By Ben Saul
Was America’s killing of Osama Bin Laden lawful or an extrajudicial assassination? The answer depends on two key areas of international law: the law on the use of force, and international humanitarian law.
Under the law on the use of force, it is prohibited to use military force on the territory of a foreign country except in self-defence against an “armed attack”. The US may plausibly argue that it is the victim of an ongoing “armed attack” by Al Qaeda, beginning with the attacks of 11 September 2001. Attacking Osama Bin Laden as the military commander of Al Qaeda (if that was indeed his function) could possibly be justified in self-defence.
There is, however, controversy in international law about whether self-defence is permitted against a non-state actor (Al Qaeda) based on the territory of a foreign state (Pakistan) where that foreign state does not control the non-state actor. The International Court of Justice, for instance, has been reluctant to acknowledge a right of self-defence in such circumstances.
Instead, the expectation is that the host state (Pakistan) is responsible for dealing with terrorist threats on its territory, and its sovereignty should not be infringed by foreign intervention to attack terrorist groups. The difficulty with this traditional view is that if the host state is unwilling or unable to deal with terrorism, it may then leave foreign states at the mercy of unabated attacks.
Perhaps a better view is that if the host state is unwilling or unable to deal with the problem, a foreign country then becomes entitled to exercise self-defence. The US had a genuine concern that alerting Pakistan to Bin Laden’s whereabouts may have tipped him off (because of leakage within the Pakistani security services) or been ineffective (because less well trained Pakistani forces may have botched the operation). These are legitimate concerns in the circumstances, and may have justified the US acting alone.
Even if the operation was lawful under the law on the use of force, it must also comply with international humanitarian law (the law on the conduct of hostilities). Humanitarian law applies if there was an “armed conflict” in Pakistan at the time, such that special rules on military targeting apply and displace normal law enforcement in peace time.
In my view, there probably is a non-international armed conflict in Pakistan under common article 3 of the four 1949 Geneva Conventions. That is because for some time there has existed intense military violence between a government (the US) and an organised armed group (Al Qaeda) in Pakistan. The US has been targeting Al Qaeda with aerial drone strikes since the Bush Administration, and has escalated such attacks under President Obama. This operation against Bin Laden is arguably part of that non-international armed conflict.
The relevant legal question is then whether Bin Laden is classed as a civilian (who cannot be targeted), or is a person “directly participating in hostilities” (which makes him a legitimate military target). The US could argue that as the military commander of Al Qaeda, Bin Laden must be regarded as a perpetual “unlawful combatant” who can be killed at any time. If a person is taking a direct part in hostilities in this way, there is no obligation under humanitarian law to attempt to apprehend or arrest the person before killing them – which is quite unlike the ordinary operation of law enforcement powers in peacetime.
The difficulty here is that there is a current controversy in humanitarian law about what “direct participation in hostilities” means. A more traditional view is that it only covers acts of immediate physical participation in fighting, such as carrying a weapon. That view is usually preferable because it better protects civilians not engaged in hostilities at the time, although some governments argue it makes it too difficult to deal with terrorists.
The US has admitted that Bin Laden was not armed when he was shot, nor apparently was anyone else in the bedroom where he was captured. A US spokesperson said that “resistance does not require a firearm”. That cryptic comment has not been explained. Perhaps he was physically struggling against capture, and he was a big man with a strong will.
But that hardly explains why a room of highly-trained and well-armed US special forces found it necessary to shoot him, instead of simply overpowering an unarmed man who was not taking a direct part in hostilities. That there was armed resistance in other parts of the compound is irrelevant to what happened to those people, in that room. Humanitarian law requires positive identification of a person taking direct participation in hostilities, not eyes wide shut assumptions about what one might expect to find there.
The US mission was certainly preferable to an original proposal to drop a 900 kg bomb from a B2 bomber to obliterate the compound. From what has been reported, the operation appeared to minimise civilian casualties. A US spokesperson also said that they were prepared to capture Bin Laden if that were possible. That makes sense since his capture would have intelligence value, enable his criminal prosecution, and bring propaganda benefits.
If that statement is correct, then the failure of the Americans to carry through that plan to arrest Bin Laden must be seen as a considerable mission failure. On the facts so far provided by the Americans, it would have seemed possible to apprehend and detain an unarmed Bin Laden, in a room where there were no other hostile threats to American forces.
His killing therefore may mean one of two things. It could mean that US special forces did not properly follow orders, but messed up the operation by being too trigger-happy, admittedly under the frightening and confusing circumstances of a surrounding battle.
Or it could mean that his killing was planned all along – an assassination order of the US President, coordinated by the civilian CIA (which itself unlawfully participated in hostilities by running the military operation), regardless of the circumstances in which Bin Laden happened to be found – including unarmed, in his bedroom, with his wife.
The outcome has been welcomed by many, and few regret Bin Laden’s passing. It is politically incorrect to say so, but Bin Laden was, I believe, as evil a person as can be found: a genocidal, obsessive, odd man whose business was exterminating civilians he didn’t like.
But in the long term, lawlessness of our own will not make us safer. It ultimately sends a signal to those despicable terrorists that we will sometimes act like them. That seldom makes them afraid; it tends to steel their will and escalate their savagery against us.
Ben Saul is Associate Professor of International Law at The University of Sydney.