutions adopted on the Sudan since 2004, hardly any of them have been implemented," according to the report. "Repeated demands from the Security Council to the government of Sudan, ranging from disarming the Janjaweed to ending aerial bombardment, to ending impunity and brining justice and accountability to victims, have gone deliberately unfulfilled."

The prosecutor also cites concern about reports that UNAMID reporting may have been "manipulated" by a small group of officials within the mission, saying there "are clear warnings that the international community may not be adequately informed about the situation in Darfur," according to the report. "UN reports are an important and increasingly unique source of public information about the situation in Darfur, and must be held to the highest standard for the sake of the victims in Darfur."

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