The Bin Laden Killing: Clarifying the Normative Framework(s) Governing the ‘War on Terror’?

The Bin Laden Killing: Clarifying the Normative Framework(s) Governing the ‘War on Terror’?

Alon Margalit is Research Associate, Hotung Programme for Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies (SOAS), University of London. The author wishes to thank the editors of EJIL:Talk! for their helpful comments on an earlier draft.

It has been almost six months since Osama Bin Laden was killed in Pakistan by a US commando team.  It is now worth reviewing some of the legal questions arising from the incident as the heat of the moment has passed.  The May 2011 killing of Bin Laden marked an operational apex in the US ‘War on Terror’ and was favourably received by the overwhelming majority of States.  Shortly after the raid on a residential compound in Abbottabad was concluded, and before its exact details were disclosed, a statement by the President of the Security Council welcomed “the news on 1 May 2011 that Osama Bin Laden will never again be able to perpetrate such acts of terrorism” and urged all States to intensify their fight against terrorism in compliance with international law.  UN Secretary-General Ban Ki-moon declared that “justice has been done to such a mastermind of international terrorism”.

Similar statements were made by the EU which described the American operation as “a major achievement”.  Afghan President Karzai said Bin Laden “had paid for his actions”, and Saudi Arabia, the national State of Bin Laden, expressed the hope that his killing “would be a step toward supporting international efforts aimed at fighting terrorism“.  In Pakistan, where the operation took place presumably without its consent, President Zardari chose to stress the “satisfaction that the source of the greatest evil of the new millennium has been silenced, and his victims given justice.”

If the question of where this operation stood in terms of international law were to be answered according to States’ responses, the killing of Bin Laden apparently did not raise any legal concerns.  States hailed the American operation, did not question its legality, and thus signalled that they saw no violation of international law.  Within this almost universal favourable discourse, two independent experts of the UN Human Rights Council, the Special Rapporteurs on summary executions and on human rights and counter-terrorism, issued an exceptional statement.  They urged the US to disclose the facts supporting the use of deadly force against Bin Laden in order “to allow an assessment in terms of international human rights law standards”.  They emphasised that “the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment”.

This statement reflected – contrary to what seemed to be the consensus shared by States – the ‘legal buzz’ among international lawyers, triggered by the American operation and concerned with its legality: was the US allowed to plan and execute a shoot-to-kill operation, or were its troops obliged to try and capture Bin Laden and give him an opportunity to surrender before turning to lethal force?  A significant discussion on this question emerged immediately after the incident, debating the applicable law and whether the operation had adhered to the required standards.  Different, at times opposite, views were expressed including on EJIL:Talk!, here and here.

Setting aside jus ad bellum questions, human rights law and the law of armed conflict (LOAC) are the two normative frameworks to consider in this context.  Human rights law does not bar State-agents from using deadly force against individuals, but this can never serve as a punishment without a trial; it must only be employed as a preventive measure of last resort.  According to this paradigm, US soldiers initially had to make an attempt to capture Bin Laden and allow him to surrender.  Only if an imminent danger to the life or physical integrity of the attacking team or other individuals arose from Bin Laden during the raid, could they be permitted to shoot him in self-defence.  As Bin Laden was believed to be highly dangerous, the use of deadly force was also legitimate if he had resisted an arrest or tried to escape.  Nonetheless, even then, force should have been proportionate: if injuring Bin Laden, rather than killing him, was sufficient to remove the danger he posed, force should have been used up to this level and no more.

Conversely, if LOAC applies, Bin Laden was a permissible target simply because he was an enemy fighter, and thus the attacking team was entitled to kill him even if he did not pose an imminent threat.  Active members of an organised armed group can be targeted at any time as they lose immunity from direct attack which is reserved only to innocent civilians, those who do not directly participate in the fighting.  Further, under LOAC, while it is strictly prohibited to attack an enemy who has become hors de combat by laying down his arms, there is no obligation to offer the enemy the chance to surrender before employing lethal force.  An intention to surrender must be clear and unequivocal.  US practice emphasises, correctly, that an offer to surrender must not be refused when communicated, but in certain circumstances of combat there is a risk that a soldier may not understand his opponent’s actions as an attempt to surrender “in the heat and confusion of battle, or may find it difficult (if not impossible) to halt an onrushing assault to accept a soldier’s last-minute effort at surrender”.

Hence what may be viewed as an illegal extrajudicial killing under human rights law may constitute a lawful targeting of an enemy belligerent under LOAC.  Nonetheless, the distinction between these two branches of international law is not rigid.  It is largely accepted today that both may be considered in assessing the legality of a military operation, however the exact relationship between the two legal regimes is not sufficiently clear.  For instance, the Israeli High Court of Justice has opined (in the 2006 Targeted Killings case) that while ‘terrorists’ are permissible targets under LOAC, they should not be targeted if they can be arrested, interrogated, and tried; if such less harmful means are available, the use of deadly force is unlawful.  This view is shared by the ICRC, and yet it is controversial as this is not required by LOAC.  Further, both the Israeli High Court and the ICRC admit that these additional requirements – based on human rights law – are not always practicable, especially when the attacking troops do not possess effective control in the area where enemy militants are present, or when an arrest attempt may increase the risk to the participating forces or to civilians.  It is important to note that this approach – seeking to restrict the use of lethal force when LOAC applies – is not identical with the human rights law standard; it permits a shoot-to-kill operation when capture is impracticable, despite the fact that the targeted object does not pose an imminent threat to life or physical safety.

This ambiguity as to the legal standards that govern the use of force in counter-terrorism operations also characterizes the US justification for the Bin Laden killing.  Its official position, pronounced by the Legal Adviser of the Department of State, maintains a clear LOAC paradigm as “the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks… a State that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the State may use lethal force”.  More specifically to the killing of Bin Laden, “he was the leader of an enemy force and a legitimate target in our armed conflict with al-Qaeda… [C]onsistent with the laws of armed conflict and US military doctrine, the US forces were prepared to capture Bin Laden if he had surrendered in a way that they could safely accept”.

Nonetheless, other explanations provided by US officials contain elements from human rights law, meaning that capture was considered but due to the threat posed by Bin Laden during the raid, his death was the unavoidable outcome.  It was stated that “[t]he operation was planned so that the team was prepared and had the means to take Bin Laden into custody” and that the planning “was to prepare for all contingencies.  If we had the opportunity to take Bin Laden alive, if he didn’t present any threat, the individuals involved were able and prepared to do that”.  It was also stressed that the “sole focus of the operation was to kill or capture Osama Bin Laden.  But there were certainly capture contingencies, as there must be”.

An insightful analysis, posted on EJIL:Talk! shortly after the incident, addressed the US  position, denied the applicability of LOAC to the operation and doubted that it was lawful under human rights law.  As time passed and more details were uncovered, it became apparent that while the US team was engaged in a firefight in the first and second floors of the shelter house in Abbottabad (where three armed men were killed and a woman was injured), Bin Laden himself stayed in his bedroom on the third floor.  His wife rushed towards the first team member that entered the room and was shot in the leg as a result, but not killed.  Bin Laden was then shot in the chest and head.  Both Bin Laden and his wife were unarmed.  No US personnel were injured during the 40-minute operation.  Taking this into account, it is unclear whether Bin Laden, who was reported to be suffering from a kidney disease, posed an imminent threat to the life of the team or others; nor were details provided on resistance to arrest or on an attempt to escape that justified the use of deadly force in compliance with  human rights law.  There is also the issue of proportionality: whether any danger perceived by the attacking team could not have been eliminated by less harmful means, as one commentator has suggested, by using tasers or tear gas, or by directing the shots at Bin Laden’s lower body.  These speculations should be treated with caution as the factual circumstances remain uncertain.  For instance, according to The Associated Press, two guns were found on a shelf inside Bin Laden’s bedroom.  It was also reported that the team feared that individuals in the house were wearing suicide vests or that the house was booby trapped.

Assuming the report that no attempt to surrender was communicated to American soldiers is accurate, it is more likely that the operation was lawful under LOAC rather than under human rights law.  Moreover, there are some indications that the raid was planned from the outset to be a shoot-to-kill operation in accordance with LOAC targeting rules.  Bin Laden was immediately shot in the chest and head while the other person in the same room was only shot in the leg.  In addition, a special operations officer, described as “deeply familiar with the Bin Laden raid”, told The New Yorker in August 2011 that “[t]here was never any question of detaining or capturing him – it wasn’t a split–second decision. No one wanted detainees”.

The applicability of LOAC to the American operation can be challenged.  The most compelling argument is that al-Qaeda’s attacks on the US do not reach the necessary degree of intensity for an armed conflict to exist.  These attacks are claimed to be sporadic, meaning there are large time gaps and geographical distance between different attacks.  Some attacks are committed by individuals that may sympathize with al-Qaeda and be inspired by it, but their actions cannot be attributed to the latter in the absence of an organizational or operational link.  Accordingly, these discrete attacks cannot be aggregated when calculating intensity.  Even when an armed conflict does exist in a defined area, an isolated attack in another location cannot bring LOAC to apply there as well.  This approach also demands an accurate identification of the parties to each and every conflict involving the US; for instance, an armed conflict in Afghanistan/Pakistan with the Taliban does not necessarily cover al-Qaeda militants as their confrontation with the US should be assessed separately and might not reach the intensity threshold.

The counter-argument is that non-State actors such al-Qaeda present threats and capabilities that do not fall short of those dangers traditionally presented only by States, and their attacks may be as violent and destructive as those carried out during an inter-State armed conflict.  For instance, Hezbollah effectively controls the southern part of Lebanon – thus challenging its government’s authority – and senior US officials claim that it “has far more rockets and missiles than most governments in the world”.  Since al-Qaeda does not limit its attacks to a specific territory, the intensity of these attacks should be considered as a whole, and isolated attacks should be considered by their cumulative effect as long as they are part of an on-going violent campaign.  Given that the US is involved in an armed conflict with the Taliban/al-Qaeda in Afghanistan and in some parts of Pakistan, the application of LOAC can be extended to neighbouring Abbottabad because militants were pursuing their hostile activities from there; indeed a Pentagon official described the compound as “an active command-and-control center”.

Moreover, the US conflict with al-Qaeda may be extended to the latter’s associated forces as they belong to the same side of the conflict, directing their attacks against US targets at times in cooperation with al-Qaeda, or by fighters who affiliate themselves with both al-Qaeda and another armed group such as the Taliban.  The intensity test – required for an armed conflict to exist – should therefore not focus on the territorial dimension or on a formalistic differentiation between armed groups which is not followed in practice by those groups themselves, but rather on the material question of whether it is realistic to expect the US to handle specific threats with conventional policing powers.

The overwhelming majority of States answered this question by immediately supporting the US killing of Bin Laden.  As the details were then unknown – the exact dangers that the soldiers faced during the raid and whether Bin Laden resisted an arrest or tried to escape – it was impossible to make an informed judgement as to whether deadly force was used as a last resort; it was impossible to justify the killing according to human rights law.  After more information was revealed, States did not seem to change their initial stance even with the US announcement that the legal basis for the killing was LOAC.

When welcoming the American operation, States were already familiar with the violent situation between the US and al-Qaeda, and with the status of Bin Laden as its top commander.    Bearing in mind the ambiguity and controversy in this matter, it is arguable that by uniformly ‘certifying’ the Bin Laden killing, State practice accepted the American position and determined that an armed conflict exists between the US and al-Qaeda, and that members of the latter are permissible targets.  In this respect, the States’ reaction recalls the dynamics that followed the 9/11 al-Qaeda attacks when the Security Council and NATO States determined that an attack by a non-State actor triggered the right of States to use force in self-defence.

It is true that while the US articulated a legal argument, the favourable reception of States was not pronounced in legal terms.  However this uniform support might carry important legal  implications.  Indeed in their response to the Bin Laden killing, the independent experts of the Human Rights Council commented that “[a]ctions taken by States in combating terrorism, especially in high profile cases, set precedents for the way in which the right to life will be treated in future instances“.  Did the States implicitly say that the whole global ‘War on Terror’ is governed by LOAC?  Such a broad inference is possible since classifying violent situations as armed conflicts and bringing in LOAC, could be used for a State’s own advantage.  It would enable the targeting of those considered to be terrorists simply because they are enemy fighters without the need to provide a criminal process or to demonstrate an imminent danger to life.  As David Kretzmer comments in this context, the application of LOAC would free States of some of the constraints imposed on the use of deadly force during law-enforcement operations, therefore “it is in the very application of these laws and customs that the State might be interested”.

Nonetheless, a narrower reading of State practice in the Bin Laden case suggests that LOAC is applicable only to the conflict between the US and al-Qaeda and not necessarily to the US confrontations with other armed groups; neither does it necessarily apply to confrontations that involve other States and armed groups.  Similarly, it may only refer to the application of LOAC in a specific area, namely in Pakistan-Afghanistan and not in other places.

The final question concerns the States’ position towards additional obligations which are drawn from human rights law during an armed conflict.  Since States did not seek to clarify whether there was a prior attempt to capture Bin Laden or to allow him to surrender, at first glance it seems that targeting operations when LOAC applies are not subject to these requirements.  Another possibility is that the States did not reject these standards but rather were sufficiently convinced that in the unique circumstances of the raid, a capture operation was impracticable.  Given Bin Laden’s ‘vicious record’ and the fear from his flight, employing less harmful means than lethal force would have substantially increased the risk to the attacking team or to civilians (albeit not necessarily to the level of an imminent danger to life).  Further, the US explanation that notwithstanding that Bin Laden was a legitimate target in its armed conflict with al-Qaeda, “there were certainly capture contingencies, as there must be”, is indicative that the US sees itself bound by such a requirement.  Whether the implementation of this requirement was impractical or that a duty was breached, the US practice reinforces its binding status.

It has been six months since the incident and it is still difficult to make a conclusive finding on the legality of the Bin Laden killing due to an incomplete account of the facts and uncertainty surrounding the applicable law.  The uniform response of the international community indicates that the use of force in this case was governed by LOAC and lawful under this regime.  It does not, however, remove the doubts in relation to the application of LOAC and human rights law to future counter-terrorism operations carried out as part of the ‘War on Terror’.