Did Osama bin Laden hit violate international law?

Bill Weinberg

The White House did make a somewhat equivocal statement implying (not explicitly stating) that an effort had been made to take Osama bin Laden alive. But Radio Netherlands on May 2 assumes the operation was “an extrajudicial killing” and asks if such actions are “allowed under international law.” The report notes that the US State Department had offered a reward of up to $25 million for “information leading directly to the apprehension or conviction.” The report adds rhetorically: “[B]ut is that a license to kill?”

The US legal framework on the war on terror is unclear. While the US government does not condone extrajudicial killings, the US maintains that senior members of al-Qaeda are “enemy combatants”. As the laws of war only cover killings of combatants by combatants—does the term “enemy combatants” in modern warfare mean a blanket privilege to commit violence in the name of counter-terrorism?

Dutch professor of international law Geert-Jan Knoops is quoted as saying the bin Laden hit was illegal: “Under international law, he must be arrested and handed over to the US to stand trial. The US regards itself as being in a state of war against terror and therefore as having the right to eliminate its enemies on the battlefield. But the laws of war do not permit this sort of action. Naturally, no court in the world will tick off the Americans for this. What’s remarkable is that Obama justifies this killing—while he said earlier that he aims to restore law in the US.”

Radio Netherlands also cites a recent report (no exact title or date given) by the Congressional Research Service of the Library of Congress outlining the legal ambiguity surrounding the US government’s rules on assassination. President Ronald Reagan issued an executive order in 1981 prohibiting assassination, directly or indirectly—and specifically singling out the “Intelligence Community.” Some have interpreted the order to refer to only heads of state. But three days after the 9-11 attacks, the House and Senate passed joint resolutions authorizing the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” The Congressional Research Service report states: “The breadth of authority might be viewed as sufficient, insofar as US responses to September 11, 2001 are concerned—to encompass actions that might otherwise be prohibited under the assassination ban.”

Radio Australia meanwhile reports that the woman killed in the raid may have been a wife of bin Laden rather than a “human shield” as originally reported—or, perhaps the wife was being used as a “human shield.” The report again quotes White House counter-terrorism adviser John Brennan’s equivocal statement. In Radio Australia’s paraphrase: “Brennan says the US special forces had been prepared to take bin Laden alive but resorted to force when the terrorist mastermind resisted.” But the actual Brennan quote is considerably slipperier: “If we had the opportunity to take bin Laden alive if he didn’t present any threat, the individuals involved were able and prepared to do that.”

See our last post on the Osama bin Laden hit.

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  1. Holder: bin Laden killing “lawful”
    US Attorney General Eric Holder said May 4 that the killing of Osama Bin Laden by US forces was lawful and justified. Testifying before the US Senate Judiciary Committee, Holder said that the shooting of Bin Laden was “consistent with our values,” and that the soldiers who killed him “conducted themselves totally appropriately.” In a prepared statement, Holder said:

    Three days ago—thanks to many dedicated military and civilian leaders; intelligence and law enforcement officers; diplomats and policymakers; investigators, prosecutors and counterterrorism experts—the decade-long manhunt for Osama bin Laden came to a successful end. This historic achievement was a tremendous step forward in attaining justice for the nearly 3,000 innocent Americans who were murdered on September 11, 2001. And I hope it will inspire a renewed commitment to collaboration – across party lines, branches of responsibility, and agencies—so that we can effectively address the most pressing challenges facing the American people.

    Holder also expressed concerns that Bin Laden’s death may prompt attempts at retaliation. (Jurist, May 4)

  2. Human Rights Watch issues non-statement on Osama hit
    From Human Rights Watch, May 2:

    Osama Bin Laden’s Death
    The announcement that Osama bin Laden was killed in a US-led undercover operation in Pakistan is a reminder of the devastating human toll that terrorism has brought to every continent of the world, Human Rights Watch said today. In addition to the September 11, 2001 attacks, bin Laden’s al Qaeda organization is blamed for the 1998 bombings of two US embassies in Tanzania and Kenya that killed 231 people, as well as many other terrorist plots.

    “At a time when citizens around the world have engaged in peaceful demonstrations in the name of freedom and democracy, bin Laden’s death is a reminder of the thousands of innocents who suffer when terrorist groups seek political change through brutal means,” said Kenneth Roth, executive director at Human Rights Watch.

    Not a word about the legality (or lack thereof) of what appears more and more like an extrajudicial execution.

  3. Amnesty International raises questions on Osama hit
    Amnesty International shows greater courage and integrity than HRW, at least raising some questions about the hit—even if it saves for last those that most urgently need to be raised. Their May 4 statement:

    Questions around operation against Osama bin Laden
    Amnesty International today asked the US and Pakistani authorities to clarify aspects of the operation in Abbottabad in which Osama bin Laden was killed.

    The organization specifically requested information on the status and whereabouts of those who were with bin Laden and the circumstances of his killing.

    “We are seeking information from the US and Pakistani authorities about how many people were in the compound at the time of the operation, what happened to them and specifically what is the status and current whereabouts of the survivors,” said Claudio Cordone, Senior Director at Amnesty International.

    According to reports attributed to Pakistani intelligence officials, 18 people were in bin Laden’s compound at the time of the US attack.

    US officials have said that five people were killed and two women were injured—one of whom was identified as bin Laden’s wife—and that at the end of the operation the injured women were left at the compound along with at least six children.

    CIA Director Leon Panetta said on 3 May that US forces had full authority to kill Osama bin Laden but that they were to capture him if he had surrendered.

    The White House has said that Osama Bin Laden was unarmed but resisted capture.

    “Given that he was not armed, it is not clear how he resisted arrest and whether an attempt was made to capture him rather than kill him,” said Claudio Cordone.

    “Amnesty International believes that US forces should have attempted to capture Osama bin Laden alive in order to bring him to trial if he was unarmed and posing no immediate threat.”

    Osama bin Laden claimed responsibility for acts of terrorism amounting to crimes against humanity and has inspired others to commit similar acts. Perpetrators of such acts must be brought to justice in a manner consistent with international law.

  4. Human Rights Watch issues more equivocation
    More from Human Rights Watch, May 4:

    Killing of Osama bin Laden
    Some media reports have erroneously suggested that Human Rights Watch has condemned the killing of Osama bin Laden. Human Rights Watch has said that we do not have enough information about the killing to draw conclusions about whether it was lawful or not. Human Rights Watch calls on the US government to provide that information.

    Bin Laden publicly took responsibility for several mass killings of civilians. The inability to bring bin Laden to trial for crimes against humanity means that an important avenue for justice has been lost, but that is quite different from determining whether the killing was legal, Human Rights Watch said. The US government should provide all the relevant facts about Osama bin Laden’s death to clarify whether it was justified under international law.

    So where did HRW “call on the US government to provide that information”? If there is a third press release in which they did this, it is not readily found on their website…

  5. UN special rapporteurs want full account of bin Laden killing
    From the UN Commission for Human Rights May 6:

    GENEVA – The Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, have issued the following statement:

    “Acts of terrorism are the antithesis of human rights, in particular the right to life. In certain exceptional cases, use of deadly force may be permissible as a measure of last resort in accordance with international standards on the use of force, in order to protect life, including in operations against terrorists. However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment.

    Actions taken by States in combating terrorism, especially in high profile cases, set precedents for the way in which the right to life will be treated in future instances.

    In respect of the recent use of deadly force against Osama bin Laden, the United States of America should disclose the supporting facts to allow an assessment in terms of international human rights law standards. For instance it will be particularly important to know if the planning of the mission allowed an effort to capture Bin Laden.

    It may well be that the questions that are being asked about the operation could be answered, but it is important to get this into the open.”

  6. State Department defends bin Laden killing
    US State Department legal adviser Harold Koh on May 19 defended the killing of Osama bin Laden, saying it was “consistent with the laws of armed conflict and US military doctrine” in a brief statement published on OpinioJuris.org. Koh referenced a speech he made in March 2010 defending the use of predator drones to kill US targets where he argued that al-Qaeda is an imminent threat to the US, giving the US authority to defend itself using lethal force, which means targeting high-level al-Qaeda leaders. Koh explained that the Obama administration is dedicated to the principles of distinction, meaning limiting attacks to military objectives, and proportionality, meaning limiting the death of civilians and damage to civilian property. In his recent statement, Koh said that materials collected during the bin Laden raid confirm suspicions that bin Laden remained an imminent threat to the US and its citizens and that his failure to submit to an appropriate surrender authorized the troops use of lethal force:

    [T]he manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way. Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

    Former US Supreme Court Justice John Paul Stevens also recently commented on the killing of Bin Laden during remarks at Northwestern University, saying the killing was legally justified and that he was proud of the US Navy SEALs who carried out the mission. (Jurist, May 20)

    Two days earlier, White House press secretary James Carney said that the bin Laden hit was a “kill mission.”