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.