And on nights like this one, we can say to those families who have lost loved ones to al Qaeda's terror: Justice has been done. Footnote 1
Obama has doubled down on the Bush-era policy of targeted assassination as a staple of US foreign policy. Footnote 2
States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.Footnote 3
1. Introduction: The Applicable International Law
‘Targeted killings’Footnote 4 have become an important weapon in the fight against international terrorism since 11 September 2001. As mentioned at the start of this article,Footnote 5 the Obama administration has more than doubled the Bush Jnr administration's use of the measure. Given their normally transnational and secretive character, targeted killings pose a particular challenge to international law. While they may be admissible under international lawFootnote 6 under exceptional circumstances, there is consensus among scholars that this presupposes the existence of an ongoing armed conflict in the first place.Footnote 7 For this reason this article will focus on the legality of targeted killings during armed conflict (Section 2). The discussion will start with the logically first question whether such a conflict exists at all between the US and Al Qaeda and, if so, where it takes place, in order to then inquire, arguendo, whether the killing of bin Laden would have been admissible under such a conflict. We will then examine whether Al Qaeda constitutes an organised armed group under international humanitarian law (IHL) and which persons are to be considered as (de facto) combatants, distinguishing between ‘true’ civilians and civilians who participate directly in hostilities. We will then, in Section 3, discuss the legality of bin Laden's killing during peacetime and, in Section 4, the admissibility of the operation under general public international law.
The applicable law during armed conflict is primarily IHL, namely the law governing the admissible means and methods of warfare (‘Hague Law’)Footnote 8 and the more recent law regarding the protection of the victims of armed conflict (‘Geneva Law’).Footnote 9 IHL constitutes lex specialis to other legal regimes applicable in times of armed conflict, in particular international human rights law.Footnote 10 While IHL contains, from a formal source-based perspective, different rules for internationalFootnote 11 and non-internationalFootnote 12 armed conflicts (the ‘two-box approach’),Footnote 13 in substance these rules have moved closer to one other and in large part have merged.Footnote 14 In fact, the seminal jurisdictional decision of the Tadić Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) is based on an understanding of this approximation, extending the rules on individual criminal responsibility from international to non-international conflicts.Footnote 15 Here and in other areas of the law governing armed conflicts, the more detailed law of international conflicts enriches and complements the often under-regulated law of non-international armed conflicts.Footnote 16
Against this background it is quite unsurprising that, with regard to targeting decisions, it is acknowledged that ‘[t]here is a general consensus now’ that the respective principles ‘apply to armed conflict generally’ – that is, that ‘no distinction need be made between international and non-international armed conflict’.Footnote 17 This explains why the US administration does not always bother to distinguish between the types of conflict in which its forces are involved.Footnote 18 Of course, there are limits to this process of approximation. There are some ‘sacred cows’, like the formal combatant status which is only recognised in international armed conflicts. But even in this case it is undisputed that ‘fighters’ or (de facto)Footnote 19 combatants exist also in non-international armed conflicts.Footnote 20 Thus, the concept of ‘direct participation in hostilities’, discussed below with regard to bin Laden,Footnote 21 is in fact nothing other than a paraphrase of the classical fighting activity of a combatant which, in turn, has a ‘right to participate directly in hostilities’.Footnote 22 It is for these reasons that we apply in our analysis provisions of both conflict types analogouslyFootnote 23 under the premise that for each situation the most precise and detailed provision available should be used – regardless of whether its formal source lies in the law of international or non-international armed conflict. In particular, with regard to an organised armed group, we submit that there should be no difference in definition and legal treatment depending on the type of conflict and its specific legal regime. Indeed, the fact that the law of non-international armed conflict does not explicitly define an armed group does not make such groups disappear; they still must be defined and the definition may reasonably be drawn from the more explicit law of international armed conflict.Footnote 24
While the other relevant body of law – international human rights law – is applicable in principle both in armed conflict and in peacetime,Footnote 25 and is especially relevant in casu by reason of its protection of the right to life,Footnote 26 the question arises whether it can also be binding upon a state acting outside its own territory. While this may be disputed in light of the wording of Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) referring to a state party's territory and jurisdiction,Footnote 27 we regard this question as substantively one of effective control and consequent responsibility. To be sure, one should not be able to claim a human rights violation against a state which cannot reasonably respond to this claim since the violation has taken place outside its territorial or any other control where it did not dispose of any means to effectively prevent the violation from occurring and protect the claimant. This was, however, not the situation in the case at hand: it is not about bin Laden (or any other alleged terrorist) claiming the obligation to protect his human dignity or personality in any abstract fashionFootnote 28 from a state which has nothing to do with the interference with his right to life in the first place. Rather, the matter before us is peculiar in the sense that the person concerned is actively persecuted by the state concerned outside its territory. In the words of a seminal decision of the Inter-American Commission of Human Rights (IACHR), it is a case ‘where the person concerned is present in the territory of one state, but subject to the control of another state – usually through the acts of the latter's agents abroad’.Footnote 29 Concretely speaking, the US Special Forces did not only act on behalf of their country and had, at the time of the raid, de facto jurisdiction over Osama bin Laden, but had eventually found him at their mercy. In such a situation of control by a foreign state, it cannot avoid complying with the same human rights obligations binding upon it in its own territory. A state cannot be allowed to commit ‘violations … on the territory of another State, which it could not perpetrate on its own territory’.Footnote 30
2. The Legality of Bin Laden's Killing During Armed Conflict
2.1 Existence of an Armed Conflict Between Al Qaeda and the US?
According to the official US position there is a – not further qualified (international or non-international) – armed conflict (‘war on terror’) with Al Qaeda.Footnote 31 In our view this position is legally flawed on the basis of an analysis of the applicable IHL. Starting the analysis with the definition of ‘armed conflict’, one has to acknowledge first that written IHL assumes a conflict but does not define the concept explicitly.Footnote 32 As for international armed conflict, a commonly accepted definition is that given by the already quoted Tadić jurisdictional decision, which is based on common Article 2 of the Geneva Conventions (GC) I–IV.Footnote 33 Accordingly, ‘an armed conflict exists whenever there is a resort to armed force between States’.Footnote 34 Interestingly, there is no requirement for a certain threshold of violence or duration.
As for non-international armed conflicts, several standards exist, depending on the intensity of the conflict and the attributes of the non-state actor(s) involved. Common Article 3 GC I–IVFootnote 35 refers, without further clarification, to an ‘armed conflict not of an international character’.Footnote 36 Article 8(2)(d) of the Statute of the International Criminal Court (ICC Statute)Footnote 37 adopts the same approach.Footnote 38 In contrast, Article 8(2)(f) of the ICC StatuteFootnote 39 requires a ‘protracted’Footnote 40 conflict, adopting the part of the ICTY Tadić ruling where it is stated that ‘an armed conflict exists whenever there is a resort to … protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.Footnote 41 Ultimately, most restrictively,Footnote 42 Article 1(1) of Additional Protocol IIFootnote 43 requires the involvement of a state actor and the control of at least part of the territory by a non-state actor;Footnote 44 it does not encompass an exclusive conflict between non-state actors.
What is clear from these definitions is that the conflict between Al Qaeda and the US can certainly not be an international one since Al Qaeda does not qualify as a state (on the spillover argument, see Section 2.3 below). As for non-international conflicts, it follows from the available definitions, notwithstanding their differences in detail, that the existence of an ‘organised armed group’, as an adversary to a state party to an armed conflict, is required. Thus, the question arises whether Al Qaeda qualifies as an organised armed group and thus can be party to a possible armed conflict with the US.
2.2 Al Qaeda as an Organised Armed Group Under IHL?
In an international armed conflict the qualification of a group of persons as ‘organised armed group’ implies that all group membersFootnote 45 are not protected by civilian immunity and thus constitute legitimate military targets.Footnote 46 In a non-international armed conflict it is controversial whether the same applies to group members, who formally remain civilians per their membership of an armed group,Footnote 47 or whether only the exercise of a so-called ‘continuous combat function’ results in the loss of their immunity for the duration of the conflict.Footnote 48 While the former view can be justified with the equal treatment of group members and states' combatants, the latter view may better accommodate the structural difference between a state and a non-state actor. To put on an equal footing soldiers of regular armed forces with civilians who are part of irregular, non-state armed groups – at least with regard to the loss of immunity from attacksFootnote 49 – requires something more than mere membership, namely continuous preparation, execution or command of ‘acts or operations amounting to direct participation in hostilities’.Footnote 50 Yet, once a civilian is recruited, trained and equipped for that purpose he qualifies as a de facto combatant ‘even before he or she first carries out a hostile act’.Footnote 51 The flipside of this increased risk imposed on de facto combatants is that such risk cannot be imposed upon persons who do not directly participate in hostilities.Footnote 52
In any case, given the far-reaching consequences associated with the loss of (civilian) immunity from military attack, the requirements to convert a group of terrorist criminals into a party to a conflict governed by IHL should be strict.Footnote 53 Thus, the respective group's features ought to resemble those of a state as the paradigmatic party to a conflict.Footnote 54 The group must demonstrate a minimum degree of collectivity and central organisation,Footnote 55 be organised in a hierarchic manner,Footnote 56 and – as required by Additional Protocol II – it should have the capacity ‘to carry out sustained and concerted military operations’.Footnote 57 While, admittedly, the traditional criterion of some form of territorial control, notwithstanding its recognition in Additional Protocol II,Footnote 58 has lost importance in light of the new ‘asymmetric’ and highly dynamic conflictsFootnote 59 in the so-called ‘new wars’,Footnote 60 it still serves as a useful indicatorFootnote 61 for the existence of an ‘organisational policy’.Footnote 62 Be that as it may, from the above it follows that what is clearly required in terms of internal organisation is a centralised military command and a chain of command from top to bottom.Footnote 63
These criteria are not met by a loose and decentralised terrorist network such as Al Qaeda.Footnote 64 Al Qaeda lacks the required hierarchic, centralised command structure; as far as is known, it is a global interconnected network of a decentralised character, operating on different continents and in different countries by way of loosely interconnected cells.Footnote 65 The obscure geographic situation in the Afghan-Pakistani border areaFootnote 66 does not allow for a precise determination as to who effectively controls this area; it is highly questionable whether Al Qaeda exercises any territorial control which comes close to the Article 1(1) of Additional Protocol II threshold. Admittedly, one may apply with certain flexibility the classical criteria that qualifies an organised armed group in situations of asymmetric warfare; in particular, as indicated above, the lack of a stable territorial control may not be invoked as a definitional prerequisite of an armed group. In fact, it is plausible to argue that the flexibility of new terrorist/armed groups adds to their strength and constitutes part of their military tactics. Yet, all this flexibility cannot replace the – still reasonable – criteria of a military-like internal hierarchical structure and the capacity ‘to carry out sustained and concerted military operations’.Footnote 67 While, with the attacks of 11 September 2001, Al Qaeda has shown this organisational structure and its capacity to pose a military threat, and it has therefore rightly been regarded as an organised armed group (like the military branches of the Hezbollah and the Hamas),Footnote 68 years later – and in any case at the time when bin Laden was hunted down by the US Special Forces – Al Qaeda's activity had slowed down; it therefore no longer posed a serious military threat, nor did it have a centralised military command structure. Worldwide attacks which are attributed to, or claimed by, the network might have occurred to bin Laden's satisfaction but not under his control.Footnote 69 He did not, like the commander of an organisation within the meaning of IHL, dispose of direct authority on subordinated individuals.Footnote 70
2.3 Territorial Extension of the Conflict in Afghanistan (the ‘Spillover Effect’)?
While it is beyond dispute that an armed conflict between the Karzai government and the Taliban takes place in Afghanistan,Footnote 71 the international or non-international nature of this conflict is less clear. One may consider the NATO-led International Security Assistance ForceFootnote 72 as an extension of the Karzai government and thus as a party on the government side in its non-international armed conflict against the Taliban;Footnote 73 or one may argue that the alliance is an actor which internationalises the conflict.Footnote 74 Be that as it may, what is of relevance for the spillover argument is that the Taliban, or at least a part of it, has been an ally of Al Qaeda.Footnote 75 As may be recalled, the NATO war against the Taliban government in Afghanistan, authorised by the UN Security Council after September 11,Footnote 76 was waged because the then Taliban government offered Al Qaeda a safe haven and thus made Afghanistan an accomplice in international terrorism incurring state responsibility. Thus, at that time, one could have plausibly argued that the war against Afghanistan was in fact a war against the Taliban, as the then Afghan government, and Al Qaeda, as its ally, so that an armed conflict between NATO and the Taliban/Al Qaeda existed.Footnote 77 Yet, this situation changed with the fall of the Taliban government and the retreat of its forces and, above all, Al Qaeda to Pakistan and other countries.Footnote 78 At the current state of affairs, given the Taliban and Al Qaeda presence in Pakistan, one could qualify, at best, the conflict between Pakistan and the Taliban operating on Pakistani territory as a non-international armed conflictFootnote 79 (although Pakistan itself does not engage, by and large, in armed operations against Taliban or Al Qaeda terrorists and, in any case, only speaks of a ‘law enforcement operation’).Footnote 80
As for the involvement of the US, one would have to argue, with a view to an armed conflict between the US and Al Qaeda in Pakistan, that the conflict in Afghanistan, in geographic terms, ‘spills over’ to Pakistan and thus the US carries the fight against the Taliban (and Al Qaeda) in Afghanistan to Pakistan, fighting the same parties there.Footnote 81 Yet, this would misread the spillover argument and ignore the facts on the ground. To be sure, while an armed conflict, meeting the Tadić criteria,Footnote 82 may entail ‘spillover effects’ such as those caused by the retreat of one of the parties to the conflict into the territory of a neighbouring state,Footnote 83 the extraterritorial reach of such a conflict always reverts to that of the original territory – a ‘spillover conflict’ cannot exist independently.Footnote 84 In this case, the location where the killing took place (Abbottabad) is not only situated outside a reasonable ‘spillover’ area (about 160 kilometres away from the Afghan border), but also outside the actual Pakistan battle zone.Footnote 85 Thus, we are, in fact, not concerned with a simple extension of the Afghan conflict involving the Taliban into neighbouring Pakistan, but with the US claim of a worldwide ‘war’ against Al Qaeda irrespective of any territorial link whatsoever.Footnote 86 Following this view means proclaiming a worldwide ‘war on terror’Footnote 87 involving all states in which terrorists reside without a formal or substantive armed conflict between these host states and the state waging this war on terror, namely the US. Our whole planet would thus become a battlefield without bounds, and the classic understanding of an armed conflict linked to state territory and involving a specific military confrontation would lose all its restraining and humanising force.Footnote 88
2.4 Combatant and Civilian Status
Let us, for the sake of argument, assume that there exists an armed conflict between the US and Al Qaeda. Would the killing of bin Laden then have been lawful? Here one must start from the basic assumption that only individuals holding the status of combatants can, under certain circumstances, lawfully be killed during an armed conflict. While this status does not exist formally in a non-international armed conflict,Footnote 89 there can be no doubt that civilians do take part in hostilities in such conflicts and that they then are – for all practical reasons, notwithstanding the rather terminological dispute with regard to the notion of combatancyFootnote 90 – to be qualified as (de facto) combatants or ‘fighters’.Footnote 91 (De facto) combatants include ‘fighting members’Footnote 92 of a state's armed forcesFootnote 93 as well as fighting members of organised armed groups within the meaning of IHL.Footnote 94 They lose immunity from attacks on a permanent basis by holding their status, even when not participating directly in hostilities.Footnote 95 The status is not necessarily limited to fighters carrying arms or military strategic planners. Some scholars argue that, for instance, communication and logistic experts who are integrated in the group or armed forces and under the same hierarchic order are also (de facto) combatants.Footnote 96 Targeting such (de facto) combatants may even be permissible when they are not on duty, for example when sleeping or playing with their comrades,Footnote 97 provided that no collateral damage in violation of the proportionality principle is caused.Footnote 98
If one follows the ‘organisational’ definition of a (de facto) combatant – that is, if one derives the status from membership of a state's armed forces or an organised armed group within the meaning of IHL – members of Al Qaeda could be considered as (de facto) combatants qua membership and thus be attacked in accordance with IHL only if Al Qaeda were to be qualified – in contrast to the position defended above (in Section 2.2) – as an organised armed group. While this construction may be in the interest of the state which fights such a group (and is interested in targeting its members), the flipside to this view is that the (de facto) combatant status entails certain rights, in particular ‘the right to participate directly in hostilities’ (Article 43(2) AP I) and, under certain conditions, the status of a prisoner of war (Article 4(A)(2) GC III). Indeed, in order to avoid the obligation to grant this status, the US under the George W Bush administrationFootnote 99 qualified Al Qaeda members as ‘unlawful combatants’Footnote 100 – permitting their targeting but refusing to grant them any rights. This approach means that a third category, in addition to civilians and (de facto) combatants, has been reinvented,Footnote 101 which converts the respective individuals into non-persons without rights: a kind of modern hostes humani generis.Footnote 102
Individuals belonging to other groups or collective entities not amounting to organised armed groups in the sense of IHL – that is, members of criminal, including terrorist, groups – are clearly civilians under IHL. Article 50(1) AP I defines ‘civilian’ in opposition to (formal) combatants within the framework of an international conflict, but the idea underlying this distinction – the relevance of organisation for assigning combatant status – must, for reasons of logic and consistency, also be applicable in a non-international conflict.Footnote 103 This means that membership-based status is predicated on the existence of an armed organised group within the meaning of IHL. Clearly, adherents worldwide share Al Qaeda's ideology and may even have maintained contacts in the network and among each other. Yet, these followers do not depend in their actions on Al Qaeda, nor can they be directly controlled by it.Footnote 104 The mere membership in what is at best a loosely organised group cannot make the member lose his civilian status.Footnote 105 Civilians enjoy broad protection,Footnote 106 in particular against (deliberate) killing which may amount to a war crime.Footnote 107 Only if they ‘take a direct part in hostilities’Footnote 108 do they lose their protection and may become legitimate military targets during their participation.Footnote 109 Hence, permanent protection from targeted killings inures for the benefit of only those civilians who do not participate directly in hostilities.Footnote 110 In other words, while organised armed groups in the sense of IHL take, as a collective entity, per definitionem, a direct part in hostilities, this is not the case with other groups that, for the purpose of IHL, are only an association of individuals whose immunity from attack is to be decided on an individual, case by case basis.
With regard to the killing of bin Laden this means that, even on the assumption of the existence of an armed conflict between the US and Al Qaeda (and thus the applicability of IHL), his killing could only be considered to be lawful qua membership of an organised armed group in the sense of IHL if Al Qaeda were to be qualified as such a group. For the reasons given above (in Section 2.2) we do not think that such a conclusion can reasonably be drawn with regard to Al Qaeda. This means that bin Laden – or any other member of this network – must be treated as an individual who can only be targeted if he or she personally participated directly in hostilities.Footnote 111 Going further, some authors claim, based on the postulates of humanityFootnote 112 and military necessity,Footnote 113 that even a direct participant in hostilities has first to be arrested, if possible, before lethal force is used.Footnote 114 However, while ethically this appears to be a more sound position, it does not find support in the international lex lata; indeed, there is no explicit prohibitionFootnote 115 on attacking a civilian who participates directly in hostilities; instead, IHL deprives fighters of their immunity from attack.Footnote 116
The question of bin Laden's immunity from attack must not be confused with the question of his responsibility under national or international criminal law. There is no doubt that mere membership of terrorist organisations such as Al Qaeda can be criminalised and is, in fact, criminalised in most national jurisdictions.Footnote 117 Apart from that, there is little doubt that bin Laden's individual criminal responsibility with regard to a number of terrorist acts of Al Qaeda could have been established in a criminal trial. All this is, however, irrelevant as to the legality of his killing under IHL. If one assumes, contrary to the view of the authors, that an armed conflict between the US and Al Qaeda exists, the only relevant question is whether he was still directly participating in hostilities.
2.5 Direct Participation in Hostilities
While the questions surrounding modalities, duration and threshold of direct participation in hostilities are still highly contentious,Footnote 118 it is generally agreed that the participant needs to accomplish acts which by their nature or purpose are likely to cause harmFootnote 119 to military personnel or equipment of the adversary.Footnote 120 Attacking or trying to capture members or weapons of the enemy armed forces, laying mines, planting or detonating bombs or sabotaging military lines of communication are all well-known examples of direct participation.Footnote 121 The deployment to or retreat from places where the mentioned activities are carried out are also included in the definition of direct participation.Footnote 122 Also, if harm is caused otherwise (to non-military targets), by killing civilians for example, direct participation still existsFootnote 123 as long as the violence is linked to the conflict.Footnote 124 On the other hand, immunity from attack can be renewed if the participants in question definitely and credibly withdraw from military activity, for example by handing over their weapons,Footnote 125 or by a long period of non-participation.Footnote 126 It is more controversial whether a short-term abstention from the fighting can qualify as a (definitive) withdrawal.Footnote 127 The participant cannot walk through a ‘revolving door’,Footnote 128 thereby losing and regaining protection as he fancies;Footnote 129 in other words, ‘a farmer by day and a fighter by night’ is regarded as directly taking part in hostilities, meaning he is a ‘fighter’ (fulfilling a continuous combat function) for the purpose of IHL.Footnote 130
If one applies these principles to bin Laden, everything depends on his role and activity in the last months before his killing. Clearly, there is some room for speculation since precise and reliable information is lacking. While bin Laden certainly in the distant past participated directly in hostilities when he was still an active fighter on the battlefield or as an important strategist operating in and from Afghanistan,Footnote 131 more recently he seems to have turned into a mere spiritual leader of Al Qaeda and had no further influence on concrete military operations.Footnote 132 Isolated and hidden in his Pakistani refuge,Footnote 133 bin Laden seemed no longer capable of filling the position of a military leader,Footnote 134 regardless of his formal status or function within the network. His resignation from military activities might not have been voluntary, but it was definite nevertheless. Therefore, even the widest possible interpretation of what constitutes direct participation in hostilities cannot include bin Laden, at least as far as his role is known to the general public. Note that even if, despite the opposing indicia, one qualifies bin Laden as a legitimate military target, his killing would also have been illegal if he voluntarily surrendered or was otherwise hors de combat. Footnote 135 Also, the killing must be genuinely targeted and collateral damage avoided to the extent possible.Footnote 136
3. Legality of Killing Bin Laden During Peacetime
If, as argued in this article, the US is not at war with Al Qaeda, the applicable legal regime is exclusively that of peacetime. Thus, lethal force against any person, be it an ordinary citizen or a terrorist suspect, is, as a rule, prohibited by both criminal law and international human rights law,Footnote 137 including customary international law.Footnote 138 International human rights law does not distinguish between a targeted or untargeted killing, or between a killing executed by an unmanned drone or otherwise.Footnote 139
Of course, the ban on the use of lethal force is not absolute. It knows two exceptions. First, international law does not prohibit the – still widely practisedFootnote 140 – death penalty as long as it is imposed after a fair trial by ‘a competent court’.Footnote 141 A premeditated killing, before a trial or on the basis of a summary, unfair trial, is illegal. It constitutes an extrajudicial or extralegal execution or killing.Footnote 142 The second exception follows from an e contrario interpretation of Article 6(1) ICCPR.Footnote 143 The provision prohibits the ‘arbitrary deprivation’ of one's life. This is generally understood as allowing for the use of lethal force in the defence of oneself or others or of imminent danger to oneself or others.Footnote 144 The underlying general principles of criminal law, relevant to determine individual criminal responsibility (in casu of the Navy Seals who shot bin Laden), have been codified in Article 31(1)(c) – defence of oneself or another person – and Article 31(1)(d) – necessity and duress – of the ICC Statute.Footnote 145 Of course, the application of self-defence in our case is predicated on the assumption that the Navy Seals had, in principle, a right to go after bin Laden and arrest him, for otherwise they would have to be considered to be attackers and thus could not resort to a right of self-defence in the first place. In any case, both ‘defences’ require, apart from certain conditions as to the use of force (proportionality), either an imminent use of force or an imminent danger for the person resorting to the use of lethal force.Footnote 146 Concretely speaking, this means that bin Laden must have used such force or posed such a danger to the entering Navy Seals. If it is true that Osama bin Laden was unarmed when he was shot,Footnote 147 such a scenario can, with a high probability, be ruled out. Even if such a use or threat of force, exercised by bin Laden, existed, it is implausible, given the expertise of the Special Forces employed,Footnote 148 that bin Laden could not have been taken care of otherwise, for example by injuringFootnote 149 instead of killing him with two targeted shots (one in the head, one in the chest).Footnote 150 If the raiding Special Forces believed that an imminent attack did exist – that is, they were mistaken about the factual requirements of a self-defence situation (putative self-defence) – their mistaken belief would not make the killing a lawful act but only, at best, exclude the blameworthiness of the conduct and thus the culpability of the perpetrators.Footnote 151
4. Legality of Bin Laden's Killing Under General Public International Law
Any military or police operation on foreign territory requires the approval of the state concerned;Footnote 152 otherwise the operation amounts to a violation of that state's territorial integrity,Footnote 153 protected by Article 2(4) of the UN Charter.Footnote 154 This protection is not lifted for the purpose of a transnational operation against international terrorism. Quite the contrary, the relevant anti-terrorism resolutions of the Security CouncilFootnote 155 confirm the need for respect of the integrity of the territorial state concerned.Footnote 156 To the best of our knowledge, the operation had not been communicated to Pakistan.Footnote 157
One may object to this view as too sovereignty-oriented and thus impractical in cases where a territorial state consciously tolerates the presence of (international) terrorists on its soil, supports their activities or, as a ‘failed state’, is simply unable to cope with them. Should another state, threatened by these terrorists, then not have the opportunity to invoke the right to (pre-emptive) self-defence under Article 51 of the UN Charter and carry out military operations against the terrorist groups hosted on foreign territory? To be sure, states are under a duty, based on treatyFootnote 158 and customary international law,Footnote 159 not to provide a safe haven for terrorist groups – at least to make sure that these groups do not attack other states from their territory.Footnote 160 If they do not act against these groups, they commit an international wrongful act and incur state responsibility.Footnote 161 Is it then, against this background, plausible to argue in favour of a right to self-defence for threatened or attacked states against the host state?Footnote 162
We would call for a very cautious and restrictive approach with regard to a state's right to (individual) self-defence (Article 51 UN Charter) as opposed to collective self-defence under Chapter VII of the UN Charter (Articles 39ff). It is important to note that, as far as the lex lata is concerned, the Security Council never explicitly authorised military operations on foreign territory to fight terroristsFootnote 163 but only, time and again, repeated the obligation to cope with terrorist suspects via the classic principle of aut dedere aut iudicare (either to extradite or prosecute them).Footnote 164 Thus, Resolution 1456(2003) demands in its paragraph 3 to ‘bring to justice those who finance, plan, support or commit terrorist acts or provide safe havens, in accordance with international law, in particular on the basis of the principle to extradite or prosecute’.Footnote 165
Beyond that – that is, before the Security Council's intervention, or in case of insufficient action by the Council – Article 51 of the UN Charter can only be invoked if there exists an immediate threat of a terrorist attack which can only be prevented by the immediate use of force and does not allow time to wait for the Security Council to act. Thus, the key criterion is ‘immediacy’; if it is lacking, or if the Security Council has taken appropriate measures, it clearly follows from the wording of Article 51 that self-defence cannot be invoked.Footnote 166 In fact, this is the situation with regard to the general threat of international terrorism because, since September 11, the Security Council has taken control of the situation and acted accordingly. To be sure, if there is a concrete threat and the Security Council does not react appropriately, the threatened state must have the opportunity to react by invoking Article 51 of the UN Charter. In any case, a temporal element like immediacy raises many line-drawing problems and thus it is not surprising that those authors who advocate a broad right to individual self-defence remain either silent or imprecise when it comes to defining the exact circumstances under which it may still be permissible or already prohibited to use force under Article 51 of the UN Charter.Footnote 167 Finally, it should not be overlooked that the broad approach – whoever may defend it – clearly benefits only those states which have the military capacity to use force extraterritorially: essentially military superpowers like the US, Russia and China. This may explain why it is mainly authors from these states, in particular from the US military establishment, who call for a broad interpretation of self-defence.
5. Conclusion
The killing of Osama bin Laden by the US Special Forces does not withstand the test of a careful legal analysis. With regard to IHL as the most pertinent legal regime, if, contrary to our view, one assumes that an armed conflict between the US and Al Qaeda exists, the US operation most probably caused the death of a civilian who was no longer taking a direct part in hostilities. If he still was a ‘fighter’, he may have been, at the moment of the killing, hors de combat. It is only if one qualifies, again contrary to our view, Al Qaeda as an organised armed group within the meaning of IHL that bin Laden could have been killed qua membership.
Under international human rights and ordinary (international or domestic) criminal law, both applicable in peacetime, the legal situation is even clearer: the killing of bin Laden amounts to an extrajudicial killing forbidden under general human rights law; the facts so far known do not suggest that the Special Forces acted out of self-defence. Ultimately, the US operation, taking place without the knowledge of the Pakistani authorities, violated the territorial sovereignty of the latter. This latter violation may be justified only on the basis of individual self-defenceFootnote 168 if one considers that the immediacy requirement of this provision is met and the Security Council did not take appropriate action.
Beyond these complex and indeed contentious legal questions, the much more fundamental question arises whether we are prepared to accept an international order in which the few military superpowers are allowed to play the role of global police and send out their swat teams to other countries to eliminate their alleged enemies. While this may be acceptable and even desirable for many in the case of an international terrorist network like Al Qaeda, it raises the question of where to draw the line with regard to the still permissible extraterritorial use of force and prohibited extrajudicial killings on foreign territory. One wonders, for example, how the extraterritorial killing of alleged pirates, by the very same Special Forces who hunted down bin Laden, in an operation to liberate abducted Western tourists in Somalia can be justified under international law.Footnote 169 For it is not only contested generally that a state can invoke the right to self-defence to liberate its citizens abducted by criminals in a foreign countryFootnote 170 but, more importantly, this state certainly has not, in a classical law enforcement operation, the right to kill all the kidnappers on the spot (unless the criminal law of self-defence applies).Footnote 171 Of course, as is common in this kind of operation, we do not know exactly how the operation took place but, worryingly, the Obama administration does not even bother to provide information which would enable interested citizens to assess the legality of the operation.Footnote 172 Instead, it has been celebrated as the ‘hallmark’ of future US military activities abroad.Footnote 173 Would our opinion on the legality of such operations change if we, for the sake of argument, replace ‘USA’ with ‘China’, ‘Russia’ or ‘Iran’?
To return to the killing of bin Laden or other (alleged) ‘terrorists’, we have to seriously ask ourselves if we want to deprive our ‘terrorist enemies’ of their right to life and other fundamental human rights and declare them military fair game. Concretely, we have to ask ourselves if the reason why most of us intuitively tend to consider the bin Laden killing ‘right’ lies in his prominence as public enemy number one and the fact that he was killed by our allied US forces. If so, should we then not be more careful in our discussion of the killing? Should we not, right at the outset, abstain from any legal assessment if we cannot distance ourselves from our irrational intuitions, given that legal rules, which per definitionem pretend to claim universal validity and applicability to similar, comparable situations, cannot be developed on the basis of such intuitions?
To ask all these questions is tantamount to answering them in the negative. The moral and political superiority of a free and democratic society dictates that it treats its enemies as persons with minimal rights at least and does not do as the enemy does – act with barbarism and contempt for mankind. It does not wage ‘war’ against terrorists, but combats them with a fair and proportional criminal law. It acts, as rightly stated in UNSC Resolution 1456(2003), quoted at the start of this article, ‘in accordance with international law, in particular international human rights, refugee, and humanitarian law’Footnote 174 in the fight against terrorism. This does not exclude the use of force and even the killing of terrorists as ultima ratio, but only by respecting the rules and conditions set out above. This alone ensures the kind of justice that has been promoted particularly by the US since Nuremberg. And this is the only foundation from which we can triumph over the terrorist injustice.
