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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

Information

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

A. Introduction

Osama Bin Laden was killed on 2 May 2011 in the course of an operation by US special forces (Navy Seals) in Abbottabad, Pakistan.Footnote 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.Footnote 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.Footnote 3

B. International Humanitarian Law (IHL)

Unless the operation was part of an ‘armed conflict’ then international humanitarian law is not applicable.Footnote 4 If it is an armed conflict there is also the issue of whether it is an ‘international’ or ‘non-international’ armed conflict.Footnote 5 The view of the current and previous US administrations has been that the US is in an ‘armed conflict with Al-Qaeda, as well as the Taliban and associated forces’, and that the conflict that has no territorial limitation.Footnote 6 In Hamdan v Rumsfeld Footnote 7 the US Supreme Court held that, at a minimum, the treatment of Hamdan, a Yemeni national and alleged Al-Qaeda member apprehended in Afghanistan, was governed by Common article 3 of the Geneva Conventions (1949). The term ‘conflict not of an international character’ was considered to be used in contradistinction to a conflict between nations. The argument against the existence of an armed conflict is that the conflict with Al-Qaeda is too diffuse and sporadic to satisfy the necessary factual intensity of conflict.Footnote 8 The consequence of the latter approach is that there may be an armed conflict in some geographical areas but not necessarily in others.Footnote 9

The killing of Osama Bin Laden would commonly be described as a ‘targeted assassination’ or ‘targeted killing’.Footnote 10 The dictionary definition of ‘assassinate’ is to ‘murder (a political or religious leader)’.Footnote 11 When the word assassination is used, readers from the US probably think of Abraham Lincoln or John F Kennedy. For European readers perhaps the classic case of assassination was that of the Austrian Archduke, Franz Ferdinand, in Sarajevo on 28 June 1914 by the Serbian nationalist, Gavrilo Princip. That happened in peacetime so, presumably, was a case of murder. However, international law tolerates certain forms of killing during armed conflict. More relevant to the law of armed conflict, perhaps, was the killing of Reinhard Heydrich, the German governor of Bohemia and Moravia, by Czech partisans, Jan Kubis and Josef Gabcik, in Prague on 29 May1942, during a period of belligerent occupation. The partisans were trained in Britain and parachuted into Czechoslovakia by the RAF. According to Hamilton,Footnote 12 they held the rank of warrant officer.

Some writers have argued that assassination is contrary to the customary law of armed conflict.Footnote 13 Green cited article 148 of the Lieber Code, which, although it has the heading ‘assassination’ really deals with outlawry. He also cited article 23(b) of the Hague Regulations, which deals with treachery.Footnote 14 The UK Manual of Military Law (1958) states, also under the heading ‘assassination’:Footnote 15 ‘Assassination, the killing or wounding of a selected individual behind the line of battle by enemy agents or partisans,Footnote 16 and the killing or wounding by treachery of individuals belonging to the opposing nation or army, are not lawful acts of war’. It is not clear whether this deals with three separate activities: assassination, partisan killings and treacherous killings or whether the reference to partisan killings and treacherous killings is an attempt to define assassination.

The Manual (1958) goes on to distinguish the case of the attack by British commando forces on the headquarters of General Rommel at Beda Littoria in 1943 since it was carried out by military personnel in uniform, had as part of its objective the seizure of Rommel's operational headquarters, including his own residence, and the capture or killing of enemy personnel therein. So an attack by members of the armed forces in uniform against an individual member of the enemy armed forces, whether by dropping a bomb on his command post, using a sniper to fire at him or sending in a commando party, does not amount to assassination,Footnote 17 provided it is not done perfidiously.Footnote 18

There probably is no independent war crime of assassination. If an officer is killed by partisans posing as civilians, it would amount to treachery or perfidy; if a civilian is singled out for attack, it would be a violation of the principle of civilian immunity unless at the time the civilian were taking a direct part in hostilities. Perhaps, to avoid confusion, it would be better, as Gross does,Footnote 19 to speak of ‘selected’ or ‘targeted’ killings. These, according to Gross, ‘must meet the same conditions demanded of any form of legitimate warfare. Only insofar as Israel targets aggression or a clear threat of aggression, responds proportionately and respects humanitarian law will targeted killings excite little moral outrage.’ The UK Manual of the Law of Armed Conflict (2004) simply states that each case must be decided on its facts and reiterates that, although attacks may be directed by combatants against enemy combatants, perfidy is prohibited.Footnote 20

The reported attack, in October 2001, on the house in Afghanistan of Mullah Omar, in which his stepfather and nephew were reported killed,Footnote 21 raises the question of whether Mullah Omar, or his house, was a legitimate target. Perhaps one should consider this as an attack on the house, which may have been a legitimate target if it was a place, or command post, from which the operations of the Taliban and al-Qaeda forces were directed.

A curious case was the reported attack, via an unmanned drone,Footnote 22 of the suspected al-Qaeda leader, Qaed Salim Sinan al-Harethi, in Yemen in November 2002, apparently by Central Intelligence Agency (CIA) officials.Footnote 23 It may be that this was a peacetime anti-terrorism operation conducted in support of the Yemeni authorities under Yemeni law.Footnote 24 To legitimize the attack under the law of war, one has first to accept the argument that the US is in an armed conflict, or that this was a continuation of the armed conflict in Afghanistan, secondly, that al-Harethi was a legitimate target because he was a member of the enemy armed forcesFootnote 25 and, thirdly, that the attack was carried out by the US armed forces. Even if one could establish that this was a situation to which the law of war applied it would be difficult to put forward a convincing argument on the other points. In particular, only members of the armed forces of a party to an armed conflict may take a direct part in hostilities. So the question arises: were the CIA officials concerned members of the US armed forces? If not, the whole argument starts to crumble and one searches in vain for any other authority for this attack in international law.

During the Iraq war of 2003 there were two reported attempts by US Air Force aircraft to kill the Iraqi president, Saddam Hussein, by bombing places where he was thought to be.Footnote 26 Would these have been legitimate attacks? Although the attacks were behind enemy lines, they were not carried out treacherously or by illegal combatants and it is quite likely that Saddam Hussein controlled the Iraqi armed forces. But is it legitimate to single out for attack an enemy head of State? Both the UK Manual (1958) and GreenFootnote 27 refer to the offer to the British government by a foreigner in 1806 to assassinate Napoleon. The man was detained and the French Ministry of Foreign Affairs informed. Although the point is controversial, if an enemy head of State were, for example, the actual, rather than the ceremonial, commander-in-chief of the armed forces, then it would be lawful to direct an attack against him or her. Even if he were not, de jure, the commander-in-chief but, de facto, commanded and controlled the operations of the armed forces that would suffice to make him a legitimate target.

The practice of targeted killing was examined by the Israeli Supreme Court in 2006.Footnote 28 The court asked itself the following question: ‘the Government of Israel employs a policy of preventative strikes which cause the death of terrorists in Judea, Samaria, or the Gaza Strip. It fatally strikes these terrorists, who plan, launch, or commit terrorist attacks in Israel and in the area of Judea, Samaria, and the Gaza Strip, against both civilians and soldiers. These strikes at times also harm innocent civilians. Does the State thus act illegally?’ The court held that the international law of armed conflict applied to the situation and, applying a mixture of customary international law, Israeli domestic law, of which it forms part, and elements of human rights law, said that the legality of such strikes depended on the circumstances. It considered that, by carrying out terrorist attacks, whether against the Israeli army or against civilians,Footnote 29 the persons in question were taking a direct part in hostilities and forfeited their protection from attack and could legitimately be targeted. Nevertheless, four conditions had to be met:

  1. (1) The evidence of participation had to be ‘well based’.

  2. (2) Attacks should not be carried out if less harmful means can be employed. The court had in mind the alternative of arrest, investigation and trial.Footnote 30

  3. (3) After such an operation a thorough investigation of the identification of the target and the circumstances of the attack upon the target is to be carried out.

  4. (4) Any collateral harm must withstand the proportionality test.

It is submitted that under the law of armed conflict, both enemy combatants and ‘civilians taking a direct part in hostilities’ are legitimate objects of attack unless they express a clear intention to surrender or are otherwise hors de combat. Points 1 and 4 above, as well as the need for identification of the target prior to attack, are requirements of the rules on precautions in attack and proportionality.Footnote 31 There is, as yet, no requirement under the law of armed conflict for post-operational investigations. Nor is there a legal requirement under the law of armed conflict to consider non-lethal alternatives. If the particular circumstances permitted it this would only be done as a matter of humanity.Footnote 32 However, it is important for military personnel that the law should be clear. An order to kill in all circumstances would have been unlawful. However, there was no legal obligation to seek to arrest Bin Laden and the service personnel were under no obligation to take risks with their personal safety so as to pursue an arrest. The particular circumstances of the operation in May 2011—a night operation without the consent of the host State against a human target with a record of supporting and organizing suicide attacks on civilians and who had sworn that he would never be taken alive—were not such as to present arrest as a credible option.

It may be some time before the full facts relating to the death of Bin Laden are revealed. Once that happens, questions that will need to be answered are (a) whether the operation in question was part of an armed conflict to which the law of armed conflict applied, and, if so, (b) whether Bin Laden should be classified as a combatant or as a civilian taking a direct part in hostilities on the basis that he was a leader of an organized armed groupFootnote 33 and, if so, (c) whether he indicated an intention to surrender. After the killing US Attorney General Holder stated before the US Senate Judiciary Committee that Bin Laden was ‘a lawful military target’ and equated killing him to the targeting of an enemy commander in the field.Footnote 34

The killing of Bin Laden eclipsed the earlier media reports of the death of the son and three grandsons of Libyan leader Muammar Gaddafi in a NATO air strike.Footnote 35 While in this case the law of armed conflict probably applied, so it would be a question of whether the property in question was a military objective and whether the deaths and damage were proportionate, there was the additional question of whether the action fell within the ambit of the UN Security Council resolution 1973 (2011).Footnote 36

C. International Human Rights Law (IHR)

In terms of international human rights law, its applicability to the US turns on whether Bin Laden was subject to the ‘jurisdiction’ of the US within the terms, for example, of article 2 of the International Covenant on Civil and Political Rights (ICCPR, 1966).Footnote 37 The US takes the view that the ICCPR has no extraterritorial application and cannot apply alongside IHL (because the latter applies as lex specialis).Footnote 38 By contrast the Human Rights Committee (HRC) takes the view that ‘the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. … both spheres of law are complementary, not mutually exclusive’.Footnote 39 It considers that the enjoyment of Covenant rights must be available to all individuals who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those ‘within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation’.Footnote 40

Even if the ICCPR can apply extra-territorially the individual must come within the ‘jurisdiction’ of the US, described by the HRC as within a State's ‘power or effective control’.Footnote 41 The HRC has treated an individual abducted in Argentina by members of the ‘Uruguayan security and intelligence forces’, aided by Argentinean para-military groups, secretly detained in Buenos Aires for two weeks, and then illegally and clandestinely transported to Uruguay where he was officially arrested, as within the jurisdiction of Uruguay for the purposes of the ICCPR.Footnote 42

The jurisprudence under article 1 of the European Convention on Human Rights also provides persuasive authority on the interpretation of ‘jurisdiction’ in this context. The leading precedent of the European Court of Human Rights, Bankovic and Others v Belgium,Footnote 43 establishes that jurisdiction is primarily territorial and was essentially intended to cover the espace juridique of the contracting States. Thus individuals subjected to bombings in the capital of a non-state party were not within the ‘jurisdiction’ of States parties to the ECHR.Footnote 44 Notwithstanding strong critiques and some caselaw that can be interpreted as inconsistent with it,Footnote 45 the reasoning of the Bankovic had been substantially maintained. In the R (Al-Skeini and Others) v Secretary of State for Defence the House of Lords regarded Bankovic as a watershed in ECHR jurisprudence.Footnote 46 It held that there was ‘jurisdiction’ in only one of the six test cases before it. That was the Baha Mousa case in which the UK had conceded jurisdiction only on the basis that a British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities, and containing arrested suspects, fell within a narrowly limited exception exemplified by embassies, consulates, vessels and aircraft. The other five test cases concerned individuals shot during search and patrol operations. The consequence of the House of Lords's interpretation is that ECHR obligations do not run to where armed forces personnel are, for example, performing functions such as home raids, street patrols and manning check points, because they are not in effective control of the areas where the person killed or injured is. In Al-Skeini and Others v United Kingdom Footnote 47 the Grand Chamber extended its interpretation of ‘jurisdiction’. However, it is submitted that Bin Laden would still not have come within its interpretation of jurisdiction because (i) the US had not, exceptionally, assumed ‘the exercise of some of the public powers normally to be exercised by a sovereign government’ (see pr. 149), for example, the maintenance of security; nor did the US exercise physical power and control over Bin Laden (see pr. 136) (for example, by arresting him or taking him into custody or detention). Applying the ICCPR jurisprudence (or the ECHR jurisprudence by analogy) then Bin Laden was never within the ‘jurisdiction’ of the US for the purposes of the ICCPR because he was never within its ‘power or effective control’. If the US military had arrested him then it is at least arguable that he would then have been within the US's jurisdiction and the substantive, procedural and investigative obligations under the ICCPR would have applied.Footnote 48

Even if article 6 ICCPR (Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life) applies then the interpretation of arbitrary may just be a renvoi back to IHL (on the assumption that the latter also applies).Footnote 49 If the relevant IHL was satisfied then the deprivation of life was not arbitrary. If IHL was not applicable, or applicable but not exhaustive of the meaning of ‘arbitrary’, then whether there was an ‘arbitrary’ deprivation of Bin Laden's life would depend on whether his killing had a justifiable aim (to protect life) and would satisfy the requirements of strict necessity and proportionality applied in the context of law enforcement.Footnote 50 Thus international human rights law may require observance of all four points indicated by the Israeli Supreme Court.Footnote 51 Also, if international human rights law applies, then it carries with increasingly stringent pre-operational planning requirementsFootnote 52 and post-operational investigative obligations.Footnote 53 Bin Laden was in Pakistan's territory and within its jurisdiction. As a party to the ICCPR Pakistan could not have consented to any possible violation of Bin Laden's Rights by the US. Nor could the US claim a delegated power from Pakistan.

A US law enforcement operation would also have to satisfy any applicable US domestic standards.Footnote 54 US Executive Order 12333 provides that ‘no person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination’.Footnote 55 The argument in terms of US law is that that Order was not intended to apply in armed conflict situations. US State Department Legal Adviser Harold Koh has argued that ‘Under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war – for precision targeting of specific high-level belligerent leaders when acting in self-defence or during an armed conflict is not unlawful, and hence does not constitute “assassination” ’.Footnote 56

D. Jus ad bellum

The US argued that the action in killing Bin Laden was in exercise of its right to national self-defence under article 51 of the UN Charter.Footnote 57 It is unclear whether Pakistan consented before or endorsed the action afterwards.Footnote 58 If it did consent, there is no jus ad bellum issue.Footnote 59 US officials publicly stated that the US neither sought nor obtained consent from Pakistan. Comments from the government of Pakistan and its former President support this view.Footnote 60 If it didn't consent then prima facie the actions of the US would be a clear breach of the prohibition of the use of force in Article 2(4) UN Charter and a violation of Pakistan's sovereignty.Footnote 61 The starting point is that the host State is under an obligation to deal with threats and attacks to other States emanating from the activities of non-state actors on its territory.Footnote 62 However, it is arguable that a State's right of self-defence can be exercised in the territory of another State if that other State is unable or unwilling to deal with the source of the attacks and the source continues to pose a significant danger.Footnote 63 The military action taken would be based on the arguments that (i) Pakistan either knew or should have known of Bin Laden's presence and was unable or unwilling to capture him; (ii) Bin Laden had led an organization which had attacked the US, that he continued to pose an imminent threat to the US,Footnote 64 and (iii) that armed force was necessary and proportionate in addressing that threat.Footnote 65 It remains to note that even if an overall use of force was illegal this would not infect otherwise lawful acts of war.

E. Concluding Comments

The US has made clear that the armed conflict with Al-Qaeda still continues. So Al-Qaeda has appointed as its leader Ayman al-Zawahiri, vowed to avenage Osama Bin Laden's death and continue the conflict with the US and its allies.Footnote 66 He will in turn be targeted by the US. Thus the killing of Osama Bin Laden does not mark the end of the so-called ‘war on terror’. A decade after 9–11 the global consequences of that ‘war’ continue to present difficult challenges in terms of the applicability, interpretation and inter-relationship of fundamental norms of public international law.Footnote 67

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).