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The Bin Laden Killing: Clarifying the Normative Framework(s) Governing the ‘War on Terror’?

Published on October 12, 2011        Author: 

Alon Margalit is Research Associate, Hotung Programme for Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies (SOAS), University of London. The author wishes to thank the editors of EJIL:Talk! for their helpful comments on an earlier draft.

It has been almost six months since Osama Bin Laden was killed in Pakistan by a US commando team.  It is now worth reviewing some of the legal questions arising from the incident as the heat of the moment has passed.  The May 2011 killing of Bin Laden marked an operational apex in the US ‘War on Terror’ and was favourably received by the overwhelming majority of States.  Shortly after the raid on a residential compound in Abbottabad was concluded, and before its exact details were disclosed, a statement by the President of the Security Council welcomed “the news on 1 May 2011 that Osama Bin Laden will never again be able to perpetrate such acts of terrorism” and urged all States to intensify their fight against terrorism in compliance with international law.  UN Secretary-General Ban Ki-moon declared that “justice has been done to such a mastermind of international terrorism”.

Similar statements were made by the EU which described the American operation as “a major achievement”.  Afghan President Karzai said Bin Laden “had paid for his actions”, and Saudi Arabia, the national State of Bin Laden, expressed the hope that his killing “would be a step toward supporting international efforts aimed at fighting terrorism“.  In Pakistan, where the operation took place presumably without its consent, President Zardari chose to stress the “satisfaction that the source of the greatest evil of the new millennium has been silenced, and his victims given justice.”

If the question of where this operation stood in terms of international law were to be answered according to States’ responses, the killing of Bin Laden apparently did not raise any legal concerns.  States hailed the American operation, did not question its legality, and thus signalled that they saw no violation of international law.  Within this almost universal favourable discourse, two independent experts of the UN Human Rights Council, the Special Rapporteurs on summary executions and on human rights and counter-terrorism, issued an exceptional statement.  They urged the US to disclose the facts supporting the use of deadly force against Bin Laden in order “to allow an assessment in terms of international human rights law standards”.  They emphasised that “the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment”.

This statement reflected – contrary to what seemed to be the consensus shared by States – the ‘legal buzz’ among international lawyers, triggered by the American operation and concerned with its legality: was the US allowed to plan and execute a shoot-to-kill operation, or were its troops obliged to try and capture Bin Laden and give him an opportunity to surrender before turning to lethal force?  A significant discussion on this question emerged immediately after the incident, debating the applicable law and whether the operation had adhered to the required standards.  Different, at times opposite, views were expressed including on EJIL:Talk!, here and here.

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Gallant on Legality and the Rome Statute

Published on October 5, 2011        Author: 

To my shame, I’ve only just noticed that Ken Gallant in his excellent book The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2009) – recently reviewed in the JICJ here – addresses the difficult problem of applying the substantive law of the Rome Statute to situations in which the Court acquires jurisdiction over an individual only ex post facto, i.e. after the commission of the alleged crime, for example under a UNSC referral or on the basis of an Art. 12(3) declaration (pp. 337-343).  If, for instance, Gaddafi were to be put on trial before the ICC, and bearing in mind that Libya was never a party to the Rome Statute, can he be prosecuted for crimes or under theories of liability that are specific to the Rome Statute, such as indirect perpetration, which do not reflect customary law? I’ve written about this problem in my JICJ articles on whether the Rome Statute is binding on individuals and on aggression and legality. Ken argues (pp. 342-343), and I fully agree, that:

The possible retroactive application of non-customary international criminal law, especially after a Security Council referral, is not an imaginary problem. Many of the framers of the ICC Statute sought a progressive development of international criminal law and procedure. Therefore, they did not necessarily limit their drafting of the criminal law of the statute to that which was customary international law. It is not self-evident that all of the crimes listed in the statute are customary international law crimes.

Some respected commentators have suggested that all of the crimes set forth in the ICC Statute automatically apply when the Security Council has referred a situation to the ICC. This would be inconsistent with the legality analysis both of the statute and of international human rights law and with fundamental rules of treaty law.

Schabas, for example, claims that such an application would be permissible because it is “foreseeable” that the court would attempt to apply the statute to such people. The problem with this argument is that the states adopting the ICC Statute have no authority to prescribe new criminal law either for non-ICC states or for persons with no relevant connection to any ICC state. The ICC Statute can apply to a national of a non-ICC state who commits a criminal act in, or with effect in, an ICC state, as an instance of territorial jurisdiction. The states adopting the ICC Statute could not make law to apply to someone who is wholly unconnected with any ICC state party, and whose allegedly criminal acts are unconnected with such a state party, unless the crime were a customary international law crime over which there is universal jurisdiction (which, by hypothesis, the crime here is not). Foreseeability in the sense of legality can include a development in the law of a jurisdiction with legitimate authority over a person. It cannot mean foreseeability that an international organization will later attempt to impose its prescriptive jurisdiction on a person over whom it has no legitimate authority.

Schabas argues that the application of new, non-customary crimes in the ICC Statute to such persons is acceptable by pointing out that aggressive war was effectively a new crime at Nuremberg. The problem with this argument is that international human rights law has changed since that time. The claim by the Nuremberg Tribunal that nullum crimen sine lege was, in international law, merely a principle of justice was true then but is not so now. Now it is a rule of customary international law and perhaps a jus cogens rule at that.

Read Gallant!


International Law Weekend 2011

Published on October 3, 2011        Author: 

International Law Weekend 2011 — the world-famous gathering of the flock of international lawyers for the fall season — begins on Thursday night, October 20, 2011, at the Association of the  Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. on Friday and Saturday, October 21-22, at Fordham Law School, at 140 West 62nd Street, NYC. This year’s theme is “International Law and National Politics.”

A blue ribbon opening panel at 6:30 p.m. on Thursday night at the City Bar will address whether international law has seen “The Death of Sovereignty?” in an era of debt downgrades, seccesionist conflicts, and covert military operations — and will be followed by a free wine and cheese reception.

Panels starting at 9 a.m. on Friday at Fordham will look at International Law and U.S. Grand Strategy, the Extraterritorial Reach of Anti-Bribery Legislation Libel Tourism, the UN Disabilities Convention, Sharia and U.S. Law, Developments in Commercial Arbitration, Access to Justice in the Middle East North Africa Region, Regulation of Private Military and Security Companeis, LGBT Rights in Africa, and the Impact of the European Union’s Lisbon Treaty on National Politics.  State Department Legal Adviser Harold Koh will give a keynote talk at 1:30 p.m. on Friday, after a free buffet lunch in the atrium, on “International Lawyering for the U.S. in an Age of Smart Power.”

Panels starting at 9 a.m. on Saturday include Civilian Casualties in Modern War, Corporate Social Responsibility and Human Rights Law – Emerging Risks for Corporate Counsel, Private Litigation against Alleged Terrorist Sponsors, Intellectual Property Law, the New International Investment Arbitration Lawyer, Current Challenges for the International Criminal Court, Tribunal Procedures and Ethical Dilemmas for the Guantanamo Bay Military Tribunals, and Promoting Independence for Human Rights Lawyers Worldwide.   Former Yugoslav Tribunal Prosecutor Richard Goldstone will give a keynote address at 4:15 p.m. on Saturday on “The Future of International Criminal Justice: The Crucial Role of the United States.”

As always, admission is free for all students, all faculty, lawyers, and staff from co-sponsoring institutions, as well as all members of the American Branch of the International Law Association, the International Law Students Association, and the Association of the Bar of the City of New York.  Staff members of the United Nations and Permanent Missions to the United Nations can also attend for free.  The registration fee remains a modest $75 for the two days combined for all other practicing lawyers and members of the public.

We have a record number of co-sponsors this year, whose generous contributions makes the event possible. New sponsors include the International Bar Association, and law faculties from as far north as Maine and as far south as Virgina.    Further information and registration is available at or, or at the door

Filed under: Conference, EJIL Reports
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Palestine’s Application for UN Membership

Published on October 1, 2011        Author: 

The official application submitted by Palestine for UN membership is now available here, UN Doc. S/2011/592 (h/t Diane Marie Amann). It is of interest not the least because it has been carefully drafted and with the benefit of substantial legal advice. Note, first, how Mahmoud Abbas is not titled President of the Palestinian National Authority, but as President of the State of Palestine (he was appointed as such some years ago by the PLO). Note also how for good reason the letter does not say when exactly Palestine became a state, nor does it declare Palestine’s independence anew; rather, it refers to the 15 November 1988 DoI.