{"id":4522,"date":"2011-05-16T14:52:44","date_gmt":"2011-05-16T18:52:44","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/nsj\/?p=4522"},"modified":"2014-11-14T14:53:15","modified_gmt":"2014-11-14T19:53:15","slug":"the-legality-of-killing-osama-bin-laden","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2011\/05\/the-legality-of-killing-osama-bin-laden\/","title":{"rendered":"The Legality of Killing Osama bin Laden"},"content":{"rendered":"

By Stephen M. Pezzi —<\/strong><\/span><\/p>\n

On Sunday, May 1st, an elite unit of U.S. Navy SEALs<\/a> carried out a raid on a fortified home in Abottabad, Pakistan, during which Al-Qaeda leader Osama bin Laden was killed<\/a> by two American bullets.\u00a0 Although the details surrounding the raid are not completely known, information has been seeping out to the public (often correcting, updating, or contradicting prior reports).\u00a0 What is known for certain: Osama bin Laden was intentionally targeted and killed, after some measure of resistance, and buried at sea.\u00a0 A few hours later, in a late-night address<\/a> to the nation, President Obama declared to the American people that \u201cjustice has been done.\u201d<\/span><\/p>\n

The raid took place without Pakistani knowledge, consent, or cooperation, on Pakistani soil.\u00a0 The killing led to impromptu celebrations across America: in Washington, D.C.<\/a>, New York City<\/a>, at an ongoing Phillies-Mets baseball game<\/a>, and college campuses<\/a> nationwide.\u00a0 It has since prompted threats of retribution<\/a> from Al-Qaeda, as well as counter-protests in Pakistan<\/a>.\u00a0 Bin Laden\u2019s \u201chiding place,\u201d \u2014 a stone\u2019s throw away<\/a> from a Pakistani military academy<\/a> \u2014 raises new questions about Pakistan\u2019s commitment to assisting the United States in its fight against terrorism.\u00a0 In the words of CIA director Leon Panetta, Pakistan was either \u201cinvolved or incompetent<\/a>.\u201d<\/span><\/p>\n

Perhaps unsurprisingly, it did not take long for critics<\/a> of the Bush-Obama national security approach to raise legal questions<\/a> surrounding the operation.\u00a0 Based upon the limited information currently available, there are legal responses to each, and the raid appears to have been justified under both domestic and international law<\/a>.\u00a0 The domestic question is simple: Congress\u2019s 2001 Authorization for the Use of Military Force<\/a> gives the President broad authority to use force against those who \u201cplanned, authorized, [or] committed\u201d the September 11th terrorist attacks \u2014 Bin Laden\u2019s most infamous achievement.\u00a0 With respect to international law, there are at least two strands of criticism.<\/span><\/p>\n

Pakistani Sovereignty<\/strong><\/span><\/p>\n

This operation took place within the sovereign borders of Pakistan \u2014 a nation that is supposedly a United States ally \u2014 without Pakistani knowledge or consent.\u00a0 Some have argued, including Pakistan’s former president Pervez Musharraf<\/a>, that this violates Article 2(4) of the U.N. Charter<\/a>, as a \u201cuse of force\u201d that violates member-state Pakistan\u2019s \u201cterritorial integrity.\u201d\u00a0 However, the operation can find legal support in Article 51 of the U.N. Charter<\/a>, which provides that \u201c[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence.\u201d\u00a0 It is this \u201cself-defense\u201d rationale that most easily justifies the violation of Pakistani sovereignty \u2014 because Bin Laden was widely believed to be continuously planning further terrorist attacks on the United States<\/a>, removing this threat was necessary to protect United States national security.\u00a0 While some argue<\/a> that the Obama administration has been surprisingly quiet as to the specific legal justifications for the raid, Attorney General Eric Holder has specifically invoked this \u201cnational self-defense\u201d rationale<\/a>.<\/span><\/p>\n

However, even assuming that this action was taken in \u201cnational self-defense,\u201d some scholars<\/a> have advanced the position that Pakistani consent was first required, unless Pakistan was \u201cunwilling or unable\u201d to suppress the threat itself.\u00a0 Of course, whether or not the \u201cunwilling or unable\u201d test was satisfied here is difficult to answer without additional information.\u00a0 However, based on what is currently available, Pakistan certainly appeared \u201cinvolved or incompetent<\/a>,\u201d and there was clearly reason to believe that involving the Pakistanis could have led to Bin Laden\u2019s escape.\u00a0 Surely Bin Laden\u2019s escape from Tora Bora<\/a> was on the mind of U.S. officials as they decided that, this time, it was preferable to act alone (many have suggested<\/a> that the 2001 escape was aided by Pakistanis).\u00a0 Thus, upon learning that Bin Laden was hiding \u201cin plain sight,\u201d in a military town that has been analogized to our own West Point<\/a>, there is strong legal justification for acting in self-defense \u2014 even without Pakistani knowledge or consent.<\/span><\/p>\n

The Targeted Killing of Osama Bin Laden<\/strong><\/span><\/p>\n

 <\/p>\n

Another facet of the legal analysis of the operation involves what actually took place when the SEALs arrived at Bin Laden\u2019s Abottabad compound.\u00a0 Here, the uncertainty surrounding what actually happened makes it difficult to offer a concrete analysis.\u00a0 Several scholars<\/a> have written at length about the general legal implications surrounding targeted killings as a counterterrorism strategy \u2014 including in a forthcoming article by Philip Alston in Volume 2 of the Harvard National Security Journal<\/em><\/a>.\u00a0 I will not summarize or repeat that analysis here \u2014 it suffices to say that reasonable minds differ on the legality of the practice, as applied to varying targets, locations, and scenarios.\u00a0 Instead, I will offer a brief discussion of the legal questions specific to the targeted killing of Osama bin Laden.<\/span><\/p>\n

As initially described<\/a> by Obama administration officials, this was a \u201ccapture or kill\u201d operation, meaning that if the Navy SEALs could have done so safely, they would have captured Bin Laden alive.\u00a0 Early reports<\/a> suggested that Bin Laden himself was killed in a shootout.\u00a0 Under this scenario, there is no reasonable argument that could be made that the operation was unlawful, as even those critical of U.S. national security policies have acknowledged<\/a>.\u00a0 However, subsequent clarifications<\/a> from the White House have confirmed that Bin Laden was likely unarmed.\u00a0 This development has led some to question<\/a> whether the SEALs were under an obligation to offer Bin Laden an opportunity to surrender, before shooting him.<\/span><\/p>\n

Unsurprisingly, how one views this question will turn on how one views the larger conflict with Al Qaeda and the war on terror, as a general matter.\u00a0 For those who consider this an ongoing armed conflict, where the theater or war includes any location where a terrorist is physically located (the Bush-Obama position), this is simply an example of killing an enemy commander on the battlefield<\/a> \u2014 akin to the killing of Japanese Admiral Isoroko Yamamoto<\/a> during World War II.\u00a0 In the words of Attorney General Eric Holder: \u201cIt is lawful to target an enemy commander in the field<\/a>.\u201d\u00a0 Thus, whether as a \u201ccombat-based\u201d target (someone actively resisting by force), or a \u201cstatus-based\u201d target (a physically identifiable leader of enemy forces), Bin Laden could be legally targeted and killed<\/a>, unless he had already completed surrender.\u00a0 On the other hand, for those who maintain the United States is not at war, this is simply extrajudicial execution, akin to a political assassination \u2014 it is a taking of a human life without any sort of judicial process. <\/span><\/p>\n

Of course, this entire debate is purely academic in two senses. \u00a0First, most would agree that it would clearly be inappropriate to second-guess the split-second, heat-of-battle determination<\/a> by the Navy SEALs that there were reasonable grounds to believe that a peaceful surrender was not forthcoming \u2014 whether or not Bin Laden was armed, and whether or not this battlefield judgment was actually correct.\u00a0 In other words, even if, as a factual matter, Bin Laden would have surrendered if offered the opportunity (a plausible, though perhaps unlikely scenario), under the circumstances, it would have been very difficult for him to convey that fact convincingly, in such a way that the Navy SEALs could have been confident that no threat existed (to be effective, surrender must be \u201ccompleted\u201d).\u00a0 Secondly, the debate is literally \u201cacademic\u201d \u2014 in that this question is likely of little interest to the millions around the world who have either rejoiced or lamented this man\u2019s death.\u00a0 Osama bin Laden\u2019s ultimate fate was not decided in a courtroom, but in a White House situation room<\/a>.\u00a0 While this may bother some in the international community, the legal questions raised here, are also likely to be seriously examined further only in academic contexts such as this one.<\/span><\/p>\n

Image courtesy of the Department of Defense<\/em>
\n<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

On Sunday, May 1st, an elite unit of U.S. Navy SEALs<\/a> carried out a raid on a fortified home in Abottabad, Pakistan, during which Al-Qaeda leader Osama bin Laden was killed<\/a> by two American bullets.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[24,29],"tags":[],"class_list":["post-4522","post","type-post","status-publish","format-standard","hentry","category-online","category-student-articles"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-1aW","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/4522","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=4522"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/4522\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=4522"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=4522"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=4522"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}