THE LEGALITY OF ASSASSINATION OF OSAMA BIN LADEN UNDER INTERNATIONAL HUMANITARIAN LAW INTRODUCTION On 2 nd * ROMMYEL RAJ May 2011, the U.S Navy Seal Team 6 undertook a covert operation, Operation Geronimo 1, and the objective of this operation was to kill or capture Osama Bin Laden. This operation was carried out in Abbottabad, Pakistan, where Osama Bin Laden, according to various intelligence agencies, was hiding. The Seals managed to wrap up the operation in a matter of 40 minutes which ended with the death of Osama Bin Laden. The Seals, the CIA and the U.S Army s 160 th Special Operations Aviation Regiment showed great amount of heroism in contrast to Osama Bin Laden, who was reported to have used one of his wives as human shields during the fire fight with U.S forces in Abbottabad 2. On receiving the news of Osama s death, American citizens broke out in spontaneous celebration. Osama Bin Laden s assassination, along with celebration, also brought along various questions regarding the legality of his assassination. In this research paper, I will analyse the various questions regarding the legality of this raid under International Humanitarian Law (law of armed conflicts) and U.S violation of Pakistan s territorial sovereignty. The various issues I intend to focus upon include the definition of armed conflict under International Humanitarian Law, the various arguments presented by the United States for justifying the raid in Abbottabad and the arguments which oppose this view. The first part of the research paper will focus on International Humanitarian Law. It will start by defining international armed conflict and non international armed conflict, which will later help in determining whether United States and Al Qaeda, at the time of killing Osama Bin Laden, were involved in any of the above mentioned conflicts. The next part will deal with the justifications presented by the United States in favour of the raid in Abbottabad. The last part of the research paper will focus on the question whether he was a legitimate target under the International Humanitarian Law and whether USA infringed upon the territorial sovereignty of Pakistan by conducting Operation Geronimo. The paper will end with my conclusion and analysis of the major question pertaining to the legitimacy of the entire operation. 1 Marouf Hasian Jr (2012), American Exceptionalism and the bin Laden Raid, Third World Quarterly, (2012). 2 Ibid 294
INTERNATIONAL HUMANITARIAN LAW International Humanitarian Law (IHL) also known as the law of armed conflicts, comprises of the four Geneva Conventions of 1949 (the Geneva Conventions), the 1908 Hague Regulations (The Hague Regulations) and various other treaties and customary laws. 3 Under International Humanitarian Law, there are two types of armed conflicts, international armed conflict and non international armed conflict. Common Article 2 of Geneva Conventions 4 defines an international armed conflict as an armed conflict which arises between two or more High Contracting Parties or conflict between Nations and Common Article 3 to the Geneva Conventions refers to a non international armed conflict as an armed conflict not of an international character 5 or not between nations. Since, the conflict between United States and Al Qaeda is not a conflict between two nations, therefore it cannot be categorised as an international armed conflict. However, since the conflict is of extraterritorial nature, it also cannot be categorised as a non international armed conflict either. This question will be tackled and further explored in the following parts of the research paper. JUSTIFICATION BY UNITED STATES Self Defence The doctrine of self defence under article 51 of the United Nations Charter, in the present case can be used as an exception to the Article 2(4) of the U.N Charter of principle of protection of sovereign territory 6 and the second form of justification that can be used for is the right of the nation to use deadly force against a particular individual or a set of individuals if they pose a national threat, not necessarily an immediate threat at the time of the attack. To justify the use of lethal force, Unites States relied on the Authorization to Use Military Force Act of September 18, 2001. This act allows the President to use any and all necessary force against those nations, organisations or persons who were involved in the 9/11 3 Amanda Elfstrom, The Killing of Osama Bin Laden, Was it Lawful? pg. 12, (August 2011) 4 ibid 5 Kai Ambos and Josef Alkatout (2012). Has Justice Been Done? The Legality of Bin Laden's Killing Under pg. 12 6 Beth Van Schaack, The Killing of Osama Bin Laden & Anwar Al Aulaqi: Uncharted Legal Territory, Santa Clara University School of Law, pg. 14, (1 st December, 2012) 295
attacks. This act mainly focuses on the justification of self defence and to prevent any future acts of international terrorism against the United States. Pakistan s Territorial Sovereignty Breach The raid on Pakistani soil against Osama Bin Laden by USA without Pakistan s consent did result in the breach of Pakistan s territorial sovereignty. To defend their position in this matter, the primary argument presented by the United States was to show that the US was exercising its inherent and sovereign right of self defence which is an exception to the prohibition of use of force and breach of territorial sovereignty in the United Nations Charter. The United States argued that since after the attack of September 11 on the WTC towers, there had been a continuous threat of future armed attacks from Al Qaeda, with Osama Bin Laden as the organisation s leader. The risks of further attacks justify the breach of territorial sovereignty of Pakistan and the use of force in the operation. The United States gave the examples of the attempted attack on the US embassy and the failed Christmas bombings 7 against Unites States, both prior and subsequent to the 9/11 attacks, and these examples satisfied the need to take necessary measures against Al Qaeda for self defence and therefore, justify the breach of territorial sovereignty of Pakistan. In a situation where two countries are not at war, use of force on the soil of the other country is outlawed under international law. In order to arrest Osama Bin Laden, the United States required the consent of the Pakistani government to conduct a raid in Pakistani territory. This protocol was not followed because the U.S government had reasons to believe that the Pakistani intelligence agency might be intentionally giving refuge to Osama Bin Laden and would have informed Laden about the imminent raid. U.S government stated that in cases where the government is unwilling or unable to suppress a threat to others emanating from its soil, then a unilateral military incursion would be lawful. The above mentioned exception to breach of sovereignty is a long shot for various reasons. There are many countries which have not accepted this exception as reasonable and therefore question its legitimacy. There is no prior case in which this exception was used by a country for conducting raids in another country without first getting the country s consent. 7 Beth Van Schaack, The Killing of Osama Bin Laden & Anwar Al Aulaqi: Uncharted Legal Territory, Santa Clara University School of Law, pg. 15, (1 st December, 2012) 296
However, the reason given by United States cannot be entirely ruled out because it is highly likely that the Pakistani Intelligence agency was giving refuge to Osama Bin Laden. The very fact that Osama Bin Laden s compound in Abbottabad was located just 1.3km southwest of the Pakistan Military Academy, Bilal Town, gives rise to this suspicion. Possibility of Surrender of Osama Bin Laden The main question is whether it was lawful for the SEAL team to conduct the raid with the intention of killing Osama Bin Laden. In this situation, it is important to take into consideration situations where the main target might be surrendering, but secondary targets standing next to the main target are firing their weapons, or where the main target is wearing a suicide vest. After the 9/11 terrorist attack, the Congress had authorized the use of lethal force against the perpetrators. It was highly probable that the SEAL team would face resistance while raiding the compound and therefore were forced to discharge their weapons. In a raid of such an extreme level of danger and close quarter combat, military rules of engagement are stretched very narrow. In an interview with one of the members of the SEALs who took part in the raid, he stated that the rules of surrender were that if Osama Bin Laden was naked with his hands up, you are not going to engage him. He further stated that when he fired the fatal shot at Bin Laden, he was neither resisting nor surrendering (interview citation). Osama Bin Laden as Lawful Military Target Under the International Humanitarian Law, lawful military targets are combatants who are engaged in an international armed conflict 8. These individuals are vulnerable to continuous targeting without taking into consideration whether they are in the present combat or are not engaged in combat at that particular time, and unless they offer to surrender, there is no duty of the military to capture these individuals alive. In the present case, according to various mission reports, Osama Bin Laden did everything but surrender. These rules not only apply to the active combatants taking part in the hostilities, but also the officials occupying political positions and the strategists. Under International Humanitarian Law, Osama Bin Laden is considered as an enemy combatant who was an active member and one of the strategists of the organisation. Osama Bin Laden was subject to status based targeting which 8 Beth Van Schaack, The Killing of Osama Bin Laden & Anwar Al Aulaqi: Uncharted Legal Territory, Santa Clara University School of Law, pg. 33, (1 st December, 2012), 297
means that wherever they go, they may be attacked even when they are not directly engaged in hostilities. A State of Necessity The final argument given by United States which can justify the raid in Abbottabad is the existence of a general state of necessity. According to article 51 of UN Charter, a State can exercise the right to self defence once it has abided by the principles of necessity and proportionality. 9 According to article 25 of the International Law Commission s Articles on Responsibility of States for International Wrongful Acts, these principles can only be invoked by a nation when: 1. It is the only means for the States to safeguard an essential interest against a grave and imminent peril 2. Does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. 10 The International Court of Justice decided that this defence can only be invoked on an exceptional basis and under strictly confined conditions. 11 This means that it can only be invoked when the nation is in an imminent peril and this armed defence was the only means available to the responding state to safeguard an essential interest against such a danger. The International Law Commission and the ICJ declared that applying this defence in the cases which involve territorial intervention and the use of deadly force will be difficult, but in the present case, since Osama Bin Laden, in the past, had managed to elude capture and United States could not risk informing Pakistan about the raid because Pakistan is an undependable ally, United States could use this defence. The doctrine of necessity is useful in supporting the defence of self defence and also justifies not informing Pakistan of the imminent raid. 9 United Nations Charter, Article 51 10 Beth Van Schaack, The Killing of Osama Bin Laden & Anwar Al Aulaqi: Uncharted Legal Territory, Santa Clara University School of Law, pg. 22, (1 st December, 2012), 11 Ibid 298
Arguments against the United States Existence of an Armed Conflict between Al Qaeda and the United States International Humanitarian Law divides armed conflict into two different categories, international armed conflict and non international armed conflict. 12 The accepted definition of international armed conflict is given by a Tadic jurisdictional decision, which is based on common Article 2 of the Geneva Conventions (GC) I IV 13, which defines International Armed Conflict as, an armed conflict exists whenever there is a resort to armed force between States 14. Non international armed conflict is defined under the Common Article 3 GC-I which refers to non international armed conflict as an armed conflict not of an international character and Article 8(2) (f) of the ICC Statute defines non international armed conflict as, an armed conflict exists whenever there is a resort to protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. 15 According to the given definitions, it is clear that the conflict between Al Qaeda and United States is not of an international nature because an international armed conflict is between two different nations and Al Qaeda does not qualify as a nation. In the case of a non international armed conflict, according to the given definition, existence of an organised armed group is required. Therefore, to prove this point, it is important to clarify the question that whether Al Qaeda qualifies as an organised armed group or not. 12 Kai Ambos and Josef Alkatout (2012). Has Justice Been Done? The Legality of Bin Laden's Killing Under pg. 6 13 Ibid 14 Supra note 15 Kai Ambos and Josef Alkatout (2012). Has Justice Been Done? The Legality of Bin Laden's Killing Under pg. 7 299
Al Qaeda as an Organised Armed Group under IHL Under International Humanitarian Law, there are certain features and characteristics which a group should show for it to be considered as an organised armed group. For a group to be considered as an organised armed group, it should be centrally organised and should show a minimum degree of collectiveness 16. There should be a system of hierarchy in the group and should follow a chain of command and the group should have the capacity to carry out continuous and sustained military operations. According to Additional Protocol II of the Geneva Conventions, an organised armed group should have some form of territorial control 17. From the above requirements, it can be clearly derived that for a group to be considered as an organised armed group, it should have a central military command and should have a chain of command from top to bottom. These requirements are clearly not met by Al Qaeda since it is a loose and decentralised terrorist network. Al Qaeda is not a centralised network, it is divided in various different countries and all the different branches of the network are unaware of each other s operations. Al Qaeda is considered to be a globally interconnected network with a decentralised nature and has different operative cells working in different parts of the world. Al Qaeda s control over any territory is unclear because of the ambiguous territorial situation of the Afghan Pakistan border. The situation makes it more difficult to determine who effectively controls the area. Therefore, it is highly unlikely that Al Qaeda has any kind of territory under its control which fulfils the requirement of the Additional Protocol II principle. Although after the 9/11 attacks Al Qaeda did display some organisational structure and it did pose a threat to the United States and at that time should have been rightly regarded as an organised armed group, but at the time when Osama Bin Laden was killed in the military operation, Al Qaeda was barely active and did not pose a serious threat. Osama was no longer the head of the organisation, he was more of a spiritual leader, and therefore, the group had lost its organisational structure and the hierarchy. Thus, at the time of Operation Geronimo, Al Qaeda was not to be considered an Organised Armed Group. 16 Kai Ambos and Josef Alkatout (2012). Has Justice Been Done? The Legality of Bin Laden's Killing Under pg. 8 17 Kai Ambos and Josef Alkatout (2012). Has Justice Been Done? The Legality of Bin Laden's Killing Under pg. 9 300
Combatant or Civilian In the case of an international armed conflict, if a group is considered as an armed organised group, then each and every member of the group is considered to be a lawful military target and these members are not protected by civilian immunity, which means that they are not subject to trial and can be targeted even when they are not taking direct part in the hostilities. In the case of non international armed conflict, the members of the group retain their civilian immunity provided they are not involved in continuous combat function 18. This means that if a member has not or stopped taking part in the hostilities conducted by the group, then he can retain his civilian immunity. These members are subject to trial and prosecution but are not lawful military targets. In the present case, even if there was an armed conflict between Al Qaeda and United States, Osama Bin Laden s killing is justified if he were a part of an organised armed group, but according to the conclusion given above, Al Qaeda is not considered as an organised armed group. This does not mean that Osama Bin Laden is completely free from liability. He could have been tried and prosecuted by United States, instead of killing him. Since he was no longer a part of the organisation at the time of his assassination, he should have earned civilian immunity and should no longer have been a lawful military target. Direct Participation in Hostilities Under International Humanitarian Law, direct participation in hostilities means that a member of an armed group should commit acts which are for the purpose of causing harm to military personnel or equipment of the adversary. This also includes attacking or attempting to capture enemy forces, laying mines, planting or detonating bombs or sabotaging military lines of communication 19. In simple words, if a member of the armed organisation commits any kind of violence against enemy personnel or civilians, he is said to have directly taken part in hostilities. According to IHL, if a member withdraws himself form these type of activities, by surrendering, or by a long period of non participation 20, then that particular member is said to have gained immunity from being a lawful military target. 18 Kai Ambos and Josef Alkatout (2012). Has Justice Been Done? The Legality of Bin Laden's Killing Under pg.13 19 Kai Ambos and Josef Alkatout (2012). Has Justice Been Done? The Legality of Bin Laden's Killing Under pg.17 20 Ibid 301
In the present case, to derive whether Osama Bin Laden was eligible for immunity or not, his role and his activity within the organisation, before certain months of his killing, should be analysed. In the past, Osama Bin Laden certainly took part in hostilities and was an active fighter on the battlefield, but it can be seen that some months before his killing he seemed to have turned into more of a spiritual leader rather than a strategic and an active participant in the organisation. Before his killing, he was just hiding away in Pakistan, with no visible connection with Al Qaeda and no direct participation in the hostilities. Therefore, according to IHL, Osama Bin Laden should have been granted immunity from being a lawful military target and should have been brought in for his trial instead of his assassination. The above arguments show that even if one assumes that there was an armed conflict between Al Qaeda and United States at the time of killing Osama Bin Laden, Operation Geronimo most probably caused the death of a civilian who was no longer taking part in the hostilities. Conclusion By analysing the arguments given against the United States and the operation, it is clear that the case against the Unites States is a strong one, but the arguments presented by United States also make it difficult to reach at a firm conclusion. The self defence argument presented by the United States does justify their violation of Pakistan s territorial sovereignty, but the use of lethal force cannot be justified because Osama Bin Laden was considered to be a civilian under International Humanitarian Law. However, according to my analysis Osama Bin Laden was a civilian by the definition given by International Humanitarian Law and therefore could not be considered as a lawful military target of assassination. 302