Quick Thoughts on UBL’s Killing — and a Response to Lewis
A number of students and colleagues have asked me if I believe that Usama bin Laden’s killing was legal. I’m swamped with teaching and writing responsibilities, so my ability to blog is limited. But I thought I’d at least put my thoughts on record, skeletal though they may be. And I want to reply to what I think are two misleading statements in Michael Lewis’s post regarding the relationship between the jus ad bellum and the jus in bello.
First, with regard to the UBL question: I have no doubt that killing UBL was legal. To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways. The best rationale is that UBL was a member of an organized armed group (“original” al Qaeda) taking part in the armed conflict in Afghanistan. In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality. And nothing I’ve seen indicates that the attack on UBL’s compound violated either of those principles.
Importantly, I don’t think the result would be any different if the applicable regime was IHRL, not IHL. As I’ve written before, IHRL limits targeted killing more than IHL, but it by no means prohibits it. And I think UBL’s killing was permissible, for reasons articulated by the inestimable Marko Milanovic:
IHRL does allow states to deliberately kill individuals if they have a sufficient justification. OBL was undoubtedly a highly dangerous individual, whose apprehension was needed to protect the lives of others. The US military operation at least contemplated the capture of OBL; the troops on the ground shot him in a firefight. There are no indications that he had tried to surrender before being shot. Under the same facts, his killing would have been equally as lawful had he been hiding somewhere in Alaska rather than in Abbottabad.
Now, to Lewis. He and I obviously agree that UBL’s kiling was lawful and that the applicable legal regime is IHL, not IHRL. It is important to recognize, however, that his explanation of why IHL applies rests on an unacceptable conflation of the jus ad bellum and the jus in bello. He writes:
[S]tate 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.
The second and third sentences of this statement are correct, but they in no way follow from the first sentence. IHL applies to the operation for one reason and one reason only: because hostilities rising to the level of armed conflict exist in Afghanistan and/or Pakistan (and UBL was a member of an organized group taking part in one of those conflicts). Whether the operation against UBL is consistent with Article 51 of the UN Charter (which I agree it was) has no bearing on that question; the consistency issue is exclusively one of the jus ad bellum — namely, whether the operation violated Pakistan’s sovereignty. Differently put, if the objective requirements of armed conflict do exist, IHL applies even if Article 51 did not authorize the operation; IHL does not distinguish between just and unjust, legal or illegal, uses of force. (Which means that it is perfectly legal for a soldier fighting an illegal war to kill an enemy combatant.) Conversely, if the objective requirements of armed conflict do not exist, IHL does not apply even if Article 51 did authorize the operation. The jus ad bellum question is irrelevant to the jus in bello one. (A conclusion reached, it’s worth noting, by the Farben, Krupp, and Ministries tribunals in the aftermath of WW II.)
I would also take issue with this statement in Lewis’s post:
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.
This is not necessarily wrong, but it is at least misleading. Although how a state chooses to respond to a threat from a non-state actor is relevant to whether hostilities rise to the level of armed conflict, the form of the response — military or law-enforcement — does not determine whether an armed conflict exists. It is simply one factor, the importance of which is debatable. States do not get to unilaterally determine whether IHL applies to hostilities with a non-state actor; again, that is an objective question determined by the intensity of the hostilities and the organization of the parties to the conflict. Nor, it is important to add, would we want states to be able to trigger IHL simply by calling in the military instead of deploying police officers. If that was the test, the Syrian government would be able to argue that its recent decision to massacre protesters with tanks was governed by IHL, not by IHRL, because the use of tanks means that the massacre was “a military operation conducted under the laws of armed conflict and not a law enforcement operation.”
The bottom line: yes, killing bin Laden was legal. But it was legal because the operation that killed him complied with IHL, not because it was permitted by Article 51. The latter issue is relevant only to whether Pakistan has the right to complain about the United States’ violation of its sovereignty.