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.
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.
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.
Dellinger also pointed out that it was a highly dangerous mission and the Navy SEALS met with armed resistance from other terrorists in the mansion, even if bin Laden was unarmed.
It takes 20 minutes to make it to the third floor (where bin Laden lived). They don't know if the Pakistani military is going to be closing in, is going to impede their departure. Every second counts. And it would compromise the mission to do anything other than use lethal force against bin Laden and get him out as quickly as possible, he said.
The White House also says that bin Laden himself resisted arrest even if he was unarmed. Generally, if a target is trying to surrender it is unlawful to kill him under international law. Why? Because under Protocol I to the Geneva Conventions, if someone is hors de combat, or outside the fight, then targeting even military objectives is a war crime. In other words, Under the laws of war, you are allowed to target enemy fighters unless they are clearly surrendering or are disabled by injury; whether they are armed or fighting at that particular moment or not, Anthony Dworkin, an international law expert at the European Council for Foreign Affairs, said.
White House spokesman Jay Carney said the Navy SEALS was prepared and had the means to take bin Laden into custody. However, bin Laden had not surrendered and had shown no indication that he was killing to surrender, Carney said.
Agrees Dworkin. Under law enforcement standards, you can only use lethal force if it is strictly necessary to prevent the loss of other lives or to prevent the escape of someone you are seeking to arrest, Deutsche Welle quoted Dworkin as saying. He added that in this case it appeared the US was justifying the shooting by appealing to a mixture of these standards: It was in the context of a fire fight, the US forces were meeting a lot of resistance, bin Laden was not giving himself up to the US forces even if he didn't have a weapon.
Greg Kehoe, a U.S. lawyer who advised the Iraqi Special Tribunal formed to prosecute Saddam Hussein, also told FOX 13 that this was a war action and not a police action. And, in a war situation, any commander in chief is a fair-game target, and bin Laden was the commander in chief of an organization at war with the U.S. In that sense, the international war laws side with the U.S., Kehoe said.
However, many people feel the U.S. government has gone too far in playing the role of judge, jury and executioner and rather should have captured bin Laden and put him on trial, irrespective of the fact that he was an evil terrorist with the blood of thousands on his hands.
According o Gert-Jan Knoops, a Dutch-based international law specialist, bin Laden should have been arrested and extradited to the United States and then put on trial. Knoops drew parallels with the arrest of former Yugoslav president Slobodan Milosevic, who was put on trial at the war crimes tribunal in The Hague after his arrest in 2001. The Americans say they are at war with terrorism and can take out their opponents on the battlefield, Knoops said. But in a strictly formal sense, this argument does not stand up.
London-based distinguished human rights lawyer Geoffrey Robertson has also described the killing of the al-Qaeda leader as a perversion of justice that would rebound on the US.
The Australian-born Queen's Counsel has sat as an appeal judge on a UN war crime court and is one of three jurist members on the international organization's Internal Justice Council.
It's a perversion of the term. Justice means taking someone to court, finding them guilty upon evidence and sentencing them. This man has been subject to summary execution, and what is now appearing after a good deal of disinformation from the White House is it may well have been a cold-blooded assassination, Robertson told ABC TV.
Brad Adams, Human Rights Watch Asia director also feels that Obama was wrong in saying Justice has been done.
If he wasn't shooting at the soldiers, the killing should be investigated, Adams said. People are saying that justice has been done, but justice has not been done. Justice is when you arrest someone and put them on trial.
Did carrying out a military operation in Pakistan i.e. foreign soil constitute a violation of Pakistan's sovereignty?
There is also the question of whether any sovereign state laws were violated by the US when its forces entered Pakistan without the knowledge or permission of the local government. The US claims that only a select few within Washington knew of the mission and that Pakistan wasn't one of them.
According to Dworkin, it wasn't a violation of Pakistan's sovereignty. I think there is a reasonable argument that this was not a violation of Pakistani sovereignty because there is a legitimate argument for self-defense for US action against bin Laden; Pakistan has also made it clear after the event that it does not object to US action in this case and that Pakistan has previously given at least tacit consent for US action against senior al-Qaeda members on its territory, Dworkin said.
Agrees John B. Bellinger III, who was the legal adviser to the State Department under the Bush administration. Bellinger acknowledges that under the United Nations Charter, the United States would normally be prohibited from using force inside Pakistan without obtaining Pakistan's consent. But there is one caveat: that the host country is both capable and willing to deal with problems itself.
And, this was a special circumstance that gave the U.S. government a legal justification for not doing so (obtaining consent).
The U.S. was justified in concluding that Pakistan was unwilling or unable to stop the threat posed by Osama bin Laden, and that Pakistan's consent was not necessary because of past concerns about the close ties between Pakistan intelligence services and the Taliban, Bellinger said, and the fact that bin Laden was in a house, on a street right down the road from a Pakistani military base.
Agrees Prof. Matthew Waxman of Columbia Law School. Under international law, it would normally be a violation of a state's sovereignty to launch this sort of raid, unless the state consents or perhaps because of an overriding necessity of self defense, Waxman said.
If the U.S. government takes the stance that bin Laden is an enemy combatant and Pakistan was probably not willing or able to deal effectively with this situation (of apprehending bin Laden or prosecuting him), the former is well within its rights to attack bin Laden on foreign soil even without Pakistan's consent, Waxman said.
In other words, extra-territorial jurisdiction in any such matters would normally be unlawful as a state's sovereignty is absolute - no other country's armed forces can enter or carry out a military operation without the local state's authorization. Using force against the territorial integrity and independence of a foreign state is strictly prohibited under the international law and, prima facie, with the way the operation was carried out, the U.S. government clearly violated the national security of Pakistan, and set a very dangerous precedence that greatly poses a threat to the international peace and security.
However, in this case the U.S. government is right in making the self defense justification because the al Qaeda is engaged in a continuous act of war against the U.S. and Pakistan, more or less, has allowed its territory to be used as a base of operation for future terrorist crimes against the United States and other countries.
Mark Quarterman, an analyst with the Center for Strategic and International Studies has made an interesting observation on this issue.
According to Quarterman, it would be interesting to know who gave the orders for the killing and who actually ended up killing bin Laden - the CIA or the military.
U.S. federal law includes two bodies of code applicable to warfare – Titl1 10 and Title 50. While Title 10 contains laws exclusive to the U.S. armed forces - notably the Uniform Code of Military Justice Title – and it protects U.S. troops from prosecution for murder or manslaughter when they kill an enemy soldier, Title 50 relates to definitions of war and espionage, and the government's responsibilities in the event of armed conflict.
While the military is a Title 10 force, historically, the CIA is Title 50.
However, in bin Laden's killing, there is a blurring of Title 50 and Title 10. If the men who attacked the Al Qaeda chief were soldiers, it may be easier to consider bin Laden a soldier too - a military leader, at best - and fair game.
However, if it was a CIA-led mission and the soldiers acted on CIA directive, the killing of bin Laden could be interpreted as an assassination as he can be assumed as a political leader, Quarterman suggested.
In other words, the debate on whether bin Laden's killing is justice done or illegal killing will continue as long as it is not clear as to how much CIA was involved in bin Laden's killing.
In conclusion, until the full details of the raid are released, along with photographs and any video footage from the operation, there will continue to be questions about the mission's legality.
However, this is one question the U.S. government will not be willing to answer because it wants to keep its legal options open and justify the raid and killing of the world's most wanted terrorist.
Moreover, by not taking bin Laden into custody, the U.S. government has freed itself from what could have been the most complex legal proceeding in American history.
The difficulties would have been endless: military tribunal or criminal trial? Abroad - at Guantánamo? - or inside the United States? Would bin Laden have been granted access to the evidence against him? Who would represent him? What if he represented himself, and tried to use the trial as a propaganda platform? Jeffrey Toobin wrote in the New Yorker.