International Law and Politics in the Bin Laden Raid, 2011

Abstract

The 2011 raid and murder of Bin Laden in Pakistan by the U.S. compels the question on the lawfulness of using intense military force to restrain one who presents a threat to nations. In this research paper, I demonstrate that Bin Laden’s killing was completed in a way utterly consistent with the international laws of war. There could be no better way to handle Bin Laden as he posed an imminent, continuing security threat characterized by deadly bombing incidents executed by Al Qaeda, a well-structured entity under his leadership. Although political issues related to U.S. access of Pakistan territory without the latter’s permission arose, it is arguable that the success of the mission depended on how confidential the operation was run. Therefore, the U.S. had every reason to operate in secret and only share the outcome after achieving its goal of eliminating the world’s most wanted criminal.

International Humanitarian Law (IHL) informed the killing of Bin Laden by the U.S., an accomplishment which equally attracted political contentions around the world. In this paper, I demonstrate that the application of excessive military force while raiding Bin Laden was lawful and justified. Although there are political debates as to whether the attack was retaliatory, it is certain that the continuing, imminent threat Bin Laden generated through the well-organized Al Qaeda group met the peak threshold for applying military force as specified in IHL. The agents involved in accomplishing the mission to eliminate Bin Laden were the CIA, the President, the National Security Council, and the military chain of command.

Legal and Political Issues in the Bin Laden Raid

The killing of Bin Laden seems to confer minimal instant ramifications for the legal context that governs the war with Al Qaeda (AQ) and all its associates. A short while following the September 11, 2001 attacks, Congress approved the Authorization to Use Military Force (AUMF, P.L. 107-40) (Hameed, 2016). By granting permission to harness all needed and suitable force to handle all people implicated in the 9/11 attacks, the AUMF authorized the utilization of force in addition to the application of other essential confrontations in the battle in case of the need for self-defense or to protect others. This includes the incarceration of apprehended terrorism perpetrators in a bid to deter their possibilities of returning to conflicts.

As a result of Bin Laden’s position in the command structure of AQ, as well as his participation in the 9/11 attacks, it is agreeable that he represented a valid target defined by AUMF at the moment he was shot dead. Moreover, the AUMF hardly limits the employment of the power it accords to a distinct geographical setting. Hence, in relation to domestic rule, the elimination of Bin Laden outside Afghanistan, the place where most fights against AQ by the U.S. occurs, has no bearing on the lawfulness of the raid. Although he was a justified target as enshrined in the AUMF, his murder does not culminate in the dissolution of the act’s sanctioned authority. The AUMF supports the deployment of force in fighting organized terrorist groups and people identified to have contributed in the 9/11 attacks (Hameed, 2016). Bin Laden’s extermination would not seem to influence the AUMF’s constant use against AQ to deter future terrorist strikes. Whereas Bin Laden’s killing lacks immediate legal effect of altering the AUMF’s authority, it is likely that his death may impact future discussions by policymakers on whether to modify the law that governs U.S. policy regarding the fight against AQ and its member groups.

Bin Laden’s search took about ten years to establish and execute, spanning two distinct Administrations (George W. Bush and Barrack Obama) with the process undertaken in a sovereign nation, i.e. Pakistan. The operation was done by the U.S. military without the foreign nation’s consent and knowledge, with the target well-secured and concealed (Jose, 2017). It is thus contended that no matter the duration of search and extent of prevailing difficulties, the U.S. will eventually kill or seize terrorist leaders. Though this may suggest a probable deterrence message, it also points to a future in which terrorist organizations could embrace more concerted approaches to secure their leadership, thereby making military war against them more complex.

The control and command acts during Bin Laden’s raid also presented significant political implications. As President Obama addressed the nation on May 1, 2011 regarding the murder of Bin Laden, he mentioned that, “and so shortly after taking office, I directed Leon Panetta, the director of the CIA, to make the killing or capture of Osama bin Laden the top priority of our war against Al Qaeda” (Mégret, 2018, p. 297). However, briefings shared later indicated that the process of raid was completed by U.S. Navy SEALs on the basis of the U.S. Special Operations Command. The aforementioned updates are likely pointers to the fact that the military endeavors focused on killing Bin Laden were under the CIA’s command and not the conventional military approach (Mégret, 2018). While this would not be unparalleled, it can be perceived as unusual and Congress may want the Administration to explain Bin Laden raid’s exact chain of command. Another issue is that the arrangement may not have been ideal due to the possibility it caused friction between the Department of Defense (DoD) and the CIA (Jose, 2017). The DoD-CIA discord would exacerbate inadequacies in the planning, resourcing, and accomplishment of the mission. On the contrary, if the tactic proved successful and without any challenges as it appears, the military command and CIA cooperation may serve as a model for use in the future to fight terrorism.

The blend of CIA and military command in the killing of Bin Laden has spurred considerable political stances, with three major questions raised to assess the practicability of the union. First, why was the command arrangement selected instead of a more conventional operation independently completed by the CIA or the military? Second, was there a lawful foundation for the command arrangement or was there a requirement of special authorities? Third, should the command arrangement be adopted for future operations, are the present U.S. policies and laws supportive of it and have legal stipulations concerning congressional oversight and notifications (Jose, 2017)? In essence, a thorough examination of the Bin Laden raid by the U.S. only shows the degree to which legal and political issues are involved in the case.

Agents Involved in the Bin Laden Raid and What They Wanted to Achieve

The raid of Bin Laden was a collaboration of agents from the CIA and military command chain. The CIA helped in tracing Bin Laden’s place using his most reliable courier named Ibrahim Saeed Ahmed, who was tracked to the IQ leader’s Abbottabad compound in Pakistan. The CIA equally performed a pattern of life examination on an assemblage of assets in Pakistan with the purpose of pinpointing any possible linkages and digital footprints (Jose, 2017). The analysis raised confidence in all the assets’ reliability, authenticity, and freedom from hostile control, thereby aiding in the location and verification of Bin Laden’s Abbottabad compound. Following the identification and confirmation of Bin Laden’s residence, planning on how to invade and abduct him was initiated. Hence, President Obama held a total of five consultative meetings with the National Security Council to agree on the way forward. The outcome of the consultations was the President’s order dated May 2, 2011 to invade Bin Laden’s residence (Jose, 2017). Thus, the CIA, the President, and the National Security Council contributed in the first phase of the process to capture and/or kill Bin Laden.

The next sequence of steps involved military command chains to accomplish the mission. Hence, on May 2, 2011, two helicopters entered Pakistan with approximately two dozen Navy SEALs from Afghanistan base in Jalalabad. The SEALs were part of the Naval Special Warfare Development Group (DEVGRU), an arm of the Joint Special Operations Command (JSOC) (Mégret, 2018). JSOC operates as an arm of the U.S. Special Operations Command (USSOCOM) committed to accomplishing operations against terrorism acts. The unit accessed Bin Laden’s compound which had been under the CIA’s surveillance for several months (Mégret, 2018). After some fire exchanges between the SEALs and Bin Laden’s security and family, he was shot dead and the mission closed in victory. Essentially, the agents involved in the invasion of Bin Laden were the CIA, the President, the National Security Council, and the military’s chain of command.

What the agencies aimed at achieving was to avert terrorism activities spearheaded by AQ under the leadership of Bin Laden. Existing intelligence information depicted that Bin Laden was involved in a number of fatal terrorism actions. These included the bombing of Kenyan-based U.S. Embassies in 1998 (213 individuals perished and 4500 injured) and the dreaded September 11, 2001 invasion (11 people died, 85 sustained injuries) of Pentagon and the World Trade Center in Tanzania (Cox & Wood, 2017). Bin Laden led other terrorism activities around the world, placing him in the list of the most wanted criminals globally. His followers worked as violent jihad; for instance, they undertook training and arming of Somali rebels who proceeded to kill 18 American servicemen in 1993 in Mogadishu (Mégret, 2018). They were equally attributed to the New York World Trade Center’s blasting in 1993 and the failed attempt on the life of President Hosni Mubarek of Egypt in 1995 (Cox & Wood, 2017). Accordingly, he was raided and killed to contain the increasing terrorism atrocities committed in his name and guarantee security around the world.

International Law’s Principles and Dispositions Relevant to the Bin Laden Raid

The law which governs armed conflicts at the global level, i.e. IHL is highly relevant to the Bin Laden raid. IHL permits the targeting and killing of certain cluster of humans such as those entangled in hostilities and active combatants (Nylen, 2020). In circumstances where it is applicable, IHL endures-and certainly expects-varied forms of violence which would be illegal outside the war context. Specifically, IHL allows the utilization of lethal force to fight the enemy as an initial resort in comparison to scenarios of peacetime law enforcement, where coercion only applies when the need for self-defense, stopping an escaping offender, and protecting others arises (Nylen, 2020). In this version, IHL defies the rules substantiated on the right to life, for example the restriction from intentionally murdering another person.

The activation of IHL is not based on war declaration but rather, the available empirical evidence, especially on the armed conflict as identified. The label ‘armed conflict’ is accepted where “there is resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State” (Birdsall, 2018, p. 246). When CIA discovered the exact location of Bin Laden and provided sufficient proof that he lived in Abbottabad compound, the decision to attack him at his residence was rightly justified on the aforementioned IHL’s disposition. The conditions for IHL use vary as anchored on the form of conflict in question, i.e. non-international armed conflict (NIAC) or an international armed conflict (IAC) (Hajjar, 2019). On the precept of Geneva Convention’s 1949 common Article 2, it is stipulated that those pacts are relevant in every circumstance of war declaration or armed conflict occurring between at least two High Contracting Parties (Hameed, 2016). Therefore, the law of armed conflict directly applies in the Bin Laden raid case, as the target led many terrorism attacks at various U.S. Embassies and other countries, jeopardizing the security of human.

There is a threshold set for both IAC and NIAC that must be observed before considering IHL in counterterrorism efforts. This is as founded on two elements, i.e. the degree and intensity of battle besides the extent of order or structure of the responsible militias. Only well-organized rivals undertaking consistent, deadly terrorism operations merit the involvement of military in their capture and/or killing (Birdsall, 2018). Based on this disposition, it is arguable that the Bin Laden raid met the IAC and NIAC criterion of using extreme force on the offender. This is because Bin Laden operated many bombing acts that caused the death and wounding of innocent people, while others endure permanent physical, mental, and physiological disabilities.

The governing of all IACs and NIACs are possible at the international level due to the presence of Geneva Convention. Article 3 of this convention is clear on when to consider IHL, IACs, and NIACs whenever violence occurs within the border of the High Contracting Parties. The criteria on whether to assume the common Article 3 (CA3) are given by the International Committee of the Red Cross (ICRC) (Hameed, 2016). The emphasis is to determine if the revolt is hierarchically organized and active, the group has considerable support, and the militia fights for control over territory. The international tribunals highlight the characteristics of an organized armed group as follows: capable of launching military acts; has a leader who takes credit of the group’s operations; and has an authority with the power to negotiate with governments (Birdsall, 2018; Hajjar, 2019). Essentially, counterterrorism situations do not represent armed conflicts until the aforesaid threshold of continuity, intensity, military reciprocity, and group organization is attained. By all standards, Bin Laden’s bombing operations as an AQ leader severely affected human populations, thus triggering IHL which permitted the U.S. to trace and kill him.

Link Between International Law and International Politics Illustrated in the Case

Acknowledging that IHL is applicable in principle to terrorist affiliations and conflicts compelling sovereign forces to counter such parties, the U.S. executed the Bin Laden attack and murder. The country has continued the fight against AQ since the historic 9/11 occurrence. Before this incident, the U.S. reacted to terrorism actions (e.g. the 1993 bombing of the World Trade Center) through the law enforcement course (Birdsall, 2018). However, during the raid of Bin Laden in 2011 and going forward, the U.S. adopted a war footing through an amendment which permitted the utilization of military force, deployment of troops in foreign countries, and establishment of military commissions (Hajjar, 2019). Thus, Bin Laden was shot dead in his Abbottabad compound located in Pakistan by the U.S. Navy SEALs who were based in Afghanistan.

By embracing the tactic, the U.S. has withdrawn from the application of the criminal law framework to successfully counter terrorism. Regarding the conventional attributes considered in evaluating the prevalence of an armed conflict, the intensity of AQ-led violence attained the maximum threshold required to signal the use of excess military force (Grzebyk, 2018). Certainly, Bin Laden’s AQ showcased an adequate scale of organization to instigate successful attacks against civilian objects and military bases. AQ, through the leadership of Bin Laden, is also argued to have exerted significant control of some borders in Afghanistan and Pakistan, and parts of Somalia among others (Grzebyk, 2018). The National Security Council therefore labeled the group as one that endangers global state of security and peace. Based on the description, the U.S. proceeded to launch a war against Bin Laden in Pakistan on the premise that the continuing, imminent threat it generated met the ultimate edge for applying military force as specified in IHL.

There are, however, two areas of international political contentions regarding U.S. execution of Bin Laden. Although the U.S. operated on the legal dispositions of IHL, questions arise whether its act was not retaliatory. One area of inquiry is if Bin Laden still posed imminent security threat ten years following the 9/11 bombings (Cox & Wood, 2017). UN Charter’s Article 51 is against the application of force to revenge or punish criminals (Birdsall, 2018). While the Administration submitted that Bin Laden was actively involved in plotting terrorism acts, there was limited public evidence to confirm the claim at the moment Bin Laden was shot dead. Another political issue is if indeed the U.S. Navy SEALs legally entered Pakistan (Cox & Wood, 2017). This is because the Pakistani government was not informed about the entire operation before execution. However, the failure to contact Pakistan for authorization to penetrate its territory was justified as it would have jeopardized the mission that had been planned for months. By concealing the intelligence information and accomplishing the commitment to eliminate Bin Laden, it is arguable that the U.S. secret entrance into Pakistan was reasonable.

Conclusion

From the above considerations, it is feasible to conclude that the raid and killing of Bin Laden was legal and built on IHL. Due to Bin Laden’s position in the command structure of AQ, in addition to his influence in the 9/11 attacks, it is agreeable that he represented a genuine target defined by AUMF at the instant when he was shot. Hence, on the basis of domestic law, the extermination of Bin Laden outside Afghanistan, the place where most fights against AQ by the U.S. occurs, has no bearing on the lawfulness of the raid. Essentially, the agents involved in the invasion of Bin Laden were the CIA, the President, the National Security Council, and the military’s chain of command. Lastly, because Bin Laden presented continuing, imminent threat that met the highest limit for applying military force as specified in IHL, the U.S. had every reason to secretly enter Pakistan and slay him to ensure human safety and security.

References

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