America’s killing of Osama Bin Laden

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Was America’s spectacular killing of Osama Bin Laden a lawful act of war, or an illegal 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 might argue that it is the victim of an ongoing ‘armed attack’ by Al-Qaeda, beginning with the attacks of 9/11. Attacking Bin Laden as the military commander of Al-Qaeda 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) on the territory of a foreign state (Pakistan) where the foreign state does not control or direct the non-state actor. Most countries accepted the right of the US to do so in Afghanistan after 9/11, where the Taliban government did not control Al Qaeda, and actively shielded them. Countries such as Turkey and Israel have also occasionally used force against non-state groups in neighbouring countries.

On the other hand, the International Court of Justice has been reluctant to acknowledge a right of self-defence in such circumstances. The practice of most countries also still weighs against it. For example, Colombia attacked FARC rebels in Ecuador (which did not direct FARC) a few years ago. Colombia later apologised and compensated Ecuador, after the Organisation of American States condemned the incursion as illegal.

The ordinary expectation is that a host state (in Bin Laden’s case, 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 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 US response might seem legitimate, and might point towards a future direction in the law, it was probably not lawful at the time.

Even if the US response might seem legitimate, and might point towards a future direction in the law, it was probably not lawful at the time.

The bigger problem for the US is whether Bin Laden was responsible for an ongoing (or imminent) ‘armed attack’ on the US. With distance from 9/11, Al Qaeda’s capabilities have been much degraded, and its activities have reverted to more of an isolated, criminal, terrorist kind rather than remaining on an extensive military scale amounting to an ‘armed attack’.

Military force is not usually lawful in response to criminal threats, even terrorist ones, for the very good reason that escalating a situation into military violence seldom makes things better. 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, once a war gets underway). 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.

Citizen or ‘unlawful combatant'?

In my view, there probably was a non-international armed conflict in parts of Pakistan under common art 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 the north-west frontier provinces of Pakistan, which is a spill-over of the neighbouring conflict 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 (without, it must be said, accountability or transparency).

While Bin Laden was not present in the north-western frontier where most of the violence occurs, he is probably proximately connected to it. There is no rule of international humanitarian law which confines hostilities only to pre-existing ‘hot’ battlefields; logic dictates that the legal rules follow the conduct of those engaged in the conflict, even those hiding in a house in a field far away. The operation against Bin Laden was 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 against criminals 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. A military leader of a non-state group is in a rather different position, since he is continually engaged in a combat function as military leader.

Whether the killing was wise policy is a different question. 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. It may have been smarter to show restraint, and put Bin Laden on trial, even if the apprehension might be tainted by the illegality of the incursion into Pakistani territory without its consent.

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. Bin Laden was as evil a person as can be found: a genocidal, obsessive, odd man whose business was exterminating civilians he didn’t like, including fellow Muslims. 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. The violence is not finished.

Ben Saul is Professor of International Law at Sydney Law School.