The Bin Laden Execution

As the whole world now knows, Osama bin Laden was killed by U.S. special forces yesterday, in a raid on his compound in Pakistan. Let me be clear at the outset of this post: I am not weeping for Osama bin Laden. bin Laden was a vicious terrorist mastermind and the leader of an evil organization that has wreaked havoc throughout the world, not least upon the Western psyche. As many have already said, the world is indeed a safer place now that he is dead.

That said, what international law issues arise? States are not normally permitted to exercise enforcement jurisdiction on the territories of other states, which is generally regarded as a serious sovereignty violation. In this case, while some initial reports I read last night suggested that Pakistan had been unaware of the operation, the Pakistani government has since stated that it was fully cooperative with what it now calls a joint effort. So no problems there.

How to characterize this act? I expect there will be some linking of it to the development of the notion of "targeted killing" as an instrument of international humanitarian law. However, to the extent that practice has any legitimacy (and it is highly controversial), it is only within the scope of the law of armed conflict. Osama bin Laden was not a participant or "combatant" in an armed conflict of the type known to the law. He was simply a criminal, albeit probably the most wanted criminal in the history of the world.

Accordingly, I'm drawn to the conclusion that this was simply an extra-judicial killing: state agents (including President Obama and Pakistani authorities) murdering an individual whom they regard as dangerous. Naturally, it is a blatant violation of international human rights law, which forbids governments killing civilians (even criminals) outside the lawful imposition of the death penalty (i.e. after a trial). Of course, neither the U.S. nor Pakistan has ever let international human rights law get in the way of accomplishing important foreign policy objectives.

And it's important not to be Pollyanna-ish about this; this kind of thing goes on all the time, though usually in secret and not trumpeted to the world. Moreover, given the fact that it's bin Laden, it's highly unlikely that any significant numbers of states will want to call either the U.S. or Pakistan to account, outside those with jihadist constituencies they wish to appease.

And perhaps, if there's a worry, that is it. We can be happy that bin Laden is out of the picture, but perhaps we should be concerned about powerful states being able to kill a person they deem to be really, really dangerous, publicly and without accountability. Is this a power we want to see other states exercising, such as China, Russia, Yemen, Pakistan itself? While most of us agree about how dangerous bin Laden was, perhaps many would not agree with China's assessment of why some particular dangerous person (say, a human rights activist?) had to be killed. Yet now, China can point to President Obama and say, if he can do it, why not us? Possibly, just possibly, a dangerous precedent.

Comments

[Don MacPherson]

Nice post, Rob. It's probably the first thing I've seen written in the wake of bin Laden's death that's emotionally detached and straightforward about the incident.

I'd say it's only a matter of time before we see another nation cite the operation as justification for a similar one.

I think you're giving the U.S. too much credit for getting the OK from the Pakistani government to carry out this operation on its soil. Given the conflicting reports early on, one can't help but think that Pakistan and America's claim of partnership is more PR spin than actual co-operation. Pakistan obviously doesn't want to be seen by the international community as harboring bin Laden (even though there's evidence it did), and the U.S. wouldn't want to admit to violating another nation's sovereignty (as you've noted).

[Rob]

Don, I think you're right on the money about being skeptical of the US-Pakistan relationship. My only point was that, as a matter of the law about territorial sovereignty, there is now nothing to suggest that the incursion was anything but legal. We may be suspicious about what happened in the background, but Pakistan has ratified the act and that makes it legal.

[Chopper Robinson]

Great Blob Rob, it is a dangerous precedent indeed. The first thought that came to my mind is how America would react to such an incident on their soil. It was obvious that Pakistan only began calling this a "joint effort" about 6 hrs after they found out about it, the only American justification for the whole operation as far as I am concern. A blatant disregard for the laws of this world, and of other country's, even their own. A necessary evil, but an evil nonetheless! I guess two wrongs do make a right, I will have to sit down with my son and tell him to disregard the morals I have been trying to instill in him so far. I am not saying that Bin Laddin did not deserve prosecution, but law with due process is the cornerstone of American democracy, too bad they have no regard for it! Ethics with exceptions, are a confusing lot indeed!

[Gib van Ert]

Great post, Rob. One question: knowing the kind of person he was, and the kind of people he surrounded himself by, he almost certainly resisted arrest. How does that affect the analysis?

[Rob]

Interesting question, Gib. However, I think it does have an answer -- the U.S. has been explicit that this was a "kill mission," and that there was no intention or attempt to arrest. So there was no chance for him to avail himself of whatever rights he might have had. That gives me an easy out. :-)

Had it been an arrest effort, the answer would have depended, in part, on Pakistani law, since even if they gave the Americans permission to do it, their own law of arrest would still apply. Or perhaps they'd have given the Americans permission to apply their own procedural law as well, though highly unusual. In any event, there certainly would have been scope for a "killed resisting arrest" scenario, which might have made the entire mission legal.

[Mike M.]

Great Blog, Rob.

How would you reply to those who argue that Bin Laden was actually an unprivileged combatant in a non-international armed conflict, and that he was therefore a legitimate military target under IHL? Specifically, one might look to the ICRC's recent 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities, authored by Dr. Nils Melzer, in order to assert that OBL had a "continuous combat function" as the leader of a non-state armed force that was party to the conflict, and that he was therefore a valid target at all times.

The Guidance discusses this concept of civilians who perform a continuous combat function at pp. 33-35 of the Guidance: "individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function." These people lose their civilian protection, and can be killed anytime, anywhere, like any other combatant.

If even the ICRC accepts that civilian leaders of armed groups can become unprivileged belligerents (or non-civilians), then would you agree that Bin Laden falls into this group, and that he might have been killed lawfully under IHL (if not also under IHRL)?

The whole scenario raises interesting questions, I admit. Is there a "duty to attempt capture" of combatants under certain circumstances? When? Where? Does the law of armed conflict need to shift, as HLS's Gabriella Blum has suggested, to a threat-based model of permissible killing (i.e.: forces that pose no immediate danger, such as retreating enemy forces or soldiers out of theatre on leave, should not be targeted), away from the existing status-based (civilian/combatant) model? I don't know, but it makes for interesting course syllabus material!

[Rob]

Thanks for that very interesting comment, Mike. I don't have your expertise in LOAC, so I'll reserve any comment on the points raised in your final paragraph -- except to say that they are interesting indeed.

Without having reviewed the ICRC document, I'd say (much as you do) that if the ICRC accepts that it's legal under LOAC then there's probably no issue, as they tend to be ahead of the game a lot of the time on the "protective" aspects -- so that their acceptance probably reflects acceptance among the community of states of "continuous combat function" as a justification.

Here's my problem, though: which non-international armed conflict is relevant? I may be missing something, but I don't see evidence of OBL's participation as a combatant (if unprivileged) in any kind of "armed conflict" as that term is used in LOAC. So, if he's not party to an armed conflict that meets the legal definition, then he's outside LOAC and is just a criminal.