More from O’Connell on bin Laden Killing as Peacetime Use of Force

by Roger Alford

Mary Ellen O’Connell has written a more detailed analysis of the international law involved in the bin Laden killing responding to some of the comments on her Opinio Juris post. Here’s a taste:

The use of lethal force is governed by two types of international law: the law of peace and the law of armed conflict. In peace, international law supports national legal systems when it comes to the resort to force. National systems restrict the use of force to law enforcement authorities — the police, or in special circumstances, the military (I argue here that the SEALs, who are military, kept their use of force at law enforcement levels). Unauthorized persons may resort to force in self-defense if necessary to save a life immediately. Otherwise, using force is considered a crime under international law.

Some crimes are so serious they are outlawed in international law, as well as national law, with the crime of terrorism is a prime example. As an international crime, states around the world have an obligation to suppress terrorism. But in suppressing even the most serious crimes, law enforcement agents must limit the amount of lethal force they use, and excessive force, even in anti-terrorism cases, has been ruled a violation of human rights law by both the European Court of Human Rights [ECHR] and the Inter-American Court.

The ECHR considered a case in 1995 with parallels to the bin Laden raid. In McCann v. The United Kingdom, the court found that members of the elite British SAS used excessive force when they killed IRA members in Gibraltar who were suspected of preparing a bombing. The court found that the operatives should have attempted to arrest the terrorists, instead of shooting them based on intelligence they possessed that the suspects were preparing to use explosives. If the suspects had resisted arrest or attempted to escape, authorities then would have had had the right to resort to lethal force.

This is the law that applied in bin Laden’s case. On May 2, no fighting was going on in Pakistan that would rise to the level of “armed conflict” as defined under international law; Pakistan had to suspend major military operations against militant groups in the country’s tribal areas after the floods of 2010. And despite what some commentators have argued, under international law there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves. The correct choice of law, therefore, was peacetime law.

http://opiniojuris.org/2011/05/04/more-from-oconnell-on-bin-ladin-killing-as-peacetime-use-of-force/

14 Responses

  1. Great stuff Mary Ellen.

    One part to note in particular is:

    “authorities must be prepared to use force in capturing dangerous criminals, while noting that surrender was a choice, and that, “Bin Laden would have avoided destruction if he had raised a white flag.”

    I think the “raised a white flag” is a bit much and too cavalier” and the “ddangerous criminals” could be elaborated on.  I understand that   “having used deadly force or threatened to use deadly force” opens the way to law enforcement to examine the appropriateness of using deadly force when seeking to arrest someone and I think that is at least one way one gets to the “dangerous criminal” level.  For OBL, the word “massively” should be added to reflect what he has done and to raise the sense of both the words “dangerous” and “criminal”.

    I said as much in my update today on the “unarmed” point to my May 2  over at Jurist entitled “Post-Osama: The Way Forward for the United States.”

    The point I am now thinking about is the new news that there was no firefight for the folks going in to get Osama, there were weapons in the room, and the way it is looking as to whether or not he resisted.  In the absence of a firefight, with no surrender, and no resistance by him I think that under the law enforcement paradigm one has a harder time with a dangerous criminal getting to deadly force being appropriate.

    As I say at that post, I do believe that under IHL or self-defense (and I know your view on self-defense Mary Ellen) the killing of OBL is legal.   I did think the case was close based on him being unarmed for the law enforcement vision with preceding firefight.

    I can see why some with this new information will look at it as murder in law enforcement space.

    Whether we have a trifurcated or bifurcated vision of the law here I think one can see what happened as legal in two visions and murder in one vision based on the new information.  I am still thinking about it but figured I would lay this out for those of you who might be thinking about this too.

    Best,
    Ben
    .

  2. One other comment that occurred to me related to John Denn’s post over here somewhere about this being run by CIA with SEALS coming from the military.  I do not know anything about SEAL training in distinctions between killing in law of war, self-defense, or law enforcement settings.  As they are coming from the military I imagine that they are trained in law of war extensively, very much in self-defense in more recent years and somewhat significantly in law enforcement.

    In this vision, the SEAL in the room would be principally trained and operating in a law of war or self-defense vision which would make this a lawful kill while the actual mission that the CIA was putting them into would be construed as a law enforcement mission with its more restrictive rules.

    In other words, the CIA plays the Defense department types in this game by having the people doing the kill come from a legal training tradition that is not the legal environment in which they are operating.

    Put another way -shit rolls down hill if there is a problem later on about this.

    In fact, shit rolls downhill here another way on the democratic side like it rolled down hill for torture on the republican side in the prior administration.

    Maybe what I am saying resonates with both the CIA and military folks out there, huh?  Heavy stuff.  Maybe they are both being played by Obama who is way out ahead of everyone.

    Best,
    Ben

  3. Further reports indicating that the SEALs were ordered to kill bin Laden rather than capture him (unless of course he surrendered) make it absolutely clear that this operation was not a law enforcement operation but instead a military operation undertaken under the laws of armed conflict.  While Prof. O’Connell attempts to shoehorn this incident into the law enforcement paradigm that she desires to find, she has yet to convincingly explain how the use of force without notice to or request for permission from Pakistan can possibly fit into that paradigm.  It is clear that Pakistan was not notified and their permission for this operation was not sought.  The fact that they may not have objected after the fact cannot have been the legal basis for conducting a “law enforcement” operation on Pakistani territory.

  4. But Michael even as a candidate Obama made it clear that he would do this in his debates with McCain.  Your approach would say that in the two years that Obama has been in the White House and where he told Panetta that his number 1 priority was to get OBL, that this was not communicated to all the other people who we saw in the room in the photo of the night of the OBL action.  And it requires us to believe this was never communicated to any of our Pakistani interlocutors over the past two years.  It strains credulity. When we hear PJ Crowley say tonight that Hillary Clinton said in a Pakistan trip that she thought the Pakistani’s knew where OBL was, you got to think we asked about OBL.  Even John Stewart on the Daily Show asked Musharraf that when Musharraf was peddling his book.

    I think it is much more likely that Pakistan wanted the plausible deniability game to be played in the same way Yemen wanted it with regard to our stuff against AQAP as came out in Wikileaks.

    And that means a general consent by Pakistan for us to be able to come in to get OBL that was done well ahead of time of any operation.  An information may have been done once the SEALS were actually on the ground (i.e. or one foot above landing) to be the “just before”.

    Pakistan protesting afterward is just Claude Rains in Rick’s shocked that gambling has been going on.

    Even without that consent, Sosa v Alvarez Machain suggests that this outside US stuff without an extradition request is not the concern of our courts in law enforcement settings.

    I do not buy it brother.

    Best,
    Ben

  5. How in the world is McCann v. The United Kingdom a binding precedent for the Bin Laden killing?

    1) The events leading to McCann were not international.  They were wholly within the sovereign boundaries of the British Crown. That’s the point O’Connell seems singularly unable to understand–that sovereignty matters.  The SAS unit in question could have called upon the domestic law enforcement apparatus of its own state.

    2) Leaving that gaping hole aside, I fail to see how an ECHR ruling is binding precedent on the actions of the United States.  For their own reasons the nations of Europe have decided to cede elements of their sovereignty to a supranational body with part of that ceding being a unification of legal systems.  ECHR doesn’t represent international law in any way, shape or form–rather, it represents EUROPEAN law.

    3) O’Connell is absolutely incorrect “that there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves.”  It is well established international law under the Geneva Conventions that a neutral state must prevent the use of its territory as a base for a combatant.  If it is unable to do so, it loses the benefit of neutrality and its territory may be violated to stop the aggression.

    4) Again, O’Connell makes the claim that the SEAL unit “kept their use of force at law enforcement levels.”  Again, this claim is false.  Consider, for example, one of the most extreme uses of force in the US domestic context–the attack on the Branch Davidian compound in Waco, Texas.  The law enforcement agencies established a siege.  They attempted to negotiate.  When violence began, it did not involve the execution within a period of minutes of the Branch Davidians.

    There is simply no credible way to portray the SEAL action as a law enforcement action.

  6. Most people too readily discard a “law-enforcement justification” with regard to the UBL-killing. But in my opinion, a law enforcement approach is the most sensible legal justification the US administration may have.
     
    To maintain the view that the UBL-killing took place within in an armed conflict with AQ, seems a bit shady to me. If that approach is adopted, you must come to the chilling conclusion that the whole world has become a battlefield. It implicates that AQ-operatives may be liable to similar deadly attacks wherever they are hiding (ok, this time it was Abottabad and the Pakistani government seems to turn the other cheek, but what’s next: Paris? Rome?).
     
    I prefer the following (extraterritorial law enforcement) approach: without the obtaining of Pakistani consent, the only reasonable justification the US could put forward for infringing another Sate’s sovereignty, is the right to self-defence (art 51 UN Charter). Apparently, the US had actionable intelligence that pointed to the fact that Pakistan had been a safe haven for the world’s most wanted terrorist and that it was either unwilling to or not capable of apprehending him. While enduring series of attacks by AQ throughout the years, the US could argue that it had a right to defend itself against those attacks by neutralizing the group’s supposed chief in his Pakistani residence.
     
    The applicable law regime for the operation wasn’t IHL, but IHRL. For IHL to come into play we need to have an armed conflict in Pakistan of sufficient intensity and with an organized armed group. I don’t think there is one. Apart from the occasional drone and SF operations in the tribal areas, no other US fighting with an organized armed group occurs in Pakistan. At least, not in such a way that it amounts to a non-international armed conflict between the US and a non-state entity. So what is left is IHRL.

    However, just because UBL was unarmed doesn’t mean that killing him with regard to IHRL standards, was illegal. Apparently, there was a firefight and without any sign of surrendering UBL may well have been a realistic threat that left the SF no other choice but to take him out. They could even have it done with the use of a predator. But still IHRL would have been applicable.
     
    I think this is the legal justification the US should go with. I think that what we have seen is one of the few modern and clear instances of extraterritorial law enforcement.

  7. A-ron,

    Although I disagree, I follow your argument until you say that “they could even have it done with the use of a predator.”  How could the use of a predator be squared with the law enforcement requirement that you MUST offer surrender before employing deadly force in the law enforcement context (except in the limited situation in which the target is an imminent threat)? 

  8. A few more points on Professor O’Connell’s analysis:
    (1) Sources of law: As evidence of international law, or perhaps even as sources of law, O’Connell cites: (a) an (irrelevant) decision by the European Court of Human Rights; (b) the opinion of UN official; and (c) a report which she authored. Nowhere does she cite actual state practice or opinio juris. States, not law professors, make international law.
    (2) Geographic scope of an armed conflict: Flowing in part from her flawed methodology, O’Connell adopts an extremely narrow view of armed conflict. In her view because there were no preexisting hostilities in Pakistan, there could be no armed conflict and thus the law of armed conflict is inapplicable. Under O’Connell’s theory, as a matter of jus in bello, an armed conflict could never spread (nor even begin) because there would always be a requirement of prior hostilities.
    However, armed conflict is not football. Both with respect to fact and law, the boundaries of the playing field are not permanently fixed prior to the onset of action. The boundaries on an armed conflict are not determined by the law of armed conflict or the prior occurrence of hostilities in a given region. Instead the conflict exists wherever the parties resort to hostilities, such as targeted killing. This is consistent with the traditional understanding of the extent of the theater of war. If the US resorts to hostilities through the targeted killings of Al Qaeda fighters in Pakistan, then Pakistan falls within the geographic scope of the NIAC and the law governing NIAC applies to these hostilities. Whether the US may lawfully resort to force on Pakistani soil is a separate issue under jus ad bellum.
    (3) False crime/conflict dichotomy: Bin Laden was both a criminal and a fighter. He was in short, a war criminal. As with some other war criminals, such as Radovan Karadzic, he sought to achieve his war aims by targeting civilians in order to coerce their governments. Merely because a fighter resorts to terrorist tactics does remove a struggle from the conflict paradigm. Though Bin Laden could have been tried for his war crimes, he could also be lawfully targeted as a combatant.

  9. Michael,
    Ok, I must admit that it’s a long shot, but you can’t really exclude the possibility that there are situations in which it is clear that simply apprehending a terrorist like UBL in his fortified house and surrounded by extremely hostile people wanting to protect him, would be impossible or reckless. If there is no other feasible and less aggressive way to neutralize him and he would still be presenting an immediate threat to the US, I would argue that taking him out with the use of a drone may be acceptable but only if the necessity and proportionality criterion are met. However, I do acknowledge that in this case, it would not be easy to prove the element of necessity (at least in a law-enforcement setting).

  10. Thanks A-ron Europe and Michael.
    Here is a law enforcement vision.  Cops has arrest warrant and comes to house. Guy on first floor shoots with a gun and is killed.  Cops now break into house.  Guy comes downstairs from second floor and confronts cops who just killed the first guy.  When cops get to the third floor the known to be extremely dangerous guy they want (has used massive deadly force and has threatened to use massive deadly force in the past) is standing there with two guns nearby and pushes his wife at the cops (this is the latest iteration of what is said to have happened in the room). 

    I find it hard to say that the cop is required in that setting to offer the guy a chance to surrender or not feel threatened by any move of the guy (who the cop may fear is hiding something under his clothes – gun up to suicide vest). 

    Now add on to this a complete cultural disconnect (Diallo in New York anyone reaching for his wallet and getting gunned down by cops?) that is severe as the cop is not from the country.

    I can see a US Rodney King type jury seeing the American cop as having acted properly. 

    I am not sure a Pakistani court would see it the same way because of the nature of their legal tradition.  Or put another way, this is comparative law enforcement visions.

    Now if there is another iteration that comes in that said that there was no shot from the guy on the first floor, the guy on the second floor was yelling "Don’t shoot my father and I surrender and was standing in his underwear, and the guy on the third floor and his wife were just standing there and had said "I give up,"  I would look at it differently.

    The thing I like about the law enforcement vision is that it does not have that made up sense that the self-defense vision has and it is less likely to get to craziness that is the fear of the law of armed conflict vision of all this.

    I would say that the law or armed conflict and the law enforcement vision feel intuitively more credible to me than this self-defense space that Holder posited and others are pushing so damn hard but that is just a personal intuition.

    As we play the distinguishing cases game,  I think we should also look behind that to what are underlying principles to find our way.  Cases are just illustrations (maybe this is too civil law an approach for some of the common lawyers).
    Hope this helps.
    Best,
    Ben

  11. George:
    O’Connell is absolutely incorrect “that there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves.”  It is well established international law under the Geneva Conventions that a neutral state must prevent the use of its territory as a base for a combatant.  If it is unable to do so, it loses the benefit of neutrality and its territory may be violated to stop the aggression.”

    RIght law, wrong convention: Hague V (Hague Convention No. V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 18 October 1907), not Geneva.

  12. Ben,

    Nice try on the varying scenarios you give.  The one problem is that the “cops” (SEALs) with the “warrant” (what you previously posited as blanket Pakistani permission to get OBL) in this case were ordered to kill OBL, NOT to offer or attempt to procure his surrender.  That is the essence of the law of armed conflict and anathema to a law enforcement model.  Law enforcement may NEVER set out to kill their target.  They may be aware that the target is extremely dangerous and therefore might be justified in using lethal force at a fairly low threshold because of that dangerousness, but they still may ONLY use lethal force if the target threatens them or others with imminent harm, or attempts to evade capture.  Most of the reports out there seem to agree that the SEALs set out on this mission to kill OBL, that they were required under the laws of war to accept his surrender if he offered it, but from the beginning their purpose was to kill him.  Law enforcement may never set out to kill someone.  

  13. http://www.humanrightsfirst.org/2011/05/05/was-killing-osama-bin-laden-legal/

    “By Gabor Rona
    International Legal Advisor

    He was an evil mass-murderer. Does it matter how it went down? Absolutely.
    It matters to one of the fundamental humanitarian principles of the laws of armed conflict: if they are “hors de combat,” or “outside the fight,” then targeting even military objectives is a war crime.
    So first, was bin Laden a military objective? Assuming one accepts the idea that the United States is at war with al Qaeda, yes. In war, persons who directly participate in hostilities or who perform a continuous combat function in an armed group are targetable, and bin Laden certainly was the latter, if not the former.

    But what about “hors de combat?” Here’s what Protocol I to the Geneva Conventions says:
    “A person is ‘hors de combat’ if:
    (a) he is in the power of an adverse Party;
    (b) he clearly expresses an intention to surrender; or
    (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;
    provided that in any of these cases he abstains from any hostile act and does not attempt to escape.”
    The first reports had it that bin Laden was armed and put up resistance by using a woman as a human shield.  Subsequent reports said wrong, not armed, no human shield.
    Does that render him “hors de combat?” No. It does not amount to either (a) or (b) or (c), above.
    Some law of war theorists claim that a person who poses no evident threat is also “hors de combat.” (To keep my students interested, I call it the naked soldier hypothetical). But unless and until that idea finds its way into the Geneva Conventions or into the practice of a substantial portion of the world’s militaries acting out of a sense of legal obligation, it will not be the law.
    What about the fact that he was an evil terrorist with the blood of thousands on his hands? If he was “hors de combat” that would be a matter for judge and jury to sort out, not Navy Seals. And that’s exactly as it should be because killing in war is not for the purpose of implementing justice. It’s for the purpose of neutralizing the enemy. I won’t argue with President Obama’s conclusion that “justice was done,” but I do think that term is more appropriate for what comes from a (legitimate) court of law than the end of a gun.
    But what if you reject the “war against al Qaeda” paradigm? In that event, human rights law, rather than the laws of war would be your guide. And human rights law prohibits arbitrary deprivation of the right to life. While the legality of lethal force is a closer question outside of armed conflict than in it, the totality of circumstances make it difficult to claim that the killing was arbitrary, even if bin Laden was not actively resisting or fleeing.
    All in all, probably a legal kill assuming the official version is true.
    Update: The Obama Administration articulated the right standard and analysis to this case when White House Spokesman Jay Carney said, ”The team had the authority to kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his surrender if the team could do so safely.”  Carney also stated that ”(t)he operation was planned so that the team was prepared and had the means to take bin Laden into custody.””

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