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When to Kill and When to Capture?

Published on May 6, 2011        Author: 

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.

In my initial post, I thought that the operation actually satisfied even more demanding IHRL standard, if that standard was perhaps relaxed a bit to take account of the exceptional circumstances. I am no longer so sure. Reports are now coming in that while capture was contemplated, it was only so for the exceptional event that OBL actively took steps to surrender, i.e. rendering himself hors de combat for the purposes of IHL, thereby becoming immune from attack even under that more permissive body of law. The White House press secretary thus stated that ‘The team had the authority to kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his surrender if the team could do so safely. The operation was conducted in a manner fully consistent with the laws of war. The operation was planned so that the team was prepared and had the means to take bin Laden into custody.’ If this was in fact the case, and capturing OBL was possible without endangering any further the lives of the Seals or allowing him the opportunity to flee, then his killing would have been unlawful under IHRL as normally interpreted.

I think most scholars would agree that this is how the two bodies of law would apply to OBL’s killing, if they were to apply independently of each other to the facts as we know them. Where the real disagreement lies is in how these two bodies of law, or to be more precise the specific norms from these two bodies of law, should interact. There are several competing models in that regard.

The first is one of rigid separation, and has been advocated by the US government in the course of the ‘war on terror.’ Even if the two bodies of law do not exclude each other nominally, IHL displaces IHRL entirely as lex specialis. Hence, because OBL can be targeted under IHL (as we postulated), IHRL doesn’t even come into the picture. This model is in my view legally simply incorrect. It is contrary to the text of the derogation clauses of human rights treaties, as well as to these treaties’ object and purpose and the jurisprudence of the ICJ. Human beings don’t cease having human rights merely because two states or non-state actors decide to fight it out.

A  close cousin to this model, if with a very different bend, is the one advocated by Mary Ellen O’Connell in her writing. She essentially argues the following syllogism (although I am simplifying things a bit): (1) terrorism is a crime; (2) the proper way of dealing with crime is law enforcement; therefore, (3) targeted killings are generally illegal as they are not law enforcement. (Thus Prof. O’Connell argues on the facts that OBL’s killing was lawful because it was law enforcement-y in nature, even though a bunch of Navy SEALs shooting it out with Al Qaeda hardly seems to fit the description). With due respect to Prof. O’Connell, I think it is simply false to say that there is some sort of legal barrier between armed conflict and law enforcement and between the law of war and the law of peace, when dealing with terrorism. IHL will apply whenever the objective criteria for its application are met. International law simply does not recognize such a rigid dichotomy. It is outdated at least since the end of the Second World War, while of course human rights law entirely postdates it. This model moreover reduced the debate about the legality and morality of killing to arguing about sterile labels such as ‘law enforcement.’

Then there are the models of complementary, co-application of IHL and IHRL. One can again see this relationship in many different ways, while accepting that both bodies of law apply at the same time. One view, based on the ICJ’s interpretation of Art. 6 ICCPR in Nuclear Weapons, would be that any IHL-compliant killing is by definition not ‘arbitrary’ for the purpose of Art. 6 ICCPR. Thus, because OBL was a lawful target under IHL, his rights under the ICCPR were ipso facto not violated. Note that this is the same result as with the US-preferred exclusionary model, but that it is reached via a different route. It hinges on the interpretation of the arbitrariness standard in Art. 6, which opens an interpretative door through which IHL can enter. But other articles of the ICCPR do not use standards of a similar vagueness, as e.g. with regard to the judicial review of the lawfulness of detention, while Art. 2 ECHR is for instance drafted in a completely different way.

A bolder approach to the joint application of IHL and IHRL would ask whether there are killings which do comply with IHL but are still arbitrary in terms of IHRL. Can, in other words, IHRL during armed conflict impose additional requirements for the lawfulness of a killing to those of IHL?  And can these requirements, while more stringent than those of IHL, still be somewhat less stringent than those set out in human rights jurisprudence developed in and for times of normalcy, and if so when and how?

I think all these questions can be answered with a cautious ‘yes.’ Whether the ICCPR imposes requirements for a lawful killing during armed conflict over and above those in IHL is a matter of treaty interpretation. State practice of course has a role to play in this process, but it is not conclusive on the matter. The arbitrariness standard being as vague as it is, its interpretation ultimately depends on a policy or value judgment: can we realistically expect our troops to abide by more humane rules in some situations than IHL would require, and so without significantly limiting their combat effectiveness? Can we, in other words, further humanize IHL by introducing IHRL into the equation, and do so in practical and realistic way?

The best evidence for how this process might work is the Targeted Killings judgment of the Israeli Supreme Court, in which it decided that although (in its view) Israel and the Palestinian organizations were engaged in an armed conflict in which terrorists were lawful targets as civilians directly participating in hostilities, the Israeli armed forces could target these terrorists only if no practical means of capturing them rather than killing them were available. In the Court’s words, ‘[t]rial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.’ (para. 40). The Court justified this approach by referring to the degree of control that Israel exercises over the occupied Palestinian territories. Because it is quite able to effectively conduct operations in that setting on a capture-before-kill basis, Israel in the Court’s view must abide by this human rights requirement. The Court’s decision would have been different, however, with regard to a more traditional battlefield situation, when the opposing parties could not realistically be expected to exhaust non-lethal means before resorting to lethal force.

This is the approach that I think best reflects the object and purpose of both the IHL and the IHRL treaties. They both have something to contribute, with their relationship at times being complementary, and at times being one of conflict. It is also the approach that best balances between the demands of the universality of human rights and practical considerations of effectiveness. Note that IHRL must pay a price if it is to apply together with IHL in extraordinary situations; the big question is indeed how far IHL can go in attenuating IHRL without compromising the latter regime. To use Martti Koskenniemi’s framework, while applying IHRL to situations traditionally regulated by IHL alone might seem hopelessly utopian, and IHRL must therefore be tempered and watered down somewhat, it also must not stray so far in the direction of practicality and effectiveness to become apologetic, useless and bland.

Back to bin Laden. Forgetting my postulates from the start of this post, I again have to disagree with the commentators who argue that the lawfulness of his killing depends on what is in my view a highly artificial construction of a global non-international armed conflict with Al Qaeda, or on an only slightly-less artificial claim that OBL’s death was part of a non-international armed conflict within Pakistan, even though those hostilities have largely ceased, and even though they took place quite a distance from OBL’s Dr. Evil-esque compound in Abbottabad. (Imagine, for example, if OBL was not in Pakistan but in Saudi Arabia, where there’s not even an inkling of an armed conflict. Should the legal analysis really be so different?). Mind you, the reason I’m disputing that IHL applies is not because OBL’s killing was a ‘law enforcement operation’, but because the objective threshold for the applicability of IHL – the existence of armed conflict – simply hasn’t been crossed. But even if IHL did apply, it would not in my view completely remove IHRL from the equation. Even if OBL was a lawful target under IHL, I would still under the circumstances argue that capture should have been contemplated, if not necessarily attempted, before the order to kill was given, much like the Israeli Supreme Court did in its judgment. The more I read about the planning of the operation, however, the less it seems that this is what the US in fact did. It rather viewed the possibility of OBL’s capture solely through an IHL lens, only in the scenario in which OBL actively took steps to surrender and render himself hors de combat.  If – and that’s a big, fact-dependant if – OBL could have easily been captured and at the time of the operation posed little or no immediate risk to anybody and little or no risk of flight, the lawfulness of his killing would be in doubt.

 

 

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25 Responses

  1. carlos espósito

    Thank you, Marko! A great post, instructive and convincing.

  2. Statement from the UN Special Rapporteur on extrajudicial killings and the UN Special Rapporteur on counter-terrorism: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10987&LangID=E

  3. […] other authors (here, here, here, here, and here) have received enthusiastic responses to the issue of the legality of […]

  4. Ian Henderson

    Marko,

    Setting out well-structured arguments, and carefully analysing competing positions, isn’t normally too popular in this debate. Be careful or you will get your posting rights rescinded!

    The concern I have with your preferred view of the interaction between IHL and IHRL is that IHL developed to address the twin requirements of military necessity (using that term in a general sense) and humanitarian concerns. If an IHL rule (eg, can shoot to kill unless hors de combat) is to be further tempered by an IHRL overlay (eg, can shoot to kill unless hors de combat or feasible to capture), then the resultant ‘rule’ is skewed too far towards humanitarian concerns and too far from military necessity. However, I will read your full article before coming to a firmer view.

  5. Fantastic piece Profess Milanovic. You rightly noted the application of IHL depends on whether or not the threshold criteria for a NIAC has been met. But doesn’t the extra-territorial application of IHRL depend on whether OBL was under the “jurisdiction” of US forces. Whichever tests that you rely on–whether it is the “effective territorial control” test or “power and authority” test –wouldn’t they both fail to establish jurisdiction? The US had neither territorial control over the area OBL was in nor was he within the custody of US forces

  6. V.T.Thamilmaran

    Well balanced analysis. However, I firmly believe that when a person is unarmed that could be considered as increasing the degree of possiblity of surrender. If no opportunity is given to surrender, how does one become hors de combat within the threshold? Was there an opportunity to do so? Factual assessment may reveal.

    V.T.Thamilmaran

  7. […] Another fascinating post by Marko Milanovic at EJIL Talk! on “when to kill, when to capture” […]

  8. Emanuele Sommario

    Marko,

    Thank you for the insightful post. I don’t understand, however, why you so easily dismiss the DPH Guideline’s argument that, under certain circumstances, military necessity needs to be tempered by considerations of humanity. True, the ICRC seems to make this claim basing it on IHL considerations only, but the Guidelines cite the Targeted Killings judgment to support it, which in turn makes explicit reference to IHRL. In the event, you seem to be reaching the same conclusions, namely that IHRL is becoming a factor influencing the traditional IHL regime.

    As to OSL’s killing, I share the view that – even supposing there is a NIAC ongoing in Pakistan – the incident took place in an area so remote from the actual theater of fighting to make a “blind” application of IHL rather unconvincing. So – assuming the US was exercising “jurisdiction” for the purpose of Article 2(1) ICCPR – the better view is probably that the situation has to be assessed using the “law enforcement” model, an exercise for which the UN “Basic Principles on the Use of Force and Firearms by Law Enforcement Officials” (routinely used by the ECtHR as and HR Committee in their “right to life” decisions) come in handy.

    The most important Principle, for our purposes, is probably N. 9, which reads: “In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” Hence the question becomes: did OSL pose an imminent and serious threat to the lives of the SEALS or of any other innocent bystander?
    The White House has revealed he was unarmed and yet “he resisted US forces”. http://online.wsj.com/article/SB10001424052748703834804576301351486023840.html

    The fact that he appeared to be unarmed is per se not conclusive. The US commandos might have reasonably believed that he could hide a gun or a hand grenade and that he was ready to use it (mutatis mutandis, the Mc Cann v. UK scenario). But if “unarmed” means that they were positive he did not carry a weapon and there was none in arm’s reach, then the US would have to make a case that the “resistance” he put up was in itself life-threatening.

    Lastly, if one accepts that IHRL is part of the applicable legal framework, the issue of Pakistan’s consent (and of its cooperation in organizing the operation) is not only relevant from a jus ad bellum perspective, but also in an IHRL analysis. An argument could be made that the nature and scope of a State’s positive obligations to protect the right to life when it plans and executes an operation involving the possible use of lethal force are commensurate to the degree of control exercised over the area in which the operation takes place. In other words, as I see it, he would have been better off had he decided to hide in Abbottsville rather than in Abbottabad.

    Regards

  9. Marty Lederman

    Marko: Thanks very much for this — it is very helpful in trying to think through the legal framework. I am curious about a couple of fundamental things, though.

    For one thing, why do you think Nils Melzer is incorrect to suggest that, within IHL itself, the principle of necessity imposes a very modest obligation not to use lethal force gratuitously, i.e., when lesser means are available, *in cases (presumably unlike the bin Laden killing) where such lesser means would not risk materially undermining the military objective*? I know, of course, that the proposition is hotly contested — see Hays Parks’s response — but it strikes me as worthwhile to examine just what constraints the principle of necessity imposes. The bin Laden case might be a good test, for it might demonstrate that there’s not as much practical difference between Melzer and Parks as Hays appeared to assume, and demonstrate that armed forces can comfortably live with a rule that prohibits truly gratuitous application of lethal force.

    Next, you appear to reject the Nuclear Weapons opinion view that “any IHL-compliant killing is by definition not ‘arbitrary’ for the purpose of Art. 6 ICCPR.”

    Why? After all, that opinion is a fairly prominent and influential precedent that not only reflects state practice, but that has not (as far as I know) been rejected by any state as a proper reading of the ICCPR and its relationship with IHL. Simply a a matter of natural reading, wouldn’t it be very difficult to argue that an IHL-compliant killing — satisfying norms of proportionality, necessity, distinction, humanity, etc.; respecting norms of neutrality and sovereignty; and not in violation of prohibitions on perfidy, outlawry, denial of quarter, etc. — is “arbitrary”? It might be many other things, but “arbitrary” it is not.

    You argue that the arbitrariness standard is “vague.” Perhaps in some sense (although arbitrariness is certainly a very common standard in the law). But even so, why should any vagueness not be remedied by looking to state understandings and practices, rather than to the “policy or value judgments” of folks who read and contribute to various blogs? Of course, I hardly mean to suggest that we should not attempt to move customary law, and understandings of broad, aspirational treaty obligations, in a more humane direction. We certainly should urge nation states to do so. But that’s quite a different task from trying to ascertain what the current legal norms are; and on the latter score, I’m not sure why you’ve rejected the argument that “IHL-compliant killings aren’t arbitrary” as a fair reading of what the parties to the ICCPR intended and how they have in fact construed their obligations. And that is especially so if the IHL principle of necessity imposes some modest, context-dependent limitation on gratuitous uses of force — the Melzer-ish position that I think you might have too quickly abandoned.

  10. Marko Milanovic Marko Milanovic

    Thanks again to everyone for the comments, and apologies for the belated reply – I’m experiencing some connectivity issues.

    Ian,

    Thanks for the kind words. As for your concern that an IHRL overlay might result in a rule which is too skewed in the direction of humanitarianism, that is I think a perfectly valid concern. I deal with this more in the paper – comments are appreciated if you have the time. I would just say here that (1) shifting the balance in favour of humanitarianism is the whole point of the IHL/IHRL project, and (2) that the shift would happen only in some situations, those that do not resemble a classical battlefield scenario, in which it would indeed be unrealistic to employ a capture-before-kill policy.

    Tariq,

    As for jurisdiction in HR treaty terms, I see no reason of principle why the Issa authority and control over individuals test would not extend to the ability to kill an individual. The only reason why it can’t apply that way is Bankovic – but Bankovic might well be wrongly decided. Regrettably I can’t develop this point further here.

    Emanuele,

    I agree with most of what you say. I’ll deal with the ICRC DPH stuff below.

    Marty,

    Thanks for the detailed comment. Let me first explain, in response both to you and to Emanuele, why I prefer to reach the result that the killing was unlawful if capture was possible through IHRL rather than IHL. It admittedly might seem a somewhat sterile distinction. However, it is precisely for the reason that I wish to establish the law as it stands rather than as I’d like it to be that I don’t think IHL practice, treaties (or treatises) supports the rule that capture must be attempted, or at least contemplated, first. One could always, say, bomb a barracks full of sleeping soldiers in a classical warfare scenario. At least as far as I’ve understood IHL, military necessity doesn’t work as a constraining principle, at least for targeting purposes. If you have a certain status (e.g. combatant) you can be killed, and that’s that – necessity, if at all relevant, is simply irrebuttably postulated.

    As for the ‘arbitrary’ standard in Art. 6, the reason why I reject the Nuclear Weapons model (IHL compliance always equals non-arbitrariness) is that it is simplistic and relies on the notion of lex specialis as some sort of magic bullet (I develop this at length in the paper). The ICJ itself has departed from this model in the Wall case with the tripartite distinction the Court makes there. As for the natural reading of ‘arbitrariness’, one could certainly say that a killing based on some principle is by definition not arbitrary. But that is not how this provision is normally interpreted – just like Art 2 ECHR, it is generally seen as posing a requirement of exhaustion of non-lethal means.

    Finally, as for the role of state practice in applying abstract standards such as arbitrariness – I certainly agree that it is relevant, and that my opinions count far, far less than those of states. But state practice is not the end of all things when it comes to treaty interpretation – it is relevant insofar it establishes an agreement among states as to how a treaty should be applied, but we hardly have that. It is perfectly possible that states have adopted a treaty which some of them then continue on to violate, which is what the practice might show; they indeed do this all the time.

  11. Marty Lederman

    Thanks again, Marko. Obviously, I need to read your paper, and my response here suffers from the disadvantage of not having done so yet.

    On IHL, I’m not sure the barracks of sleeping soldiers example is very helpful, since in that case of course there is no way to neutralize their threat, short of bombing, without significantly compromising the military objective. The only way to test whether the principle of necessity poses some constraint is to posit a case in which capture and killing would be virtually equally effective, with similar costs, such that the latter would fairly be viewed as gratuitous.

    So let’s assume that in a particular case (the ordinary case) capture would be more costly — would entail a materially greater risk to the military objective — than killing. Under IHL, under either the Melzer or Parks view, the killing is thus permissible, so long as quarter is not denied.

    The question then is whether it would be “arbitrary” nevertheless under IHRL law (assuming IHRL applies). The IHL rules, including the prohibition on denial of quarter, are not just *any* “principle,” or a “magic bullet.” They are very well-established norms that nation states have long implemented and insisted upon, which were designed in order to properly balance military objectives and humanitarian considerations when confronting enemy forces in an armed conflict. How could something like that, with that sort of pedigree and longstanding adherence, be “arbitrary”?

    I simply don’t see how the ICCPR could fairly be interpreted to require an exhaustion of all non-lethal means *no mater the context*, including in armed conflicts. (Indeed, satisfying that high standard is rarely possible even in some law enforcement settings.) Is it really plausible to think that any state, let alone all of them, intended to supersede traditional IHL norms so fundamentally? I’m doubtful. (And this is not simply a matter of states regularly violating a norm that they concede they are bound by, which I agree happens all the time. I’m suggesting that it would be difficult to find any state that would acknowledge that its agreement to the ICCPR so significantly changed its obligations in the context of armed conflict.)

  12. Marko Milanovic Marko Milanovic

    Thanks Marty. I agree that the barracks example may not be helpful, so let’s do a different one. Say you and I are combatants from opposing sides, and we run into each other on the battlefield. I am fairly well equipped, so in my left hand I have my trusty StunGun 1000, while in my right hand I have my spanky Death Ray mk 5. I can fire either with equal ease, with 100% effectiveness. As far as I read IHL, I can fire my Death Ray and obliterate you on the basis of your combatant status, EVEN THOUGH I could just as easily incapacitate you. Whether I do one or the other is entirely up to me, so long as you don’t clearly indicate that you want to surrender. Things would obviously be different under IHRL in normal circumstances. IHL on the other hand imposes only constraints as to the MANNER of killing – i.e. I can only kill you or wound you in a way which does not cause unnecessary suffering (no expanding bullets etc.) – but I can still kill you, solely on the basis of your status, and I don’t need to show any necessity to do so.

    This brings me to my main point – perhaps we don’t disagree after all. I am not saying that IHRL would attenuate normal IHL targeting rules *no matter the context*. I would say that in *some* contexts, which are *still* those of armed conflict, IHRL *might* add something to the mix. One such context would be the Israeli/Palestinian one, i.e. a long-term occupation in which one side has overwhelming military superiority and the capability to effectively capture the fighters of the other side. In other words, while the IHRL arbitrariness standard would be no stricter than IHL in a classical battlefield setting, it might do more once that setting significantly changes. From what we know, I would say that the OBL operation might qualify – it seems that the US could have relatively easily captured OBL if it wanted to, but again,
    this is a matter for factual assessment.

  13. Asier Garrido

    Dear Marko:

    Thank you for your post, which I share almost 100%. I would like to insist on the polemic point related to the capture-before-killing principle in IHL. My modest point may sound as a piece of academic wishful thinking, but I feel (and I could quote some voices from the ICRC even more relevant than Melzer) that that principle of necessity is behind the conduct of hostilities since the customary Declaration of Saint-Petersburg of 1868, where it was said clearly “That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy”. Of course the relevant Officer from the US Administration would laugh at this argument, but you will agree that IHL is still much made of this kind of reasonings based on the principle of humanity and common article 3.

    Of course this does not mean that you cannot shoot directly to the enemy even if not armed, but it does mean that as a matter of principle an experienced soldier/CIA agent that reasonably believes that can easily capture OBL will HAVE to try to capture him. It also does mean that you cannot plan an IHL operation on the basis of a “kill-unless-flagging-a-white-flag” policy. They were not in the middle of the battlefield.

    In the end, I fully agree with your excellent reasoning based on the application of IHRL and the rest of your caveats related to the application of IHL.

  14. First, human rights law under the ICCPR would apply when (if ever) bin Laden was under the “effecive control” of the U.S. Navy seals. According to the Obama Administration, this did not occur.
    Second, the human right to life under the ICCPR is a right to freedom from merely “arbitrary” deprivation. There is no necessity requirement as such and the limits in the European Convention do not apply regarding U.S. actions in Pakistan. See also http://ssrn.com/abstract=1520717
    Third, under the laws of war, the theatre of war would expand de facto (and, thus, de jure) wherever bin Laden exercised command and control functions (i.e., just over his head) and apparently he excercised some such functions through his couriers. He would be targetable as a leader of al Qaeda and direct participant in ongoing hostilities in Afghanistan and parts of Pakistan.
    Fourth, an order merely to kill (i.e., not to kill or capture as circumstances permit) would be unlawful — like an order to take no prisoners or a refusal of quarter. The Obama Administration states that the order was not merely to kill.

  15. Max

    For the reasons given by others, it is difficult to see the arbitrariness criterion of IHRL as compatible with and/or adding anything to IHL: the IHL right of an opposing combatant simply isn’t so curtailed.

    A curious alternative concern – to which there may be a really straightforward answer, and apologies for raising it if so – is whether the IHL right to kill, rather than capture, might be constrained by obligations to prosecute/suppress grave breaches, such that there could be a supervening duty to capture and try known offenders.

  16. Max: the point about human rights law and the prohibiiton of “arbitrary” deprivation of life is apparently one that you share, since, if one meets the relevant tests under the laws of war (higher thresholds in general), one will meet the far more malleable test under IHRL because the killing will not be “arbitrary.”
    The duty to bring those reasonably accused into custody and to either initiate prosection or extradite does exist, but it is common sense that one cannot bring into custody a person who does not surrender and apparently makes a furtive move and who was not in the “effective control” (the human rights test for application of h.r. law such as the ICCPR) of the Navy Seals.

  17. Thomas Chong

    I fail to see how IHL could have any application to the killing of OBL. Clearly there was no IAC and a NIAC also seems unlikely given taming of the conflict between Islamist militants and the Pakistani state following last years floods. But even if there could be said to be a NIAC in Pakistan, the rules governing that conflict would affect only the Pakistani State and the Islamist insurgents. The rules of NIAC are, according to APII, binding where the conflict takes place “in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups”. The Navy Seals are not part of the armed forces of the Pakistani State (nor have were they asked to assist the Pakistani state) nor an armed opposition group operating within the territory of Pakistan. Therefore their conduct falls outside the paradigm of IHL and consequently is governed by IHRL.

    For the killing to have been lawful under IHRL it must have been both necessary and proportionate. The killing would have been necessary if it could be demonstrated that OBL continued to pose a serious threat to the life of US citizens, this for me is a moot point. The killing would have been proportionate if all non-lethal means of capture had been exhausted and there was a clear and present danger of death posed to the SEALS. We cannot know the latter, and probably never will, but the white house statement that OBL would have not been killed only if he had surrendered suggests that the operation to capture him did not satisfy the threshold of proportionality under IHLR, which would have required lethal force be a last resort in self-defence. It appears prima facie that the operation to kill OBL was not lawful.

  18. When armed hostilities spread into parts of Pakistan and over the head of bin Laden because of his command and control (planning and approval of operations) functioning in part also through his trusted couriers, the laws of war spread with them. The armed conflict exists de facto (and thus de jure) where combatants and other fighters and their leaders directly participate. Thus, not only duties under the laws of war, but also competenicies (e.g., to target a leader of an armed organization and a DPH) pertain. The conflict is Afghanistan that has migrated to parts of Pakistan is certain international in several respects — U.S. armed forces are fighting, armed forces of Afghanistan are fighting, armed forces of a number of other coutries are fighting, members of the armed forces of the Taliban have been and are still fighting, members of al Qaeda participate as well.

  19. Emanuele Sommario

    Thank you Professor Paust,

    I am not quite sure I understood your “IHL-follows-the-fighter” argument correctly. Would it not imply that if OBL was hiding, say, in Berlin (and from there somehow imparting orders to Taliban militias fighting in Afghanistan) the US would have been legally entitled to intervene there and “neutralize” him? And would this strike be an appendix of the Afghan conflict or part of some other conflict (possibly one without territorial boundaries) to which the US and Al-Qaeda are parties?

    Regards

  20. Yes, and how about Yemen? If a member of al Qaeda is directly participating in armed conflict in Afghanistan while on a cell phone or computer, etc. i Yemen, yes, such a person is targetable in Yemen under both the self-defense and the law of war paradigms. Dangerous? at times. Raises diplomatic problems? at times. U.S. Army Field Manual 27-10, at 17, para. 31 (1956) notes that attacks on individual soldiers or officers of the enemy can be permissible “whether in the zone of hostilities, occupied territory, or elsewhere.” A relevant breach of neutrality (e.g., of Yemen) would have been initiated by the member of al Qaeda who is misusing neutral territory to directly participate in the armed conflict in Afghanistan and parts of Pakistan. Contrary to some, I do not agree that there is an “unwilling or unable” test for legality of self-defense and/or law of war targetings of DPAA or DPH persons — e.g., that Yemen must be “unwilling or unable” to kill or capture the member of al Qaeda that is directly participating in armed attacks and the armed conflict. As noted in my main article, it would be wise to try to communicate with Yemen what was occurring (note that the U.S. did not re: Pakistan and was even prepared to fire on Pakistani military in self-defense if they had attacked the U.S. Seal team).

  21. From a lunchtime discussion at a conference at Pace University Law School in New York on May 6th — and not very good sound:
    the video link to round table discussion on bin Laden is here: http://realserv.pace.edu/edmedia/ASILLunch05-06-11.wmv
    The video link

  22. Emanuele Sommario

    Thank you Professor,

    Forgive me, but I still have problems with you argument for the lawfulness of a strike in Berlin.

    A) Is it part of the US right to act in self-defence after the 9/11 attacks? This justification is based on the assumption (which appears to have been accepted by many but is by no means uncontroversial: the ICJ has rejected it twice in recent years) that self-defence can be exercised against a non-state actor. Let us accept it for the sake of argument. Looking at the Pakistani scenario (or at the “Mexican” one you propose in your paper), one could agree that a single military operation (or a combination or several minor ones) launched by a NSA could reach the threshold of an “armed attack” triggering the right to self-defense. However, in my example, the imparting of orders could surely be classified as direct participation in the Afghan hostilities, but would definitely not amount to an armed attack “per se”. More in general, I tend to agree with Noam Lubell’s argument (which he makes in his recent OUP monograph on this subject) that in situations such as the one at hand, the requirement of necessity is only fulfilled if the State unknowingly hosting the terrorists is given a chance to deal with them first. Only if the local State fails (or does not intend) to do so would an armed intervention by the State initially suffering the armed attack be warranted. In other words, the infringement of the local State’s sovereignty could be justified by that State’s failure to prevent its territory from being used “in a manner contrary to the rights of other states.”

    B) Would the strike in Berlin be justified because the DPH by the al-Qaeda operative “expands” the territorial application of IHL to include any location he happens to act from? My impression is that current IHL applicable to NIAC would not support this view. Your quoting of the U.S. Army Field Manual (which deals with IACs) suggests that you consider the conflict between the US and Al-Qaeda as being regulated by IHL applicable to inter-state wars. Again, an assertion on which reasonable people might differ.

    Regards

  23. Emanuele: thaks for you commentary. Yes, an armed attack by a non-state actor from, say, Pakistan into Afghanistan on U.S. military personnel there would “trigger” the U.S. inherent right of self-defense under UN 51. My point is that the “imparting of orders” and, in particular, bin Laden’s planning and authorizations, use of couriers to carry email “orders,” and so forth made him a continual DPAA and DPH under both paradigms. Further, the imparting of orders was directly part of a continual armed attack on U.S. military personnel, and so forth, and that one has to consider the orders in the context of the ongoing attacks. Bin Laden was basically directing the armed attacks which continued to allow U.S. responsive action in self-defense. Yes, if bin Laden was doing this in Yemen or Berlin, he would be targetable wherever he continued to direct the attacks. And yes, under the law of war paradigm, he remained a DPH subject to targeting wherever he was engaging in DPH. Yes, I prefer to categorize the armed conflict in Afghanistan, parts of Pakistan, and elsewhere engaged in by U.S. military forces, the armed forces of several other states, as well as the armed forces of Afghanistan to be international in several respects (and clearly in a de facto, common sense sense). It is preferable for states to consider that when their armed forces are engaged in combat in a foreign state that the conflct has been internationalized so that the members of their armed forces are “combatants” with “combatant immunity” for lawful acts of war. Otherwise, for example, the Navy Seals could be prosecuted for murder under relevant domestic law(s). The old, “traditional” view was that when outside military of a state aid a lawful government against rebels (or insurgents), the conflict would at most be a NIAC. The better, policy-serving modern view is/should be that it is an international armed conflict. We note the choice in our casebook (Paust, Bassiouni, Scharf, et al., International Criminal Law 661-662 (3 ed. 2007) (Carolina Academic Press — available at http://www.cap-press.com ). I also stress these points in the main article
    http://ssrn.com/abstract=1520717
    The Obama Administration probably believes that the conflict in Afghanistan is NIAC (which does not make sense and can leave U.S. soldiers in harms way). The Obama Administration also believes that it is at “war” with al Qaeda as such, which does not make sense under traditional criteria re: insurgency (or even the threshold in Geneva Protocol II, art. 1(1)) because al Qeada never controlled territory as its own and does not seem to have carried out sustained and controlled military operations, nor does it have the semblance of a government. I do not accept the Tadic test, which would mean that “war” exists in many inner-cities where organized armed groups fight.
    Thanks.