Human Rights First Human Rights First

Was killing Osama bin Laden legal?

5-5-2011

By Gabor Rona
International Legal Advisor

He was an evil mass-murderer. Does it matter how it went down? Absolutely.

It matters to one of the fundamental humanitarian principles of the laws of armed conflict: if they are “hors de combat,” or “outside the fight,” then targeting even military objectives is a war crime.

So first, was bin Laden a military objective? Assuming one accepts the idea that the United States is at war with al Qaeda, yes. In war, persons who directly participate in hostilities or who perform a continuous combat function in an armed group are targetable, and bin Laden certainly was the latter, if not the former.

But what about “hors de combat?” Here’s what Protocol I to the Geneva Conventions says:

“A person is ‘hors de combat’ if:
(a) he is in the power of an adverse Party;
(b) he clearly expresses an intention to surrender; or
(c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;
provided that in any of these cases he abstains from any hostile act and does not attempt to escape.”

The first reports had it that bin Laden was armed and put up resistance by using a woman as a human shield.  Subsequent reports said wrong, not armed, no human shield.

Does that render him “hors de combat?” No. It does not amount to either (a) or (b) or (c), above.

Some law of war theorists claim that a person who poses no evident threat is also “hors de combat.” (To keep my students interested, I call it the naked soldier hypothetical). But unless and until that idea finds its way into the Geneva Conventions or into the practice of a substantial portion of the world’s militaries acting out of a sense of legal obligation, it will not be the law.

What about the fact that he was an evil terrorist with the blood of thousands on his hands? If he was “hors de combat” that would be a matter for judge and jury to sort out, not Navy Seals. And that’s exactly as it should be because killing in war is not for the purpose of implementing justice. It’s for the purpose of neutralizing the enemy. I won’t argue with President Obama’s conclusion that “justice was done,” but I do think that term is more appropriate for what comes from a (legitimate) court of law than the end of a gun.

But what if you reject the “war against al Qaeda” paradigm? In that event, human rights law, rather than the laws of war would be your guide. And human rights law prohibits arbitrary deprivation of the right to life. While the legality of lethal force is a closer question outside of armed conflict than in it, the totality of circumstances make it difficult to claim that the killing was arbitrary, even if bin Laden was not actively resisting or fleeing.

All in all, probably a legal kill assuming the official version is true.

Update: The Obama Administration articulated the right standard and analysis to this case when White House Spokesman Jay Carney said, ”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.”  Carney also stated that ”(t)he operation was planned so that the team was prepared and had the means to take bin Laden into custody.”


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Posted in Blog | 18 Comments »

  • dakota

    im calling bullshit… “fundamental humanitarian principles of the laws of armed conflict: if they are “hors de combat,” or “outside the fight,” then targeting even military objectives is a war crime.” then harry truman should have been prosecuted for dropping a bomb on japan!

    • Urban Pink

      Well, Japan could have taken that option, no? They chose to surrender instead. They were classier than OBL, wow!

  • Peter H

    Dakota,

    Many of the Allies actions under World War II would be illegal under internationa law today.

  • Gabor Rona

    Dakota,

    You’ve got a bit of an apples and oranges thing going, I think. Hiroshima was about whether we were targeting civilians (a war crime then and now) or engaged in disproportionate attack (excessive collateral damage even though there were legitimate military targets down there). The bin Laden operation issue is about neither. It’s about whether he was surrendering. But if you insist that either I’m full of it or Truman was a war criminal, I’d put my money on the latter.

  • Luigi

    War against terrorism is a war, OBL was a legitimate militry target, so he was killed in a militry action in a war, outstide of civil jurisdiction.
    I think is absurd to pretend to apply to war actions performed by militry the same rules of law enforcement operations performed by police officers.
    I read the comments of Mrs. Navi Pillay or Amnesty International and I was disgusted of the hypocisys: why these people are so worried about the human right of Mr. Laden, who is a very dangerous mass murder, and so ready to defend him?
    But when the human right of common people, who have not so much audience like OBL, are palesely violated, these very high paid human right burocrats are completely silent.
    Why not for these people to gain their very high salaries defending the right of weak and defensless common people like, for example, Schapelle Corby, an innocent australian woman who is dying in an Indoneisan jail?

    Reference:
    http://www.schapellecorby.co.nz

  • Shun Hattion

    How about looking after the rights of innocent people that are alive than wondering whether or not a mass murder deserved to be killed because he was unarmed.
    Try looking into the human rights of someone like Schapelle Ciorby. Do the research and then fight for someone that deserves to be saved.
    At least then you can sleep at night knowing that you have actually achieved something important.

  • tee sule

    i am so surprised that people are forced to believe that Osama Bin La-din is truly dead…does this person rally exist….just try watching the *mission Istanbul*lets say the US are trying to cover up the mess they have made for the past 10 years*

  • James

    “hors de combat” does not mean “outside the fight” it is a poor and literal translation. In French (itis French) it means incapacited in the course of comba, in other words, neutralized. OBL and Al Qaeda are stateless combatants,in that they are claimed by no nation-state nor so they claim to be part of any. As such it is difficult to really apply legal concepts such as those in the Geneva Convention. To some extent one might argue that the state of war is a de facto rather than de jure issue here, as there is no nation-state upon which to declare war. In this respect one might invoke “raison d’état” as sufficient cause to take down OBL and Al Qaeda leaders. Bottom line I simply think legal principles are too convoluted in this instance and that this targeted assassination is jusifiable, with cause, regardless of the circumstances.

    • peter

      Maquiavello very sane influence in your opinion je!
      This it is a twisted interpretation; the spirit of the convention is to avoid unnecessary deaths this is a sufficient parameter, beside understanding that in being the life slightly valuably at worst an execution must be decided for a court not for a soldier that not this one in conditions to reason due to the heat of the battle

  • Dr. WIlliams

    I am sadden that human rights are being violated on a consistent level. People as a whole are becoming very evil as our very nature is declining. We need Jesus. We need to pray. Obama need Jesus to guide his decisions. Yes, it’s sad to think that we are selective when it comes to who/who’s human rights are being violated. The facts are. HUMAN RIGHTS to life is being violated daily. However, let’s clean up our own back yards before we go across the world and clean some other yards. Our Yards are FILTHY.

  • Julie

    ”…difficult to claim that the killing was arbitrary, even if bin Laden was not actively resisting or fleeing. All in all, probably a legal kill…” If the official version is true, maybe – the more-or-less official versions have varied from him being killed in a firefight after Obama authorized an operation to ”get Osama bin Laden and bring him to justice”, to the Seals having orders to shoot a surrendering man for not being naked, so guess it depends on which version you pick.

    But a legal kill even if he wasn’t actively resisting or fleeing? Right…

    Let me get this straight – supposing there’s this big terrorist attack in Pakistan and the Pakistani authorities are convinced I planned it, according to international law they have the right to send a group of soldiers to wherever I live, e.g. the US, without notifying the US authorities first? And if I don’t immediately raise my hands and/or shout ”I surrender” to the men storming my home before they manage to pull the trigger (e.g. if I’m too terrified to move or speak at all), it’s quite legal to just finish me off with a couple of bullets, even if I don’t make the slightest attempt to resist or flee – no need for a trial as long as they’ve remembered to declare war on this terrorist group I’m supposed to be leading first? No need to even make sure I’m the person they think I am before killing me – I mean, taking a DNA sample after I’m dead to make sure they killed the right person is nice, but wouldn’t it be even nicer to do it before blowing my brains out, just so that they would have someone to apologize to in case the DNA test proved they got the wrong woman? And once the US authorities found the bodies of some neighbours who had also been killed in the attack and the Pakistani told the world how they killed me while I was shooting at them, or on second thought was unarmed but resisted them, or whatever, but justice has been done, the US should just accept this? And if my family was feeling a bit upset and complained that maybe there should have been a trial at some point in this story, Human Rights First would release a statement declaring that they are ”wrong on international law” and ”aren’t unbiased observers”?

    Wow. Am I the only one finding this a bit disturbing?

    I seriously doubt this is the legal way to proceed if a head of state believes he knows where in another country a terrorist is living. Call me crazy, but I really used to like this system where anyone believing there’s irrefutable proof of a person’s guilt was still supposed to present that evidence to a court rather than the media and let a jury decide what constitutes proof and what the penalty should be rather than doing it themselves. I just happen to like this idea that everyone has ”the right to be presumed innocent until proved guilty according to law in a public trial”, as the Declaration of Human Rights puts it. I’d think the general interpretation would be that presuming someone innocent means you don’t blow their brains out if it’s avoidable. If international law actually allows a group of armed men to kill an unarmed crime suspect who isn’t even trying to fight back or escape, just because the suspect hasn’t spontaneously raised his or her hands or said the words ”I surrender”, then I guess I’ve been wrong on international law too – I really used to think it made more sense than that.

    I’m very disappointed. I used to consider Human Rights First a credible defender of human rights, but if this is the way you interpret international law, you can do it with somebody else’s support from now on. I think I’ll find some other organization to spend my money on in the future.

    • Gabor Rona

      Dear Julie,

      Your beef is not with Human Rights First. It’s with the rules of humanitarian law – the law of armed conflict. Fact is, while armed forces are required to accept surrender, if offered, they are under no obligation to request it. But the difference between you and bin Laden (among many) is that even if you are suspected in a terrorist plot, you would not be targetable unless you were directly participating in hostilities in an armed conflict.

      Gabor Rona

      • Julie

        Dear Gabor Rona,

        Actually, my beef is not with the rules of humanitarian law. It’s with your interpretation of them, which allows killing suspected criminals without a trial simply by redefining them as warriors.

        Firstly, I’m critical of the entire “war against al Qaeda” paradigm – the idea that it’s legally possible for a state to declare war on a group of criminals or vice versa, making it acceptable for the state to kill “combatants” belonging to the group without a trial anywhere in the world. Obviously, if you do accept this paradigm and if you think that participating in the planning of attacks as the leader of one of the parties in the conflict counts as “performing a continuous combat function”, then I guess killing bin Laden was legal. Just as it is legal for any country in the world to send soldiers anywhere in the US without informing the US authorities first, supposing a person leading a terrorist group they’re fighting is assumed to be there, and kill the person without a trial – any innocent Americans possibly getting shot in the process would just be collateral damage.

        As for me not being targetable because I’m not participating in hostilities, you missed my point. Of course, I know that I’m not “participating in hostilities” or “performing a continuous combat function in an armed group”. Unfortunately, that would be cold comfort if e.g. the Pakistani authorities thought otherwise and chose to act on it. If leading a terrorist group and planning attacks on behalf of it counts as a continuous combat function and the authorities thought they had proof I was doing that, then to the best of their knowledge, I actually would be targetable. That wouldn’t make it true, but after being shot in the head a couple of times, I might have a hard time proving my innocence. By your logic, the only problem in the above scenario would be the bad intelligence claiming I was planning terrorist attacks when I wasn’t – not that there would in principle be anything problematic about reacting to this kind of intelligence by coming to the US to kill someone without a trial. Guess we’ll just have to agree to disagree there.

        According to Obama himself (http://www.whitehouse.gov/the-press-office/2011/05/04/press-briefing-press-secretary-jay-carney-542011) they were 95% sure the dead man was bin Laden prior to the DNA testing – in other words, even after comparing the body’s length to one of the Seals and the facial analysis, there was still a chance they had not only shot a man without a trial, but had actually shot the wrong man. I really don’t think Obama giving a statement saying “Oops, my bad, sorry” would have comforted the family of the victim very much in case the DNA test had shown the dead man wasn’t bin Laden. There’s a reason I’d prefer these things were decided in court rather than by the president of the US, or the president of Pakistan.

        Secondly, the part of your analysis that really stunned me and which I was criticizing was the section about whether it was a legal kill if the “war against al Qaeda” paradigm was rejected. As you wrote yourself, human rights law rather than the laws of war should have been the guide in that case. And human rights law doesn’t allow killing unarmed crime suspects who aren’t trying to escape or fight back. Everyone has a right to life and a right to be presumed innocent until proved guilty in a public trial. This means you can’t just skip the trial and jump ahead to the part where you kill the bastard. While some aspects about the interpretation of international law may be controversial, I used to think there was a consensus on at least this much.

        I really don’t feel like continuing to support a human rights organization that doesn’t recognize such a basic human rights principle.

        • Gabor Rona

          Dear Julie,

          Thanks for your reply.

          I still think your disappointment with us is misplaced. There are others who claim, as you do, that he was a criminal, not a warrior, and therefore, should have been arrested for a criminal trial instead of killed under a claimed “law of war” theory.

          But “criminal” and “targetable under laws of armed conflict” (I also reject “warrior”)are not mutually exclusive categories. In armed conflict, you do not lose your targetability because you’ve committed a crime.

          I understand that you reject the concept of “war” between the US and al Qaeda. I also have my doubts about it, but it’s not a slam dunk. There is well-settled jurisprudence on this from the ICTY, ICTR, Inter-American Court and the ICRC. The laws of armed conflict, including the powers of targeting, apply to the conduct of non-state armed groups that conduct a certain threshold of hostilities, measured by intensity or frequency of attacks, and that are sufficiently organized so that they can be considered a “party” to armed conflict. (The “party aspect is measured by whether or not they maintain a command structure that enables them to discharge the rights and responsibilities of the laws of armed conflict, whether or not they actually do discharge them.)

          You turn the tables with this:
          “(If)killing bin Laden was legal (then it is) just as . . . legal for any country in the world to send soldiers anywhere in the US without informing the US authorities first, supposing a person leading a terrorist group they’re fighting is assumed to be there, and kill the person without a trial – any innocent Americans possibly getting shot in the process would just be collateral damage.”

          But here you conflate laws of war with laws of state responsibility. I don’t know if the US was there with or without Pakistan’s consent. If without, that raises a legal issue about the relations between the two countries, but not under the laws of armed conflict.

          As to innocent Americans killed in a hypothetical Pakistani raid on terrorists in the U.S., if it was in an armed conflict, if the raid were targeted against military objectives, if the force used was proportionate, if sufficient precautions were taken to avoid civilian harm, if the civilian deaths were not disproportionate to the military advantage gained by the attack, then yes, the deaths of the civilians would not be a violation of the laws of armed conflict. Again, your beef is with the law, not HRF.

          As for the right to use force outside of armed conflict, I agree with you that “human rights law doesn’t allow killing unarmed crime suspects who aren’t trying to escape or fight back.” That’s why I said it was a closer question than the armed conflict analysis. And that’s why I also premised my conclusion with “assuming the official version is true.” (You’ll recall that the original official version had it that there was resistance from within the house.) But in the grand scheme, I think the pure human rights-based analysis is misplaced because there is pretty good reason to believe that the context was armed conflict. If so, the law of armed conflict, rather than human rights law, is the place to go for analysis and answers.

          Finally, I want to note that we have been working hard for years to close Guantanamo, end military commissions, end torture, end arbitrary detention in Bagram (see our new report), and hold government and contractor torturers accountable. More recently, we’ve been working to determine the scope of US targeted killing policy and to bring it within the law. While the victories are few and far between, our ability to influence the debate within the government – whether the executive, Congress or our amicus work in the courts – depends on diligent, accurate and measured legal analysis. Were we to take the legal positions you suggest, we would not only be wrong on the law, we would also be compromising our ability to influence policy.

          I’m sorry we’ve lost your support and I think your withdrawal of support works against everything you and we want to accomplish. And I also think that adopting questionable legal theories in order to maintain your support would be even more detrimental to what you and we want to accomplish. I hope you will change your mind.

          Gabor

  • Timmy

    He was certainly guilty and deserved what he got. I was glad to hear the news that public enemy #1 bit the dust, but I would have liked to have seen the trial. Maybe interned at Guantanamo Bay, tried and executed in New York, Washington or Pennsylvania, or better yet, The Hague. I’m not sure of the legality of his assassination. They had plenty of opportunity to take him alive, and it would have meant a great deal for the survivors and the families of victims of 9-11.

  • Tim Vaillancourt

    What about their illegal flying of helicopters in Pakistan airspace without authorization? Is that legal?

    Also, was blowing up the helicopter they crashed into a wall legal?

    It seems they have little regard for Pakistan law, which I assume they violated.

    Tim

  • sayantani ghosh

    killing of a criminal is always justified in every sense.we r not jesus christs. we r human beings & being revengeful is not a crime,

  • Philip

    The ONLY reason they shouldn’t have killed him is because that wasn’t punishment enough for the person he is and what he has done. He should have been kept alive and tortured for as long as possible. He is less than scum. He doesn’t deserve human right… why would you even question this…