How Should the OBL Operation be Characterized?
The United States military sent some of its most highly trained combat experts into Pakistan without asking for Pakistan’s permission. They entered Pakistan’s airspace in military helicopters specifically equipped to defeat the Pakistani air defenses. According to a national security official in the immediate aftermath of the operation they went there for the sole purpose of killing Osama bin Laden, a goal which they quickly accomplished. These facts support characterizing this as a military operation conducted under the laws of armed conflict and not a law enforcement operation. The fact that John Brennan is now describing it as a “capture-or-kill” mission does not change this characterization because the laws of armed conflict treat all missions as “capture-or-kill”, requiring that an enemy offering to surrender may not be killed.
The legal justification for this use of force cannot have been based upon Pakistani consent because it was never sought. It is extremely unlikely that the legal basis for the operation was hoped for Pakistani acquiescence after the fact. The justification that was almost certainly relied upon was Article 51 self-defense as described by Jordan Paust.
This is significant because it represents the use of Article 51 self-defense against non-state actors. While the ICJ’s opinions in the Palestinian Wall case and Congo v. Uganda both called into question whether Article 51 self-defense can support the use of force against non-state actors, the separate opinions of Judges Simma and Kooijmans recognized that in a post-9/11 world containing failed states, state practice strongly supports the view that an expansive reading of Article 51 to include non-state actors is appropriate. Sunday’s operation was another example of state practice undertaken with the belief that the boundaries of the battlefield are not determined by geopolitical lines but rather by the location of participants in an armed conflict, whether the participants are states or non-state actors. This continues to be the standard for determining where the law of armed conflict is properly applied.