US embassy cable - 05GENEVA2085

UNCLAS SECTION 01 OF 02 GENEVA 002085 
 
SIPDIS 
 
STATE FOR IO/SHA, DRL/MLA 
 
E.O. 12958: N/A 
TAGS: PHUM, UNHRC-1, Human Rights 
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