The recent killing of Osama Bin Laden in Abbotabad by American Special Forces has sent US President Barak Obama’s popularity rates soaring, while eliciting sharp street protests in Pakistan and Afghanistan. The hostile relationship between Washington and al Qaida forces over the past ten years has been essentially political and military, with scant attention paid on either side to restraints imposed by the international legal system. And yet, Bin Laden’s death raises several awkward legal issues. First, was it permissible for the United States to encroach on Pakistani territory, without Islamabad’s permission, to carry out a lethal raid against an enemy of the US? Second, does the killing of Bin Laden constitute a war crime, as several legal scholars have recently suggested?
According to the UN Charter, Article 2(4), the United States – which is not at war with Pakistan – must request the permission of the Pakistani government before launching an attack on Pakistani soil. Three days after Bin Laden’s death, Foreign Minister Salman Bashir reproached Washington, saying: “There are legal questions that arise in terms of the UN charter. Everyone ought to be mindful of their international obligations.” While there is no doubt that both Washington and al Qaida considered they were at war with one another, the role of the Pakistani government in sheltering Bin Laden is nebulous, at best. Unless it becomes clear in the weeks and months to come that the Pakistani government was aiding and abetting Bin Laden, violation of Pakistani sovereignty poses a legal problem. According to the UN independent investigator on extrajudicial killings, Christof Heyns, there is “considerable dispute in legal circles as to whether we are dealing with an armed conflict in respect of al Qaida in Pakistan”. Recognition of this is evident in the fact that the US informed the Pakistani government of the US Navy SEAL attack in real time, as it was happening, in an effort to give a nod to Pakistani sovereignty, while preventing advance notice to Bin Laden from certain supporters inside the Pakistani government. Despite the enormous relief that Bin Laden’s death has brought to the families of those killed in al Qaida terrorist attacks, the US raid against Bin Laden bears more resemblance to a posse going after a bandit, than to State behavior under the UN Charter.
The question of war crimes is in some ways more straightforward than that of territorial sovereignty. According to Article 8 of the Rome Statute, a conflict nexus is a seminal component of the definition of war crimes in international law – and there is no doubt that the US Government and al Qaida were at war. The Rome Statute not only provides a very complete list of what would constitute a war crime, but also contains equally thorough provisions for command responsibility and defences in international law. Although President Obama ordered the raid against Bin Laden and is accountable for its deployment under the doctrine of command responsibility, it could be argued that in ordering the raid, the US Commander and Chief may claim legitimate defence under article 31(1)(c) of the Rome Statute. There are four substantive grounds for excluding criminal responsibility in the case of war crimes, including reasonable and proportionate self-defence of others. Under international criminal law, the danger posed by Bin Laden must exist objectively, and the threat must involve a potentially negative result that is both imminent and unlawful. President Obama’s right to use force in defence of potential terrorist attack victims is not absolute, but rather must be necessary to repel the planned attack and must be proportionate to the threat posed.
Clearly, the danger posed by Bin Laden, as the recognized leader of a global terrorist network that had claimed responsibility for numerous attacks, existed objectively. Moreover, Osama Bin Laden regularly issued videotaped warnings via Al Jazeera to the US government indicating that future terrorist attacks were imminent. And, by definition, terrorism is certainly unlawful. Given Obama’s habitual sang-froid, it is unlikely that he acted unreasonably or in haste. The Obama team began working in August 2010 to trace down leads to Abbotabad, in an effort to dismantle al Qaida’s leadership; many would consider the means used by the US Navy SEALs as both necessary and proportionate in order to prevent an imminent attack against civilian populations in the US, or elsewhere. As it is, apparently al Qaida was planning a terrorist attack on the under-guarded US Amtrak train system.
Other issues raised by the US killing of Bin Laden are more problematic. First, did the US government obtain information about the identities of Bin Laden’s messengers through torture of Guantanamo detainees? Second, was Bin Laden armed at the time of the raid, or were his arms within reach? If he did not pose an immediate threat to the Navy SEALs, then why was he killed? It should be noted that Bin Laden was indicted in Manhattan US district court in 1998 for conspiracy to attack US defence installations. As legal scholar David Scheffer aptly put it: “Normally when an individual is under indictment, the purpose is to capture that person to bring him to court to try him…. The object is not to summarily execute him if he’s under indictment.”
These and many other questions will hopefully be answered by the Obama administration, as the world braces for possible reprisals by scattered al Qaida forces. Questions of territorial sovereignty and war crimes aside, the devil may be in the details. The Islamabad government will recover from the blow to Pakistani sovereignty and President Obama certainly has a good case for ordering the attack against Bin Laden in defence of American civilians. But what of the use of torture to obtain information or the possibility that Bin Laden could have been captured alive? These are the questions that will not disappear at sea.