Killing of Osama bin Laden

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On May 1-2, 2011, United States forces, flying from Bagram Airport in Afghanistan, entered Pakistani territory, and raided the compound, in Abbotabad, of Osama bin Laden. It is agreed that bin Laden was shot and killed by United States Navy SEALs in the assault force. While not all details of the raid are known, several issues are involved from a legal and political standpoint:

  • Was the entry into Pakistan, a sovereign state, legally justified?
  • Was it legal to kill rather than capture bin Laden?

Issues of sovereignty

While Pakistani Prime Minister Yousef Raza Gilani gave a speech condemning the invasion of Pakistani sovereignty, the The Guardian[1] said that a prior agreement existed between Pakistan and the US, in which Pakistan would make public condemnations but no serious objection. Juan Cole described a broader set of agreements than the Guardian. [2]

A key issue is whether the U.S. could exercise either a right of "hot pursuit", or, if Pakistan appeared to be unable to restrict bin Laden, an enemy of the U.S., a limited attack into Pakistan. [3]

Killing vs. capturing

In the broadest sense, the issue here is one of jus in bello, the ethics, in just war theory, of how a war, once begun, is conducted. Colonel J.G. Fleury, of the Canadian Army, wrote "The critical issue both legally and morally is whether there are circumstances where it is permissible to kill non-combatants." He notes that this becomes increasingly blurred in "Operations Other than War [4] In this particular case, some of the issues are:

  • Was bin Laden considered a combatant, in the sense of warfare?
  • Was there a "supreme objective" that he be tried in a criminal court?
  • Was his capture militarily impractical?

Nobuo Hayashi, a researcher at the International Peace Research Institute, Oslo (PRIO) and a former official at the International Criminal Tribunal for the Former Yugoslavia, observed that jus in bello has evolved over time. The 1868 St. Petersburg Declaration, he observed, "Pursuing anything more or other than the disablement of able-bodied, non-surrendering enemy combatants is hereby deemed materially unnecessary for the uniquely legitimate object of weakening the military forces of the enemy and, accordingly, becomes impermissible." [5]

The specific orders given to the raiding force are not known. Specifically, there is no official confirmation that the death, rather than capture, of bin Laden was the objective. Legalities aside, it can be observed that both alternatives presented practical political challenges to the U.S. If he was captured, a trial would be demanded.

References

  1. Declan Walsh (9 May 2011), "Osama bin Laden mission agreed in secret 10 years ago by US and Pakistan: US forces were given permission to conduct unilateral raid inside Pakistan if they knew where Bin Laden was hiding, officials say", The Guardian
  2. Juan Cole (10 May 2011), "Secret Pakistani Deal with US on Bin Laden", Informed Comment
  3. Ashley S. Deeks (5 May 2011), Pakistan's Sovereignty and the Killing of Osama Bin Laden, American Society for International Law
  4. J.G. Fleury (17 November 1998), Jus in bello and Military Necessity, Advanced Military Studies Course 1/Canadian Forces College
  5. Nobuo Hayashi (2010), "Requirements of Military Necessity in International Humanitarian Law and International Criminal Law", Boston University International Law Journal 28: 39-149