By Josef Alkatout
President Obama’s term has come to an end – and so has his immunity from prosecution. If the former university lecturer in law is not called to account for the crimes committed during his “Drone War”, the Western world will lose its credibility.
When the President of the United States, Barack Obama, received the 2009 Nobel Peace Prize, he was only eight months into his first term in office. The Nobel Committee emphasized in its eulogy the promise of a new era of relations between the Occident and the Muslim World as well as the partial withdrawal of American troops from Iraq. Furthermore, according to the Committee, former civil rights attorney Obama personified the defense and struggle to protect human rights.
The Committee’s justification reads like an appraisal of everything that the first African American commander-in-chief of the United States would do differently from his immediate predecessor George W. Bush after 9/11. By setting in motion wars in Afghanistan and Iraq, Bush had initiated a massive movement of troops to the Middle East as well as Southwestern Asia and exacerbated already fraught relations between the Muslim World and the West. The erection of an extraterritorial prison camp in Guantánamo Bay, where alleged fundamentalists are detained without judicial ruling or access to lawyers, as well as the horrific interrogation methods were a mockery vis-a-vis the American Bill of Rights of the year 1789.
Subsequent judicial proceedings against Bush in the U.S. and abroad were dropped with reference to the generous Laws of War and, concerning the interrogation methods, to the incomplete chain of evidence. Even though the public no longer grants moral legitimacy to the attacks on Afghanistan and Iraq, the formal “defense wars” are nevertheless not necessarily of criminal relevance. And with respect to the torture of enemy prisoners, low-ranking officials have indeed been indicted while President Bush himself was, however, supposedly not informed at the time of the crimes’ occurrence.
The “War on Terror” of President Bush mutated into his successor’s “Drone War”. Under Obama, no area-wide bombs were dropped and alleged terrorists did not disappear in solitary confinement – they were killed by unmanned drones without prior court procedure. During the so-called “Terror Tuesday” in the White House, the U.S. President cleared the names of the next target subjects on a weekly basis. While firing, the military needed to respect the guidelines contained in the Obama Administration’s “Playbook” which it was forced to publish following a lawsuit of the American Civil Liberties Union. According to the guidelines, the most important objective would be to save “American” lives and the ultimate decision-making power lied with the President.
Apart from the long-term political consequences of traumatizing entire swaths of land in the Muslim World, such attacks are also questionable from a legal point of view: given their perfidiousness and the disproportionate civilian “collateral damages”, international criminal law categorizes them as war crimes. In countries with which the U.S. are not even officially fighting an armed conflict, these numerous and certainly not “surgically precise” killings qualify as crimes against humanity.
Apparently, Obama was astonished by his own courage. Surrounded by his staff he bragged having turned out to be “really good at killing people” even though he “didn’t know that was gonna be a strong suit” of his. The White House has never repudiated this statement and thus embarrasses its allies who openly campaign against government torture in Syria or the Russian aggression in Ukraine; because if the President of the most powerful democracy on this planet states that he is good at killing people, he also legitimizes the cruelest regimes of injustice.
If the Western World no longer wants to see its credibility eroded, it needs to apply the principles of international criminal justice – a very occidental concept of law – to its own perpetrators. The judicial immunity which protected the 44th U.S. President during his mandate and which does not allow other States to initiate criminal proceedings against him lapsed in January 2017. However, it is highly unlikely that an allied country of the United States will put forward any charges against Obama; if an enemy country did so, it could even be called to order by means of the American military forces. However, the International Criminal Court (ICC) in The Hague, Netherlands does not need to be considerate of such sensitivities; its statutes do not recognize judicial immunity as an obstacle to jurisdiction. The United States have indeed never submitted themselves to the ICC’s rulings, but for the Court to initiate a procedure, it is sufficient if the crime scene of the American drone attacks is located in an ICC member State, such as Afghanistan.
In the year 2005 it was the U.S. who pushed the United Nations Security Council to refer the case of the Sudanese war criminal Omar al-Bashir to the ICC. Shortly thereafter, an international arrest warrant against al-Bashir was issued by The Hague; he currently does remain at large but he is internationally isolated and his freedom of movement is limited – despite being Sudan’s sitting President.
Barack Obama moving from his recently acquired mansion in the Kalorama neighborhood of Washington D.C directly into prison is unlikely. However, initiating a due process of law would grant surviving dependents of drone victims at least rudimental gratification and the battered Muslim World might recover some portion of its dignity. The newly discovered awareness of international criminal law would have a worldwide signaling effect and even without Obama being condemned, the West would regain credibility. Ultimately, the bestowal of the Nobel Peace Prize for a new beginning with the Muslim countries and for defending matters of human rights would yet be justified in retrospect, albeit in a different way to what Obama had in mind.
Josef Alkatout, Ph.D. is an international criminal attorney in Geneva, Switzerland.
*An earlier version of this article was published in the Kabul Times during his stay as a university lecturer in Afghanistan.