Introduction
On May 2nd, President Obama announced in a national address, “Tonight, I can report… that the United States has conducted an operation that killed Osama bin Laden, the leader of al Qaeda” (Obama, 2011). This came as a surprise to many, including both domestic Congress members and international allies and organizations, as a very limited number of people knew about Operation Geronimo. There was much controversy surrounding Obama’s decision, given the circumstances, it seemed that U.S. troops engaged in operations in foreign space without the approval of the country, as well as the geopolitical implications that portrayed Pakistan’s ISI as harboring terrorists. President Obama had the legal authority to order and execute Operation Geronimo under Constitutional law as the Commander-in-Chief and international laws of armed conflict.
Legal Authority
President Obama had the legal authority to order Operation Geronimo as the Commander-in-Chief of the U.S. military. The use of the military without a Congressional declaration of war has been a source of controversy throughout modern U.S. history. While the War Powers Act requires notification of Congress using military action within 48 hours, 2001 shifted that perspective. The Authorization for the Use of Military Force Against Terrorists (AUMF) passed by Congress after 9/11 explicitly states “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided in the Sept. 11 attacks” (Legal Information Institute, n.d.).
The United States officially announced to the world that it is at war with Al-Qaeda and those responsible for planning or executing the 9/11 attacks, for which Bin Laden took extensive credit. Therefore, under the AUMF doctrine, Obama maintained the legal authority to order the military operation. While top 8 Congressional leaders knew of the operation several days beforehand due to the unauthorized decision by Leon Panetta, CIA director, under a statute governing covert operations, the Obama administration would be legally justified in delaying any notification until after the operation was completed. Obama had a group of 4 lawyers secretly working for weeks, without aid or consultations, obtaining legal justifications for the raid. In either case, whether it was successful or not, the President would have legal arguments on his side (Savage, 2015).
Laws of Armed Conflict
In the execution of Operation Geronimo, there were three primary legal concerns: 1) adherence to international law, 2) violation of sovereign territory, and 3) justification for the killing of Bin Laden. The most controversial aspect is international law regarding the operation and targeted killings of international terrorists. Many legal critics argue that the operation cannot be justified because there is no direct armed conflict between the U.S. and Al Qaeda. Even assuming that such conflict exists, Al Qaeda has to be considered an organized armed group, and bin Laden could have been killed as a member of this group, and he was taking direct part in hostilities. Since neither were true, the operation and killing were not justified (Ambos & Alkatout, 2012). However, the U.S. Attorney General at the time, Eric Holder, stated after the operation that it was lawful. He stated regarding bin Laden, “He was the head of al-Qaida, an organization that had conducted the attacks of September 11th. He admitted his involvement, and he indicated that he would not be taken alive. The operation against bin Laden was justified as an act of national self-defense” (Williams, 2011).
Existing international frameworks such as LOAC (also known as International Humanitarian Law) do not target all terrorists and are limited to conflicts of significant scope and intensity to trigger treatment under a war-legal regime. There was at one point a legal debate on whether LOAC could apply to non-state actors, but that has changed since 9/11. As the U.S. has openly stated its position that it is in an armed conflict with Al-Qaeda in the Global War on Terror, the armed conflict is justified (Dunlap, 2019). Therefore, the best interpretation of the international law is that non-state terrorists that are part of organized groups who participate in continuous combat or military operations are lawfully subject to being targeted, just as any traditional military would. At this point, it was evident that Bin Laden was central to Al-Qaeda operations (and it was proven so with documents seized from the raid), so he was subject to attack virtually at any time (Dunlap, 2019).
Violation of Sovereignty
Article 2(4) of the UN Charter requires states to “the use of force against the territorial integrity or political independence” of other states (Lederman, 2015). Operation Geronimo was unquestionably the use of force, and Pakistan did not consent to it. However, Article 51 argues that nothing in the charter impairs the right of individual or collective self-defense if an attack occurs, essentially presenting a legitimate exception for self-defense purposes. However far-reaching, the 9/11 attacks triggered the right of the U.S. to use force in self-defense against Al-Qaeda to prevent further attacks. It was recognized by the UN Security Council, suggesting that the U.S. has the right to self-defense as long as customary laws of necessity and proportionality are met (Lederman, 2015). It is legally difficult to justify necessity because of the application of jus ad Bellum, which suggests that Pakistan, in this case, must either capture bin Laden themselves or consent to U.S. use of force, only once neither is met does the U.S. have the necessity to intervene (Lederman, 2015).
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Legal scholars agreed that a unilateral military operation is lawful because of a controversial exception to jus ad bellum, where a government is unwilling or unable to suppress a threat stemming from its territory. Many countries have not accepted this exception, and there was no precedent (Savage, 2015). According to CIA Director Pennetta, the decision was made based on previous experiences where Pakistan was notified of terrorist targets, and the government allowed to leak or actively participated in letting these fugitives get away. Therefore, the exception of the covert operation was legally justified. Furthermore, this represents what is known as the trump card used by the Obama administration, which, as also bound to obey domestic law, can violate international law when authorizing certain actions such as a covert operation. It is an extremely rare move, which was not publicly raised in Operation Geronimo, as the U.S. still has obligations to international treaties, such as the UN Charter (Lederman, 2015). However, there is much debate whether the ordering of the covert operation to kill bin Laden was an indirect usage of the trump card principle given that there was almost a guaranteed response from Pakistan that its sovereignty was violated after the fact.
Justified Killing
The order guiding Operation Geronimo stated that bin Laden could be killed or captured. There was no specific preference, but there was controversy about whether the killing was legal, with some critics equaling it to an assassination which is forbidden under international law. The IHL rule 47 states that “Attacking persons who are recognized as hors de combat is prohibited” (IHL Databases, n.d.). Hors de combat is an individual who is in the power of the adverse party, defenseless due to physical inhibitions, and clearly expresses an intention to surrender.
When described by Pres. Obama, bin Laden was killed in a firefight. While a firefight did breakout upon SEAL Team 6 entering the compound, hostiles were eliminated. Upon entering the room holding bin Laden, he was not armed. Footage and accounts suggest that bin Laden neither offered resistance nor attempted to surrender. However, considering the dangers of circumstances and the notoriety of the figure, the special forces were expecting a suicide vest on bin Laden or other potential rigged explosives in the compound as protective measures. The accounts widely suggest both legal and military officials told the SEALs that unless bin Laden is fully naked, hands up, and demonstrating full intent to surrender, only then were they not to engage him. Thus, there was little chance that he would survive the raid (Savage, 2015). The justification is that the SEALs could not see his arms and hands, he was a direct combatant threat, and as was discovered post-mortem, he had an automatic weapon and a handgun within easy arms reach. Furthermore, the DoD Law of War Manual indicates that the law of armed conflict does not require enemy combatants to be allowed to surrender (Dunlap, 2019).
Conclusion
While Operation Geronimo seemed controversial at the time and potentially violated international norms, it was legally justified. President Obama had the legal authority to order the attack under AUMF and as Commander-in-Chief. Laws of armed conflict were followed as the U.S. was in active military conflict with the terrorist organization of Al-Qaeda, of which Bin Laden was a leading member and active participant. There may have been difficulties in violation of Pakistan’s sovereign territory. Still, the risks posed to the government likely refusing to cooperate and harboring terrorists justified the covert operation. It can be argued that the U.S. significantly pushed boundaries and its accountability to international law with this operation. Still, for the most part, it meets all the frameworks, and the action was welcomed by the majority of nation-states in the world.
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References
Ambos, K., & Alkatout, J. (2012). Has “justice been done”? The legality of Bin Laden’s killing under international law. Israel Law Review, 45(2), 341–366. Web.
Dunlap, C. (2019). Yes, the raid that killed Osama Bin Laden was lawful. Lawfire. Web.
IHL Databases. (n.d.). Rule 47. Attacks against persons hors de combat. ICRC. Web.
Lederman, M. (2015). Power Wars Symposium: Further on the law of the bin Laden operation, Part I. Just Security. Web.
Legal Information Institute. (n.d.). Commander in Chief powers. Cornell Law School. Web.
Obama, B. (2011). Osama Bin Laden dead. The White House. Web.
Savage, C. (2015). How 4 federal lawyers paved the way to kill Osama bin Laden. The New York Times. Web.
Williams, P. (2011). Bin Laden killing was legally justified, Holder says. NBC News. Web.