Was the Killing of Osama bin Laden Lawful?

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Yes. I wouldn’t say beyond any doubt, but for practical purposes very nearly so. As I’ve argued before, there are three bodies of law (potentially) relevant for assessing the legality of a targeted killing: the jus ad bellum, IHL, and human rights law.

As for the jus ad bellum, it is unclear at this time whether the Pakistani government – parts of whose security apparatus undoubtedly harboured and protected OBL – consented to the use of force by the US on Pakistani soil. The Pakistani government has not yet publicly expressed its views on the matter; all things considered, however, it seems such consent was given. If it was not, then the US would have to argue self-defense in killing OBL, which is of course a complex question. At any rate, it is for Pakistan to raise a jus ad bellum issue, and it does not seem at all politically likely that they will now say, oh yes, we’ve been hiding OBL for years now, but the US had no right to violate our sovereignty.

As for IHL, the jus in bello, it either does not apply at all  as the killing was not done as a part of any legally cognizable armed conflict (probably the better view), or OBL was a lawful target as a leader of an organized armed group taking part in a non-international armed conflict a la Hamdan.

As for IHRL, as readers are aware the US argues that the ICCPR does not apply extraterritorially, e.g. to a targeted killing in Pakistan. That position is in my view incorrect. No matter how despicable, OBL was a human being with human rights, and he was protected by the ICCPR – but his human rights were still not violated. IHRL does allow states to deliberately kill individuals if they have a sufficient justification. OBL was undoubtedly a highly dangerous individual, whose apprehension was needed to protect the lives of others. The US military operation at least contemplated the capture of OBL; the troops on the ground shot him in a firefight. There are no indications that he had tried to surrender before being shot. Under the same facts, his killing would have been equally as lawful had he been hiding somewhere in Alaska rather than in Abbottabad.

 

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    Nwamaka O. says

    May 2, 2011

    Well, if we’re going to go into the question of justifications ICCPR or IHL, and leaving aside the fact that Mr. Bin Laden did not particularly seem to be taking part in any armed conflicts at the moment, the indications are that since 9/11 and his going into hiding Bin Laden had gradually ceased to be the highly dangerous person he used to be, his authority having been somewhat whittled down by his absence and the emergence of new and younger ‘terror’ leaders apparently acting independently, without his blessings. With his leadership (other than symbolic) of any ongoing attacks in question, the only justification that seems clear to me at the moment is that he died in a firefight (occurring in the process of apprehending a not particularly dangerous but nonetheless wanted criminal offender).

    Actually, watching Obama do his own version of GWB’s “gentlemen we’ve got him”, I couldn’t help thinking that the symbolic importance of a captured and killed Bin Laden for sectors of the (American) public may well have affected the way his killing had somewhat been portrayed in Obama’s first few sentences : as a targeted killing rather than the - rather less dramatic - result of a simple law enforcement firefight that could easily have happened on the streets of NY.

    Tom says

    May 2, 2011

    According to "Der Spiegel" - citing the "Times" - the commandos asked OBL to surrender but he refused, so it would indeed seem that the operation was lawful even under normal law enforcement standards.

    Wim Muller says

    May 2, 2011

    Thank you for the quick analysis. However, if the report here is true, it is not true that the US military operation contemplated the capture of Bin Laden.

    http://www.reuters.com/article/2011/05/02/us-binladen-kill-idUSTRE7413H220110502

    Yoo says

    May 2, 2011

    It was also confirmed that there was no (prior) consent; so much for that.

    Mathias says

    May 2, 2011

    Hi Marko,

    Three points:

    1) I'm not convinced that Pakistan gave its consent actually. As the respected Steve Coll points out in The New Yorker: http://www.newyorker.com/online/blogs/newsdesk/2011/05/notes-on-the-death-of-osama-bin-laden.html

    "The initial circumstantial evidence suggests the opposite is more likely—that bin Laden was effectively being housed under Pakistani state control. Pakistan will deny this, it seems safe to predict, and perhaps no convincing evidence will ever surface to prove the case. If I were a prosecutor at the United States Department of Justice, however, I would be tempted to call a grand jury."

    Ex-president Musharaff has already been quoted by Reuters, saying that the attack was a violation of Pakistan's sovereignty. (http://www.reuters.com/article/2011/05/02/us-binladen-musharraf-idUSTRE7414HA20110502)

    Still, you're right in sayin that the chances that Pakistan will raise a jus ad bellum issue are practically zero.

    2) The US view is definitely that the AUMF authorized force against OBL.

    3) A 'kill, don't detain' order would be entirely unsurprising and in line with Obama’s general detention practices in the fight against terrorism. There was little to be gained politically by arresting and detaining OBL. If the Reuters article is true) 'bringing Osama to justice' meant killing him, not detaining him and bringing him to trial.

    For me this targeted killing therefore isn't different from any other targeted killing. The same legal problems associated with it (eloquently analysed in the past by Philip Alston and Mary O'Connell) still apply, especially since these killings were again performed by JSOC units (who have escaped escaped significant congressional scrutiny) and the strike took place in an area relatively close to Pakistan's capital (and not in the 'lawless' FATA provinces where the Pakistani government de facto doesn't have real control over its territory.)

    Mihai Martoiu Ticu says

    May 2, 2011

    Thus if a Pakistani commando knocks on my door tomorrow and tells me that there is some war going on, they can legally kill me, at least if I refuse being abducted?

    Mathias says

    May 2, 2011

    When I was typing the above I listened to BBC World. Quote: "A White House official tells us that "there was no decision to automatically go for a kill. US military personnel are not authorised to kill if a subject surrenders, but because of who Bin Laden was it was widely assumed that there would be a kill. The White House also says it was Bin Laden who 'cowardly hid' behind a woman."

    This can lead to an interesting discussions on human shields...

    Marko Milanovic says

    May 2, 2011

    Thanks to everyone for the comments. I would just add that a 'kill, don't detain' order does not necessarily per se violate the right to life under IHRL. It might be that operationally it would have been extremely risky to capture Bin Laden alive, both in terms of risk of flight and in terms of risk to the the lives of the soldiers, and that when all circumstances were assessed a kill order was appropriate. What would certainly be unlawful is a blanket kill, don't detain policy - something that the US has indeed employed in the 'war on terror.' Similarly, had Bin Laden attempted to surrender, it would have been unlawful for the soldiers to kill him then and there. That WOULD have been a summary execution.

    As for the AUMF, it has little if any relevance under international law, whatever its relevance might be under US law. I don't see how it fits in any international legal argument with regard to this killing. Similarly, that the killing was done by special forces does not necessarily make it unlawful (cf. McCann and other ECtHR authority on point); these are precisely operations in which the use of such forces would be appropriate. Finally, the fact that Pakistani authorities might not have been informed prior to the event may have relevance for the jus ad bellum issue, but not for the IHRL one. In any event, it could hardly have been expected of the Pakistani authorities to arrest or kill Bin Laden when they have effectively harboured him for so many years.

    In short, while I agree that there are many legal problems with targeted killings, particularly when viewed in terms of policies that are generally and indiscriminately applied, THIS particular targeted killing was in all likelihood lawful.

    jpaust says

    May 2, 2011

    As a matter of self-defense under Article 51 of the U.N. Charter, the United States has to right to target the head of al Qaeda who was receiving and sending messengers at the very least during continuing armed attacks on U.S. military personnel and other U.S. nationals across the fluid border between Afghanistan and Pakistan. The U.S. would not need the consent of Pakistan to engage in proportionate self-defense targeting. This did not simplistically involve a "law enforcement" paradigm and human rights law attaches when a person is actually within the "effecive control" of U.S. personell (not when there is a shoot out). In any event, human rights law only prohibits "arbitrary" deprivation of life and it is clear that targeting the head of al Qaeda who commanded an organization engaged in continual armed attacks on U.S. nationals in Afghanistan and elsewhere was not "arbitrary" under the circumstances. See also http://ssrn.com/abstract=1520717

    Marty Lederman says

    May 2, 2011

    For what it's worth, John Brennan just confirmed that it was a capture-or-kill operation in which surrender and capture were very much options, although it was assumed that capture might not be feasible.

    Marko, you write that "the US has indeed employed in the ‘war on terror'" a "blanket kill, don’t detain policy." I'm not aware of any reports to that effect. Do you know of any?

    Marko Milanovic says

    May 2, 2011

    Marty,

    You are certainly in a far better position to know these things than I am, and perhaps the wording I used overstated things a bit, but I thought it pretty well-settled that the use of drones by the US in AfPak or Yemen has escalated in large part due to the US desire to avoid capturing any more (afterwards legally troublesome) detainees. Ken Anderson has among others made this point on more than one occasion. Do you agree? Or are you saying that whenever the US has used drones for targeted killings it first engages in an operational assessment as to whether it would be possible to capture rather than kill the individual concerned, thus using force only as a last resort?

    That has certainly not been my impression. Of course, IHL might apply to some of these killings (but not all), and that might change the IHRL equation somewhat (but not completely). But again, I wasn't aware that the US engaged in the same type of 'capture first' operational planning as it did, or at least contemplated, with OBL, for every targeted killing.

    Marty Lederman says

    May 2, 2011

    Marko: Nothing I'm writing here is based on any information I learned in the government. Of course, armies often use air power to engage in strikes, and in such cases they have either concluded that capture is not feasible or that such strikes are for various reasons preferable (such as, most often, that capture would result in much greater military and civilian casualties) and consistent with IHL.

    I am not aware of any actual reporting -- as opposed to Ken's speculations -- that the U.S. has used strikes where capture was feasible, let alone that there has been any "blanket kill, don’t detain policy.”

    Marko Milanovic says

    May 2, 2011

    Marty,

    Apologies if my prior comment is taken as implying that when commenting on this blog or any other you did so on the basis of information not publicly available. I was just trying to say - inartfully - that you know more about these things than I do, which you in fact do.

    I thus accept that my statement that the US had a blanket policy to kill rather than capture some people is not entirely correct. But isn't it correct to say, though, that we, normal members of the public, have no idea what the US policy in fact is? Aside from a rather succinct statement or two by Prof. Koh at ASIL, we haven't got a clue as to what the US thinks the legal criteria are for a permissible targeted killing.

    What is especially problematic is that much of the legal arguments that have been made by the US in international fora depend on the premise that the US is engaged in some sort of global armed conflict with Al-Qaeda in terms of IHL. That premise is most likely a flawed one, as are other arguments about lex specialis, extraterritorial application of HR treaties, and so forth. But let's not go there. I think it fair to say that one really can't say what the US targeted killing policy is because the US does not disclose its policy and the legal advice that supports it. Don't you think that's a rather serious problem from a rule of law standpoint?

    BFA says

    May 2, 2011

    This was also discussed on Australian radio this morning with Prof Don Rothwell - http://mpegmedia.abc.net.au/newsradio/audio/20110502-osamarothwell.mp3

    Markus Krajewski says

    May 3, 2011

    Thank you for this very helpful analytical framework. Regarding the first point, the jus ad bellum issue, it seems clear now that Pakistan did not give its consent prior to the action. However, the subsequent statements of the government, in particular the editorial of President Zardari in the Washington Post (http://www.washingtonpost.com/opinions/pakistan-did-its-part/2011/05/02/AFHxmybF_story.html?hpid=z4) suggest that Pakistan endorsed the action. According to the Draft Norms on State Responsibility, this does not qualify as consent, but may only be seen as acquiescence, leading to loss of the right to invoke responsibility as stated in Article 45 of the Draft Norms. This may be a very formalistic view but it seems correct, because the behaviour of states after an event may be different than before the event.

    I disagree with the view that self-defence can be invoked. While I have argued that the events of 9/11 constituted an armed attack in the meaning of Article 51, the right to self-defence only allows use of force to ensure that the attack ends. There seems to be an agreement that either a) Bin Laden was no longer in charge of al Kaida activities for some time or b) that al Kaida will continue with its terrorist activities anyway. In both cases, self-defence cannot justify the killing.

    Regarding international human rights law: It seems difficult to argue that an army unit which is able to kill or arrest an individual in another country does not have full control over that individual. This is different from the Bankovic situation which the ECtHR decided. Finally, there seems an emerging consensus that if Osama resisted his arrest (however half-heartedly attempted by the Navy Seals) it would have been legal to kill him. This would mean that any resistance to lawful authority justifies fatal force. I cannot think of any system adhering to fundamental rights and the rule of law which would support such a rule. Instead, if an individual resists a legal arrest, force may be used including armed force, but killing can only be legal on the basis of individual self-defence (which might have been applicable in the case at hand).

    Dov Jacobs says

    May 4, 2011

    Just a thought not considered here so far: how about a UNSC Security Council Chapter VII Resolution basis for the operation? To be sure, no SC Resolution has explicitly called for the death of Ben Laden, but there have been countless resolutions that have found Al Quaeda's activities to be threats to peace and security, and a number explicitly mentioning Ben Laden. This might seem a bit of a stretch, but if Res 1973 can be interpreted (as has been argued) as allowing NATO to clearly take sides with the rebels in Libya, thus targeting pro-khadddafi troups and therefore killing people, surely one can wonder whether the recognition of Ben Laden as a threat to international peace and security (if that is accepted) does not allow for killing him...

    Dov Jacobs says

    May 4, 2011

    http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/320/27/PDF/N1132027.pdf?OpenElement

    In relation to my point, I just came across this rather incredible statement by the UNSC, where it says: "“In this regard, the Security Council welcomes the news on 1 May 2011 that Osama bin Laden will never again be able to perpetrate such acts of terrorism".
    The Resolution then goes on to add that: "“The Security Council further reaffirms its call on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of terrorist attacks and its determination that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable."
    And that: "The Security Council reaffirms that Member States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, in particular international human rights, refugee and humanitarian law."

    So if I am interpreting these sentences together correctly: the UNSC considers that the killing of Ben Laden is 1) in conformity with the idea of "bringing to justice" and "holding accountable" and 2) in conformity with international law.

    Case closed?...

    John Morss says

    May 4, 2011

    Yes, on its face the UNSC position is extremely worrying JRM

    Mathias says

    May 4, 2011

    Well, at the same time the United Nations High Commissioner for Human Rights has asked the US 'more information' about "the details about Osama bin Laden's killing" and said that all counter-terrorism operations must respect international law. http://in.reuters.com/article/2011/05/03/binladen-un-rights-idINLDE74225V20110503

    Vidan Hadzi-Vidanovic says

    May 4, 2011

    It is now, more or less, clear that Pakistani Government was not notified about the US incursion on its territory prior to the performance of the attack. It is also becoming increasingly clear, despite dichotomous voices among US officials, that the US claim in the matter of operation resulting in killing of Osama bin Laden is, in words of the US Attorney General, an "act of national self-defense". See: http://www.reuters.com/article/2011/05/04/us-binladen-selfdefense-idUSTRE74353420110504.

    to my opinion, this is perfectly reasonable legal explanation. Ever since the SC Resolution 1368 (2001) adopted in the immediate aftermath of the 9/11 attacks, there was a steady shift in the opinion accepting the possibility of the use of force against non-state actors on the territory of foreign states.

    While Marko's explanation about the application of IHL is perfectly reasonable, I tend to disagree. If the action was an act of the use of force in self-defense, and it seems that this is the claim that the US will finally put forward, the action must have been conducted with the observance of the rules regulating the conduct of hostilities. The rules requiring the existence of a protracted armed violence of certain intensity in the context of non-international armed conflict were primarily designed to distinguish armed conflicts in which IHL is applicable from internal disturbances and civil unrest in which IHL does not apply. There is no doubt that the incursion of Navy SEALS and their clash with Bin Laden's security and himself was not anywhere near to be mistaken for internal disturbance or tension. It was a limited military operation performed on the territory of another state against a non-state armed group clearly described as an act of self-defense (although the Article 51 letter is still lacking) and as such must have been conducted in accordance with IHL. Alternatively, the observance of the operation as a part of the on-going non-international armed conflict against Al Qaeda would also be a valid legal explanation.

    Because of this, to my opinion, there is a little space for the application of IHRL in this specific situation.

    Dov Jacobs says

    May 4, 2011

    Vidan,

    I agree with you on the difficulty of calling this a NIAC. when a military operation of one country intervenes on the territory of another, even against an armed group, I have difficulty to see this as non-international.

    The question therefore is whether it can be called an IAC. On this, I'm not sure I get your point about self-defense. Whether it's Article 51 or not (and accepting that Article 51 can be invoked against Ben Laden) is irrelevant for the application of IHL because it is a justification for the legality of any use of force, even not amounting to an armed conflict. Whether there is such a conflict, for the purposes of the application of IHL (jus in bello), is a factual evaluation irrespective of the legality of the conflict per se (jus ad bellum).

    All in all, I would tend to agree with Marko that IHL does not apply to this situation.

    Marty Lederman says

    May 4, 2011

    The U.S. assumed that IHL does apply, and endeavored to act accordingly. I think that assumption was correct -- and that the alternative would in practice be fewer, rather than greater, humanitarian protections -- but obviously it's not uncontroverted. For what it's worth, Kevin Heller, Ian Henderson and I have much more about this in the comment thread to this OJ post: http://opiniojuris.org/2011/05/04/quick-thoughts-on-ubls-killing-and-a-response-to-lewis/

    Vidan Hadzi-Vidanovic says

    May 4, 2011

    Dov,

    it is obviously without question that your strict separation of the jus ad bellum and jus in bello is absolutely correct. This was not what I was trying to suggest.

    My line of reasoning was going in different direction. By labeling this act as an act of self-defense (and it would have to be an act of anticipatory self-defense, to make the things more complicated from the perspective of the jus ad bellum) the United States admitted the act to be an act of the use of force on the territory of another state (and not, for example, an act of "extraterritorial law enforcement action"). As such, it could be understood as a "hostility" between states (USA and Pakistan) and it is a well established principle of IHL that IHL is applicable in the situations of hostilities between states irrespective of the intensity, duration or scale of the conflict. That is one possible basis for the application of IHL in this situation.

    It is more complicated to present this incident as covered by the rules of IHL applicable in non-international armed conflict. In that context, this military action, taken alone and outside of the context of the conflict between the United States and Al Qaeda, could be understood as an "armed conflict" within the meaning of GC Common Article 3 only if we accept that the purpose of the requirement of protracted armed violence of certain intensity developed by international Tribunals was developed in the context of INTERNAL conflicts where it was necessary to distinguish between internal disturbances and tensions and the full scale armed conflict. Accordingly, the criteria would not be applicable in this particular case and the door would remain open to characterize the action as a non-international armed conflict.

    Finally, there is always possibility of observing this action as a part of the ongoing non-international armed conflict between the US and Al Qaeda.

    I hope I made myself more clear in this attempt.

    Steve Ratner says

    May 4, 2011

    On the IHL issue, I don't think the conflict is a NIAC according to Hamdan, as the US Supreme Court essentially accepts the USG position of a global conflict with AQ but then says it's non-international only in the sense that it's not between states. The better view, in my view, is that IHL applies because there is a NIAC within Pakistan between the Government and various non-state armed groups. OBL was then a member of one of those armed groups per the ICRC's DPH guidance. This position does not force a choice between human rights law and the idea of a global AC with AQ. It also would suggest that targeted killing would be lawful in others states where there is an AC between the government and organized armed groups, i.e., Afghanistan, Yemen, and Somalia.

    Ian Henderson says

    May 4, 2011

    Prof. Ratner,

    If the US acted without the consent of the government of Pakistan, I suggest the US could not be viewed as a party to any ongoing NIAC between Pakistan and various non-state armed groups. In other words, the fact that the US may itself have acted against a non-state armed group does not of itself automatically make the US a party to any other conflict which that non-state armed group may be involved in.

    Ian Henderson says

    May 4, 2011

    Dear Vidan,

    I suggest it is legally possible in the right circumstances for a State (in this case, the US) to take military action in the territory of another State (in this case, Pakistan) without thereby creating a state of armed conflict between the two States. A simple example during a nice, traditional armed conflict would be if Australia pursued enemy US combatants into neutral Canadian territory (assuming all the usual rules applying to doing so under the law of neutrality were complied with). If one looks at common article 2 of the Geneva Conventions, it is arguable that the US action was not *between* two or more High Contracting Parties.

    jpaust says

    May 4, 2011

    1) of course it was self-defense targeting under U.N. 51.
    2) the international armed conflict involving U.S. armed forces and those of the Taliban has migrated de facto to parts of Pakistan, including the spot where bin Laden presumbably directly participated in hostilities through use of his couriers, e.g., by assuring that al Qaeda members would participate with Taliban in armed attacks inside Afghanistan and across the porous borders. The U.S. and evey country that fields military personnel in combat in a foreign country should recognize that the conflict is international at least in that respect and is internationalized -- especially so that members of the armed forces have "combatant" status and "combatant immunity" for lawful acts of war during the international armed conflict.

    Nwamaka O. says

    May 5, 2011

    a bit worrisome if the UNSC has so quickly endorsed a killing whose legality under international law seems uncertain even under targetted killing (assuming that is what it was) standards set by Israeli courts...

    Nwamaka O. says

    May 5, 2011

    worth noting by the way, that two dutch lawyers have reported the killing to their local police in tilburg (perhaps an attempt to trigger universal jurisdiction?) and were adviced to contact the International Criminal Court. In the words of one of them :
    ‘There is a murderer who has admitted the deed on television and who dumped the evidence at sea. And the whole world is celebrating.’

    Vidan Hadzi-Vidanovic says

    May 5, 2011

    Prof. Ratner,

    I tend to agree with Ian and his remark that the lack of Pakistani invitation and consent complicates your otherwise neat solution to the problem.

    Ian, I think I follow your argument, but I am not sure how your proposition would legally work in the context of a non-state armed group (since law of neutrality would become irrelevant). Are you suggesting that it might be regarded as some sort of an extended (and let me add a few more "extended" for this particular case) hot-pursuit action? And does that mean that IHL is not applicable at all?

    Alessandro Pizzuti says

    May 5, 2011

    I agree that the operation may raise several concerns in terms of IHL as well as Jus ad Bellum

    However, in my humble opinion, I believe that the intial topic should be reframed in "Did the Killing of Osama Bin Laden confirm an emerging practice conrcerning Jus ad Bellum and Jus in Bellum?"

    Ian Henderson says

    May 5, 2011

    Vidan,

    My cross-border example was merely meant as an illustration of military action by State A on the territory of State B against the forces of State C in circumstances that would not amount to a state of armed conflict (particularly an international armed conflict) existing between States A & B (assuming an international armed conflict was in existence between States A & C). It was not meant to deal with the particular case of forces from State A pursuing a non-state actor in State B. I hoped to illustrate my argument that an international armed conflict exists where there is a use of armed forces *between* two (or more) States and not just because State A has used armed force inside the territory of State B without State B's consent.

    In my view, the forces of State A can take military action against a non-state actor in State B where consent has been given by State B or where State B has been unable or unwilling to prevent the use of its territory by the non-state actors. I provide argument for that position in a forth-coming article on the use of armed drones by civilian intelligence agencies.

    Vidan Hadzi-Vidanovic says

    May 5, 2011

    Thank you Ian for clarification. I completely agree with your views on the right to use force against non-state actor on the territory of another state if certain conditions are met. Looking forward to your new article.

    Steve Ratner says

    May 5, 2011

    Thanks for the various reactions. I still think the traditional, non-Hamdan NIAC model works. Pakistan has indeed consented to the presence of the U.S. military on its territory for operations against various armed groups. Its lack of knowledge of this particular operation does not, in my view, cut against this. In the alternative, Pakistan's consent is irrelevant as there is still a NIAC within Pakistan -- between the government and the armed groups -- with consent for the presence of a foreign army being a jus ad bellum issue.

    On the jus ad bellum side, the literature is now rich on this -- Christian Tams' EJIL piece is excellent in this regard. Interested readers might also want to check out the so-called Leiden Recommendations put out a few years ago by a group of experts convened by the Dutch Government and the Grotius Centre. They haven't gotten much publicity to date, but as one of the participants I think they are worth a read -- the cite is http://www.grotiuscentre.org/resources/1/Leiden%20Policy%20Recommendations%201%20April%202010.pdf.

    Mathias says

    May 5, 2011

    This is an essential contribution to the debate by Mary O'Connell: http://afpak.foreignpolicy.com/posts/2011/05/04/the_bin_laden_aftermath_abbottabad_and_international_law

    Pavel Caban says

    May 6, 2011

    I am afraid that those who assert that this was a self-defence according to the Article 51 of the Charter are opening Pandora's box. Consider please the following paraphrase of J. Paust:

    "As a matter of self-defense under Article 51 of the U.N. Charter, the United States has the right to target the head of Mexican maffia who was receiving and sending messengers at the very least during continuing actions on U.S. nationals across the fluid border between the US and Mexico. The U.S. would not need the consent of Mexico to engage in proportionate self-defense targeting. This did not simplistically involve a “law enforcement” paradigm and human rights law attaches when a person is actually within the “effecive control” of U.S. personell (not when there is a shoot out). In any event, human rights law only prohibits “arbitrary” deprivation of life and it is clear that targeting the head of Mexican maffia who commanded an organization engaged in continual attacks on U.S. nationals in the US and elsewhere was not “arbitrary” under the circumstances."

    Mihai Martoiu Ticu says

    May 6, 2011

    The new ASIL Insight has some thoughts on this: http://www.asil.org/insights110505.cfm

    I still have a problem with the whole debate about the legality of the killing. In the end it's still the U.S. that has the last word on it. Whatever the U.S. says goes.

    The surviving relatives cannot challenge these legal arguments in any courts of law. They might believe that it is just a case of plain murder, as professor Schabas proves that it is possible to believe:
    http://humanrightsdoctorate.blogspot.com/2011/05/murder-in-pakistan.html

    But they cannot challenge the U.S. legal argument in Pakistani courts (because of the state immunity), nor in U.S. courts (because of the political question doctrine), nor in international courts, since individuals don't have access to ICJ, and there is no International Court of Human Rights (the U.S. rejected it's enactment).

    In short, the whole debate looks like the debates in the Middle Ages whether or not twelve angels could dance on the tip of a needle.

    Shahzada Sultan says

    May 6, 2011

    The issue at the heart of Osama's killing is not one of IHRL. Law-enforcement authorities in every country of the world sometime do encounter a situation in which they end up killing a suspect or an absconder in their attempt to arrest him when he resists an arrest. A judicial inquiry into the incident can establish whether or not the arresting party acted properly and lawfully. But that is an issue under the domestic law.

    The relevant question under international law is the legitimacy of the operation itself: if the government of Pakistan comes out and says that they had allowed the particular operation, the matter is rested. If they continue saying that they were unaware of this covert operation that included crossing of the Pak-Afghan border by the US forces, then it is a clear violation of international law.

    No state unilaterally can take such an action on the territory of another state using the excuse of capturing the most wanted criminal in the world, even if there is a suggestion that the subject state was hiding that criminal. This license given to any state, however powerful, would make nonsense of the fundamental concepts of state sovereignty and the UN Charter, and lead to greater anarchy in the anarchic system of international law.

    jpaust says

    May 10, 2011

    Since Pakistan did not know of the CIA on-the-ground intelligence gathering operation for months and did not know of the Navy Seals operation until after it was completed, clearly Pakistan did not consent to the use of armed force in self-defense under UN 51 to target a DPAA or to the use of armed force consistent with law of war targeting of a leader of al Qaeda and a DPH, so the issues joined in Mary Ellen's book chapter and my article ( http://ssrn.com/abstract=1520717 ) are clearly alive, as are the issues addressed regarding relevant human rights (which could only be applicable if bin Laden had been in "effective conrol" of the Navy Seals (which the Obama Administration denies).
    There is no new law to be developed in this regard, simply lawful targeting under UN 51 and under applicable laws of war in an expanded de facto theatre of war in parts of Pakistan, including the very spot where bin Laden was engaged in operational planning and authorizations through use of his couriers.
    JJP

    Sangeeta Taak says

    June 21, 2011

    Can the same precedent be used by other countries. If my country knows that the person who attacked many people in my country is hiding in Pakistan and they are not extraditing the terrorist. Can we do the same operation. Will it be appreciated like US has been?

    Shujoy Mazumdar says

    June 15, 2012

    The acquiescence of the majority of states by not condemning the attack, undoubtedly provides sufficient opinio juris for the unwilling or unable rule to be substantiated as regards self defence.