Adrian Hamilton: It is wrong to be judge, jury and executioner

A few days after America started bombing Afghanistan, US spy planes were able to pinpoint a car carrying Mullah Omar and his family from the capital.

The story was that the air force delayed striking for fear that they would be in breach of congressional law forbidding assassination of foreign heads of government. The revised version now being put out is that they would have blown up the cars if the spy planes hadn't been unarmed.

No matter that it would have been in breach of the law and would certainly have killed women and children. It is now apparently acceptable for the government of a civilised state to brief that it did not carry out an act of state assassination because it couldn't practically do so rather than it had any moral or legal qualms.

Before we accept this new morality, or applaud the CIA's blowing up of the al-Qa'ida's men in Yemen, it is worth remembering why the US Congress passed the law forbidding assassination of foreign heads of state in 1976.

Theevent was the farcical effort to kill Fidel Castro in Cuba using exploding cigars. The real reason was two generations in which the CIA had been involved in the overthrow of democratically elected regimes in Iran, Chile and Vietnam on the grounds that they threatened US interests. It seemed utterly wrong for a state founded on the rule of law to ignore it when acting abroad, for a country espousing freedom to adopt the methods of Josef Stalin, Enver Hoxha and Saddam Hussein.

The argument is that 11 September has introduced a different kind of war in which the enemy has to be pursued as an individual because the conflict is no longer with a state. But how is it different than the "war" against the IRA in Ireland, or Eta in Spain or the Kurds in Turkey?

History has shown one simple rule: authorities cannot be trusted with the right to act as judge, jury and executioner when pursuing their enemies.

You could say that there is no precise law covering today's conflict, not even – as Washington argues – a Geneva convention for the treatment of prisoners. But the last generation has sought to bring common standards of behaviour and accountability to international behaviour. What else are the International Convention on Human Rights and the International Criminal Court about?

America under President George Bush has rejected such internationalism. It has turned its back on applying any of the normal rights given to a citizen within its own borders to those it counts as terrorists abroad.

Like Ariel Sharon, it believes that unlawful deeds exempt their perpetrators from the protection of the law, that in the "war against terror" any tactic is justified, whatever the "collateral" damage. If we say a man is a terrorist, then that is what he or she is. And if we get it wrong, that's simply a casualty of war.

Just because officials say the men killed in a car by the CIA on Sunday were guilty, doesn't mean they were. Only due process of law could decide that.