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The Al-Aulaqi case is significant as it marks in all probability the first time that an American citizen has been killed by U.S. forces outside the borders of the U.S., without any trial, indictment or due process. The case revolves around Anwar Al-Aulaqi, an American-born cleric with dual U.S.-Yemeni citizenship who was a member of al Qaeda in the Arabian Peninsula (AQAP) and had gone into hiding in Yemen, from where he regularly published videos propagating the jihad. The U.S. Treasury Department had allegedly designated him for targeted killing. Therefore, his father, Nasser Al-Aulaqi, filed a complaint claiming that the President, the Secretary of Defense, and the Director of the CIA unlawfully authorised the targeted killing, and seeking an injunction prohibiting them from intentionally killing his son, except in case he did present a concrete, specific, and imminent threat to life or physical safety, and when there are no means other than lethal force that could reasonably be employed to neutralise the threat. The American Civil Liberties Union and the Center for Constitutional Rights intervened with a memorandum supporting Al-Aulaqi senior’s complaint.

The Columbia District Court found that plaintiff Al-Aulaqi, the father, had neither legal standing in court for his claims, nor that was the claim justiciable under the Alien Tort Statute. And if this was not enough, the Court also ruled that the political question doctrine barred it from adjudicating the case. On 7 December 2010, Nasser Al-Aulaqi’s complaint was dismissed on those grounds, while the defendants’ motion to dismiss was granted.

Anwar Al-Aulaqi was killed by a drone strike in Yemen on 30 September 2011.

What happens if a country suspects a national of another country of being involved in the murder of one of its officials? In many cases, the former country will request an extradition of the suspect. But what happens if the latter country refuses?

In this case, the United States Drug Enforcement Agency, having lost one of its own at the hands of a Mexican drug cartel, took matters in its own hands and forcibly abducted one of the suspects, Humberto Alvarez—Machain. In the United States, he was indicted for participation in kidnapping and murder. The District Court established that the forcible abduction stood in the way of Alvarez-Machain’s trial in the United States. The Court of Appeals, relying on previous case law, agreed. It established that forcible abduction violated the extradition treaty between the US and Mexico. According to the Court of Appeals, this conclusion was substantiated by official Mexican protests against the abduction.

Post-apartheid South Africa continues to be faced with the difficult question on how to deal with past human rights violations. From 1999 until 2005, the South Africa Prosecution Authority attempted to have Wouter Basson convicted. Basson was head of the secret chemical and biological warfare project during the apartheid era. He was charged with a variety of crimes, including murder, fraud and dealing drugs. After several charges were dismissed and Basson was acquitted of all other charges, the prosecutor sought permission to appeal. He mainly held that the judge should have stepped back from this case, as the prosecution had accused him of being biased.

However, the Supreme Court of Appeal held that only the defendant could appeal against factual questions and the Court considered the question of bias to be a factual question. Other reasons given by the prosecutor for appeal were dismissed as well. For example, the Court held that the prosecutor should have appealed against the dismissal of several charges at an earlier stage. 

In one of the first suits filed before the US courts challenging the US practice of 'extraordinary rendition', Syrian-born Canadian national Maher Arar lodged a complaint in January 2004 arguing that his civil rights had been violated. In 2002, Arar was detained by immigration officials at a New York airport while travelling home to Canada from Tunisia. Following a period of solitary confinement, Arar was deported to Syria where he was allegedly tortured before making false admissions of terrorist activity.

On 16 February 2006, the US District Court dismissed Arar’s claims, finding that national security and foreign policy considerations prevented the Court from holding US officials liable, even if the ‘extraordinary rendition’ violated international treaty obligations or customary law.

In one of the first suits filed before the US courts challenging the US practice of 'extraordinary rendition', Syrian-born Canadian national Maher Arar lodged a complaint in January 2004 arguing that his civil rights had been violated. In 2002, Arar was detained by immigration officials at a New York airport while travelling home to Canada from Tunisia. Following a period of solitary confinement, Arar was deported to Syria where he was allegedly tortured before making false admissions of terrorist activity.

On 16 February 2006, the US District Court dismissed Arar’s claims, finding that national security and foreign policy considerations prevented the Court from holding US officials liable, even if the ‘extraordinary rendition’ violated international treaty obligations or customary law. 

The US District Court of Appeals for the Second Circuit affirmed the judgment of the District Court. It held that adjudicating Arar’s claims would interfere with national security and foreign policy. In his partial dissent, Judge Sack found that this provides federal officials with licence to “violate constitutional rights with virtual impunity”. The Court of Appeals also found that as a foreign national, Arar had no constitutional due process rights.