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III. ASSASSINATION AND TARGETED KILLING—THE KILLING OF OSAMA BIN LADEN

Published online by Cambridge University Press:  11 August 2011

APV Rogers  and
Dominic McGoldrick
APV Rogers
Affiliation:
Retired Miltary Lawyer. Former Director of Army Legal Services, UK
Dominic McGoldrick
Affiliation:
Professor of Public International Law, University of Liverpool.
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Extract

Osama Bin Laden was killed on 2 May 2011 in the course of an operation by US special forces (Navy Seals) in Abbottabad, Pakistan.1 The US forces were flown by helicopter from neighbouring Afghanistan. The death of Bin Laden renewed questions about the legality of such operations during armed conflicts and during peacetime.2 The potentially applicable law includes international humanitarian law, international human rights law, jus ad bellum and the domestic law of the US and Pakistan.3

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 60 , Issue 3 , July 2011 , pp. 778 - 788
Copyright
Copyright © 2011 British Institute of International and Comparative Law

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References

1 See ‘Remarks by the President on Osama Bin Laden’ The White House, Office of the Press Secretary, 2 May 2011 <http://www.whitehouse.gov/the-press-office/2011/05/02/remarks-president-osama-bin-laden> Five people were killed in the raid: Bin Laden; his son, Khalid; a courier, known as Abu Ahmed al-Kuwaiti; and al-Kuwaiti's wife and brother. Bin Laden was reportedly buried at sea from a U.S. Navy ship in strict conformance with Islamic precepts and practices ritual. It has been reported that the Head of the CIA has claimed that ‘Enhanced interrogation techniques’ were used to extract information that led to the mission's success.

2 See M Milanovic, ‘Was the Killing of Osama bin Laden Lawful?’ and ‘When to Kill and When to Capture?’ <www.ejiltalk.org> In a Presidential Statement the UN Security Council welcomed the news that Osama bin Laden would never again be able to perpetrate such acts of terrorism, Presidential Statement, S/PRST/2011/9, <http://www.un.org/News/Press/docs/2011/sc10239.doc.htm>.

3 On applicable laws and their possible inter-relationships see P Alston, ‘Study on Targeted Killings’, Report of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN Doc A/HRC/14/24/Add.6 (28 May 2010).

4 See generally APV Rogers, Law of the Battlefield (3rd edn, Manchester University Press, Manchester, forthcoming).

5 See Turns, D, ‘The “War On Terror” Through British and International Humanitarian Law Eyes’ (2007) 10 NY City L Rev 435Google Scholar who assesses a range of legal categorisations of the ‘war on terror’.

6 See HH Koh, US Legal Adviser, ‘The Obama Administration and International Law’ (25 March 2010), <http://www.state.gov/s/l/releases/remarks/139119.htm>.

7 548 US 557 (2006), particularly at 65–68. Al-Qaeda is alternatively spelled Al-Qaida or Al-Qa'ida.

8 See Final Report on The Meaning of Armed Conflict in International Law, International Law Association, Use of Force Committee, (Aug. 2010), <http://www.ila-hq.org>.

9 Another possible argument is that there is a non-international armed conflict in Pakistan between Al-Qaeda and the government forces. Cf the jurisprudence of the ICTY that there could be international and non-international armed conflicts in different parts of the former Yugoslavia at the same time.

10 See Alston (n 3) paras 7–10; Kretzmer, D, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005) 16 EJIL 171CrossRefGoogle Scholar.

11 C Soanes, A Stevenson and S Hawker (eds), Concise Oxford English Dictionary (11th edn, OUP, Oxford, (rev), 2006).

12 JD Hamilton, ‘How Britain helped kill Heydrich’, on <www.theherald.co.uk/perspective/archive>.

13 L Green, The Contemporary Law of Armed Conflict (3rd edn, MUP, Manchester, 2008) 169.

14 It provides: ‘it is forbidden to kill or wound by treachery individuals belonging to a hostile nation or army.’ Nowadays, the word ‘perfidy’ tends to be used rather than ‘treachery’, see Protocol I, art 37.

15 Manual para 115.

16 According to the Manual, the reference to agents or partisans is a reference to illegal combatants.

17 Y Shany, ‘Israeli counter-terrorism measures: are they “kosher” under international law?’ in M Schmitt (ed.), Terrorism and International Law: Challenges and Responses (International Institute of Humanitarian Law, San Remo, 2003) argues that the Israeli policy of targeted killings is based on the notion that those ‘who take up arms and participate in armed activities against Israel are legitimate military targets.’ That must mean that he takes the view that (a) there is an armed conflict or occupation to which the law of war applies and (b) that persons taking part in the planning and execution of suicide attacks are regarded as taking a direct part in hostilities and as having forfeited any protected status that they might otherwise have, not just for the duration of any suicide mission in which they have been involved. Shany, however, considers that targeted killings should be carried out only as a last resort if the Israeli Defence Force does not have the practical ability to arrest the person concerned.

18 That is, killing an enemy by inviting his confidence that he is entitled to give or receive protection under the law of war and then abusing that confidence, see Protocol I, art 37.

19 Gross, ML, ‘Fighting by other means in the Mideast: a critical analysis of Israel's assassination policy’, (2003) 51 Political Studies at 8CrossRefGoogle Scholar.

20 (OUP, Oxford, 2004) para 5.13.

21 The Independent (London England 17 October 2001).

22 Drones are also still being used to carry out targeted killings in connection with the continuing conflict in Afghanistan. There is nothing special in the law of war about the use of drones to deliver missiles. Their use in armed conflict is governed by the normal rules on military objectives, precautions in attack, proportionality, perfidy and persons hors de combat. See N Melzer, Targeted Killing in International Law (OUP, Oxford, 2008) 419 (who submits, wrongly in our view, that lethal force may be used only if there is no non-lethal alternative). See also ME O'Connell, ‘The International Law of Drones’, ASIL Insight, <http://www.asil.org/insights101112.cfm> Alston, (n 3) paras 79–86.

23 This was reported in the New York Times, the Washington Post and The Independent of 6 November 2002. See also A. Dworkin, ‘The Yemen strike: the War on Terrorism Goes Global’ (Crimes of War website, 14 November 2002).

24 For a discussion of this case, see GD Solis, The Law of Armed Conflict (CUP, New York, 2010) 539–540.

25 A strong case could be made for regarding al-Qaeda members who take an active part in hostilities as combatants, even if they were not directly involved in such hostilities when targeted, Kretzmer (n 10) 204.

26 Cockburn, P, ‘Bomber crew kills nine in the “big one” but was Saddam Hussein among them?’ The Independent, 9 April 2003Google Scholar.

27 UK Manual (1958), 43; Green (n 13) 170.

28 Public Committee against Torture in Israel and Others v. Government of Israel and Others, HCJ 796/02 (13 December 2006). For reservations about ‘theoretical and argumentatory weaknesses’ in the judgment, see Melzer (n 22) 33–36.

29 The targeting of civilians, perhaps by planting bombs in places frequented by civilians, would be capable of amounting to taking a direct part in hostilities provided that the purpose for doing so was in furtherance of armed conflict aims of a party to the conflict, not for reasons unconnected with the conflict. See Akande, D, ‘Clearing the Fog of War? The ICRC's Interpretive Guidance on Direct Participation in Hostilities’ (2010) 59 ICLQ 180Google Scholar.

30 This requirement seems to be based on domestic law. President Barak, at para 40 of the judgment, said ‘In our internal law, that rule is called for by the principle of proportionality’, and suggested that less harmful means might be realizable ‘under the conditions of belligerent occupation, in which the army controls the area in which the operation takes place’.

31 See Rogers (n 4) ch 5.

32 In response to the questions whether the killing was justice for the 9/11 attacks and other attacks and whether the US was morally justified in shooting him even though he was unarmed the Archbishop of Canterbury answered: ‘I think that the killing of an unarmed man is always going to leave a very uncomfortable feeling because it doesn‘t look as if justice is seen to be done, in those circumstances. I think it is also true that the different versions of events that have emerged in recent days have not done a great deal to help here. I don't know the full details anymore than anyone else does but I do believe that in such circumstance when we are faced with someone who was manifestly a ‘war criminal’ as you might say in terms of the atrocities inflicted, it is important that justice is seen to be observed', <http://www.archbishopofcanterbury.org/articles.php/2028/archbishop-on-osama-bin-laden (5 May 2011)>.

33 For a US perspective on the activities attributed to al Qaeda, or al Qaeda-inspired groups, which were headed by Osama bin Laden see the speech of Mr Burton, the majority leader in the US House of Representatives, 2 May 2011, Congressional Record, Page H2926–H2929.

34 See webcast of hearing on ‘Oversight of the U.S. Department of Justice’ at <http://judiciary.senate.gov/> (4 May 2011). He cited the precedent of Admiral Yamamoto who was shot down in a plane in 1943 during the Second World War. Yamamoto was one of the planners of the attacks on Pearl Harbour. He was a targeted in a US Air Force assassination operation in the Solomon Islands (Operation Vengeance) specifically ordered by President Roosevelt.

35 See Noueihed, L ‘Gaddafi survives air strikes, son killed – government’ Reuters (1 May 2011)Google Scholar <http://www.reuters.com/article/2011/05/01/us-libya-idUSTRE7270JP20110501>.

36 See Henderson, C, ‘International Measures for the Protection of Civilians in Libya and the Côte D'Ivoire (2011) 60 ICLQ 773CrossRefGoogle Scholar, Part III, A.

37 ‘(1) Each State party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, … ’ As is well known the Human Rights Committee has interpreted Article 2 ICCPR disjunctively so either within its territory or subject to the jurisdiction of the state party is sufficient. See GC 31 on the Nature of General Legal Obligations Imposed on States Parties to the Covenant, 11 IHRR (2004) 905.

38 See Dennis, MJ, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 AJIL 119CrossRefGoogle Scholar. So too does Israel. Cf D McGoldrick, ‘Extraterritorial Application of the ICCPR’, in F Coomans and M Kamminga (eds), Extraterritorial Application of Human Rights Treaties, (Intersentia, Antwerp, 2004) 41.

39 See General Comment 31, para 11 (GC 31).

40 GC 31, para 10 (emphasis added). GC 31 was adopted in 2004 but reflected the consistent practice of the HRC. The ICJ followed the approach of the HRC with respect to the application of the ICESCR to Israel in relation to its security wall in the West Bank, see ICJ Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 131.

41 With respect to a number of states the HRC has accepted that they do not have effective control over parts of their respective territories and consequently cannot ensure the application of the Covenant in areas not under its jurisdiction, see e.g. its Concluding Observations on Cyprus, Lebanon, Moldovo.

42 Lopez Burgos v Uruguay, Cmn No. 52/1979, (29 July 1981). Quaere the situation if LB had not been brought back to Uruguay.

43 44 EHRR (2007) SE5.

44 See Milanovic, M, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in the Human Rights Treaties’ (2008) 8 HRLR 411Google Scholar.

45 See Milanovic, ibid. In three cases Turkey was held to have violated the ECHR when death occurred in the buffer zone in Cyprus or a shot was fired across the buffer zone though there was no discussion of extra-territoriality, see Andreou v Turkey, Appn No. 45653/99; Isaak v Turkey, Appn No. 44587/98; Solomou v Turkey, Appn No. 36832/97.

46 [2007] UKHL 26, [2007] 3 All ER 685. See Thienel, T, ‘The ECHR in Iraq’ (2008) 6 Journal of International Criminal Justice 115CrossRefGoogle Scholar.

47 Appn No. 55721/07, 7 July 2011.

48 The Court of Appeal in Al-Skeini considered that a person ‘in the custody or control of the agents of a Member State’ that might suffice for jurisdiction, UK, [2005] EWCA 1609 (Civ), [2006] UKHRR 297 at pr. 81. See McGoldrick, D, ‘Human Rights and Humanitarian Law in the UK Courts’ (2007) 40(2) Israel Law Rev 527CrossRefGoogle Scholar. There is also an argument that Bin Laden's body was within the US's jurisdiction once it had been taken and so had to be treated with respect (Article 17 of ICCPR).

49 ‘While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights’, GC 31, para 11. This is consistent with the approach of the ICJ in its Advisory Opinion on Legality of the Threat or Use of Weapons 1996] ICJ Rep para 25.

50 See Milanovic, ‘When to Kill and When to Capture?’ (n 2) above.

51 See (n 28) above.

52 ‘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’, Osama bin Laden: statement by the UN Special Rapporteurs on summary executions and on human rights and counter-terrorism, <http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10987&LangID=E> U.N. High Commissioner for Human Rights Navi Pillay stated the raid in Pakistan ‘was a complex operation, and it would be helpful if we knew the precise facts surrounding his killing’. She acknowledged that ‘taking him alive was always likely to be difficult’.

53 ‘A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant’, GC 31, para 15. See R (Mousa) v Secretary of State for Defence, [2010] EWHC 3304 (Admin), [2011] UKHRR 268, QBD.

54 See also Authorization to Use Military Force (AUMF, P.L. 107-40), which authorized the US President ‘to use all necessary and appropriate force’ against entities involved in the 11 September 2001 attacks. We do not address the issue as a matter of the law of Pakistan.

55 ‘United States Intelligence Activities’, para 2.11, (4 December 1981) (as amended by Executive Orders 13284 (2003), 13355 (2004) and 13470 (2008)), <https://www.cia.gov/about-cia/eo12333.html?> For a discussion of whether such operations in peacetime are contrary to see Melzer, (n 22) 45-51; Schmitt, MN, ‘State-sponsored assassination in international and domestic law’ (1992) 17 Yale Journal of International Law 609-85Google Scholar. See also O Bowcott, ‘Osama bin Laden: US responds to questions about killing's legality’ The Guardian (London England 3 May 2011).

56 See Koh (n 6) above.

57 Koh ibid; Holder, (n 34) above. While there has been broad international acceptance of the argument that the attacks of 9-11 constituted and armed attack and gave rise to a right of self-defence under art 51 there remains a degree of uncertainty in view of the opinion of the ICJ in the Wall Case (n 40) para 139, that art 51 is only concerned with attacks on a state that are imputable to another State.

58 See Zardari (President of Pakistan), ‘Pakistan Did Its Part’ Washington Post, (Washington DC 3 May 2011).

59 Of course Pakistan could not consent to violations of IHL or IHR on its territory. Pakistan ratified the ICCPR on 23 Jun 2010.

60 See J Perlez and D Rohde, ‘Pakistan Pushes Back Against US Criticism on Bin Laden’ New York Times, (New York New York 3 May 2011) <http://www.nytimes.com/2011/05/04/world/asia/04pakistan.html> J Bacon, ‘Musharraf: US Violated Pakistan's Sovereignty’ USA Today (3 May 2011) <http://content.usatoday.com/communities/ondeadline/post/2011/05/musharraf-us-violated-pakistan-sovereignity/1> It was reported that the Pakistan army scrambled two F-16 fighter jets when it was aware that foreign helicopters were hovering over the city of Abbottabad, but they apparently did not reach the American forces in time.

61 See UN Security Council Resolution 611 (1988) (condemnation of Israel's assassination of an individual in Tunisia of as an illegal act of aggression against the sovereignty and territorial integrity of Tunisia).

62 See T Waisberg, ‘Colombia's Use of Force in Ecuador Against a Terrorist Organization: International Law and the Use of Force Against Non-State Actors’, ASIL Insights, August 22, 2008 <http://www.asil.org/insights080822.cfm>.

63 See N Lubell, Extraterritorial Use of Force Against Non-State Actors (OUP, Oxford, 2010); AS Deeks, ‘Pakistan's Sovereignty and the Killing of Osama Bin Laden’, ASIL Insight, <http://www.asil.org/insights110505.cfm> who observes that while there may be agreement on the test it is difficult to apply in practice.

64 The US's argument for a doctrine of pre-emptive self-defence has not received wide support. See C Gray, International Law and the Use of Force (3rd edn, OUP, Oxford, 2008) 193–253; C Henderson, The Persistent Advocate and the Use of Force: The Impact of the United States upon the Jus ad Bellum in the Post-Cold War Era (Ashgate Publishing, Farnham, 2010). However, the US has also argued that the notion of ‘imminence’ has to be understood differently in the context of worldwide terrorist organization, see D McGoldrick, From 9-11 to the Iraq War 2003 (Hart, Oxford, 2006) 67–76.

65 See Gray ibid 203–209.

66 ‘Ayman al-Zawahiri: from doctor to Osama bin Laden's successor’ The Guardian (London England 16 June 2011) <http://www.guardian.co.uk/world/2011/jun/16/ayman-al-zawahiri-osama-bin-laden>.

67 See, for example, P Eden and T O'Donnell (eds), September 11, 2001—A Turning Point in International and Domestic Law? (Transnational, Ardsley, 2005); McGoldrick (n 64) above; T Otty, ‘Honour bound to defend freedom? The Guantanamo Bay litigation and the fight for fundamental values in the War on Terror’ (2008) European Human Rights Law Review 433; A Bianchi and A Keller (eds) Counterterrorism: Democracy's Challenge (Hart, Oxford, 2008); Milanovic, M, ‘A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law’ (2009) 14 Journal of Conflict and Security Law 459CrossRefGoogle Scholar; L Moir, Reappraising the Resort to Force: International Law, Jus Ad Bellum and the War on Terror (Hart, Oxford, 2010); Henderson (n 64 above).