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The killing of dreaded terrorist Osama bin Laden has triggered a controversy - did it violate international law?
The U.S. special ops forces, in coordination with the CIA, shot dead bin Laden after storming his hideout - a mansion in Abbottabad, Pakistan on May 1. Osama bin Laden was reportedly unarmed when he was shot dead. Pakistan was caught napping and didn't know of the incident till U.S. President Obama made the announcement public.
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The entire incident has shaken the global legal fraternity, dividing it into two – those who feel the U.S. government was justified in shooting bin Laden dead and those who feel the U.S. government may have overstepped the legitimacy of its action and violated international and human rights law.
Was the killing legal or did it violate the international and human rights law?
It depends on whether bin Laden can be considered as an enemy combatant.
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The U.S. government said the killing was legal, justified, proper and "an act of national self-defense."
"Let me make something very clear," Attorney General Eric Holder told Congress on Wednesday, "the operation in which Osama bin Laden was killed was lawful, legitimate and appropriate in every way. He was the head of al Qaeda, an organization that conducted the attacks of Sept. 11. He admitted his involvement."
Holder said it's lawful to "target an enemy commander in the field," just as U.S. forces did during World War II when it shot down a plane carrying Japanese Adm. Isoroku Yamamoto.
Bin Laden was "by my estimation, and the estimation of the Justice Department, a lawful military target, and the operation was conducted consistent with our law [and] with our values," the attorney general said.
But what if bin Laden was unarmed and had made an attempt to surrender? Is it lawful to kill an enemy combatant who wishes to surrender? According to Holder, if someone is an enemy combatant, it does not matter if he is unarmed or not because lethal force is permitted against enemy fighters and commanders in the course of an ongoing armed conflict, and sometimes in cases of self-defense. As for surrender, that instance never arose because there was "no indication he wanted to do that."
Moreover, even if the Al Qaeda leader had surrendered, there would have been a "good basis" for "those very brave Navy SEALs" to shoot bin Laden "in order to protect themselves and the other people who were in that building," including "substantial numbers of women and children" who were not harmed in the raid, Holder said.
And, to justify the use of lethal force, the Obama administration is relying on the Authorization to Use Military Force Act of Sept. 18, 2001, which allows the president to use "all necessary and appropriate force" against those nations, organizations, or persons he determines aided in the 2001 attacks. It justifies the actions in the name of self-defense, "to prevent any future acts of international terrorism" against the U.S. In fact, the presidential executive orders under this law are far-reaching BUT do not include the assassination of foreign political leaders.
According to Walter E. Dellinger, solicitor general under former U.S. President Bill Clinton, shooting bin Laden is legal because it was not an "assassination" of a political leader but the killing of a military commander at best as part of an operation i.e. in a military combat. And, in a military combat, an enemy can be lawfully killed even if he is unarmed.
"Under international law, bin Laden is an enemy combatant. And one of the points of war is that you can kill enemy combatants. Now if they surrendered and cease being a combatant, then you have to take them into custody. But you have no obligation to make it easy for someone to surrender," CNN quoted Dellinger as saying.
