Osama bin Laden’s death at the hands of U.S. Navy SEALs evoked reactions ranging from spontaneous public demonstrations of joy to serious questions about its legality. Unfortunately, the conflicting factual accounts and cursory legal justification provided by Obama administration officials have proven inadequate to fully resolve these surprisingly complex questions.
The first challenge is to identify the applicable legal paradigm, a matter complicated by the United States’ dual-track, post-9/11 approach to counterterrorism, ambiguous “war on terror” terminology and even the president’s statement that “justice” was done. Was the raid a mission to capture a leading terrorist and the FBI’s most wanted criminal, which must be judged by the standards of criminal and international human rights law? Or was it a military strike against the opposing commander in a transnational armed conflict, properly judged under the law of armed conflict?
Most critical commentators seem to assume up front that the operation was a law enforcement mission to be judged under human rights law standards. There is little doubt that the operation was clearly problematic when evaluated from this perspective. International law bars law enforcement in foreign territory without that state’s express consent. Moreover, law enforcement personnel are obligated to try to capture their targets alive; the use of lethal force is permitted only when actually necessary in actual self-defense. Even if not specifically planned, the deliberate killing of unarmed individuals in bin Laden’s house would likely constitute murders under this body of law, if, as reported, the only actual opposition came from a detached guesthouse.
But law enforcement is not the only legitimate U.S. counterterrorism option given that 9/11 was internationally recognized as an armed attack and that Congress subsequently authorized the use of military force against those responsible. These facts place U.S. counterterrorism on a unique footing, allowing the use of authority from the law of armed conflict. That is the position the White House has taken.
Although a “war on terror” sounds reminiscent of metaphorical wars on crime and drugs, the United States has legal authority to wage an actual armed conflict against al-Qaeda. Bin Laden’s killing should thus be evaluated under law of armed conflict rules permitting enemy fighters and commanders to be killed on sight unless rendered hors de combat by physical incapacitation or voluntarily offering surrender. That a killing takes place remote from any “battlefield,” (a descriptive term lacking legal significance) or that the opponent is not actively resisting is legally irrelevant so long as four core laws of warfare principles are satisfied:
Necessity: Any use of force must be intended to further the cause of bringing hostilities to a successful end and comply with other law of armed conflict rules. Killing just for revenge, for example, would violate this rule.
Distinction: Any force used must be directed against a valid military objective and applied in such a way as to distinguish it from protected civilian persons and objects.
Proportionality: Attacks may be conducted on valid military targets even if “collateral” civilian harm will predictably result so long as that harm is not disproportionate to the anticipated military advantage.
Humanity: Attacks may not be conducted using prohibited weapons or means likely to cause unnecessary suffering even to the intended targets.
Published accounts of bin Laden’s killing suggest it met these standards. As the publicly recognized leader of al Qaeda, his loss cannot help but adversely impact its future effectiveness and should ultimately shorten the conflict. The selection of a commando-style assault versus more destructive aerial bombing and efforts to avoid lethal harm to the women and children present reflect concern for distinction and proportionality while the use of conventional military firearms raises no humanity issues as that principle is applied in the laws of warfare.
This should not end a serious inquiry, however.
There would be real legal issues if early reports that bin Laden was not to be taken alive prove true. Orders to deny quarter, or “take no prisoners,” unequivocally constitute a war crime. The warrior has no obligation to offer the opportunity to surrender but must honor voluntary capitulations. It is thus noteworthy that President Obama has been careful to state that bin Laden’s surrender would have been accepted. Further violence against an incapacitated adversary is also prohibited. Reports that bin Laden was deliberately shot a second time to ensure he was dead (an all-too-common wartime practice colloquially called “double-tapping”) are thus troubling if done after he had already been brought down –although it is clearly permissible to shoot an adversary multiple times in the process of incapacitating them. We simply do not have the facts necessary to assess this.
Some commentators question whether bin Laden’s killing was a prohibited assassination rather than legitimate act of war. Although “assassination” lacks precise legal definition, it generally describes politically motivated killings of public officials while the law of armed conflict more narrowly limits targeting to individuals with military roles whose deaths advance war aims. As commander-in-chief, the president is thus a lawful object of attack, as were Saddam Hussein and bin Laden; other civilian leaders lacking direct authority over military operations would not be. Historical laws of warfare bar “assassination” but relate to the means of attack — employing perfidy or treachery — rather than the object. A military helicopter assault poses no legal issue in this regard, whereas a CIA operative sneaking into the compound in local civilian attire would have.
A final issue regards the raid location. Wars are lawfully conducted in the territory of the warring state(s) and the high seas, but a strike into Pakistan might be justified on three bases.
If Pakistan is “neutral” in the U.S. conflict with al-Qaeda, it is obligated to prevent its territory from being used by one side to the detriment of the other. If unable or unwilling to do this, customary international law permits the aggrieved party a limited right of self-defense against serious and time-sensitive threats within the neutral territory. Although politically unpopular, the 1970 U.S. “incursion” into Cambodia was an exercise of this authority.
A second possibility is that Pakistan recognized its practical inability to deny al Qaeda sanctuary and privately authorized U.S. action on its territory.
Finally, if Pakistan is an actual American ally in combating al Qaeda, then the U.S. may operate in its territory as a co-belligerent. That Pakistan publicly denies giving permission for the raid is not dispositive; it says the same thing about U.S. drone strikes for domestic political consumption even while photos available online show American drones actually operating from Pakistani airfields. It’s revealing that the primary Pakistani governmental criticism of bin Laden’s killing seems to be coming from its army, which is taking heat for its perceived inability to detect the U.S. helicopters or bin Laden’s proximity to its own facilities, rather than from civilian leaders who would be expected to protest a violation of national sovereignty.
Publicly available information is currently insufficient to permit a comprehensive assessment of all of these issues, and given concerns about Pakistani domestic sensitivities, it may be years until we know the full truth. But it should be clear that facile conclusions about the killing’s legality — in either direction — are almost certainly based on simplistic assumptions; either treating the killing as one to be judged by ordinary criminal law on the one hand and condemning it, or assuming that the law of armed conflict grants carte blanche to any killing of an enemy on the other. The reality is far more complex.
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