The death of Osama Bin Laden

The death of Osama Bin Laden Whether or not the United States committed a Wrongful Act against Pakistan; a question of self-defence Grade: 6.5 Mila Veenboer 5767725 Public International Law Mentor: Annemarieke Vermeer-Künzli University of Amsterdam October 2012 1

Index 1. Introduction 1.1 State Responsibility 2. Wrongful Act 2.1 The United States and the killing of Osama Bin Laden 2.1.1 Targeted Killing 2.1.2 Prohibition of the Use of Force 2.1.2.1 Declaration on Principles of International Law, Friendly Relations and Co-operation 2.2 Pakistan and a safe haven for Osama Bin Laden 2.2.1 Declaration on Principles of International Law, Friendly Relations and Co-operation 2.2.2 Resolution 1373 2.2.3 Due Diligence 3. Attribution 3.1 Al-Qaeda 3.2 The United States 4. Circumstances precluding wrongfulness; Counter-measures and Necessity 4.1 State of Necessity 4.2 Counter-measures 5. Circumstances that preclude wrongfulness; Self-defence 5.1 Significant Armed Attack 5.2 Another Armed Attack must be on their was or Convincing Evidence of that this may Occur 5.3 Attribution to a State 5.3.1 Real Link between State and Act 2

5.3.2 Self-defence Triggered by just an Attack 5.4 Necessity, Proportionality and Immediacy 5.4.1 Necessity 5.4.2 Proportionality 5.4.3 Immediacy 5.4.4 Osama Bin Laden 6. Conclusion 3

1. Introduction Good evening. Tonight, I can report to the American people and to the world that the United States has conducted an operation that killed Osama bin Laden, the leader of Al-Qaeda, and a terrorist who is responsible for the murder of thousands of innocent men, women, and children. 1 On Monday May 2 2011 Barack Obama, the current president of the United States, announced that Osama Bin Laden had been murdered. Osama Bin Laden was the leader of a terrorist organization called Al-Qaeda and had declared a jihad war against the United States. 2 He is best known for the 9/11 attacks. On September 9 2001 four planes were hijacked, two flew into the Twin Towers and one into the Pentagon, killing 2.973 people. 3 In October 2004 Osama Bin Laden claimed direct responsibility for the first time since the attacks. In the video that was aired on the Arabic TV station Friday Night Osama Bin Laden admitted that he had ordered the attack that had occurred on September 9 2001. On this tape Osama Bin Laden also warned for new attacks and said that there were still reasons to repeat what had happened. 4 Barack Obama referred to this threat in the video in which he announced the death of Osama Bin Laden. Osama Bin Laden had been hiding in Pakistan. In secret the American government prepared an action to kill Osama Bin Laden and as we now know the raid succeeded. They killed him on the territory of Pakistan and threw his body into the sea. 5 This mission greatly embarrassed Pakistan because its leaders had not known about this. Barack Obama says in the short video in which he pronounces the death of Osama Bin Laden that cooperation with Pakistan helped lead the American troops to Osama Bin Laden and that both 1 http://www.nytimes.com/2011/05/02/world/middleeast/02obamatext.html?_r=1&pagewanted=all 2 Osama Bin Laden has confirmed this in an interview shown by the CNN that can be seen on YouTube. http://www.youtube.com/watch?v=dqqwnqja- 6w&feature=related 3 http://edition.cnn.com/2006/law/04/25/moussaoui.trial/ 4 http://www.foxnews.com/story/0,2933,137095,00.html 5 Supra note, 1 4

had agreed on this specific day. Barack Obama suggests here that Pakistan had consented to the operation. However Pakistani officials were kept in the dark about the attack on Osama Bin Laden, in fact the chief of the CIA later said that any cooperation with Pakistan on this could jeopardise the mission. 6 Asif Ali Zardari, the president of Pakistan, said that Pakistan was not secretly sheltering Osama Bin Laden. This is something that is questioned by US press. It is deemed inconceivable that Osama Bin Laden did not enjoy a support system because he had been able to hide on Pakistan for so long. 7 The United States suggests that the mission was in accordance with Pakistan and that both countries agreed with the operation. Pakistan denies that. So, the question that will be answered in this paper is whether the United States of America committed an internationally wrongful act against Pakistan by killing Osama Bin Laden on Pakistans territory and whether it is accordingly responsible under international law. 1.1 State Responsibility The International Law Commission wrote down the ILC Articles on Responsibility of States for Internationally Wrongful Acts, these could be used to determine the responsibility of a State. These articles are not a treaty. They are however mentioned by the General Assembly 8 and reflect for a big part of it customary law. In order to determine if the United States has committed an internationally wrongful act by killing Osama Bin Laden on the territory of Pakistan it must first be determined whether they have breached an international obligation. Then it must be determined if the wrongful act can be attributed to that State. There are a number of circumstances that preclude wrongfulness that the Untied States can invoke. One of these is the countermeasure. In order for the United States to invoke this circumstance that precludes wrongfulness it must be determined whether Pakistan has also committed a wrongful act. A 6 http://www.guardian.co.uk/world/2011/may/04/osama-bin-laden-pakistanwords?intcmp=srch 7 http://www.guardian.co.uk/world/2011/may/03/osama-bin-laden-pakistanpresident?intcmp=srch 8 GA, resolution 56/83, 28 January 2002 5

countermeasure may follow after another state has committed an internationally wrongful act. In order for the killing of Osama Bin laden to be a countermeasure, Pakistan must have committed an internationally wrongful act first. Another circumstance that might be applicable here is necessity. This can be invoked if the United States must have killed Osama Bin Laden as a necessity to protect its essential interest. It is possible that the mission to kill Osama Bin Laden was an act of Self-defence. Self-defence is another circumstance that preclude wrongfulness according to the ILC Articles. For Self-defence an armed attack must have occurred and be attributable to a state. Therefore it is also necessary to see if the act of a non-state actor, in this case Al-Qaeda can be attributed to Pakistan. If the United States cannot invoke the circumstances that preclude wrongfulness there will be no justification for the internationally wrongful act and the United States will remain responsible for the killing of Osama Bin Laden. 2. Wrongful act An internationally wrongful act of a State consists of a breached of an international obligation applying to that State. Article 12 of ILC Articles provide that there is a breach of an obligation if a State has not acted in conformity with what was required according to this obligation; this obligation can be found in a treaty or customary law. 9 Furthermore the State must be bound to the obligation at the time the act that breached the obligation occurred. 10 To find out whether one of the parties has committed a wrongful act, that party must have breached an obligation that it was bound to. 2.1 The United States and the killing of Osama Bin Laden The first thing to determine is whether the United States breached an international obligation which it was bound to. Which international obligation did the United States breach by killing Osama Bin Laden in Pakistan? 9 Article 12 ILC Articles on Responsibility of States for Internationally Wrongful Acts (here after: ILC Articles) 10 Article 13 ILC Articles 6

First of all it is important to determine what kind of act the killing of Osama Bin Laden is, namely targeted killing. This is a new form of attack, of which the killing of Osama Bin laden is a good example. The first provision to take into account if the killing of Osama Bin Laden is a breach of an obligation is the article 2(4) of the UN Charter. States are not only bound by this rule by being a member of the UN but this provision also reflects customary law. 11 This article is elaborated in the Declaration on Principles of International law, Friendly Relations and Co-operation made by the General Assembly. Although this declaration is in itself not a binding document it does helps interpreting the Charter provisions that are relevant. 12 After article 2(4) and the declaration on friendly relations, it will be explained what sort of attack the attack on Osama Bin Laden was, namely targeted killing. This is a new form of attack, of which the killing of Osama Bin laden is a good example. 2.1.1 Targeted Killing The killing of Osama Bin Laden by the United States is a form of targeted killing. Targeted killing is a deliberate decision to order the death of someone. 13 It is a form of employing lethal force against human beings. 14 Targeted killing is to act pre-emptively either to deter or prevent terroristic attack from happening. 15 The aim of the targeted killing must be oriented at the future; it must either halt an attack or deter one. 16 When it comes to targeted killing it is not about the individuals but more about the role they play 11 Shaw, M. International Law, Cambridge: Cambridge University Press (2008) p. 1123 12 Ibid. 13 Guiora, A. Targeted Killing as Active Self-Defence, Western Reserve Journal of International Law, 36 (2004), p. 322 14 Melzer, N. Targeted Killing in International Law, Oxford: Oxford University Press (2008), p. 3 15 Supra note 13, p. 322 16 Kretzmer, D., Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence, European Journal of International Law, 16 (2005), p. 188 7

in the terrorist group. 17 Targeted killing is used to kill individuals who have either participated in terror attacks or have ordered them to be carried out. 18 The killing of Osama Bin Laden is a clear version of targeted killing. It is not so much that Osama Bin Laden committed the attacks of 9/11 himself but he has an important role in Al-Qaeda and that he has ordered the attacks to be carried out. 2.1.2 Prohibition of the Use of Force Article 2(4) of the UN Charter states that All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State. The Use of Force is commonly understood as an armed attack or military attack, but the use of force has a much wider significance. The term use shows that this act is the beginning of a series of acts. 19 A requirement for the use of force is that it is not an incident; it must entail a planned operation. What is meant with incident is that the attack is not a form of mistake, it must be deliberate and that depends on the intention of the attack. 20 The phrase territorial integrity is not mant to have a restrictive effect. Instead of being restrictive, it is intended to give specific guarantees to small states. It is not mant to label the use of force. 21 The phrase territorial integrity explains the total of legal rights that a state has. 22 When using the phrase territorial integrity in this case, it is not supposed to limit the rights of a State, but merely to show its rights. Territorial integrity must not be explained that it forms a limitations to right of States not to experience use of force, it is merely used for small States to show the entire scope for which use of force is prohibited. Therefore the use of force cannot be restricted to use against states by territorial integrity. For this reason if the killing of Osama Bin Laden is a form 17 Statman, D. Targeted Killing, Theoretical Inq. L., 179 (2004), p. 189/190 18 Supra note 13, p. 329 19 Brownlie, I., International Law and the Use of Force by States, Oxford: Oxford University Press (1963), p. 361 20 Ibid., p. 366 21 Supra note 19, p. 267 22 Ibid., p. 268 8

of use of force against Pakistan, ergo it is a form of use of force against the political integrity. Although the mission of killing Osama Bin Laden is a single act, it still falls within the scope of use of force. In order to kill Osama Bin Laden, American militaries infiltrated Pakistan and killed Osama Bin Laden by meanings of weapons. This can be qualified then as an armed attack. In this case there is no question of economic measures or different kinds of weapons, it involves an attack planned by the government of the United States and performed by the military. It was not a mistake, in fact, this mission was a well-thought out act to kill Osama Bin Laden. Therefore the killing of Osama Bin Laden is a form of use of force. It has become clear then that this act is a form of use of force and that this is in principle prohibited. This article is explained in more detail in the declaration on friendly relations and that is why it is necessary to consult this declaration as well. 2.1.2.1 Declaration on Principles of International Law, Friendly Relations and Co-operation. The declaration is an expanding on article 2(4) of the UN Charter. To get a full picture of why targeted killing is a violation of article 2(4) it is therefore necessary to also consult the declaration. The declaration has been made by the General Assembly. 23 There has been some discussion whether or not this declaration is just a recommendation or if this declaration is a reflection of legally binding rules. It should mainly be considered as customary law. 24 Therefore the rules that this declaration contains apply to the US as well as Pakistan. The conduct of the US and Pakistan is contrary to some of the rules contained in the declaration. 23 GA, Resolution 2625, Declaration on Principles of International Law Friendly Relations and Co-operation Among States in Accordance with the Carter of the United Nations, 24 October 1970, Here after: Declaration on Principles 24 Rosenstok, R. The Declaration of Principles of International Law Concerning Friendly Relations: A Survey, American Journal of international Law, 65 (1971), p. 714 9

The first thing that is mentioned in the declaration is the confirmation of the prohibition of the use of force. The declaration does not only mention this but also states that States have the obligation not to intervene in the affairs of another State. 25 There is no doubt that armed force falls within the description of use of force. 26 The obligation not to intervene in another State s affairs concerns the internal as well as the external affairs either directly or indirectly. Intervention in this case really means anything, even innocent conduct. 27 Furthermore this declaration states that every state shall settle international disputes peacefully in order to maintain international peace and security. 28 This principle is a logical addition to the first principle discussed, the prohibition of the use of force. 29 According to this principle it is in the first place up to the states to determine what kind of peaceful settlement can be reached; however, negotiating is seen as a specific example of peaceful settlement. 30 It is difficult to determine who caused the dispute to fail, even when a dispute has failed. 31 This obligation of States not to intervene in the affairs of another State immediately shows a violation of an obligation from the US to Pakistan in the case of the killing of Osama Bin Laden. According to this description the US has the obligation to refrain from intervening in the internal affairs of another State. By killing a man on another state s territory leaves no misunderstanding that the United States has intervened in another State s internal affairs. Obviously invading another state s territory and killing a man without any intention of keeping him alive, is nowhere near a peaceful settlement and therefore it can be said that the peaceful settlement has failed. The United States has deliberately not told Pakistan about the location of Osama Bin 25 Declaration on Principles 26 Houben, PH. Principles of International Law Concerning Friendly Relations and Co-Operation Among States, American Journal of International Law, 61 (1967), p. 707 27 Arangio-Ruiz, G., The Declaration on Friendly Relations and the System of the Sources of International Law, Alphen aan den Rijn: Sijthoff & Noordhoff (1979), p. 125 28 Declaration on Principles 29 Supra note 26, p. 710 30 Ibid., p. 712 31 Supra note 27, p. 110/111 10

Laden, because they feared their mission would fail. With this choice they left Pakistan no option to settle this dispute on its own and therefore this is also a violation of the US of an obligation in this declaration. To summarize, the killing of Osama Bin Laden is form of targeted killing and this kind of use of force is prohibited by article 2(4) of the UN Charter. Targeted killing can however be a form of self-defence, if this may be true, will be discussed later on. 2.2 Pakistan and a safe haven for Osama Bin Laden. Let us assume for the sake of argument that Pakistan was aware that Osama Bin Laden was staying on its territory. Is it then possible that Pakistan may have violated an obligation as well? Was there an obligation to hand a criminal like Osama Bin Laden over to the US? In order to answer this question first the declaration on friendly relations will be consulted and then the resolution of the Security Council. After the attack of 9/11, The Security Council composed a set of Resolutions in order to secure safety and deal with the new developments on terrorism. The rules contained in the declaration, already consulted in the question whether the United States violated their obligations, and the resolution made by the Security Council will both be consulted. This resolutions is binding for members of the UN and therefore apply to Pakistan as well as the United States. 2.2.1 Declaration on Principles of International Law, Friendly Relations and Co-operation. If we look again at the declaration we will find that the declaration claims that states shall co-operate in the maintenance of international peace and security. Co-operation in itself does not mean all that much, it receives its meaning from further qualification. 32 Furthermore the word that is used in this sentence is shall. This shows that they do have a duty bound to co-operate with other states in maintaining the peace 33 and that Pakistan therefore did have a duty to co-operate with the United States about Osama Bin Laden. Osama Bin 32 Supra note 27, p. 142 33 Ibid., p. 143 11

Laden has, as a leader of Al-Qaeda, been involved in several actions that can be seen as a threat to international peace, with the actions of 9/11 as the most important one. The Security Council has also declared this. 34 If cooperation entails that Pakistan should have handled Osama Bin Laden over to the United States is not clear. However, in a recent decision of the International Court of Justice, the court decided that based on article 7 paragraph 1 of the Torture Convention, a state is obligated to either take steps into prosecuting the suspect who violated this convention or extradite him for the purpose of prosecution. 35 When explaining the declaration on principles in the light of this decision, it becomes clear that in this case Pakistan should have extradited Osama Bin Laden or prosecuted himself. Therefore it might be able to say that Pakistan did have violated this declaration now that if they knew where he was, they should have prosecuted him and because they did not, they should have extradite him and they did not do that either. However this decision does not show an absolute obligation to extradite Osama Bin Laden, so Pakistan did not fully breached their obligation. 2.2.2 Resolution 1373 If Pakistan knew about the whereabouts of Osama Bin Laden or maybe even if they should have known of the whereabouts of Osama Bin Laden, they violated resolution 1373 of The Security Council. 36 The Security Council drew up a resolution right after the attack of 9/11 as a response to terrorism. In this resolution the Security Council decided that all states should prevent those who commit terrorist acts from using their respective territories. 37 After that the Security Council decided that states should provide one another with assistance in criminal investigations relating to the support of terrorist acts. 38 Furthermore this resolution states that states should intensify exchange 34 Resolution S/Res/1373, 18 September 2001 35 ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgements, Reports 20 July 2012, para. 90 36 Resolution S/Res/1373, 18 September 2001 37 Ibid., paragraph 5 38 Ibid., paragraph 6 12

information regarding terrorist actions or movements. 39 So in this resolution a lot of violations on the side of Pakistan can be found. It is clear that Pakistan should not have let Osama Bin Laden stay on its territory without reporting to the US. Pakistan should have contacted the American government and should have tried to assist in the investigation against Osama Bin Laden, as soon as they found out that Osama Bin Laden was living on their territory. Pakistan should also have prevented its own citizens from co-operating with Osama Bin Laden and should have tried better to make sure that Osama Bin Laden left its territory or was arrested. Pakistan should have complied with this resolution and should have acted in compliance with the resolution if they knew where Osama Bin Laden was hiding. 2.2.3 Due Diligence A state is under a due diligence obligation not to allow their territory to be used for any terrorist attacks. If a state fails to comply with this due diligence obligation, that state commits an internationally wrongful act. 40 The Due Diligence obligation is an obligation of customary law and can be found in a decision of the International Court of Justice. 41 The due diligence obligation is an obligation that in contradiction to the resolution applies always and not just after the Security Council has made one. Next to the due diligence, which should always be followed, the Security Council made the resolution in the case of terrorism. The due diligence obligation involves a duty to exercise due care. It can also be seen as an obligation not to neglect. 42 The due diligence principle obliges the State to take reasonable measures to prevent violations by citizens. These reasonable measures must be the measures that any wellfunctioning government in the same situation can be expected to do. 43 For a 39 Ibid., paragraph 7 40 Ruys, T and Verhoeven, S. Attacks by Private Actors and the Right of Self- Defence, Journal of Conflict & Security Law, 10 (2005), p. 306 41 ICJ, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgement, Report 9 April 1949, p. 22. Here after: Corfu Channel 42 Farrior, S., State Responsibility for Human Rights Abuses by Non-State Actors, Proceedings of the Annual Meeting (American Society of International Law), 92 (1998), p. 302 43 Shelton, D., Private Violence, Public Wrongs and the Responsibility of States, Fordam International Law Journal, 13 (1989/1990), p. 23 13

state to be held responsible the negligence must be attributable to the authorities. 44 The authorities must have had knowledge of the situation or should have had knowledge of the situation. The due diligence principle entails not only an obligation to prevent private violence, but also the obligation to investigate the situation or to punish the culprit adequately. 45 This does not mean that a State is responsible for the purely private harm, there must still be special circumstances from where the responsibility of the State arises. 46 The State responsibility in the case of a failure of the due diligence does not follow from the injuries that are caused by an act, but by the response that a State had regarding the action that has happened. 47 Therefore does the due diligence obligation not entail the act of the private persons, but the reactions, such as the motion to prevent private violence or investigate the act and punish the people responsible for the act. To see whether or not Pakistan has failed their due diligence obligation the test is if by the reasonable measure of prevention that any well-functioning State could have expected to exercise in similar circumstances. 48 The question then is if Pakistan knew about the fact that Osama Bin Laden was staying on their territory or should have known and whether Pakistan responded adequately to this knowledge. Whether Pakistan knew about the hiding-place of Osama Bin Laden is not clear, however for the sake of argument it is best to assume that they knew or that they at least should have known, because every State has the obligation not allow that their territory is used for acts contrary to the rights of other states 49. Osama Bin Laden, someone who clearly violated the rights of other states, is such a wanted person who had been hiding on their territory for so long, therefore Pakistan should have known that he was staying here. So even if they really did not 44 Lillich, RB. and Paxman, JM. State Responsibility for Injuries to Aliens Occasioned by Terrorist Activities, The American University of Law Review, 26 (1976/1977), p. 242 45 Supra note 42, p. 302 46 General Claims Commission, W.A Noyens Case (Panama vs United States), 6 R Int l Arb. Awards 308 (1933), at 311 47 Supra note 43, p. 23 48 Ibid.,, p. 23 49 Corfu Channel, p. 22 14

know about the fact that Osama Bin Laden was hiding in Pakistan, they still violated the due diligence obligation because they should have known. 3. Attribution Once there has been established that the state breached an internationally obligation, the next thing to determine is whether the breaches of the obligations can be attributed to the state. It might be possible that the breach of the obligation might come from a group that is not a part of the state and might therefore not be an internationally wrongful act. The articles 4 till 11 of the ILC Articles state which groups or acts of groups can be attributed to the state. 3.1 Al-Qaeda It is a possibility that the actions of Al-Qaeda can be attributed to a State. This is important for the question if the United States committed a wrongful act because they might invoke the right of self-defence. Therefore the first thing to do is decide whether the actions of Al-Qaeda can be attributed to Pakistan under international law as reflected in the ILC Articles. Al-Qaeda is a terrorist group, Al-Qaeda is no organ of the Pakistan and is neither exercising elements of governmental authority for Pakistan. Therefore this rules out article 4, 5, 6 and 7 of the ILC articles. The only real possibility for the act of Al-Qaeda to be attributed to Pakistan is under article 8 of the ILC articles. According to this article an act of a private person/entity shall be considered as an act of a state if that group was acting under the instructions or directions of that State. The test that is used in this case is the test of effective control. This test was also used in the Nicaragua case before the international Court of Justice. 50 For effective control there must actually be participation of the State or clear directions from the state. 51 In the commentaries on the ILC articles this is explained in detail. In the 50 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgements, Reports 1986, para. 115. Here after: Nicaragua case 51 Draft Articles on Responsibility of States for Internationally wrongful Acts, with commentaries (2001), p. 47, Here after: Commentaries 15

commentaries it is stated that before a state can be held responsible for such a group a real link must exist. 52 Later on in the commentaries this principle is expanded so far that the action will only be attributable to a State if that state has directed or controlled the specific operation. It states that this principle does not go so far that the conduct which was only incidentally or peripherally associated with an operation and which has escaped the direction or control of a state, falls under this article. 53 If Pakistan has hidden Osama Bin Laden they have clearly helped him, in that case there is still no real link or effective control but the state is still involved. 54 However this is not enough for Pakistan to have effective control over Al-Qaeda and therefore the act cannot be attributed to Pakistan according to article 8 and the test of effective control. 3.2 The United States Whether the killing of Osama Bin Laden can be attributed to the United States is clear. American soldiers who were acting under the command of the American Government performed the killing of Osama Bin Laden. Article 4 of the ILC articles applies here. The soldiers who have killed Osama Bin Laden are part of the American Government and therefore a state organ. The act of killing Osama Bin Laden on the territory of Pakistan is therefore an act that can be attributed to the US. 4. Circumstances precluding wrongfulness Not every circumstance that precludes wrongfulness is applicable in this situation. Article 23 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts contains the concept of force majeure and precludes the wrongfulness of a state in the case of an irresistible force or an unforeseen event. The killing of Osama Bin Laden was a planned attack, so there was no question of an irresistible force, so article 23 is not applicable here. Nor is article 24, which contains the issue of distress when there is a situation of no other reasonable way, in case of for example saving 52 Commentaries, p. 47 (1) 53 Ibid., p. 47 (3) 54 Moelier, G., De Oorlog Tegen het Terrorisme en Zelfverdediging tegen Niet- Statelijke Actoren, Vrede en Veiligheid, 39, (2010) p.283 16

someone s life. That is also not applicable here, because there was no situation with no other reasonable way to solve this. Barack Obama implies in the video in which he pronounces the death of Osama Bin Laden that Pakistan has consented to the operation. If Pakistan had given a valid consent to attack on Osama Bin Laden, that would preclude the wrongful act according to article 20 of the ILC articles. However, for a legal form of consent a State must have given their consent either in advance or at the time that act took place. 55 Pakistan was deliberately kept in the dark about the attack that was planned on Osama Bin Laden. Only afterwards Pakistan was informed. Therefore Pakistan did not give a valid consent seeing that this must be given beforehand or during the attack. The circumstance that preclude wrongfulness, consent, does therefore not apply in this case. However, there are three other circumstances that preclude wrongfulness that are worth looking into. These are necessity, countermeasures and self-defence. 4.1 State of Necessity The principle of necessity is explained in article 25 of the ILC articles and its application is a highly controversial concept. 56 The principle of necessity can be invoked by a state to safeguard their essential interest from a grave and imminent peril. State practice and judicial decisions do support the idea of necessity, as long as it follows certain limited conditions. 57 Ensuring the safety of the civilian population can be an essential interest of a state. 58 A terrorist attack can be seen as a threat of an essential interest, if the threat of a terrorist attack is grave enough. 59 However when it comes to necessity it is 55 Commentaries, p. 73 56 Supra note 40, p. 309 57 Commentaries (14) 58 Ibid., (15) 59 Laursen, A., The Use of Force and (the State of) Necessity, Vanderbilt Journal of Transnational Law, 37 (2004), p. 521 17

important that the response is a response of emergency and deals with grave immediate peril. 60 The question here is if the state of necessity is such that it can be an exception to the use of force. In the commentary on the draft it says that article 25 is not competent to cover measures of use of force. 61 Therefore the state of necessity is not a legitimate concept to rely on in this case. Although terrorist attacks might be able to fall under grave and imminent peril and the safeguarding of civilians is an essential interest, this is article is not competent to justify the use of force. So the United States may not rely on article 23 to justify the killing of Osama Bin Laden. 4.2 Countermeasures Article 22 of the ILC articles contains the concept of countermeasures. This article states that: The wrongfulness of an act of a state not in conformity with an international obligation towards another state is precluded if and to the extent that the act constitutes a countermeasure taken against the latter state in accordance with Chapter II of part three. The concept of countermeasures is further formulated in Chapter II of the ILC articles. Article 50 paragraph 1 states that countermeasures shall not affect the obligation to refrain from the use of force as this is embodied in the UN Charter. This exception follows from the Declaration on principles of international law on friendly relations and cooperations among states. In this declaration it is stated that use of force may not be used to solve international disputes. 62 It becomes clear then that for the taking of countermeasures, no use of force may be used as is stated in article 50 of the ILC Articles. For the killing of Osama Bin Laden to be an illegal form of a counter-measure, it must be proven that the killing is a violation of article 2(4) of the UN Charter, the provision that contains the general prohibition on the use of force. The killing 60 Ibid., p. 522 61 Commentaries, (21) 62 Declaration on Principles 18

must then be a form of use of force against the territorial integrity or political independence of Pakistan. It has already become clear that the killing of Osama Bin Laden is a form of use of force against the territorial integrity or political independence of Pakistan. 63 However some forcible measures are not wrongful, such as countermeasures, if they are a legitimate use of selfdefence. 64 So although Pakistan did commit a wrongful act by failing to comply with their obligations under de declaration on friendly relations and the resolutions of the Security Council 65 and their due diligence obligation, killing Osama Bin Laden on its territory cannot be seen as a legitimate countermeasure. In order to kill Osama Bin Laden they must have used force and this is particularly prohibited when it comes to countermeasures. 5. Circumstances that preclude wrongfulness; Self-defence As can be seen from the previous chapter none of the other circumstances that preclude wrongfulness are applicable. That only leaves self-defence. It is a possibility that the United State can invoke the right of self-defence in the case of the targeted killing of Osama Bin Laden. Targeted killing, a kind of act that the killing of Osama Bin Laden is, is in principle illegal. In order for targeted killing to be legitimate it must be an act of self-defence. Targeted killing is only permitted if this person is a serious threat to the public order and safety 66 and that the killing can be justified by the fact that it is the group that forms the threat to the state, and the state is entitled to defend itself against that group. 67 Targeted killing must be proportionate and necessary, and may only occur when arresting the individual is of great risk targeted killing is an option. 68 If this is legitimate, the killing of Osama Bin Laden is not a wrongful act. However it has been shown that self-defence is still the only framework that can justify targeted killing because it is the only exception on the 63 Chapter 2.1.1 64 Dinstein, Y. (2005), War, Aggression and self-defence, Cambridge: Cambridge University press, p. 226 65 Resolution 1373, 1386 66 Supra note 13, p. 322 67 Supra note 16, p. 188 68 Supra note 13, p. 330 19

prohibition of the use of force. 69 The killing of Osama Bin laden is a form of targeted killing and it must be proven that it is a form of self-defence. Self-defence is prescribed in article 21 of the ILC articles. Article 21 states that a lawful act of self-defence, is a measure taken in conformity with the Charter of the United Nations. This refers back to article 51 of the UN Charter, which gives a description of self-defence. Article 51 states: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Self-defence is the fundamental right of every state to survival and therefore the right to self-defence can be invoked when the survival of a state is at stake. 70 This however is only the case in matters of extreme circumstances of self-defence. 71 The essence of self-defence is that a state can under certain conditions respond to the use of force with lawful use of force. 72 Furthermore, the right to self-defence is an inherent right. It is inherent in the sovereignty of states. 73 Article 51 of the UN Charter describes this right. This does not mean that the right of self-defence is applicable only to the member states of the UN. Customary law has shown that every state is entitled to self-defence. 74 Article 51 is an exception to the rule of article 2.4, which prohibits every state the use of force against other states. In this article the term use of force is 69 Supra note 17, p. 189 70 ICJ, Advisory Opinion, Legaltity of the threat or Use of Nuclear weapons, 8 July 1996, p. 263 71 Ibid., p.263 72 Supra note 64, p. 175 73 Ibid., 179 74 Ibid., 181 20

explicitly used instead of the term war. This shows that it was not just the idea to prohibit war but also all kinds of armed conflicts in general are meant. 75 That is why it also applies for a killing like the of Osama Bin Laden. In order for the US to have committed a lawful act of self-defence, it must meet the four conditions that rise from this article. 1. The US must be a victim of a significant armed attack. 2. The armed attack against the US must be either on its way or the US must have at least clear and convincing evidence that an armed attack may occur. 3. The defending state, in this case Pakistan, must be responsible for the armed attack. 4. Self-defence must be necessary and proportionate. 76 It might look unnecessary to see whether self-defence is applicable here, because it was already established that the attack of 9/11 cannot be attributed to Pakistan. However, as will become clear at chapter 5.3, the question of attribution might be evolved and therefore it is still necessary to see if the United States might invoke the right of self-defence. 5.1 Significant armed attack. The first and far most important condition of the act of self-defence is the requirement of a significant armed attack. Self-defence is a reaction to an armed attack, therefore self-defence cannot occur without an armed attack. Self-defence is only possible in such a case and must not be confused with terms as aggression as they are used in other articles in the United Nations Charter (like article 39 and article 53). 77 Even a declaration of war is not enough to be seen as an armed attack. 78 To see what contains the definition of an armed attack, one must look at the decision of the International Court of Justice in the Nicaragua case. In this 75 Murphy, SD. Terrorism and the Concept of Armed Attack in Article 51 of the UN Charter, Harvard International Law Journal, 43 (2002), p.42 76 O Connell, ME. Lawful Self-Defence to Terrorism, University of Pittsburgh Law Review, 63 (2001/2002), p. 892 77 Supra note 64, p. 184 78 Ibid., p. 186 21

decision the court decided that an armed attack does not only occur in case of an action by regular armed forces which act across the border but also in case of sending armed bands or groups, irregulars or mercenaries by or on behalf of a state which carry out acts of armed force against another state of such gravity as to amount to an actual attack conducted by regular forces. 79 The Security Council reaffirms in resolution 1373 the act of collective selfdefence as a reaction to the attack of 9/11. In the resolution however the Security Council does not explicitly state that the United States may use armed force as an act of self-defence as a reaction to 9/11. 80 It does however conclude that the actions of 9/11 were significant enough to endorse the right of self-defence if the other conditions for self-defence are also met. 81 In this resolution the Security Council deems itself competent to take measures against Al-Qaeda and if the Security Council finds itself competent in a situation like this, an attacked state feel competetent. 82 Furthermore, neither the Security Council, nor the General Assembly has ever stated that the act of the United States against Afghanistan to prevent and revenge terrorism was a violation of the Charter of the United Nations. 83 Not only the Security Council approved of the act of self-defence in this case, also other states did. The United Kingdom directly participated in the fight against Afghanistan and other countries, such as China, Egypt a Russia, declared their support. 84 The attack on 9/11 by Osama Bin Laden was definitely a significant armed attack. It was a use of force, not a threat. The Security Council decided that the attack of 9/11 may evoke the right of self-defence and furthermore the Security Council never objected to the invasion of Afghanistan by the United States. Therefore it can be concluded that the attack of 9/11 is an armed attack in the sense of article 51. 79 Nicaragua case, p. 103 80 resolution 1373 81 Supra note 76, p. 892 82 Franck, TM. Terrorism and the Right of Self-Defence, The American Journal of International Law, 95 (2001), p. 840 83 Ibid., p. 840 84 Supra note 75, p. 49 22

5.2 Another armed attack must be on their way or convincing evidence of that this may occur. Article 51 states that self-defence is only legal if an armed attack occurs. In order for an attack to be self-defence, self-defence must be the only object. 85 The ICJ had requested that for self-defence to be lawful it could not be solely to send a message. 86 In other words self-defence is not an act of punishment or revenge. Self-defence must stop an attack in progress or a defence against an attack that is about to take place. 87 When a significant armed attack already has occurred but is not going on any more, the state that wants to act under self-defence must provide clear and convincing evidence that there are circumstances that warrant the use of force. 88 The ICJ has not yet confirmed the idea that an act of self-defence must be supported by clear and convincing evidence, it does, however, mention the concept of clear evidence. 89 In the declaration on the principles of international law on friendly relations and cooperation among states, the general assembly and the International Court of Justice 90 state that States have the duty to refrain from acts of reprisal involving the use of force. 91 This shows that States are not allowed to use force in case of punishment and therefore only can happen if there may occur another armed attack. An act of self-defence must leave no moment for deliberation. 92 In the case of 9/11 the Security Council has, however, declared the act of selfdefence of the United States against Afghanistan lawful. 93 In this resolution the Security Council reaffirms the act of self-defence in case of terrorism. Selfdefence was in that case lawful even though it is not known if another armed 85 Supra note 76, p. 893 86 Nicaragua case, p. 103 87 Supra note 76, 893 88 O Connell, ME. Evidence of Terror, Journal of Conflict and Security Law, 7 (2002), p. 20 89 Nicaragua case, para. 109 90 Nicaragua case, para 191 91 Declaration on Principles 92 Supra note 82, p. 840 93 Resolution 1373 23

attack is not yet underway. However the state must be able to show that there is clear and convincing evidence that another armed attack is planned. 94 An armed attack does not have to be underway, but there must be indubitable planning for an armed attack. For the killing of Osama Bin Laden to be justified there must be clear and convincing evidence that Al-Qaeda was planning new attacks on America. And since in this case America s intent was to kill Osama Bin Laden, there must be clear and convincing evidence that Osama Bin Laden was planning a new attack on America. It is important to wonder how involved Osama Bin Laden still was in Al-Qaeda because it was Al-Qaeda who did the attack of 9/11 and it is Al-Qaeda who might be planning a new attack. In order for the killing of Osama Bin Laden then to be a legal form of self-defence he must still be involved in this organization, otherwise there will be no new armed attack underway and therefore the act can be no legal form of self-defence. The involvement of Osama Bin Laden in Al-Qaeda is not exactly clear. It has been said that he is no longer a leader of Al-Qaeda, that he is no longer operationally active, but that he is just a symbolic leader. 95 Furthermore, resolution 1373 of the Security Council was made right after the attacks of 9/11 occurred in 2001. It is not clear that this still applies 10 years later in 2011. The ICJ clearly stated that self-defence cannot be sending a message; self-defence cannot be just an act of revenge. However, the new development of targeted killing sheds a different light. When it comes to targeted killing it is not about the man but rather about the position he had in a terrorist group. 96 In that case Osama Bin Laden is a legal target just because he has a certain position in Al-Qaeda. It would in that case not matter is Osama Bin Laden is only a symbolic leader or not. However is must still be proven that Al-Qaeda is still planning attacks, otherwise Al-Qaeda is no legitimate target for self-defence and neither is then Osama Bin Laden. 94 Supra note 76, p. 895 95 Maarten van Rossum, http://www.maartenonline.nl/nl/weblog/487/osamabin-laden-symbool-van-wat-eens-was.html 96 Chapter 2.1.3 24

5.3 Attribution to a State. Once it is established that 9/11 was a significant armed attack and that there is clear and convincing evidence that another attack might occur again, it is necessary to determine if the act can be attributed to a state. The 9/11 attack was committed by a terrorist group called Al-Qaeda, which in principle is in no way a State. In order for the killing of Osama Bin Laden to be a lawful act of self-defence, the attack of 9/11 must be attributable to a State. For selfdefence it is necessary to act upon another state s territory. It becomes clear that from resolution 1386 self-defence can be used against Afghanistan, no such resolution has been written about Pakistan. Could the act of self-defence against terrorism be so far extended that it also applies to another territory, and in this case the territory of Pakistan? In order then for an act to be attributable to a state, the state must be substantially involved in the act. 97 The International Court of Justice gives a sort of explanation. The court states that for this conduct to give rise to a legal responsibility of the United States, it would have to be proven that that State had effective control over the military or paramilitary operations in the course of which the alleged violations were committed. 98 The test of effective control of states is incorporated in article 8 of the ILC articles. 99 This old test of effective control does not give the solution here, because according to this test the act of Al-Qaeda cannot be attributed to Pakistan and therefore the United States cannot invoke self-defence. For self-defence to be applicable then, it must be submitted to a new test. When it comes to self-defence there are two different approaches, which can be applied in the case that an act cannot be, attributed to a state through the regular articles of the ILC articles. The first approach of self-defence remains more true to the original explanation of self-defence, saying that there has to be a real link between the State, where the self-defence act is against, and the act that is committed. This approach does withhold a bit easier test then 97 Supra note 54, p. 282 98 Nicaragua case, para. 115 99 Chapter 3.1 25

the test of effective control. However, a new theory has evolved that in order for self-defence to be lawful there does not have to be a real link between the state and the act any more to justify self-defence, accept that the ones who commit the act have to be on the territory of a specific state. The fact that a State is under attack is enough justification to rely on the right of selfdefence. 100 Both theories do however accept the fact that in order for selfdefence to be lawful the test of effective control is too strong of a test. Even the first approach, that still holds on to the fact that there must be a real link between the state and the act, states that it would be almost impossible for the right of self-defence to consist if the law of self-defence holds on to the narrow test of attribution to a state as it did with the test of effective control. 101 5.3.1 Real link between State and act The first approach contains the fact that in order to invoke the right of selfdefence against a State, that State has to be involved in the armed attack that has occurred. 102 This theory is based on the fact that there has not been a real evolution in the right of self-defence, that there has not actually been a change in the law of self-defence. 103 If the necessary link between the State and the attack disappeared, this would result into highly unwanted situations. In that case States that did not commit an internationally wrongful act can still be exposed to military violence. This other theory would stick clearly to the idea of State sovereignty and can therefore not be accepted. 104 The resolutions 1373 and 1368 must then not be read as accepting that every State should be able to attack wherever they like to stop terrorism, but merely that use of force will only be legal in the cases where the Security Council has individually agreed to it. 105 5.3.2 Self-defence justified by just an attack 100 Supra note 54, p. 289 101 Supra note 40, p. 25 102 Supra note 54, p. 289 103 Van Steenberghe, R. (2010) Current Legal Developments. Self-defence in Response to Attacks by Non-State Actors in the Light of Recent State Practice: A Step Forward?, Leiden Journal of International Law, 22, p. 192 104 Supra note 40, p. 24 105 Supra note 40, p. 24/25 26