Legal issues Raised by Bin Laden Killing

#1
There are several issues raised by the Bin laden killing under international law, the answers to which depend largely on one’s perspective of international law in general (including such things as its sources, interpretation, and application in situations like this). Regrettably, this can be frustrating for those accustomed to absolute certainty in their respective domestic legal systems or who otherwise may be uneasy with such a normative system where there are few “absolutes” and even fewer instances where all observers (including so-called experts or as they are known in international law circles, publicists) agree on either the substance of a given norm or extent that it governs a given situation.
In the instant case, and again subject to the limited factual information (as opposed to seemingly ever-changing accounts from the US and Pakistani governments, among others), I would humbly offer the following:

1. With respect to the issue of Pakistan’s sovereignty being violated by the non-consensual incursion of the US force into Pakistan to conduct the mission, the entire concept of Westphalian sovereignty has been undergoing significant change in the last 50 years. There are myriad reasons for this but many cite two primary reasons being globalization and changing standards reflected in the conduct of states as to the sanctity of a given nation’s sovereignty that has accelerated significantly since 9/11 and the advent of warfare by non-state groups, that of necessity must “be somewhere” and thus implicate to one degree or another the sovereign state in which the group is located.

Again depending on one’s view and which school of thought is preferred over another, the practice in recent years of conducting military operations against such non-state actors even when to do so violates the sovereignty of the nation in which the individual or group is then located can be characterized as unlawful or lawful. For example, Professor Mary Ellen O'Connell, notwithstanding her machinations to find justifications for the mission in her piece in yesterday’s Foreign Policy magazine, (The bin Laden aftermath: Abbottabad and international law - by Mary Ellen O'Connell | The AfPak Channel ) represents the more traditional view that, absent consent of the nation whose border is violated, or the presence of certain very narrow exceptions that she notes in her article, a nation’s borders are sacrosanct.

On the other hand, Professor Jordan Paust can be said to represent the opposing school of thought that sees a weakening of the concept of sovereignty in the post 9/11 era that includes the “right” of one nation to pursue non-state actor “enemies” into the territory of another nation, subject to certain limits. He has written extensively on this in the context of US drone strikes into Pakistan, the Sudan and elsewhere. (for example, see Paust, Journal of Transnational Law & Policy Spring, 2010, “SELF-DEFENSE TARGETINGS OF NON-STATE ACTORS AND PERMISSIBILITY OF U.S. USE OF DRONES IN PAKISTAN”). (https://webspace.utexas.edu/rmc2289/LT/Jordan Paust on Drones.pdf )

2. With respect to the actual shooting of Bin Laden, there are several issues raised, most of which cannot be conclusively resolved without many more facts that I doubt will ever be forthcoming. First there is the question of the nature of the orders given the operators. If they were solely to kill Bin Laden regardless of the circumstances, then I think that would be an unlawful order under applicable provisions of the Uniform Code of Military Justice that applies equally to ALL members of the US military, regardless of specialty or assignment (e.g., even if seconded to the CIA for example, as long as they are still legally members of the US military, they are subject to the UCMJ). As an unlawful order, and I would further argue that if given in such clear and unequivocal terms, it was facially illegal, it would have been the duty of those receiving the order refuse the order and report it to appropriate authorities. The same reporting obligation would obtain for any other US military member having knowledge of it such an order.

Such an order would also be tantamount to a “no quarter” order that is also forbidden under Article 40 of Additional Protocol I of the Geneva Conventions and Common Article 3 of the Geneva Conventions and would be considered a “grave breach.” The prohibition against “no quarter” has deep roots and was first expressed in treaty form (later incorporated in substance into the 1949 Conventions) in Article 23d of The 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land.

If the orders were rather kill or capture or words to that effect then the focus shifts to the circumstances of the actual killing. Obviously, operators must be afforded reasonable leeway in interpreting the lawfulness of any in extremis killing since such decisions are necessarily made in nano-seconds, are situation-dependent and affected by stress, imperfect sensory information and the like. If, however, Bin Laden had made it reasonably (under all the facts and circumstances) apparent to the SEALS that he had surrendered and thus represented no further threat to them by unequivocal physical actions (hands in the air etc.) and absent any reasonable advance intelligence and corroborating physical circumstances apparent to the shooter(s) that he intended to use an explosive device etc. that could readily be detonated even if in a posture of surrender, then shooting him would have been unlawful and punishable by applicable provisions of the UCMJ.
If Bin Laden was considered a combatant, whether he had a weapon in his hand etc. when he was shot is not determinative of the lawfulness of the killing since that is not a requirement in and of itself to allow the killing. Rather it is but one of myriad factors that must be taken into account, and again under very adverse and stressful circumstances, by the operators themselves in determining whether he was at the time he was shot hors de combat, which is the only status that transforms a combatant (armed or not) into a protected person.
 
#2
There are several issues raised by the Bin laden killing under international law, the answers to which depend largely on one
Is the post missing a bit JJH. Or maybe I am missing something in which case Sorry!
 
#4
Right.

Shooting an unarmed man. Illegal incursion into a the territory of a sovereign state - how would the Americans react if the Cuban.s did something like this... Illegal disposal of flamable waste material aka one helo. Illegal interruption of comms... add to at pleasure

FBI would have a field day if this happened in the US.

Another issue already raised... among several... is can the Brit Govt have its money back, and while on that track should the US not take off the rose tinted glasses and treat Pakistan as a failed state.

Finally, the PR management by the US government.
 
#6
Right.

Shooting an unarmed man. Illegal incursion into a the territory of a sovereign state - how would the Americans react if the Cuban.s did something like this... Illegal disposal of flamable waste material aka one helo. Illegal interruption of comms... add to at pleasure

FBI would have a field day if this happened in the US.

Another issue already raised... among several... is can the Brit Govt have its money back, and while on that track should the US not take off the rose tinted glasses and treat Pakistan as a failed state.

Finally, the PR management by the US government.
I await your take on my actual post rather than the ND I originally posted. As to your lead point about an unarmed man--as I note in my post, if he was considered a combatant, whether he was armed when shot begs the operative question as to whether he was hors de combat. For combatants, unlike mere criminals in a law enforcement context, the absence of a firearm or other weapon does not in and of itself immunize the person from legitimate attack by his enemy. It is ONLY if all the facts and circumstances would cause a reasonable person under such circumstances (and here they were clearly in extremis) to have reason to believe he was hors de combat and otherwise subject to the control of his captors would it then be unlawful to shoot him since at that point he transforms in the law from combatant to protected person (POW).

Needless to say, this transformation is a very slippery thing, especially in the fog and stress of close combat and is not amenable to mathematical precision. Indeed, and regrettably, there have been many erstwhile protected persons killed in the midst of this transformation but that does not equate with criminal conduct by the shooter unless there is other evidence of intentional killing AFTER this transformation was apparent and the attacker otherwise was able to stop the mode of lethal force involved in time to prevent the death or injury. This is often not possible due to the circumstances. It is both a regrettable and inherent reality in the nature of close combat as I believe those ARRSERs who have been in such situations will also attest.
 
#7
No law exists but has authority to punish, or, to quote Hobbes "...covenants, without the sword, are but words and of no strength to secure a man at all. Therefore, notwithstanding the laws of nature (which every one hath then kept, when he has the will to keep them, when he can do it safely), if there be no power erected, or not great enough for our security, every man will and may lawfully rely on his own strength and art for caution against all other men."

Without a global police force, impartial and answering to a global authority bound by a global court, states exist in the 'state of nature' and therefore are subject only to those laws that another may, at its whim and convenience, chooses to enforce against them. Partial justice is no justice at all, and therefore I contend that there is no such thing as international law, only some arbitrarily enforced covenants of dubious worth.

The Geneva Law concerned with giving quarter is adhered to by states with the intention not of protecting enemies, but of claiming reciprocal protection for its own. Given that the forces commanded by bin Laden are irregulars and not signatories, and do not in any event abide by Geneva Law, it is not applicable to them or him. Violations of sovereignty derive their 'legal' basis at root from the Law of Nature - each does what he must for his own security.

As to developed nations and liberal democracies, their observance of UN Law is based not on fear of the sword of justice but on a need to maintain the support of their populations - the sight of the US and UK playing ducks and drakes with UN resolutions in an attempt to justify the invasion of Iraq is enough to demonstrate that. The 'jury' which concerned Bush and Blair was the domestic one. International law is a fiction, and is as often used to justify immoral acts through legal trickery as it is to prevent them. The observance of the forms of law at the expense of the intentions of law, merely brings the entire concept into disrepute and it would be infinitely more effective as a brake on conflict if all nations put the case for war to their populations purely in the basis of the bald pursuit of national self-interest.
 
#9
Pigshyt said:

Given that the forces commanded by bin Laden are irregulars and not signatories, and do not in any event abide by Geneva Law, it is not applicable to them or him.
They certainly are irregulars and clearly do not abide by the Geneva Conventions. However each member of AQ is presumably a citizen of some state. Saudi Arabia is a signatory and therefore the conventions are binding on him as they are upon all citizens of a signatory. IIRC for purposes of the conventions a state of war exists as soon as one party declares war on another party. Since OBL has referred to his terror campaign as a war it would IMHO render him an enemy combatant and subject to be treated as JJH described above. Of course it has been many years since I finished law school (Napoleon was Emperor of France at the time) and there may have been changes in the conventions
 
#10
Pigshyt said:



They certainly are irregulars and clearly do not abide by the Geneva Conventions. However each member of AQ is presumably a citizen of some state. Saudi Arabia is a signatory and therefore the conventions are binding on him as they are upon all citizens of a signatory. IIRC for purposes of the conventions a state of war exists as soon as one party declares war on another party. Since OBL has referred to his terror campaign as a war it would IMHO render him an enemy combatant and subject to be treated as JJH described above. Of course it has been many years since I finished law school (Napoleon was Emperor of France at the time) and there may have been changes in the conventions
All that may be arguable if one accepts that international law has any standing outside of the interest and convenience of the mightiest actor involved in any dealings through or with it. I would contend that international law is a fiction by which states seek to gain advantage when the stakes are not high enough for war - no more and no less.

The only document treating with international law which has any standing in practice as opposed to theory, is the Melian dialogue, in which the strong do as they will and the weak accept what they must. Or, in the modern parlance, 'tough shit'.
 
#11
Right.

Shooting an unarmed man. Illegal incursion into a the territory of a sovereign state - how would the Americans react if the Cuban.s did something like this... Illegal disposal of flamable waste material aka one helo. Illegal interruption of comms... add to at pleasure

FBI would have a field day if this happened in the US.

Another issue already raised... among several... is can the Brit Govt have its money back, and while on that track should the US not take off the rose tinted glasses and treat Pakistan as a failed state.

Finally, the PR management by the US government.
Regarding the PR management, yes it has been poorly managed, but it has nothing to do with the legal aspects of this event. I think you just trying to make some ridiculous point there, and in fact you whole post is pretty immature and one that won't be taken seriously.
 
#12
As a lawyer I don't tend argue legal issues with non-lawyers, it's just a fruitless task. JJH is essentially correct in part. I'd go further and state that Osama's status as a combatant, his ongoing plans to attack the U.S. making him a current threat & Pakistan's poor track record in co-operation go far to support arguments justifying the operation. Just a thumbnail sketch though I haven't gone deep into this and may not.


EDITED: Osama is the bad man, Obama is the president, Osama is the bad man, Obama is the president, Osama...
 
#13
Vergil:

Might i presume that when you said "Obama's status as a combatant" you intended to say "Osama"

Damned inconsiderate of them to have names so similar to each other. Makes typo's more likely.
 
#14
Shooting an unarmed man.
Bin Laden was clearly a combatant (of some kind) - is there anything in LOAC which says you have to check whether an enemy is armed before you shoot him? If there is a squad of enemy ahead and you come under fire from them and kill them all - it's not a breach if half of them, or even all bar one of them, turn out to be unarmed. In fact, if they're the enemy, you can shoot them in the back without waiting for them to spot you and open fire, yes? (This is assuming wartime ROE - but breaching ROE doesn't automatically make it a war crime.)

Illegal interruption of comms... add to at pleasure
Did you mean "interception"? Regardless, I don't think that either are illegal under customary international law - in fact, they are regarded as standard practice, hence the specific protections for diplomatic comms in the Vienna Convention. They may be against specific national laws, but that's why the assorted spooks generally have a get-out clause (public or private).
 
#15
Vergil:

Might i presume that when you said "Obama's status as a combatant" you intended to say "Osama"

Damned inconsiderate of them to have names so similar to each other. Makes typo's more likely.
Good Lord, that mistake's been pounded into our heads all week and there I go making the same...
 
#17
Use of a full name works for me. Not intending to sound smug, rather I admire accuracy through form and structure.

I also admit to being an old fart.

B
 
#18
Regrettably, this can be frustrating for those accustomed to absolute certainty in their respective domestic legal systems or who otherwise may be uneasy with such a normative system where there are few “absolutes” and even fewer instances where all observers (including so-called experts or as they are known in international law circles, publicists) agree on either the substance of a given norm or extent that it governs a given situation.
I would suggest that those are as unfamiliar with the workings of their own domestic legal systems as with affairs beyond their immediate surroundings.

Posts fired off randomly this am.

B

p.s. Did I hear that a presidential unit citation has just been awarded? Well deserved in my opinion.
 
#19
First, let me congratulate the US intelligence services and "DevGru" for an excellent operation, and thank them for ridding the world of a real threat to peace. I hope that this frees up the political options for the US now in terms of negotiating a withdrawal from Afghanistan and improving relationships with the middle east, and hence reducing the motivation for Muslims to be radicalised.

However, on the legal question - is there any reason why this should not be considered murder, and those involved extradited to Pakistan to stand trial for such?
 
#20
Here's a very well thought out--and possibly best--article on a defense of the U.S. operation against OBL by a recent State Dept attorney;

I've included below the most relevant portion of the defense.


LINK FULL TEXT

Pakistan's Sovereignty and the Killing of Osama Bin Laden
By Ashley S. Deeks

B. The “Unwilling or Unable” Test

International law restricts the situations in which a state may use force in the territory of another state. There are three situations in which such an act is lawful: pursuant to U.N. Security Council authorization under Chapter VII of the U.N. Charter; in self-defense; or (at least in some cases) with the consent of the territorial state. Once a state concludes that it has a right of self-defense, it must assess what specific types of actions it can take in response, including whether it can use force. The standard inquiry has three elements: whether the use of force would be necessary; whether the level of force contemplated would be proportionate to the initial armed attack (or imminent threat thereof); and whether the response will be taken at a point sufficiently close to the armed attack (i.e., whether it would be immediate).[7]

In determining whether it is necessary to use force against a non-state actor operating in another state’s territory, the victim state must consider not just whether the attack was of a type that would require force in response, but also the conditions within the state from which the non-state actor launched the attacks. In this latter evaluation, states, absent consent, employ the “unwilling or unable” test to assess whether the territorial state is prepared to suppress the threat. If the territorial state is either unwilling or unable, it is reasonable for the victim state to consider its own use of force in the territorial state to be necessary and lawful (assuming the force is proportional and timely). If the territorial state is both willing and able, the victim state’s use of force would be unlawful. Thus, if the United States located a senior member of al Qaeda in Stockholm, it almost certainly would be unlawful for the United States to use force against that individual without Sweden’s consent, because there is no reason to believe that the Swedish government would be unwilling or unable to take appropriate measures against that al Qaeda member.

Although the test is easy to state, international law gives the United States (or any state in a similar position) little guidance about what the “unwilling or unable” test requires. Considerable state practice supports the existence of the test and reveals its historical roots in neutrality law, but neither states nor scholars have discussed what the standard means. What facts should the United States have considered when evaluating Pakistan’s willingness or ability to suppress the threat Bin Laden posed to the United States, NATO and Afghan forces, and the security of other states that have suffered al Qaeda attacks? Does international law require the United States to ask Pakistan to take measures itself before the United States lawfully may act? If so, how much time must the United States give Pakistan to respond? What if Pakistan proposes to respond to the threat in a way that the United States believes may not be adequate?

Based on an examination of state practice, it is possible to ascertain a few key principles that the international community might expect a state using force (the “acting state”) to follow. The principles might include requirements that the acting state: (1) ask the territorial state to address the threat and provide adequate time for the latter to respond; (2) reasonably assess the territorial state’s control and capacity in the region from which the threat is emanating; (3) reasonably assess the territorial state’s proposed means to suppress the threat; and (4) evaluate its own prior interactions with the territorial state.[8] However, an important exception to the requirement that the acting state request that the territorial state act arises where the acting state has strong reasons to believe that the territorial state is colluding with the non-state actor, or where asking the territorial state to take steps to suppress the threat might lead the territorial state to tip off the non-state actor before the acting state can undertake its mission.
 

Similar threads

Latest Threads

Top