02 May Bellinger on the Legal Basis of the Bin Laden Killing
John Bellinger, former State Department Legal Adviser has posted a very short piece entitled Bin Laden Killing: The Legal Basis. Here is an excerpt:
The U.S. killing of Osama bin Laden in Pakistan was lawful under both U.S. domestic law and international law…The Authorization to Use Military Force Act of September 18, 2001, authorizes the president to use “all necessary and appropriate force” against persons who authorized, planned, or committed the 9/11 attacks.
The killing is not prohibited by the longstanding assassination prohibition in Executive Order 12333 because the action was a military action in the ongoing U.S. armed conflict with al-Qaeda and it is not prohibited to kill specific leaders of an opposing force. The assassination prohibition also does not apply to killings in self-defense. The executive branch will also argue that the action was permissible under international law both as a permissible use of force in the U.S. armed conflict with al-Qaeda and as a legitimate action in self-defense, given that bin Laden was clearly planning additional attacks.
And on the Pakistani sovereignty issue:
…under the UN Charter, the United States would normally be prohibited from using force inside Pakistan without obtaining Pakistan’s consent…the Pakistani government appears at least to have consented after the fact to this potential infringement of its sovereignty.
“Some critics of the administration’s legal theory that the United States is in an armed conflict with al-Qaeda might–if they were consistent with their past criticisms–argue that the United States did not have a right to use military force against bin Laden outside of Afghanistan, and that Washington should instead have sent an extradition request to Pakistan or asked the Pakistani government to arrest bin Laden. But such traditional critics may prefer to remain silent in this instance.”
I find this a bit snarky for the former top Legal Counsel to the Bush National Security Council and subsequent Legal Advisor at State in a comment on the Counsel of Foreign Relations website. It seems way too defensive. The point that seems obvious to all is that at least formally Pakistan is our ally in this and has understood that we would come in with all we had if OBL was in our sights. To speak of extradition requests at this stage of the battle is a strawman.
Best,
Ben
Bellinger’s “opinion” is neither reasoned nor persuasive, nor really an analysis and consists of nothing but assertions. It reads like a long bumpersticker. The analysis isn’t that simple or simplistic. I am looking forward to hearing from less biased “less motivated” reasoners. To coin a term, I suppose, it is rather “Yooish”.
Does this mean that Al-Qaeda can legally kill Obama?
Dear Mihai,
Probably not. If one takes the view that the US (and possibly other States) are in a NIAC with al Qaeda, then the ‘fighters’ for al Qaeda do not have the equivalent of the combatant immunity that is probably enjoyed by the armed forces of the US in a NIAC (and other States party to the NIAC). Nor can al Qaeda claim to be acting in self-defence, which was presumably a reference to article 51 UN Charter self-defence enjoyed by States.
I would also argue that the President of the United States is neither a combatant nor taking a direct part in hostilities, and therefore is not a lawful target (although that view may not have broad support).
I posted on this issue at:
http://stansgreatbooksblog.blogspot.com/2011/05/legality-of-assassinating-osama-bin.html
I looked at a quote from Max Weber on the definition of a state and argued that if the assassinating Osama is legal, then we are, in the Weberian sense, a global state.
Here is my take over at Jurist.
http://jurist.org/forum/2011/05/benjamin-davis-post-osama.php
Best,
Ben