A Licence to Kill?: the Assassination of Osama Bin Laden

On May 2nd, 2011, U.S. President Barack Obama told the American people in an official statement that Al-Quaeda leader and terrorist Osama Bin Laden was killed in a special military operation “after a firefight” [2]. This statement led to divergent responses.

At Ground Zero, New York, and lots of other places in the USA people cheered loudly and celebrated the death of the terrorist that masterminded the attack on the Twin Towers. In other parts of the world the death of the terrorist OBL was also celebrated by many. In an official statement the UN Security Council (UNSC) welcomed the death of OBL. It stated that he will “never again be able to perpetrate such acts of terrorism”. The UNSC reaffirmed its call to states to “work together urgently to bring to justice the perpetrators, organizers and sponsors of terrorist attacks.” The UNSC also reaffirmed that its Member States should ensure that in combating terrorism they “comply with all their obligations under international law, in particular international human rights, refugee and humanitarian law”[3].

Secretary-General of the UN expressed his relief in a formal statement: “I am very much relieved by the news that justice has been done to such a mastermind of international terrorism”. [4] German Chancellor Angela Merkel paid her respects to president Obama for the operation. She expressed her gladness that OBL has been killed by the US navy SEALS. Merkel regarded the killing of OBL as an important strike against terrorism[5]. Palestinian politician Ghassan Khatib was of the opinion that “getting rid of bin Laden is good for the cause of peace worldwide”. But he believed that what really counts is “to overcome the discourse and the methods -- the violent methods -- that were created and encouraged by bin Laden and others in the world” [6].

Not everybody reacted with relief and cheer to the killing of Bin Laden. Former Italian Prime Minister Massimo D’Alema for example, did not agree with the enthusiasm felt among so many over the death of OBL: “You don’t rejoice at the death of a man. Maybe if Bin Laden had been captured and put on trial it would have been an even more significant victory”. [7]

There were warning voices, exhorting to remain vigilant because of a fear of reprisals from Al-Qaeda, stressing that terrorism does not just end by killing OBL. And there were the disapproving voices. Worldwide there have been people questioning the legality and proportionality of targeting and killing OBL. Was the Obama Administration wrong in killing OBL? Was it the only option? The USA could have chosen to capture and try OBL in court instead of killing him. Besides this, it also has been questioned whether the USA violated the sovereignty of Pakistan by entering Pakistan in order to target OBL. The USA did warn the Pakistani government about the raid but not until the operation was about to take place [8].

As a candidate during the 2008 election campaign, Obama Barack already stated: "We will kill Osama bin Laden" [9]. The military operation was not intended to capture OBL in order to put him on trial. He was to be eliminated. A US national security official stated that it "was a kill operation" [10].

Justice

President Obama stated that “justice had been done” by executing OBL. Geert-Jan Knoops, Professor of International Criminal Law at Utrecht University, The Netherlands, wonders “what kind of justice” was referred to. “Justice by revenge or justice by law”? [11] The killing of OBL has been compared to a Wild West scene from a movie and American rough, Wild West-style justice and the ‘rule of the jungle’.

Human rights lawyer Geoffrey Robertson does not regard the killing of OBL as ‘justice being done’, but as a perversion of the term. “Justice means taking someone to court, finding them guilty upon evidence and sentencing them [...] This man has been subject to summary execution, and what is now appearing after a good deal of disinformation from the White House is it may well have been a cold-blooded assassination” [12].

Dov Jacobs, a post-doctoral researcher at the University of Amsterdam, the Netherlands, questions the ambiguous attitude of the UNSC regarding international criminal justice as far as the killing of OBL is concerned. He disapproves of how the UNSC could defend values such as the rule of law and due process on the one side and then could approve “actions that run counter to them in the same breath”. He states: “if you believe in the rule of law and due process, then you cannot approve the killing of Bin Laden, however politically or logistically justified it may be [13].

In order to assess whether the assassination of OBL on Pakistani soil was legal or not, three areas of law are of importance: international human rights, international humanitarian law and jus ad bellum (the right to wage war – in this case it concerns the use of force by the navy SEALS on Pakistani soil against OBL). In the case of the assassination of OBL, international human rights law refers to the question whether the action violated the human rights of OBL. International humanitarian law is concerned with the question whether the killing was part of an armed conflict or not and whether Al-Qaeda leader OBL should be considered as a combatant. If the raid is understood as an action which took place during an armed conflict with Al-Qaeda, OBL can be considered as a combatant and killing him during warfare would therefore be legal [14].

Why the act was considered to be contra legem

Why would the targeted military operation which led to the killing of OBL be contra legem? Which arguments are put forward? Many claim that instead of killing OBL, he should have been captured and extradited to the USA or an international criminal tribunal to be tried in court. Others claim that the action was lawful. Why?

In the opinion of Geert-Jan Knoops, killing terrorists is contra legem. According to international law, OBL should be apprehended and tried in court. He is of the idea that the operation was an “extrajudicial killing which is in principle not permissible under international law”. Geert-Jan Knoops warns for a wrongful interpretation of the earlier mentioned UNSC resolutions because this might lead to a situation in which “the whole world becomes one gigantic battlefield where every nation has the right to eliminate foreign nationals if they are suspected terrorists”. This could lead to questionable situations which should be avoided. According to Knoops, the selectivity in how politicians apply international law should “perhaps be one of our biggest concerns” after the 2nd of May. [15]

Shooting OBL, while he was unarmed is, according to Helmut Schmidt, Former West German Chancellor, “quite clearly a violation of international law” which also could have an incalculable impact on the Arab world in these turbulent times. [16] Navi Pillay, UN High Commissioner for Human Rights stated that the USA should give the UN more detailed information about the raid: “The United Nations has consistently emphasized that all counter-terrorism acts must respect international law” [17].

Why the act was considered to be "lawful, legitimate and appropriate”

Those in favor of the elimination of OBL claim that UNSC resolutions 1368 and 1373 (2001) offer a legal basis for a war on terror. Because the USA is at war with terrorists, terrorist mastermind OBL and as head of Al-Qaeda is regarded as an enemy combatant who may be killed [18]. Because the USA had announced it is in an armed conflict with Al Qaeda, the special operation aimed at killing OBL was legal under international law. Kenneth Anderson, a professor of law and fellow in national security and law at the Hoover Institution, USA: “It’s lawful for the United States to be going after Bin Laden if for no other reason than he launched an attack against the US” [19]. US legal official Ben Wittes also is of the opinion that the action was lawful. He stated that the people responsible for the action are “on extremely solid legal footing” [20].

Many are of the opinion that OBL should have been tried before court. But before which court? Because of the gravity of the crimes committed by OBL people would have liked it if he would have been tried before the International Criminal Court (ICC).

However, the ICC only has a mandate to deal with crimes that took place after the ICC statute entered into force in 2002. So, OBL could never have been tried for masterminding the 9-11 attack on the twin towers - only for crimes he committed after 2002.

Besides, the USA would have to become signatory to the ICC Statute, in order to bring the case to the ICC. If OBL would have been captured alive, the Pakistani government would have had to make a decision whether OBL would have to face trial in a Pakistani court or whether they would want to extradite him to the USA.

It is clear that the Obama Administration carefully and thoroughly planned the operation aimed at eliminating Bin Laden. They thought everything through, and they even had a plan ready in case OBL would have surrendered. Obama gave the order to kill OBL but he made an effort to minimize collateral damage “and that is significant on the side of legality”, Professor Laura Dickinson of the Arizona State University Sandra Day O’Connor College of Law, USA stated [21].

Obama did not give an order to eliminate OBL by just bombing the compound. During the operation three men and one female died but the youngest wife of OBL was not killed. She was only shot in the leg. Before OBL was buried at sea, he was given a proper Islamic burial rite according to Islamic custom. Obama decided to have OBL buried at sea in order to prevent that his body could be taken away and to prevent that a burial place could become a place of pilgrimage for OBL's followers.

By killing OBL and burying him at sea, the Obama Administration made sure that the curtain would forever fall for Osama Bin Laden disregarding the fact whether one is of the opinion that the raid was contra legem or whether one believes that it was legal.

[1] Osama bin Laden was planning attacks on America and Europe till last moments, reveal handwritten journals, Economic Times.
[2] See Text of President Obama's statement to U.S. people, Reuters.
[3] As quoted from: Security Council Presidential Statement, Welcoming End of Osama bin Laden’s Ability to Perpetrate Terrorist Acts, Urges States to Remain Vigilant, SC/10239, UN.
[4] As quoted from: Osama bin Laden dead: UN Security Council rejoices at death of bin Laden, The Telegraph
[5] See Merkel says she's glad bin Laden killed by U.S, Reuters.
[6] As quoted from Bin Laden death good for peace: Palestinian Authority, Reuters.
[7] As quoted from Should Osama bin Laden have been captured and tried?, Reuters.
[8] See The bin Laden aftermath: Abbottabad and international law, Foreign Policy Afpak.
[9] As quoted from "Osama bin Laden is dead, Obama announces,The Guardian.
[10] As quoted from U.S. team's mission was to kill bin Laden, not capture, Reuters.
[11] As quoted from Bin Laden killing: legal dichotomy?, International Justice Tribune.
[12] As quoted from Concerns raised over shooting of unarmed bin Laden, burial, Reuters.
[13] As quoted from The Astonishing Defence of Bin Laden's Death by the Security Council, Dov Jacobs.
[14] See Was the killing of Bin Laden Lawful?, EJIL Talk. Blog of the European Journal of International Law.
[15] Quotations from Bin Laden killing: legal dichotomy? , International Justice Tribune.
[16] As quoted from Concerns raised over shooting of unarmed bin Laden, burial, Reuters.
[17] As quoted from Should Osama bin Laden have been captured and tried?, Reuters.
[18] See Ibid.
[19]As quoted from Should Osama bin Laden have been captured and tried?, Reuters.
[20] Ibid.
[21] As quoted from Was Bin Laden raid legal? Probably, according to experts in international law, Law.com