My previous post on the Osama bin Laden killing and a number of posts at Opinio Juris have attracted a very productive discussion in the comments, which I would recommend to all readers who haven’t seen it already. The key issue that has emerged in this discussion is whether the legality of OBL’s killing depends on whether the US forces could have captured him through non-lethal means rather than killed him; if they could have, then according to some commentators they should have, and if they didn’t the killing was unlawful. Other commentators dispute this argument quite strongly. I offered some tentative thoughts on this in my earlier post, which I’ll develop here further, particularly as more pertinent facts have emerged since.
Let me first outline my view on the applicable law. To simplify matters, let us accept arguendo that I am right that human rights law, namely the ICCPR, applied extraterritorially to the killing of bin Laden, i.e. that the US had the obligation to respect OBL’s rights under the treaty and not deprive him of life arbitrarily, per Art. 6 ICCPR. Let us also accept that I am wrong in saying that IHL was probably inapplicable to his killing, and postulate further not only that IHL applied, but that OBL was a lawful target in some armed conflict of whatever nature (e.g. as a member of an organized group, or as a civilian directly participating in hostilities). Or, if you will, let us just postulate that OBL was killed in Abbottsville, Ohio rather than in Abbottabad, Pakistan. By so doing, we would be dealing with a military strike by a state within its territory in the course of an armed conflict, international or non-international, and would thus be avoiding the issues of self-defense/jus ad bellum and the extraterritorial application of human rights treaties which are not pertinent for the following analysis. The central issue that I will be dealing with will be the relationship between IHL and IHRL. (My more exhaustive examination of this topic can be found in this article, which I will drawing upon for the purposes of this post).
First, what do the two bodies of law say about intentional deprivations of life? The situation is, in my view, relatively clear under both regimes. Under IHL, the lawfulness of attacking a target depends on its status (which we’ve postulated for the purposes of this post). A combatant or a civilian taking a direct part in hostilities can be attacked at any time while the status persists, so long as the individual is not hors de combat, e.g. surrenders or is incapacitated. Contrary to some recent suggestions by Nils Melzer, both in the course of his academic work and in the ICRC DPH guidance, IHL does not impose a necessity requirement for attacking a target possessing such a status. In other words, there is under IHL no obligation to first employ non-lethal means against a lawful target, or to capture or detain before trying to kill. Shooting first is perfectly proper. Thus, again postulating some relevant type of status for OBL, under IHL he could have been shot and killed at any time. The fact that he himself was not carrying a weapon is immaterial; he would still have been a lawful target due to his status, just like Ghaddafi is a perfectly lawful target despite not carrying any arms under those flowing robes of his. The only way in which OBL could immunize himself from targeting would be if he clearly announced his intention to surrender or was incapacitated, i.e. rendered hors de combat.
IHRL, on the other hand, does not vary its protections on the basis of an individual’s status, and is of course far more life-protective than IHL. Deliberate use of lethal force is lawful only if absolutely necessary; non-lethal means must be exhausted first. A person may be targeted only if he poses danger to the lives of others; the danger should generally be immediate, but that requirement might perhaps be loosened if the level of danger is higher. But even the most dangerous individual must be captured, rather than killed, so long as it is practically feasible to do so, bearing in mind all of the circumstances. Thus, if it was in fact perfectly possible for the Navy SEALS to kill OBL’s armed cronies and then to capture OBL himself, then OBL should not have been killed; his death would have been an arbitrary deprivation of life within the meaning of Art. 6 ICCPR. This is obviously a highly fact-dependent assessment, and we still don’t know all the facts – and we may never do. In making this assessment, it would be necessary to weigh the risk to the lives of others, including the US soldiers, in attempting to capture OBL alive, as well as the risk that he might escape if non-lethal means were used. In any case, however, OBL couldn’t have been lawfully killed simply because it was (vastly) easier than detaining him and putting him on trial. Similarly, so long as capture was practically feasible, the fact that OBL did not take active steps to surrender (rendering himself hors de combat in terms of IHL) doesn’t mean that he could have been targeted, as he was unarmed and posed no immediate danger to anyone.
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