When to Kill and When to Capture?

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.