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On August 1st, U.S. President Joe Biden announced the elimination of the leader of the terrorist organization Al-Qaeda, Ayman Al-Zawahiri, on the day before in the Afghan capital, Kabul. In declaring that justice had “been delivered,” President Biden was following in the footsteps of those who, before him – Donald Trump, Barack Obama, and George W. Bush – had seen in the elimination of leaders of jihadist terrorist organizations a form of justice. To what order of justice is he referring here?
To say that something is just can refer to several distinct orders. As Amélie Férey, a researcher at the Institut Français de Relations Internationales (IFRI), points out, targeted killings of terrorist leaders are traditionally presented using four types of justification: historical, legal, strategic, and moral. Two seem particularly relevant to the treatment of Ayman Al-Zawahiri’s elimination: the legal and the moral. A first approach has thus grasped the justice of this elimination in a procedural sense. What is just is that which meets the established standards and frameworks. In “What is Justice?” Hans Kelsen unequivocally recalls that “a man is just if his behavior conforms to the norms of a social order supposed to be just.” Justice is understood here in the sense of legality. But in another, more philosophical conception, the justice of the strike can instead refer to a desirable higher order, where is just what works for the common good, for progress, for the general improvement of the conditions of coexistence between human beings, sometimes to the detriment of established norms. In this second conception, one understands justice in the sense of morality or legitimacy. In most cases, these two orders are compatible. In some cases, however, something morally right may be illegal and vice versa.
The first readings, mainly academic, of the elimination of Ayman Al-Zawahiri usefully looked at his lawfulness, following a procedural reading of justice. In contrast, at the political level, in the United States, the discourse surrounding this elimination seems to have primarily considered its morality. Does it advance the common good and bring about desirable effects that are deemed just? This second type of discourse is divided into two distinct strands. First, a utilitarian component: the elimination is judged to be moral because it would have a social utility and contribute to the future common good by preventively reducing the threat. Second, there is a retributivist counterpart belonging more to the transcendent register. The elimination can also be judged as moral because it makes an act of legitimate revenge possible.
Legalistic Approaches to Ayman Al-Zawahiri’s Elimination
The announcement of Al-Zawahiri’s elimination on August 1st immediately generated a great deal of analyses. Lawyers, journalists, political scientists, and terrorism experts were anxious to know the technical means used, the actors involved, the state of the international jihadist nebula, and the challenges in terms of succession that this operation would pose to the Al-Qaeda organization.
Among these numerous analyses, some focused on the acceptability of this operation – on whether it is just, following a legalistic reading. As early as August 3rd, 2022, Robert Chesney (University of Texas) questioned “the legality of the strike that killed Ayman Al-Zawahiri.” He argued that neither the United Nations Charter nor the law of armed conflict nor international human rights law allowed for a clear legal basis for the elimination, by drone, of for Ayman Al-Zawahiri in Kabul. In this case, Chesney explained, on D+2, that he did not have sufficient contextual information on the operation itself and wished to “lay the groundwork” for the questions of international law issues raised by the elimination of the leader. More assertive was an article from Michael Schmitt and William Casey Biggerstaff published by the Lieber Institute at West Point on August 5th, 2022. The authors believed the operation to be legal since “the al-Zawahiri strike is a textbook example of how to execute a surgical strike against a lawful target after having taken feasible precautions under the circumstances to minimize collateral damage, and in compliance with the rule of proportionality.” Later in August, Ben Saul (University of Sydney) took the opposite legal position, seeing the elimination of Ayman Al-Zawahiri as primarily illegal.
Amélie Férey highlighted that targeted eliminations are subject to uncertainty in international law requiring the establishment of new ethical and normative frameworks. In the specific case of Ayman Al-Zawahiri, Ben Saul raises several aspects concerning this elimination.
- First, the elimination of Al-Zawahiri, like others before him, is thought to put forward a regime of extensive interpretation of self-defence and which would potentially deprive Article 51 of the U.N. Charter of its substance. In a conventional view of self-defence, Article 51 allows the use of force in the event of an “armed attack.” According to this reading, chosen by Ben Saul, what could have justified a regime of self-defence in September 2001 can no longer do so two decades later. The last Al-Qaeda attacks against the United States date back to 2009 with the failed attack on the New York subway. In sum, it would not seem possible for the United States, despite the trend in recent years to expand the regime of interpretation of self-defense, to justify the existence of armed aggresion against the country that could justify the use of force in self-defence against the Al-Qaeda organization in 2022. The American vision of self-defense nevertheless adopts a broader framework of application and intends to legitimize self-defense operations, including in an anticipatory manner. For other eliminations, Washington had put forward a preventive conception of self-defense, whereby it would be legitimate to eliminate a target before it could attack the United States or its allies. Here, Al-Zawahiri would be eliminated in order to preventively stop him from causing future damage and suffering. In French-language doctrine, however, this broad understanding of anticipatory self-defence is generally rejected and seen as an “abusive extension” of the law of self-defence (according to Olivier Corten and François Dubuisson).
- Second, according to Ben Saul, the law of armed conflict would not be applicable in the situation between the United States and the terrorist organization Al-Qaeda. In this respect, the elimination of Al-Zawahiri would not fall within the scope of the Geneva Conventions and the law on the use of armed force. The core of the US argument is that the United States believes that Al-Qaeda is currently engaged in a non-international armed conflict against the United States. A conflict which would justify the applicability of international humanitarian law and thus provide a framework for identifying Al-Zawahiri as a legitimate target. However, legal definitions of a non-international armed conflict traditionally require a criterion of intensity and severity of hostilities. In this case, the State Department and the U.S. intelligence community have repeatedly acknowledged the declining danger of al-Qaeda to the United States. In 2021 for example, U.S. President Joe Biden declared, at the time of the withdrawal of U.S. troops from Afghanistan, that “We delivered justice to bin Laden on May 2nd, 2011 – over a decade ago. Al Qaeda was decimated […] The fundamental obligation of a President, in my opinion, is to defend and protect America – not against threats of 2001, but against the threats of 2021 and tomorrow.” J. Biden justified the withdrawal of U.S. troops from Afghanistan by the absence of an ongoing threat from al-Qaeda against the United States. To claim today that such a threat would justify the elimination of Al-Zawahiri in the context of an ongoing non-international armed conflict would therefore contradict his statements of August 2021 and al-Qaeda’s geostrategic realities.
- Third, even if the law of armed conflict were applicable, Ayman Al-Zawahi’s non-involvement in the group’s operational and strategic activities over the past several years could, according to Ben Saul, deprive Washington of a sufficient basis to designate him as a combatant posing a direct threat, justifying his elimination. For the United States, membership in a group labeled as terrorist would be a sufficient basis for designating an individual as a legitimate target. In this sense, whether Ayman Al-Zawahiri was dangerous or not at the time of his elimination would have no impact on his status as a target; it was legitimate to target him because he was a member of Al-Qaeda. This reading is nevertheless regularly criticized for its all-encompassing and indiscriminating nature. In the U.S. president’s August 1st speech, Ayman Al-Zawahiri’s dangerousness to the United States is mentioned only in past terms, referring to September 2001. According to the intelligence community, Al-Zawahiri was not involved in planning attacks but rather helped encourage them.
- Fourth, the elimination of Al-Zawahiri, like others before him, questions the very possibility of a state like the United States acting in self-defense against a non-state actor. According to the narrow interpretation of the International Court of Justice, self-defense cannot be applicable against non-state actors such as al-Qaeda – a reading that is in tension with the practice of many states and the Security Council, for which self-defense also applies against non-state armed terrorist groups.
- Finally, the elimination, by drone, in a third country that has not a priori given its consent potentially goes against the territorial sovereignty of the Taliban regime in Kabul.
It seems more legitimate to leave these important debates to international law specialists. Let us simply note here that, in the press and in academic analyses, debates about the justice of the operation against Al-Zawahiri question justice in the sense of lawfulness. In other words, these analyses use a shared normative framework – international law – to question the operation’s “respect for established norms and frameworks” (to use our initial Kelsenian formula here).
This first approach to justice corresponds to the legalistic dimension of a deontological approach to ethics. Something is considered to be just if the means used to obtain it are judged to be in conformity with recognized and accepted normative frameworks, here at the legal level. The legalistic approach is interesting and necessary to grasp the practice of targeted eliminations on the international scene. In this paper, however, I wish to show that the political discourses surrounding elimination are situated at another argumentative level, seeking to justify the very cause of the strike. In other words, ,political discourses emphasizing the justice of the operation are not so much interested in its compliance with the rules, but rather in its moral desirability, both utilitarian and transcendent.
Moral Approaches to the Elimination of Ayman Al-Zawahiri in the Political Arena
One may be struck, when reading the political discourses surrounding Al-Zawahiri’s elimination on an Afghan balcony by an American drone, by the relative absence of international law. When he announces the strike, it is not, it seems, the UN Charter or the Geneva Conventions that underpin Joe Biden’s justification, but rather a higher moral order. Political discourses declaring that “justice has been done” refer rather to a regime of moral justification that seems to be developed, as in penal philosophy, in two versions, already found in Beccaria. First, the elimination is judged moral because it would prevent the commission of a future crime and thus contribute to a more stable and secure future (utilitarianism). Second, it is also moral, for it satisfies a vengeance that would be legitimate and just (retributivist justice or a transcendent vision of justice).
A Moral Elimination Contributing To The “Common Good”: the Consequentialist Discourses
In his August 1st statement, the U.S. president expressed the desirability of the strike, arguing that: “Now justice has been delivered, and this terrorist leader is no more. People around the world no longer need to fear the vicious and determined killer.” The strike is “just” because it seems to work towards the general improvement of the conditions of coexistence between human beings. In this way, the elimination would be socially useful; and therefore just. For the president: “As Commander-in-Chief, it is my solemn responsibility to make America safe in a dangerous world. The United States did not seek this war against terror. It came to us, and we answered with the same principles and resolve that have shaped us for generation upon generation: to protect the innocent, defend liberty, and we keep the light of freedom burning – a beacon for the rest of the entire world.” More than justice as the rule of action, the presidential vision is about guaranteeing founding principles: freedom, protection, and the fight against impunity. Here again, it is by the positive effects that it undoubtedly brings that the strike is considered legitimate. A senior officer in the Biden administration echoed the same conception when, in his phone brief on the operation, he explained, “In so doing, the President’s decision has made the world a safer place.” In these speeches, justice is not intended to regulate behavior by affixing norms, but it is evaluated by the social utility and desirability that an act can generate.
Joe Biden is not the first U.S. president to see targeted killings of terrorist leaders as a form of moral justice working for the common good. On October 27th, 2019, Donald Trump thus rejoiced that with the elimination of Islamic State leader, Abu Bakr al-Baghdadi, “Last night was a great night for the United States and for the world. A brutal killer, one who has caused so much hardship and death, has violently been eliminated. He will never again harm another innocent man, woman, or child.” It is he positive consequences of the elimination that allow it to be considered just.
Similarly, Barack Obama saw the killing of Osama bin Laden on May 2nd, 2011, as a measure to protect the nation: “On that day […] we were united in our resolve to protect our nation.” George W. Bush also saw the elimination of terrorist leaders, here Abu Musab al-Zarqawi on June 8th, 2006, as a further step towards “a more peaceful world for our children and grandchildren.” To put it tautologically, in these speeches, the strike is just because it works towards justice by weakening an actor deemed evil. These political discourses invoking the justice of Ayman Al-Zawahiri’s elimination, therefore, have in common that they invoke justice not as a protocol of action that should regulate means and behaviors, but rather as an ideal to be achieved, a goal intended to improve the conditions of coexistence.
But these political statements have been challenged by some analyses that have questioned the strategic effects of these eliminations and their real social utility. For IFRI researcher Elie Tenenbaum, the death of Ayman Al-Zawahiri has, it is true, had symbolic effects, as it weakened the morale of al-Qaeda. Organizationally, however, it may not have had any significant impact and will probably not contribute to a weakening of al Qaeda’s structure or functioning. Tore Hamming of the International Centre for the Study of Radicalisation at King’s College London also predicts that “al-Qaeda will survive the death of al-Zawahiri as it survived the death of bin Laden.” American researcher Bruce Hoffman also emphasizes that “a terrorist group doesn’t survive three-plus decades being dependent on one leader only.” At the strategic level – one of the justification regimes for eliminations identified by Amélie Férey – the elimination of Al-Zawahiri would therefore not bring about any immediately notable effects. Thus, the “just” effects highlighted by U.S. presidents concerning these eliminations would not be fully verified strategically. The moral regime of justification for these eliminations also raises a second problem: that of its possible semantic shift towards vengeful rhetoric.
A Moral Elimination Fulfilling a Legitimate Vengeance: Transcendent Discourses
It seems to me that the discourses surrounding the elimination of Ayman al-Zawahiri from a more vision are also declined in a second component – transcendent this time – whose implications are potentially more problematic. Transcendent is here understood in a philosophical sense as the reference to an external order considered superior (as opposed to immanence and the earthly). Joe Biden tells us justice has been done because America is now protected. But also because the act “is justice”, that is to say, a just return for the attacks of September 11, 2001, a form of superior reparation, whose necessity for the moral order extends beyond the sole actors involved.
Now, when ‘doing justice’ becomes a superior, transcendent injunction, required by the order of things, rhetoric of retaliation or revenge become potentially acceptable. In the case of the elimination of Al-Zawahiri, some discourses advance a conception of justice in which it seems “natural” and just to want to give a taste of their own medicine to an actor who has injured the nation. This is not surprising: “justice” maintains a strong semantic and conceptual proximity to the rhetoric of revenge. Etymologically, “vindicare,” which gave birth to the word revenge, means to seek justice. As Rupert Brodersen of the London School of Economics has noted, revenge, like justice, is meant to repair the nomos, a higher established order where every disruption must be responded to. In other words, the order of things requires that an injury or offense be repaired.
The semantic shift towards a transcendent justice that has become vengeful (and turned to the past) can be seen in President Biden’s speech on August 1st. He invokes a logic of a price to be paid, of a just return of things, noting that “Standing at the memorial at Ground Zero, seeing the names of those who died forever etched in bronze, is a powerful reminder of the sacred promise we made as a nation: we will never forget.” For the president, it is the promise made to the victims 20 years ago to repair the 9/11 attacks that underlies the elimination, in 2021, of the leader Al-Zawahiri as a just return. Unlike President Biden’s 2021 withdrawal of troops from Afghanistan so as not to remain focused on the threats of the past, President Biden’s August 1st order of justice rather focuses on repairing the past. Similarly, a Biden Administration official saw the elimination of Al-Zawahiri as “an additional measure of closure for all of us who mourn the victims of 9/11 and other al Qaeda violence.” Donald Trump also included the need to repair a bruised past in his speech on the elimination of Islamic State leader Abu Bakr al-Baghdadi, declaring: “Think of James Foley. Think of Kayla. Think of the things he did to Kayla, what he did to Foley and so many others.” Rather than working towards a moral and regulated future society, this is a question of repairing a past deemed unjust, of which Bin Laden and Al-Zawahiri are the incarnations. American civil society has also regularly seized upon the rhetoric of price to pay to justify these eliminations. On May 2nd, 2011, the New York Post headlined al-Qaeda leader Osama bin Laden’s death: “Got Him. Vengeance at last. US Nails the bastard,” while the Calgary Sun wished the former leader “rot in hell.”
The difficulty here is that by sliding towards vocabularies of revenge where the injunction of justice becomes emotional, these political discourses contribute to trivializing, in civil society and internationally, a term used against the United States. Jihadist terrorist organizations such as al-Qaeda have made extensive use of vengeful rhetoric to recruit, mobilize or justify the political violence they promote. By making revenge an acceptable mode of action in the international arena, these discourses therefore run the risk of reinforcing the legitimacy (ch. 33) of the vengeful rhetoric issued by these organizations. Al-Zawahiri’s death has already generated numerous calls for revenge from his supporters, reactions already observed in 2019 in the ranks of the Islamic State after the elimination of al-Baghdadi (and the loss, the same year, of the caliphate) as well as in 2011, in Al-Qaeda, after Osama bin Laden’s elimination. By presenting the reparation of a bruised past as an acceptable moral justification, the risk of this transcendent justice is thus to contribute to the normative acceptability of a mobilizing rhetoric used against the United States and others.
Conclusion
This paper has attempted to provide an overview of the different orders of justice that can be included in President Biden’s “justice has been delivered” statement of August 1st. To the legalistic reading questioning the means of elimination, this paper added two other, more moral readings expressed in the political speeches of successive American presidents. On the one hand, according to a utilitarian reading, the elimination is seen as just, because it would have a social utility (whose indicators and criteria must be defined), it would contribute positively to the future good of the American and international community. On the other hand, the elimination is considered moral, because it is a “just return of things,” a form of transcendent justice with vengeful logic according to which any offense must naturally be repaired. Of these three forms of justice invoked, transcendent justice is the one that potentially poses strategic and normative challenges that need to be analyzed. Talking about the elimination of Ayman Al-Zawahiri in transcendental terms could prove counterproductive both normatively – weakening the liberal demand for the rule of law – and strategically – pouring into a vengeful logic promoting security escalation and new recruitments. By highlighting the various levels of analysis mentioned for the elimination of the former al-Qaeda leader, this paper hopes to have shown the relevance of a transparent discussion, at the political level and not only at the academic level, about what “delivering justice” means and implies. Without this, the Biden administration’s “justice” runs the risk of being interpreted and understood as “vengeful justice,” fueling escalations of political violence and normative challenges to the rule of law.
Marie Robin (@Marie_Robin) holds a PhD in political science from Université de Panthéon-Assas and the University of Southern Denmark. She is currently a post-doctoral fellow at the Centre Thucydide (Université Paris Panthéon-Assas), where she coordinates the activities of the “strategic studies” pole and is one of the co-editors of the Rubicon. Her doctoral research analyzed the strategic values of the revenge narratives proposed by al-Qaeda, the Islamic State, and Boko Haram. She has recently published in the Annuaire français de relations internationales and the Handbook of Terrorism Prevention and Preparedness.
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